A MTCA Cleanup May Need to be Ecologically Necessary and Economically Efficient

If you need to develop a cleanup plan for contaminated property, be sure to consider both the environmental and legal issues surrounding the cleanup options. For example, a specific cleanup plan that makes sense environmentally might not be the best choice once the legal ramifications are considered. This became clear in a case I am currently handling. A Federal District Court judge in Washington State recently ruled that recoverable cleanup costs under the Model Toxics Control Act, RCW 70.105D, should be both necessary to protect human health and the environment, and cost efficient. The judge’s decision followed the reasoning of Taliesen v. Razore, a Washington Court of Appeals decision that substantially reduced a party’s recovery of soil disposal costs, because most of the soil did not exceed applicable cleanup levels, and the party did not segregate such soil from its claim. In other words, the party could not recover the cost of cleaning that portion of the soil that did not require remediation. Since the party recovered only a small portion of its sought-after costs, the Taliesen court found that the party was not a “prevailing party” for purposes of attorneys’ fees and thus the Taliesen court substantially reduced the fee award as well. The consequence of that goal of cost-efficient remediation was borne out in my case. My client had proposed a containment/institutional control remedy for the site that involved metallic debris scattered across three parcels, including my client’s and two adjacent parcels. Containment cost hundreds of thousands less than removal and disposal of the debris and soil. Ecology approved my client’s remedial approach, which was supported by a comprehensive site investigation and disproportionate cost analysis, pursuant to MTCA rules. My client decided not to join the cost recovery litigation against the two defendants, which was being prosecuted by my client’s neighbor. Instead, my client and I approached the defendants with a demand letter that highlighted our reasonable and cost-effective remedial approach. My client reached a favorable settlement of its cleanup costs, including most of its attorneys’ fees.The neighbor pursued a different course: rejecting our containment approach for a substantially more expensive removal remedy, while fighting the defendants and incurring huge attorneys’ fees. The court’s summary judgment ruling, essentially holding that the neighbor’s approach was overkill, was a major factor in pushing the neighbor into an unfavorable settlement with the defendants by giving up a large portion of its cost recovery claim. This cautionary tale underscores how important it is to pair up an environmental attorney and environmental consultant to think strategically before plunging into a remedial plan. The Washington courts are adopting the Taliesen rationale. You should not assume that the costs of a more permanent remedy, such as removal, will be recoverable if containment is just as protective and substantially more cost-efficient. If the defendant can show that another remedy is equally protective, but less costly than the one performed by the plaintiff, then the court may award only the cost of the defendant’s remedy. This “delta” could be a huge cost difference and reduce or eliminate the attorneys’ fee award.

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