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Division One Court of Appeals Finds that Wood Waste is a Hazardous Substance Under the Model Toxics Control Act that Could Require Contribution of Remediation Costs

By Brian Nadler of Chmelik Sitkin & Davis P.S. – September 2019

On August 19, 2019, the Division One Court of Appeals decided Port of Anacortes v. Frontier Industries, Inc., — P.3d —-, 2019 WL 3887412 (Div. 1 2019).  Chmelik Sitkin & Davis successfully represented the plaintiff, Port of Anacortes.  Here the Court examined an appeal by the defendants, Frontier Industries Inc., Itochu International Inc., and Eino and Lorie Johnson, from a denial of their summary judgment motion by the trial court.  On appeal, the defendants contended that wood waste was not a “hazardous substance” as defined by the Model Toxics Control Act (Chapter 70.105D RCW) (“MTCA”).

The Court of Appeals took up the issue as one of first impression.  Ultimately, the Court upheld the lower court’s denial of summary judgment.  In its holding, the Court reasoned that while wood debris itself did “not fit into the definitions of a hazardous substance” in MTCA, wood debris in the marine environment “results in a release of listed hazardous substances as it breaks down”.  According to the Court, the question of liability “then becomes when the release of the hazardous substances occurred as a result of wood debris decomposition in the marine environment”.

Notably, the court of appeals did not reach a decision on the other arguments briefed by the defendants on the interaction between MTCA and the Sediment Management Standards.  This ruling has potentially significant implications for other cleanup sites in Washington where wood debris is similarly a constituent of concern.

Please contact Brian Nadler at Chmelik, Sitkin & Davis P.S. for questions or if you would like a copy of the decision by the Division One Court of Appeals.