Douglass v. Shamrock Paving, Inc.

Summary

The Washington Supreme Court held that investigative soil testing may constitute a recoverable remedial action under the Model Toxics Control Act, while soil removal was not recoverable because the contamination did not pose a threat or potential threat under applicable cleanup levels. The court explained that recovery remains subject to an equitable assessment and is not automatic. It reversed the premature prevailing-party designation and remanded for determination of any recovery, prevailing-party status, and attorney fees.

Holdings

1. The MTCA's definition of remedial action expressly includes investigative and monitoring activities concerning a release or threatened release of a hazardous substance. Therefore, the Douglasses' soil testing was a remedial action even though the investigation did not establish contamination exceeding Ecology's cleanup level.
2. Classification of an activity as a remedial action does not automatically entitle a claimant to recover all associated costs. Recovery is limited to costs for actions substantially equivalent to a department-conducted or department-supervised remedial action and is subject to an equitable assessment.
3. On the record presented, lube-oil contamination at or below Ecology's published cleanup level did not constitute a threat or potential threat to human health or the environment, so the Douglasses could not recover cleanup or soil-removal costs as remedial-action costs.
4. A party cannot be designated the prevailing party under the MTCA before the trial court completes the equitable assessment and determines whether any remedial-action costs will be recovered. If the court awards recovery of at least some costs, the Douglasses will be the prevailing party and entitled to attorney fees.

Questions Presented

1. Whether investigative soil testing is a remedial action for which costs may be recovered under the MTCA private right of action when contamination meets but does not exceed Ecology's cleanup level.
2. Whether lube-oil contamination that meets but does not exceed Ecology's published cleanup level poses a threat or potential threat to human health or the environment.
3. Whether a party may be designated the MTCA prevailing party and awarded attorney fees before the court determines the amount of remedial-action-cost recovery through an equitable assessment.

Disposition

reversed_and_remanded