The SR 99 tunnel contractor says the state should pay for cost overruns involving the tunneling machine. The state says the contractor is responsible.

A Thurston County Superior Court judge blocked an attempt by the state of Washington to throw out a major argument in the case about who pays for cost overruns involving the tunneling machine.

Seattle Tunnel Partners, the contractor building the State Route 99 highway tunnel under the city, argues the state should be responsible for overruns, possibly forcing taxpayers to pay potentially hundreds of millions of dollars in repairs and delays relating to the breakdown of Bertha starting in December 2013. The state says STP should pay.

At times Thurston County Superior Court Judge Carol Murphy appeared skeptical of arguments from both sides, and was unwilling to grant a summary judgement, dismissing state efforts to kill STP’s argument.

The civil case could proceed to a full trial or potentially some sort of settlement.

STP is now in its final phases of finishing the tunnel. Completion, which had been officially slated for late 2016, is now looking at completion in early 2019. The key cause of that delay is the breakdown of the then world’s largest tunnel mining machine named Bertha.

Not long after Bertha started boring under the old tide flats along Seattle’s waterfront in late 2013, the machine hit an eight-inch steel pipe. STP claimed they weren’t expecting that pipe, and that’s what broke the machine.

Over the course of several weeks Bertha would overheat and break down.

The decision was made to dig a rescue pit deep and pull the cutting head to the surface and repair it before the machine could be trapped under downtown buildings.

“Under the contract, this is what we agreed to,” argued John Dingess, STP’s lawyer. “If it’s in the baseline, we the contractor own it. If it’s outside the baseline the state owns it.”

The baseline he argued was that the state and STP agreed that a machine needed to be designed and built to crunch through boulders, old timbers, even pieces of concrete and PVC plastic pipe, but not steel.

“And therefore, it’s a different site condition under the contract,” he said.

The pipe is marked on the map as TW-2. The contractor has argued that they thought TW-2 was a PVC plastic pipe, not steel.

But Karl Oles arguing for the state says STP didn’t even come up with the pipe theory until months after Bertha’s breakdown and knew the pipe known as TW-2 was made of steel, because Seattle Tunnel Partners had used it along with other PVC pipes for soil testing.