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Washington Court of Appeals Rules Wood Waste Is a Hazardous Substance Under the State Superfund Statute

On Monday of this week, the Washington Court of Appeals issued its decision in Port of Anacortes v. Frontier Industries, et al. No. 78726-8-I (WA Ct of App., Div. 1 2019), an appeal by defendants, Frontier Industries and Itochu International, of the trial court's denial of defendants' joint motion for summary judgment that wood waste was not a hazardous substance under the State Model Toxics Control Act (“MTCA”). 

Affirming the trial court, the Court of Appeals held that decomposing wood waste from defendants' log handling operations at the site over time resulted in releases of hazardous substances (including ammonia, benzoic acid and phenols) with the scope of the MTCA statute.   Interestingly, the Court accepted defendants' argument that wood waste itself does not constitute a hazardous substance under MTCA.  However, the Court found that the accumulation of wood waste at the site from defendants' operations resulted in the release of listed hazardous substances as it broke down in the marine environment over time: "While wood waste itself may not qualify as a hazardous substance, wood debris decomposing in the marine environment releases designated hazardous substances under MTCA."

Unless defendants move for reconsideration to the Court of Appeals and/or successfully petition for review to the Washington Supreme Court, the case will proceed in the trial court.   

This is an important decision clarifying the scope of the MTCA liability for the many sediment and other current and former forest products and mill sites in the state (and possibly in other states) where wood waste is the primary contaminant of concern.    

A copy of the Court of Appeals’ decision can be obtained from Seattle Partner Peter Mintzer.

 

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Selman Breitman provides this information for educational purposes. Case results depend upon a variety of factors unique to each case. Case results do not guarantee or predict a similar result in any future case. This information should not be construed or relied on as legal advice or to create a lawyer-client relationship.