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Washington Limits Private Party Superfund Recovery

On Behalf of | Nov 22, 2011 | Environmental Litigation |

If you are considering taking steps to clean up a contaminated site, or if you have questions regarding a hazardous waste site that you own or may be liable for, it is wise to seek legal counsel before doing so. At Chenoweth Law Group, our Environmental Practice Group can help you navigate the complexities of Superfund clean-ups, including the additional wrinkle created by the U.S. District Court for the Western District of Washington’s holding in Iron Partners LLC v. Maritime Administration, et al., 2011 WL 4502139 (W.D.Wash. Sept. 28, 2011).

The federal district court in Iron Partners LLC limited the recovery available to private parties under the state’s Model Toxic Control Act (MTCA).  This decision may serve as an important warning for current Superfund site owners who are tasked with clean-up operations at a contaminated site.  Under MTCA, when a private party cleans up a hazardous waste site (and spends money doing so), it may seek to recover these “remedial action costs” from other “potentially liable parties” if the clean-up work performed by the plaintiff was “substantially equivalent” to what the state would have done to clean up the site.  Taliesen Corp v. Razore Land Co., 144 P.3d 1185 (Wash. App. 2006).

In Iron Partners LLC, the U.S. District Court considered the scope of recovery available under MTCA regarding a Superfund site partially owned by the City of Vancouver and two other private parties (including the plaintiff, Iron Partners).  The disputed site was a shipyard developed during World War II.  After analyzing and studying the site, the City of Vancouver, which had taken the investigative lead at the site, recommended that containment was the best remedial action.  Despite this recommendation, Iron Partners chose to remove the hazardous materials from the site as opposed to just containing them.

Prior to actually undertaking this removal clean-up action, Iron Partners identified two successors to the original site developers–the U.S. Maritime Administration and Kaiser Ventures LLC–and sued them for full cost recovery of its clean-up efforts under MTCA (successors in interest to owners who contaminated a site may be potentially liable parties under MTCA).

The district court ultimately denied Iron Partners motion for summary judgment, thus rejecting its argument that it was entitled to full cost recovery for its clean-up efforts.  In so holding, the court found that the remedial steps it took were not environmentally necessary, and that the economic efficiency of a remedial action may also be considered, especially if the facts of a case suggest that the remediating actor had business motivations for over-spending on its clean-up efforts.   In effect, the court held that Iron Partners chose the wrong remedial action, and that the state would not have pursued this remedial action.

This holding is important because it illustrates some of the perils a private party may face in choosing a clean-up remedy and later seeking to recover those costs.  If you are considering taking steps to clean up a contaminated site, it is wise to seek legal counsel before doing so.  If you have questions regarding a hazardous waste site that you own or may be liable for, or have other questions regarding environmental litigation, please contact Chenoweth Law Group’s Environmental Practice Group.

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