Thus, the court reasoned, since that level
was not exceeded, there was no threat
or potential threat and therefore no
cleanup cost recovery. 189 Wn.2d at 744.
The court also relied on the fact that all
three expert witnesses testified during
the trial that the lube oil did not pose a
threat or potential threat. Id.
Finally, the Shamrock Paving
decision strengthens the use of
MTCA cost recovery as a tool to push
Potentially Liable Parties (PLPs) to
investigate and clean up sites as
part of a real estate transaction or
property development, because PLPs
who perform the investigation will be
able to recover their costs, even if a
cleanup is not required. The decision
may also spur parties to perform a
partial or complete investigation and
then seek a declaratory judgment
for completion of the investigation
and any cleanup, if required, since
investigation and cleanup costs at
many sites can exceed hundreds of
thousands or millions of dollars, which
many parties cannot afford to front-load
themselves. Environmental insurance
carriers will welcome this decision as
well, since it may increase—or certainly
not diminish—the prospects for cost
recovery by their insureds.
Douglass v. Shamrock Paving
breathes life into statutory language
and makes it clear under MTCA that
costs incurred to investigate a release of
hazardous substances may be considered
remedial action costs even if related
cleanup costs are not recoverable. NWL
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