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Real Property & Development Review

Division 1: Drilling Subcontractor Not Liable for Cleanup Costs as “Operator” under MTCA

Posted in Environmental

A drilling sub (DBM) was hired to build a temporary shoring wall per the geotechnical design of Golder Associates, which called for long soil nails to be installed at an angle into the face of the shoring wall.  In installing the soil nails, DBM hit and punctured a petroleum tank, causing a leak and migration of petroleum into the soil.

The property owner sued various parties, including DBM, for clean up costs under the Model Toxics Control Act (MTCA).  The legal theory asserted against DBM was that it acted as as "operator" under MTCA, which defines "operator" as any person "who exercises any control over the facility" under RCW 70.105D.020(12)(a).

Rejecting this theory as applied to the activities of DBM in this case, Division 1 observed that DBM

"did not have the authority to decide where to drill and merely followed Golder’s orders.  Although [DBM] had mechanical control over the drilling facility, it cannot be said that [DBM] had ‘any control’ in the decision-making sense intended by the Act."

Instead, citing related federal cases, Divison 1 defined the "control" element of the "operator" definition as requiring proof that the supposed operator such as DBM had "authority to control decisions about how to dispose of waste, not mere physical control over the instrumentality that causes disposal or release."