FILED 

NOVEMBER 29, 2016 

In the Office of the Clerk of Court 

WA State Court of Appeals, Division Ill 

IN THE COURT OF APPEALS OF THE STATE OF WASHING TON 

DIVISION THREE 

HARLAND. DOUGLASS and MAXINE ) 

H. DOUGLASS, husband and wife, ) 

) 

Appellants, ) 

) 

V. ) 

) 

SHAMROCK PAVING, INC., a ) 

Washington corporation, ) 

) 

Respondent. ) 

No. 33615-8-111 

PUBLISHED OPINION 

PENNELL, J. -The Model Toxics Control Act (MTCA), chapters 70.105D, 82.21 

RCW, provides a statutory framework for recovery of hazardous waste remediation costs. 

Shamrock Paving Inc. admittedly discharged petroleum, a statutorily-defined hazardous 
No. 33615-8-III 

Douglass v. Shamrock Paving, Inc. 

substance, onto the Douglasses' property. Nevertheless, Shamrock denies responsibility 

for costs because the quantities released were too small to pose a potential threat to 

human health or the environment. 

Shamrock's position is factually accurate and legally significant, but it is not 

dispositive. Our disagreement with Shamrock lies in the scope of what constitutes 

remedial action under the MTCA. By the statute's plain terms, remedial action includes 

not only site cleanup but also investigative efforts undertaken to identify the need for 

cleanup. When the Douglasses incurred costs in order to identify the extent of 

Shamrock's contamination, they engaged in compensable remedial action. Although the 

subsequent cleanup efforts could fairly be characterized as nonremedial, given the low 

level of contamination found, the Douglasses were nevertheless entitled to prevailing 

party status and an award of reasonable costs and attorney fees. The trial court's 

judgment in favor of Shamrock is therefore reversed. 

FACTS1 

Harlan and Maxine Douglass own real property in Spokane, Washington. During 

the summer of 2013, Shamrock used the property, without permission, as a staging area 

1 Many of these facts are taken from unchallenged factual findings made by the 

trial court. Unchallenged findings of fact become verities on appeal. Davis v. Dep 't of 

Labor & Indus., 94 Wn.2d 119, 123, 615 P.2d 1279 (1980). 

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for a paving project. While at the site, Shamrock frequently fueled equipment and 

sprayed diesel fuel as a cleaner. Shamrock also stored piles of asphalt grindings,2 cold 

mix,3 and paper joints4 on the property; all of these materials contained petroleum. 

After discovering Shamrock's unauthorized use of their property, the Douglasses 

instructed Shamrock to vacate. Shamrock complied and took steps to restore the property 

to its original condition. But the Douglasses were not satisfied. Concerned Shamrock 

had disposed hazardous substances, the Douglasses hired a company named Tetra Tech to 

conduct soil testing. 

Tetra Tech first tested the soil in November 2013. The lone sample collected at 

that time revealed the presence of lube oil at a concentration of 2,000 mg/kg. Additional 

testing occurred the following January. This time two soil samples were taken. The first 

contained lube oil at 400 mg/kg, and the second contained 800 mg/kg. After receiving 

this second set of results, the Douglasses chose to clean their property by removing and 

disposing of 68 tons of soil. Postremoval, Tetra Tech took two final samples. The first 

2 A piece of machinery chews up the existing road to create grindings. Those 

grindings are then used in repaving the road. 

3 Cold mix is used to patch potholes. 

4 A paper joint is a temporary joint. Paper is placed downstream of the joint 

directly onto the existing pavement surface. The paper is used because the asphalt mix 

does not stick to it. Paper joints assist vehicles in navigating drops between old and new 

asphalt. 

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Douglass v. Shamrock Paving, Inc. 

showed lube oil at 220 mg/kg and the second showed lube oil at less than 100 mg/kg. 

The Douglasses sued Shamrock for trespass and nuisance and filed a claim under 

the MTCA for recovery of remedial action costs. At trial, the Tetra Tech expert testified 

that after obtaining the first soil test results, he provided the Douglasses with three 

recommendations: take no action, remove a significant amount of soil, or do additional 

testing. The Douglasses chose to conduct additional surface soil testing. After the 

additional testing, the expert made the same three recommendations. This time the 

Douglasses opted to remove the soil. 

Shamrock's expert testified that the Douglasses' soil test results were below the 

cleanup levels established by the Department of Ecology (Department). This meant there 

was neither an obligation to report the release to the Department nor was it required-or 

even common-to conduct any cleanup. Shamrock's expert explicitly stated he did not 

consider the concentrations found on the property to be a threat or potential threat to 

human health or the environment. 

A jury returned a verdict in favor of the Douglasses' claims for trespass and 

nuisance and awarded them $17,300.00. The court heard the Douglasses' MTCA claim. 

Despite finding Shamrock contributed to the release of hazardous substances and was 

thus liable under the MTCA, the court did not order payment of remedial costs. The court 

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Douglass v. Shamrock Paving, Inc. 

reasoned the precleanup concentrations of petroleum on the Douglasses' property were 

too insignificant to constitute a threat or potential threat to human health or the 

environment. The court awarded attorney fees and costs to Shamrock, the prevailing 

party, in the amount of $97,263.13. The Douglasses appeal. 

ANALYSIS 

The MTCA provides a private cause of action to recover remedial costs 

The purpose of the MTCA is to facilitate the cleanup of contaminated lands and 

promote a healthful environment for future generations. Seattle City Light v. Dep 't of 

Transp., 98 Wn. App. 165, 169, 989 P.2d 1164 (1999). Under the MTCA, a person who 

incurs costs remediating a hazardous waste site may bring a private claim for financial 

recovery. 

Proof of a MTCA remediation claim involves the following elements: (1) the 

requesting party is financially responsible for remediation costs at a facility, (2) the 

respondent was liable for a release or threatened release of hazardous substances at the 

facility under RCW 70.105D.040, (3) remedial action was taken to address the release of 

hazardous substances, and ( 4) the remedial action was the substantial equivalent of 

actions that would have been taken by the Department. RCW 70.105D.080; Seattle City 

Light, 98 Wn. App. at 175. 

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Once a party establishes a right of recovery, the damage amount turns on equitable 

factors to be determined by the trial court. RCW 70.105D.080. "A liable party 'may be 

required to pay complete response costs, or may not be required to pay any response 

costs, or may be required to pay some intermediate amount,' depending on the court's 

equitable assessments." Seattle City Light, 98 Wn. App. at 175 (quoting Akzo Coatings, 

Inc. v. Aigner Corp., 909 F. Supp. 1154 (N.D. Ind. 1995)). 

The Douglasses engaged in remedial action, justifying an award of costs 

As owners, the Douglasses are responsible for remediation costs at their property. 

By releasing petroleum products at the site, Shamrock is liable for releasing a hazardous 

substance. 5 And the trial court made an undisputed finding that the actions taken by the 

Douglasses at their property were substantially equivalent to actions that would have been 

taken by the Department. 6 The only disputed element of the Douglasses' MTCA 

5 Petroleum products are classified as a hazardous substance. RCW 

70.105D.020( 13)( d). 

6 While the trial court did not separate investigative from cleanup efforts, the 

evidence is undisputed that the steps taken by Tetra Tech to investigate the Douglasses' 

soil was substantially equivalent to what the Department would have done. The 

Department expert described an initial investigation as reviewing the site, maps, and 

sample results. The Tetra Tech expert described engaging in substantially the same 

process. See WAC 173-3.40-545 (whether a private remedial action is the substantial 

equivalent of a department conducted action is determined according to "overall 

effectiveness"),·see also Taliesen Corp. v. Razore Land Co., 135 Wn. App. 106, 123, 144 

P.3d 1185 (2006). 

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contribution claim is whether they engaged in "remedial action" as required by the statute. 

At its heart, this case is about the scope of what constitutes remedial action under 

the MTCA. Shamrock contends remedial action applies only to measures taken to 

address hazardous waste contamination that actually poses a threat to human health or the 

environment. The Douglasses take a broader view. Under their construction, remedial 

action also encompasses steps taken to assess whether a hazardous waste discharge poses 

a threat. Resolving the parties' dispute involves legal questions reviewed de novo. 

Williams v. Ti/aye, 174 Wn.2d 57, 61,272 P.3d 235 (2012). Our analysis requires us to 

assess the statute's plain language with a view toward giving effect to its purpose. Pac. 

Topsoils, Inc. v. Dep't of Ecology, 157 Wn. App. 629,641,238 P.3d 1201 (2010). 

The MTCA defines a "remedial action" as 

any action or expenditure consistent with the purposes of this chapter to 

identify, eliminate, or minimize any threat or potential threat posed by 

hazardous substances to human health or the environment including any 

investigative and monitoring activities with respect to any release or 

threatened release of a hazardous substance and any health assessments or 

health effects studies conducted in order to determine the risk or potential 

risk to human health. 

RCW 70.105D.020(33) (emphasis added). This is a broadly-worded provision. Pac. 

Sound Res. v.·Burlington N. Santa Fe Ry. Corp., 130 Wn. App. 926,936, 125 P.3d 981 

(2005). By its plain terms, it is not limited to actual cleanup efforts. Actions taken to 

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Douglass v. Shamrock Paving, Inc. 

identify and investigate the need for cleanup are also covered. Furthermore, contrary to 

Shamrock's position, an investigation need not reveal an actual threat to qualify as 

remedial. Thankfully, not all potential threats tum out to be dangerous. By extending the 

remedial action definition to include the identification and investigation of potential 

threats, the MTCA covers actions and expenditures taken to discern whether a potential 

threat in fact poses a danger to human health or the environment. 

This broad interpretation of "remedial action" aligns with the liberal construction 

afforded to the MTCA. See RCW 70.105D.910; RCW 70.105D.010. Allowing parties to 

recover the costs of investigating any potentially hazardous release, even if the release 

turns out to be harmless, encourages good stewardship and promotes preservation of the 

environment. 7 

Our interpretation of "remedial action" is not at odds with our prior decision in 

Seattle City Light, 98 Wn. App. at 176. Seattle City Light only addressed a request for 

7 Our interpretation is also consistent with similar language in the Comprehensive 

Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), 42 

U.S.C. § 9601, which has been held to provide persuasive authority in interpreting the 

MTCA. See Seattle City Light, 98 Wn. App. at 169-70. Under CERCLA, recoverable 

response costs include investigatory costs. Bd. Of County Comm 'rs v. Brown Grp. Retail, 

Inc., 768 F. Supp. 2d 1092 (D. Colo. 2012). While CERCLA requires response costs be 

"necessary," the MTCA does not. It can thus be inferred that intended recovery for 

"remedial actions" under the MTCA can be broader than under CERCLA. 

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Douglass v. Shamrock Paving, Inc. 

cleanup costs. It did not consider a claim for investigative costs. The Seattle City Light 

rule that a defendant is not liable for cleanup costs absent proof of a potential threat to 

human health or the environment is consistent with the rule recognized here: that 

investigative costs, undertaken to discern whether such a threat exists, are compensable. 

The steps taken by the Douglasses to test their soil for hazardous waste 

contamination were remedial under the MTCA. This is not a case where the amount of 

hazardous waste released onto the property was so clearly de minimis that no action was 

needed to ensure lack of danger.8 Shamrock had been releasing petroleum products onto 

the Douglasses' soil for approximately three months. According to the trial court's 

findings, the amount of substances released was unknown. These circumstances justified 

an investigation. 

The Douglass es' cost award tums on undetermined equitable factors 

While the Douglasses are entitled to remedial action costs, their exact recovery 

amount is not something that can be resolved on appeal. Instead, the matter must be 

remanded for an assessment of equitable factors. RCW 70.105D.080. Relevant to the 

8 We therefore reject Shamrock's concern that any contamination, no matter how 

small, could result in cost recovery under the MTCA. If, for example, someone working 

for Shamrock had merely slopped a small amount of engine oil onto the Douglasses' land, 

soil testing would not have been warranted to rule out the risk of harm. Recovery under 

that scenario would be unwarranted. 

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equitable issues on remand is the extent to which the Douglasses' actions qualify as 

remedial. See Seattle City Light, 98 Wn. App. at 175. The expenditure of time and 

resources on nonremedial activities is a negative equity, weighing against a request for 

contribution. 

After trial, the court determined the Douglasses' cleanup ( as opposed to 

investigative) efforts were not remedial because their property was not sufficiently 

contaminated to pose a threat or potential threat to human health or the environment. The 

Douglasses challenge this assessment. Because the trial court's finding is relevant to the 

issues on remand, resolution of the Douglasses' complaints is warranted. The standard 

we utilize is quite deferential. The trial court's factual findings are reviewed for 

substantial evidence and its conclusions of law are reviewed to determine if they are 

supported by the findings of fact. Imrie v. Kelley, 160 Wn. App. 1, 6-7, 250 P.3d 1045 

(2010). 

To be remedial, a cleanup effort must address a hazardous substance posing a 

threat or potential threat to human health or the environment. Ample evidence supports 

the trial court's conclusion that the Douglasses' property was not sufficiently 

contaminated to meet this standard. Even according to the Douglasses' own expert from 

Tetra Tech, the levels of contaminants found in the Douglasses' soil might not necessitate 

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Douglass v. Shamrock Paving, Inc. 

cleanup. Shamrock's expert was more direct. According to his testimony, even at the 

highest level of detected contamination, cleanup was not necessary as there was no threat 

or potential threat to human health or the environment. The trial court was entitled to find 

the defense expert credible. 

Contrary to the Douglasses' claim, the trial court's findings were not based on 

confusion over whether a potential hazard could exist, despite the lack of any identified 

contamination exceeding the Department's cleanup levels.9 The Douglasses correctly 

point out our case law does not condition responsibility for remedial action costs on a 

minimum level of toxicity. Seattle City Light, 98 Wn. App. at 172. However, the trial 

court does not appear to have been confused on this point. Rather than deferring to a 

toxicity litmus test, the trial court relied on the totality of the evidence to conclude the 

levels of contaminants found in the Douglasses' soil prior to cleanup10 did not raise 

potential hazards for human health or the environment. 

9 2,000 mg/kg is the minimum cleanup level for lube oil identified by the 

Department regulations. WAC 173-340-740(2)(b )(i); WAC 173-340-900. 

10 We disagree with the Douglasses' claim that the trial court misunderstood the 

testimony from the Department witness. The issue at trial was whether contaminants in 

the Douglass property's soil posed a potential hazard in its precleanup state. The 

Department witness had reviewed Tetra Tech's report documenting the precleanup test 

results. Thus, it was reasonable for the court to understand the witness's comments to 

pertain to the property's precleanup state. 

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The evidence at trial provided an adequate basis to conclude the Douglasses' 

property did not require remedial cleanup. Accordingly, funds spent on the cleanup (as 

opposed to funds spent on investigation) did not qualify as remedial action costs under the 

MTCA. This circumstance is a factor the trial court may consider as part of its equitable 

assessment on remand. 

Attorney fees 

Because the Douglasses have established the elements of a contribution claim 

under RCW 70.105D.080, they are entitled to prevailing party status and to reasonable 

attorney fees and costs, including fees on appeal. Taliesen Corp. v. Razore Land Co., 135 

Wn. App. 106, 141, P.3d 1185 (2006). 11 We remand this matter to the trial court for an 

award of total fees and costs, including appellate fees and costs. In determining costs, the 

trial court shall utilize the lodestar method and shall consider the amount of time 

reasonably expended on the Douglasses' successful claims at a reasonable hourly rate. 

Chuong Van Pham v. Seattle City Light, 159 Wn.2d 527,538, 151 P.3d 976 (2007). 

CONCLUSION 

The trial court's judgment in favor of Shamrock Paving and related award of 

11 As explained in Taliesen, neither the net affirmative judgment rule nor a 

proportionality approach are applicable in this context. Taliesen, 135 Wn. App at 142-43. 

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attorney fees is reversed. This matter is remanded to the trial court for further 

proceedings consistent with this opinion. 

Pennell, J. 

WE CONCUR: 

Lawrence-Berrey, A.CJ. 

j 

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