Grey v. Leach
Grey v. Leach
Opinion of the Court
¶1 Mark and Kristina Grey, the current owners of residential property contaminated with fuel oil,
¶2 We hold that because the Leaches, as operators of the heating system, contributed to the contamination, they are not “innocent purchasers” under the MTCA and that releasing fuel oil from leaking return pipes running to an underground storage tank is not a “domestic use” under the Act. We also hold that the REPSA did not allocate MTCA liability between the parties. Accordingly, we reverse in part and affirm in part.
BACKGROUND
¶3 In February 2000, the Greys purchased a house, originally built in 1924, from the Leaches, who purchased it in 1966. A 720-gallon underground storage tank (UST) supplied oil to the furnace used to heat the house. This oil flowed through supply and return lines running beneath a concrete slab in the basement floor. According to the Leaches’ age-dating expert, small holes in one of the return lines had leaked fuel oil since 1987 and possibly as far back as 1971. The record contains no evidence that anyone knew or had reason to know about this leak at the time of the sale.
¶5 In a second amended answer, the Leaches raised a number of affirmative defenses, including statutory “innocent purchaser” and “domestic use” defenses and a claim that the parties’ REPSA allocated cleanup liability to the Greys.
¶6 The Greys filed a motion for partial summary judgment, seeking a determination that the Leaches were liable under the MTCA and that the parties’ REPSA did not bar their claims. The Leaches filed a cross motion, asking the court to dismiss the Greys’ claims on the basis of the two MTCA defenses described above. The court essentially denied both motions and held that the REPSA did not bar the Greys’ MTCA claims. The court denied reconsideration.
¶7 The Greys then asked the trial court to certify for discretionary review whether the statutory “innocent purchaser” and “domestic use” defenses were available to the Leaches. While this motion was pending, the Greys sought
STANDARD OF REVIEW
¶8 This court reviews a summary judgment order de novo, engaging in the same inquiry as the trial court.
ANALYSIS
MTCA Exemptions
¶9 The trial court certified for discretionary review two legal issues of first impression for Washington courts. These are whether, under MTCA, either the “innocent purchaser” defense (RCW 70.105D.040(3)(b)) or the “domestic purpose” defense (RCW 70.105D.040(3)(c)) applies to former owners of a house when the residential heating system operated by them leaked oil into the ground and contaminated it during their ownership.
¶10 RCW 70.105D.040 generally provides that each owner and operator of a “facility” is strictly liable, jointly
¶11 The Leaches admit that “without their knowledge, or having reason to know,... a release of home heating oil that was used for heating their house, occurred on the property while they owned it.” Home heating oil is a hazardous substance for purposes of the MTCA.
¶12 In November 1988, voters enacted the MTCA with Initiative Measure No. 97 (1-97). This initiative repealed legislation adopted earlier that year that 1-97 proponents considered too lenient and too great a departure from the federal legislation after which it was patterned.
¶13 RCW 70.105D.040(3)(b) provides that an owner, past owner, or purchaser of the facility is not liable if he or she can
establish by a preponderance of the evidence that at the time the facility was acquired by the person, the person had no knowledge or reason to know that any hazardous substance, the release or threatened release of which has resulted in or contributed to the need for the remedial action, was released or disposed of on, in, or at the facility.
Three limitations apply to this exclusion. It does not apply to an owner who (1) “had actual knowledge of the release or threatened release of a hazardous substance” on the property and transferred the property without disclosing such knowledge,
¶14 The Leaches contend that they qualify for this exclusion because the words “caused or contributed to the release or threatened release of a hazardous substance” imply intentional or negligent conduct, and they neither intentionally nor negligently released heating oil. The Greys contend that the plain and ordinary meaning of these words does not include any element of intent or negligence and that, by operating a heating system that released oil, the Leaches “caused or contributed to the release ... of a hazardous substance.” We agree with the Greys.
¶16 Here, the Leaches acknowledge that fuel oil leaked into the ground during the time they owned the property through their operation of the heating system. They “caused” or “contributed” to the release of fuel oil producing the contaminated soil requiring remediation. The “innocent purchaser” exclusion does not apply to them.
¶17 We next address the availability of the “domestic purpose” exclusion, RCW 70.105D.040(3)(c), which provides that “any natural person” is not liable if that person
*848 uses a hazardous substance lawfully and without negligence for any personal or domestic purpose in or near a dwelling or accessory structure when that person is: (i) A resident of the dwelling; (ii) a person who, without compensation, assists the resident in the use of the substance; or (iii) a person who is employed by the resident, but who is not an independent contractor.
¶18 The Leaches contend that this exclusion applies to past owners, such as themselves, who used home heating oil (the hazardous substance) lawfully and without negligence in their home heating system (the domestic purpose). The Greys disagree, contending that “domestic uses” allowed under the MTCA do not include leaking home heating oil. Again, we agree with the Greys.
¶19 The MTCA does not define “use.” Webster’s defines it as “habitual or customary practice : accustomed or usual procedure,” “quality of being suitable for employment: capability of filling a need,” and “to put to action or service.”
¶20 Our construction of the two exclusions at issue furthers the public policy underlying MTCA, while those advanced by the Leaches do not. It declares that its primary purpose “is to raise sufficient funds to clean up all hazardous waste sites and to prevent the creation of future
¶21 Because the Leaches’ remaining contentions regarding these defenses simply recast their arguments considered in this opinion, we need not address them. We conclude that the Leaches were not “innocent purchasers” and, under the facts of this case, leaking fuel oil into the ground is not a “domestic use” under the Act.
REPSA Defense
¶22 Finally, we address whether the parties’ REPSA bars the Greys’ MTCA claim.
¶23 The parties agree that the REPSA did not expressly allocate MTCA liability to either party. Instead, the Leaches contend that the Greys assumed the risk of heating oil contamination because they had notice of possible contamination at the time of purchase, had an opportunity to inspect for hazardous substances, and, having found none, waived their inspection contingency.
¶24 “The touchstone of contract interpretation is the parties’ intent.”
¶25 Here, an inspection addendum conditioned the REPSA as follows,
The above Agreement is conditioned on Buyer’s personal approval of a written inspection of the Property and the improvements on the Property. Buyer’s inspection may include, at Buyer’s option, the structural, mechanical and general condi*851 tion of the improvements to the Property, an inspection of the Property for hazardous materials, a pest inspection, and a soils/stability inspection.... When the terms and conditions of this Inspection Addendum have been satisfied, then this Addendum shall be deleted from and no longer a part of the Agreement.
The inspection contingency also specifically limited these inspection rights with a paragraph titled “Oil Storage Tanks,” providing that “[a]ny inspection regarding oil storage tanks or contamination from such tanks shall be limited solely to determining the presence or non-presence of oil storage tanks on the Property, unless otherwise agreed to in writing by Buyer and Seller.” The parties agree that Greys did not request, and Leaches did not authorize, any additional inspection.
¶26 The agreement provided two procedural options following the inspection. The one not selected by the parties allowed the buyer to disapprove the inspection “for any reason in Buyer’s sole discretion.” The option agreed upon by the parties provided,
This inspection contingency SHALL CONCLUSIVELY BE DEEMED SATSIFIED (WAIVED) unless Buyer gives notice of disapproval within 14 days ... of mutual acceptance. . . . The notice of disapproval must (a) identify the conditions to which the Buyer objects and (b) be accompanied by a copy of the portion(s) of a written inspection report that identifies the conditions to which the Buyer objects.
If Buyer disapproves the inspection report then Seller shall have [3 days] after receipt of Buyer’s disapproval notice to give notice that Seller (a) will correct the conditions identified in Buyer’s notice, (b) offers an alternative remedy for the disapproved conditions, or (c) will not make the repairs.
And if the seller refused to make the requested repairs, the buyer could elect to terminate the agreement and seek an earnest money refund.
¶27 The REPSA is unambiguous. It provided the Grays with a general right to inspect for hazardous substances but
¶28 The Leaches emphasize that they had no reason to suspect a leak in the return pipes but insist that the inspection report the Greys received provided them with the ability to either terminate the REPSA or conduct further testing. It did neither because the report did not identify any condition related to the heating system to which the Greys could object. The report stated,
There is an underground oil tank below the upper end of the concrete stairs in the backyard. This tank is apparently still in use.
There seem to be two sets of tracks in the concrete floor in the basement in the furnace/laundry area. They point to the possibility than an original abandoned underground oil tank might exist in the front yard. Also check this item out with the present owner. If no positive answer can be obtained make absolutely certain to have the site checked by a tank locating person. If fuel oil has been leaking into the ground from an oil tank it can be an expensive mess to clean up.
¶29 Following their receipt of this report, the Greys confirmed with the Leaches that no abandoned tank existed in the front yard. The record contains no facts controverting this representation. The report does not identify any condition to which the Greys could object to satisfy the postinspection procedure required by the REPSA. It does not describe any leak in the heating system or evidence of contamination. In short, the inspection report provided the Grays with no ability to terminate their obligation to purchase from the Leaches or to demand further testing.
¶31 Finally, the Leaches claim that the trial court erred when it failed to strike Mr. Grey’s statements that neither party “intended, or at any time contemplated as part of the transaction, to transfer, allocate or assume the risk of any environmental liabilities.” This argument fails. Only erroneous evidentiary rulings resulting in prejudice warrant reversal.
Attorney Fees
¶32 Both parties request attorney fees for expenses incurred at trial and on appeal. However, neither party has as yet prevailed in this case. Any determination of an entitle
CONCLUSION
¶33 Under the MTCA, an “innocent purchaser” does not include a former property owner who contributed to that property’s contamination, even when that contribution occurred without an intentional or negligent release of the hazardous substance. Under the facts of this case, leaking fuel oil into the ground is not a “domestic use” under the Act. The trial court erred when it denied the Greys’ motion to dismiss these two MTCA defenses. The trial court correctly decided that the REPSA did not bar the Greys’ MTCA claims. We reverse in part and affirm in part.
Judge Leach and the respondents are not related.
Clerk’s Papers at 1287.
Additional defenses asserted included failure to mitigate, voluntary and knowing consent, actions of third party, acts of God, cleanup not the substantial equivalent of Department of Ecology remediation, lack of notice, and costs were unreasonable and unnecessary.
Quadrant Corp. v. Am. States Ins. Co., 154 Wn.2d 165, 171, 110 P.3d 733 (2005) .
CR 56(c); Torgerson v. N. Pac. Ins. Co., 109 Wn. App. 131, 136, 34 P.3d 830 (2001).
Quality Food Ctrs. v. Mary Jewell T, LLC, 134 Wn. App. 814, 817, 142 P.3d 206 (2006).
RCW 70.105D.020(10)(d).
24 Timothy Butler & Matthew King, Washington Practice: Environmental Law and Practice § 15.1, at 87 (2d ed. 2007).
Amalgamated Transit Union Local 587 v. State, 142 Wn.2d 183, 205, 11 P.3d 762 (2000).
Amalgamated Transit, 142 Wn.2d at 205.
Amalgamated Transit, 142 Wn.2d at 205 (citations omitted) (quoting State v. Thorne, 129 Wn.2d 736, 762-63, 921 P.2d 514 (1996)).
RCW 70.105D.040(3)(b)(ii).
RCW 70.105D.040(3)(b)(i).
RCW 70.105D.040(3)(b)(iii).
Am. Legion Post No. 32 v. City of Walla Walla, 116 Wn.2d 1, 8, 802 P.2d 784 (1991).
Webster’s Third New International Dictionary 356 (1993).
Webster’s at 496.
24 Butler & Ring § 15.2, at 93.
Our analysis is consistent with Pederson’s Fryer Farms, Inc. v. Transamerica Insurance Co., 83 Wn. App. 432, 922 P.2d 126 (1996), where the court analyzed the “innocent purchaser” exemption in the context of an insurance coverage action. In dicta, the court determined that the exemption did not apply to a purchaser where circumstantial evidence established that the purchaser used the fuel tank and noted an unexplained loss of gasoline. Pederson’s, 83 Wn. App. at 440-41.
Webster’s at 2523-24.
RCW 70.105D.010(2).
24 Butler & King § 15.71, at 165.
We have previously held that the MTCA does not prevent private parties from allocating risk for environmental cleanup. Car Wash Enters., Inc. v. Kampanos, 74 Wn. App. 537, 544-45, 874 P.2d 868 (1994).
The Leaches also contend that the risk of latent tank defects fell solely to the Greys under the doctrine of caveat emptor. We did not accept discretionary review of this issue. Additionally, the Leaches failed to assert caveat emptor as an affirmative defense in their second answer to the Greys’ complaint, and the Leaches did not challenge the trial court’s ruling that MTCA liability defenses are limited to those enumerated in the statute.
Tanner Elec. Coop. v. Puget Sound Power & Light Co., 128 Wn.2d 656, 674, 911 P.2d 1301 (1996).
Hearst Commc’ns, Inc. v. Seattle Times Co., 154 Wn.2d 493, 503, 115 P.3d 262 (2005).
McDonald v. State Farm Fire & Cas. Co., 119 Wn.2d 724, 733-34, 837 P.2d 1000 (1992).
Hearst, 154 Wn.2d at 504.
McGary v. Westlake Investors, 99 Wn.2d 280, 285, 661 P.2d 971 (1983).
Newsom v. Miller, 42 Wn.2d 727, 731, 258 P.2d 812 (1953).
Wash. Local Lodge No. 104 of Int’l Bhd. of Boilermakers v. Int’l Bhd. of Boilermakers, 28 Wn.2d 536, 541, 183 P.2d 504 (1947) (quoting Restatement of Contracts § 236(c) (1932)).
Tanner Elec., 128 Wn.2d at 674 (citing Scott Galvanizing, Inc. v. Nw. EnviroServices, Inc., 120 Wn.2d 573, 582, 844 P.2d 428 (1993)).
Panorama Vill. Homeowners Ass’n v. Golden Rule Roofing, Inc., 102 Wn. App. 422, 427, 10 P.3d 417 (2000).
Case-law data current through December 31, 2025. Source: CourtListener bulk data.