HARLAN D. DOUGLASS and MAXINE H. DOUGLASS, husband and wife, Respondents,
SHAMROCK PAVING, INC., a Washington corporation, Petitioner.
Harlan and Maxine Douglass (Douglass) brought a private right
of action against Shamrock Paving Inc. under the Model Toxics
Control Act (MTCA), chapter 70.105D RCW, to recover costs
incurred from an alleged remedial action. Shamrock trespassed
onto Douglass' vacant property and spilled unknown
amounts of lube oil. Douglass paid for soil testing and soil
removal to clean up his property and now seeks recovery of
those costs under the MTCA. At issue is the interpretation of
"remedial action" within the statute, whether the
lube oil on Douglass' property created a "potential
threat" to human health or the environment, and which
party is entitled to prevailing party status for purposes of
awarding attorney fees. RCW 70.105D.020(33), .080. We affirm
the Court of Appeals' holding that Douglass' soil
testing was a remedial action but his soil removal was not.
We reverse the Court of Appeals' prevailing party
designation because it was made prematurely. We remand the
case to the trial court.
FACTS AND PROCEDURAL HISTORY
fueled its equipment, cleaned its machines, and stored its
materials on Douglass' property while carrying out a
paving project for the Washington State Department of
Transportation. Based on these activities, the trial court
found that Shamrock spilled unknown amounts of lube oil onto
the property. Lube oil is a heavy oil (petroleum product)
that is a "hazardous substance." RCW
70.105D.020(13)(d). After Shamrock's activities ceased,
Douglass hired Tetra Tech Inc., an environmental consulting
firm, to investigate the contamination on his property. Tetra
Tech took three separate samples, measuring lube oil at 2,
000 mg/kg, 800 mg/kg, and 400 mg/kg. After reviewing the
samples, Douglass ordered Tetra Tech to perform a cleanup
operation, removing 68 tons of soil from the property. After
the cleanup, Tetra Tech took two additional samples,
measuring lube oil at 220 mg/kg and at less than 100 mg/kg.
initially sued Shamrock for trespass and nuisance. After
testing the soil, Douglass amended the complaint to add a
private right of action claim under the MTCA. The issues were
bifurcated. A jury heard the trespass and nuisance claims and
returned a verdict in favor of Douglass. The jury denied
Douglass' request for cleanup costs. The judge heard the
MTCA claim and found Shamrock had contributed to the release
of hazardous substances, but denied Douglass' private
right of action because Douglass failed to prove that the
lube oil was a threat to human health or the environment. The
judge designated Shamrock as the prevailing party pursuant to
the MTCA and awarded attorney fees.
appealed, and the Court of Appeals reversed. Douglass v.
Shamrock Paving, Inc., 196 Wn.App. 849, 384 P.3d 673
(2016). The Court of Appeals focused on whether Douglass
conducted a "remedial action" and ultimately
concluded that the soil testing (investigation) was a
"remedial action" based on the statutory definition
but the soil removal (cleanup) was not. Id. at 860.
The court relied on the MTCA's plain language, finding
that "remedial action" includes "actions and
expenditures taken to discern whether a potential threat in
fact poses a danger to human health or the environment."
Id. at 857. The court distinguished Division
Two's prior interpretation of "remedial action"
because that case considered only cleanup costs, not
investigative costs. Id. at 857-58 (referring to
Seattle City Light v. Dep't of Tramp., 98
Wn.App. 165, 989 P.2d 1164 (1999)). Regarding Douglass'
cleanup costs, the Court of Appeals explained that "a
cleanup effort must address a hazardous substance posing a
threat or potential threat to human health or the
environment." Id. at 859. The court deferred to
the trial court's conclusion that the lube oil
contamination did not meet this standard; thus, no recovery
for cleanup costs was warranted. Id. Since Douglass
established the elements of his MTCA claim for investigative
costs, the Court of Appeals designated him the prevailing
party entitled to recover attorney fees. Id. at 860.
The court then remanded the case to the trial court to
complete an assessment of equitable factors to determine the
exact recovery amount. Id. at 858.
sought review of the Court of Appeals' decision. Douglass
filed an answer asking the court to deny Shamrock's
petition and filed a cross petition for review of the cleanup
cost recovery. We granted review of both petitions.
Douglass v. Shamrock Paving, Inc., 188 Wn.2d 1020,
399 P.3d 1105 (2017).
lube oil contamination meets but does not exceed the
Department of Ecology's (Ecology) cleanup level, can a
party recover the cost of investigative activities as
remedial action costs under MTCA's private right of
lube oil contamination that meets but does not exceed
Ecology's cleanup level pose a potential threat to human
health or the environment?
Under the MTCA, is a party who recovers remedial action costs
the prevailing party, entitled to ...