Douglass v. Shamrock Paving, Inc.
| Decision Date | 21 December 2017 |
| Docket Number | No. 94087-8,94087-8 |
| Citation | 189 Wash.2d 733,406 P.3d 1155 |
| Court | Washington Supreme Court |
| Parties | Harlan D. DOUGLASS and Maxine H. Douglass, husband and wife, Respondents, v. SHAMROCK PAVING, INC., a Washington corporation, Petitioner. |
James McPhee, John T. Drake, Witherspoon Brajcich McPhee, PLLC, 601 W. Main Ave. Ste. 714, Spokane, WA, 99201-0677, Counsel for Petitioner.
Steven John Hassing, Attorney at Law, 425 Calabria Ct., Roseville, CA, 95747-5023, Joseph Paul Delay, Delay Curran Thompson Pontarolo & Walker, 601 W. Main Ave. Ste. 1212, Spokane, WA, 99201-0684, Counsel for Respondents.
Ivy Anderson, Office of the Attorney General, Ecology, Po Box 40117, Olympia, WA, 98504-0117, Ecology Division A.G. Office, Attorney at Law, 2425 Bristol Court Sw. Second Fl., P. O. Box 40117, Olympia, WA, 98504-0117, for Amicus Curiae on behalf of Department of Ecology State of Washington
¶ 1 Landowners 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.
¶ 2 Shamrock 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.
¶ 3 Douglass 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.
¶ 4 Douglass appealed, and the Court of Appeals reversed. Douglass v. Shamrock Paving, Inc., 196 Wash. 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, 384 P.3d 673. 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, 384 P.3d 673.
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, 384 P.3d 673 (). 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, 384 P.3d 673. 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, 384 P.3d 673. 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, 384 P.3d 673.
¶ 5 Shamrock 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 Wash.2d 1020, 399 P.3d 1105 (2017).
A. When 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 action?
B. Does lube oil contamination that meets but does not exceed Ecology's cleanup level pose a potential threat to human health or the environment?
C. Under the MTCA, is a party who recovers remedial action costs the prevailing party, entitled to attorney fees, including costs on appeal?
RCW 70.105D.020(33).
¶ 7 This case requires us to interpret both provisions, along with Ecology's corresponding regulations. Statutory interpretation is a question of law reviewed de novo. Dep't of Ecology v. Campbell & Gwinn, LLC, 146 Wash.2d 1, 9, 43 P.3d 4 (2002) (citing State v. Breazeale, 144 Wash.2d 829, 837, 31 P.3d 1155 (2001) ; State v. J.M., 144 Wash.2d 472, 480, 28 P.3d 720 (2001) ). When ascertaining the plain meaning, the court considers the ordinary meaning of words, basic rules of grammar, and statutory context. Citizens All. for Prop. Rights Legal Fund v. San Juan County, 184 Wash.2d 428, 435, 359 P.3d 753 (2015) (citing In re Forfeiture of One 1970 Chevrolet Chevelle, 166 Wash.2d 834, 838-39, 215 P.3d 166 (2009) ). If the meaning of the statute is plain on its face, the court must give it effect. Campbell & Gwinn, 146 Wash.2d at 9-10, 43 P.3d 4. However, if the statute remains susceptible to multiple meanings, it is appropriate for the court to resort to aids to construction, including legislative history. Id. at 12 (citing Cockle v. Dep't of Labor & Indus., 142 Wash.2d 801, 808, 16 P.3d 583 (2001) ; Timberline Air Serv., Inc. v. Bell Helicopter-Textron, Inc., 125 Wash.2d 305, 312, 884 P.2d 920 (1994) ).
¶ 8 Based on our interpretation, we affirm the Court of Appeals in part and reverse in part. We affirm the Court of Appeals' decision that Douglass' investigative costs are recoverableremedial action costs but his cleanup costs are not. We reverse the Court of Appeals' designation of Douglass as the prevailing party because that designation was premature.
1. The plain meaning of "remedial action " includes investigative activities
¶ 9 The plain meaning of "remedial action" can be ascertained through the ordinary meaning of words and basic rules of grammar. The MTCA is "to be liberally construed," RCW 70.105D.910, yet the court will not put forth strained interpretations, Bird-Johnson Corp. v. Dana Corp., 119 Wash.2d 423, 427, 833 P.2d 375 (1992) (citing Draper Mach. Works, Inc. v. Dep't of Nat. Res., 117 Wash.2d 306, 315, 815 P.2d 770 (1991) ). The first clause of the "remedial action" definition provides the operative meaning: "any action ... to identify, eliminate, or minimize any threat or potential threat posed by hazardous substances to human health or the environment." RCW 70.105D.020(33). The second clause begins with "including," which is generally construed as a term of enlargement, not limitation. Id.; see Queets Band of Indians v. State, 102 Wash.2d 1, 4, 682...
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