Do Not Clean, Clean Dirt: Douglass v. Shamrock Paving, Inc.

by Schwabe, Williamson & Wyatt PC
Contact

Schwabe, Williamson & Wyatt PC

On December 21, 2017, the Washington Supreme Court issued a decision interpreting the private right of action under Washington’s Model Toxics Control Act (“MTCA”), Douglass v. Shamrock Paving, Inc.  The decision analyzes three issues: (1) whether investigation costs are recoverable as “remedial action costs” where initial soil sample results do not exceed cleanup levels; (2) whether cleanup costs are recoverable “remedial actions costs” where soil sample results do not exceed cleanup levels; and (3) whether plaintiff was entitled to an award of attorney’s fees as the prevailing party before a determination on the amount of recoverable remedial action costs against the defendant. 

This is an unfortunate, but all too common, set of facts.  Shamrock, a paving contractor, used a vacant parcel of property as a staging area for a Washington Dept. of Transportation project without the permission of Mr. and Mrs. Douglass, the property owners.  When the Douglasses found out, they were rightfully upset, so they hired a lawyer—but not an environmental lawyer—to file a lawsuit for nuisance and trespass.  After commencing the action, the Douglasses discovered that Shamrock’s activities on the property resulting in minor spills of lube oil onto the surface of the ground.  The Douglasses’ consultant, Tetra Tech, took two soil samples, which showed concentrations of petroleum products that did not exceed MTCA Method A cleanup levels.  A footnote suggests that Tetra Tech gave the Douglasses the option to take no further action to remediate the site, among other options.  Nonetheless, the Douglasses requested Tetra Tech to remove 68 tons of soil.  The Douglasses thereafter amended their complaint to assert an MTCA claim to recover the costs of investigation and soil removal.  The Douglasses also sought their prevailing party attorney’s fees under MTCA, RCW 70.105D.080.

For practitioners, consider whether the MTCA claim was necessary where damages to restore the property are recoverable under trespass and nuisance.  The only limitation to trespass and nuisance theories is the lack of a fee shifting provision like the one found in MTCA.  The subsequent addition of a MTCA claim provides some insight into the driving force behind the instant litigation.  The plaintiff’s strategy in Douglass may pose more risk following the Court’s new attorney’s fees analysis discussed below.    

First, the Court held that investigation costs are remedial action costs even where the initial samples meet, but do not exceed, cleanup levels.  Second, the Court held that the cleanup costs were not automatically recoverable remedial action costs because the sample results did not exceed cleanup levels.  The Court deferred to Department of Ecology’s published cleanup levels, which are deemed to be protective of human health or the environment, absent site-specific conditions, not present here, requiring more stringent cleanup standards.  If the cleanup levels are not exceeded, there is no potential threat to human health or the environment, no cleanup is required, and therefore the cleanup costs incurred by the Douglasses were not, under MTCA, recoverable as remedial action costs.  The practical question for the consultant is: Why remove 68 tons of soil for a minor release that did not exceed MTCA’s unrestricted land use cleanup levels?

Finally, the Supreme Court reversed the Court of Appeals’ decision to award fees to the Douglasses as the prevailing party before a final judgment.  The Court of Appeals awarded fees to the Douglasses because they had proven every element of their MTCA claim: a release of a hazardous substance, which caused them to incur remedial action costs, and Shamrock is a liable party under MTCA.  The Court of Appeals’ decision was consistent with precedent, namely Taliesen, where an MTCA plaintiff is entitled to attorney’s fees once the plaintiff establishes every element of its claim, even absent an affirmative judgment for money following equitable allocation of remedial action costs.  The purpose of this rule, as Taliesen explains, is to encourage a private party to conduct an independent remedial action and compel recalcitrant potentially liable parties (“PLPs”) to contribute by leveraging the risk of attorney’s fees against the recalcitrant.  Now, in Douglass, the Court rejects the Taliesen rule, holding that a plaintiff must establish the elements of an MTCA claim and obtain an affirmative judgment in its favor after trial.

In my opinion, the attorney’s fees analysis in Douglass is contrary to MTCA’s remedial purpose.  There are a number of different funding agreement strategies that leverage attorney’s fees under MTCA against PLPs.  Now, unlike under Taliesen, recalcitrant PLPs may defend the equitable allocation before agreeing to fund a cleanup because the risk of an adverse attorney’s fees judgment is borne equally by both parties.  In other words, the hammer used by MTCA plaintiffs to compel the payment of cleanup costs is softened considerably.

This Court’s analysis also erodes MTCA’s strong preference for joint and several liability.  The Court repeatedly notes that plaintiff’s MTCA claim is a “contribution claim,” so equitable allocation is necessary to determine plaintiff’s and defendant’s fair share before awarding fees.  However, this analysis omits a joint and several “cost recovery” claim where equitable allocation among plaintiff and defendant is not at issue because plaintiff is not a PLP.  Note that the contractor was a trespasser, so plaintiff here may not in fact be a PLP under MTCA.  See, e.g., RCW 70.105D.3(a)(iii).  The plaintiff in a joint and several cost recovery claim should still be entitled to attorney’s fees under the Taliesen standard.  The existence of both contribution and cost recovery claims under MTCA, unlike CERCLA, has always been uncertain.  This case furthers the uncertainty about whether MTCA provides for two distinct claims—cost recovery and contribution—since Douglass requires equitable allocation before awarding any attorney’s fees in all cases.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Schwabe, Williamson & Wyatt PC | Attorney Advertising

Written by:

Schwabe, Williamson & Wyatt PC
Contact
more
less

Schwabe, Williamson & Wyatt PC on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.