Superfund and similar state statutes on hazardous waste liability affect many transportation agency operations: land acquisition; project design and construction; facility operation and maintenance; leases, sales, and other dispositions of property; and relations with other government agencies, employees, and the public. Concepts of strict liability can make the agency liable even if it acquired land innocently, not realising it was contaminated with hazardous waste; even if the agency contaminated property by its own activities which were legal at the time; and even if the agency long ago sold contaminated land "as is." This paper describes practical ways to deal with these emerging liabilities. The hazardous waste site assessment is an essential tool to discover and assess contamination prior to acquisition. Clauses in purchase agreements and leases can protect the agency if waste is discovered later. The agency can negotiate rights of indemnification and other means of reimbursement. Cleanup costs can be paid from Superfund or reimbursed by responsible parties using provisions in Superfund itself, rights to seek contribution, or warranties and consumer remedies. There are some limited defences against agency liability, such as the "third party" and "innocent landowner" defences. Use of eminent domain helps reduce liability. Following the suggestions in this paper, the agency will find that most waste contamination is manageable using proper techniques to report releases, plan for emergencies, comply with the National Contingency Plan, stay off the Superfund list, comply with state requirements, clean up sites expeditiously, know "how clean is clean," hire qualified consultants and contractors, protect employees, and build defences or pursue claims.
Samenvatting