Possible Expansion of Responsible Parties Under the MTCA

Washington State’s Model Toxics Control Act

Washington State’s Model Toxics Control Act (“MTCA”), the state’s counterpart to the federal Superfund law, also known as the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”), provides that current and former property owners or operators of contaminated property are potentially liable persons for the release or disposal of hazardous substances. An “owner or operator” is defined as any person with any ownership interest in the facility or who exercises any control over the facility, or in the case of an abandoned facility, any person who had owned, operated, or exercised control over the facility any time before its abandonment.

The definition of a “person” under the MTCA does not expressly include the State of Washington, but does include “state governmental agencies” and units of “local government.”

Pope Resources, LP vs. Washington Department of Natural Resources Decision

On December 28, 2016, the Washington State Court of Appeals – Division 2, in the case of Pope Resources, LP vs. Washington Department of Natural Resources, reversed the Kitsap County Superior Court’s decision and found the Washington Department of Natural Resources (“DNR”) to be an owner or operator of a contaminated site, and thereby liable under the MTCA.  In the Pope Resources case, the DNR, which is delegated authority by the State of Washington to manage roughly 2.6 million acres of aquatic lands in Washington, including the bottom lands under Gamble Bay, leased aquatic property in Port Gamble to Pope Resources, LP’s predecessor for log storage, rafting and booming.

The lease, among other things, listed the permitted uses on the site as log storage, rafting, and booming; and,

  1. Required specific methods of log booming and prohibited certain other methods, like “[f]ree rolling of logs”;
  2. Placed limitations on the type and assembly of log rafts;
  3. Provided that the lessee could not remove valuable material without prior consent, fill any lands, or allow debris or refuse to accumulate;
  4. Prohibited assignment or other transfer of the lease without the DNR’s prior consent; and,
  5. Allowed the DNR to remove any improvements that were made to the property without proper consent and to enter the property “at all reasonable times.”

The Department of Ecology (“DOE”) determined that the activities at the site between 1853 and 1995 had resulted in the release of hazardous substances and sued the DNR and Pope Resources, LP claiming both were potentially liable persons under the MTCA.  When the DNR refused to enter into a cleanup action plan, Pope Resources, LP sued the DNR for contribution towards the cleanup costs.  The DNR asserted that the State of Washington was the actual owner of the aquatic lands and did not exercise control over the polluting activities at the site, and as such is not an “owner” or “operator,” and thereby not liable under the MTCA.  The DOE filed an amicus brief in support of the DNR’s liability.  Despite the fact that the DNR was not the fee title holder of the aquatic land in question, the court held (for the first time ever) that the DNR was indeed liable as an owner or operator under the MTCA due to the undisputed delegation by the State of Washington to the DNR of the authority to manage the aquatic lands.

Despite the DNR’s continued assertion that the Pope Resources case does not represent state law and that it subjects Washington taxpayers to excessive liability, the Pope Resources court’s liberal interpretation of the definition of “owner” or “operator” under the MTCA, and the similar position taken by the DOE in its amicus brief, could arguably expand the reach of the MTCA to parties who have any rights or any level of control relating to a contaminated site.

If you have questions regarding environmental law or compliance matters, please contact one of the attorneys in MPBA’s Environmental Law Department.

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