[DJC]

[Protecting the Environment 97]

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Whose plume is this, anyway?

By CHUCK WOLFE
Foster Pepper & Shefelman

When is a contaminated property not what it seems? Under recent statutory amendments, much depends on what happens next door.

As part of an earlier round of regulatory reform, the 1995 Legislature established the Model Toxics Control Act (MTCA) Policy Advisory Committee. The Committee represented a broad range of interests, including the Legislature, agriculture, business, environmental organizations and local and state government.

The Committee was assigned the task of advising the Legislature and the Department of Ecology on a more effective approach to implementing MTCA. Since 1995, this task has become increasingly important as growth pressures have increased general interest and awareness in the redevelopment of contaminated properties.

During 1995 and 1996, the Committee and four subcommittees met regularly to decide and discuss the issues. The Committee completed its work and submitted a final report to Ecology on Dec. 15, 1996.

The report includes numerous recommendations for statutory changes that were agreed to by Committee consensus or that were supported by a majority of the members. Engrossed Senate Bill 7900 is intended to implement these recommended statutory changes.

Among the bill's notable features is an exemption from MTCA liability, which codifies pre-existing Ecology policy of non-enforcement against owners of property that overlies a contaminated groundwater plume, if the property is not a source of the contamination and the landowner did not contribute to the release of contamination.

'Plume clause'

Under the statutory exemption, a landowner whose property has been contaminated by a plume of groundwater from a nearby property may be exempt from statutory liability if:

  • the contamination was caused "solely" by the off-site source;

  • the hazardous substance involved in the contamination has not been used or disposed of on the property "in a manner likely to cause or contribute to a release;"

  • the property owner does not interfere with contamination remediation;

  • the property owner does not engage in any activities that create exposure to the contaminated groundwater;

  • the property owner allows access by Ecology or other parties to perform remediation.

The Legislature, at the recommendation of the Policy Advisory Committee, chose not to require more rigorous protective steps required by the U.S. Environmental Protection Agency in a similar policy under the federal Superfund statute. The EPA policy requires the landowner to exercise "due care" with regard to the hazardous substance underlying the property and to take precautions against a third party's foreseeable acts and omissions and the resulting circumstances.

The legislation is a reasonable approach to a common problem of the innocent property owner who has had to suffer the market consequences of contamination from next door. In situations where the facts are clear, and where there is no dispute as to causation, the legislation should enhance the motivation of owners of the contamination source to undertake cleanups without delay. In these simple cases of guaranteed cleanup, the legislation will greatly diminish, if not eliminate, liability concerns of the innocent property owner overlying the plume and interested third parties such as lenders.

However, in many circumstances, neighboring property owners will argue as before about allegedly inseparable, "commingled" plumes, and will remain entangled in consultant-documented debates about whether contamination emanated "solely" from an offsite source.

In addition, in factually unclear situations, the owner of the alleged contamination source will use the new statutory criteria to assert interference by the overlying property owner and/or the historic use of the contaminant of concern on the overlying property.

Finally, it is not clear on the face of the statute to what degree the overlying property owner will escape liability for soil contamination which results from the contaminated groundwater plume.

While it would appear logical that the property owner would escape liability for such resulting soil contamination, there may be instances where extensive soil and groundwater testing will be necessary for the overlying property owner to prove the applicability of the statute to such soil contamination.

In the final analysis, the contaminated plume exemption, like most recent MTCA reforms, is a step in the right direction. While it will probably streamline cleanup in simple situations, time will tell whether the contaminated plume exemption will provide widespread practical results.

While the exemption's provisions will be readily added to the arsenal of phrases in lawyers' demand letters and contribution lawsuits, the proof problems it presents will not offset the slow pace of cleanup in many more difficult situations.

Environmental consultants and lawyers may remain necessary, long-term actors in situations which initially appear simple and straightforward.


Chuck Wolfe is a member of Foster Pepper & Shefelman and chairs the firm's Environmental Practice Group. His experience includes MTCA, liability resolution and the redevelopment of contaminated properties.

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