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Emerson Hilton Quoted in Bloomberg Environment on Washington Superfund Suit

May 31, 2018

Associate Emerson Hilton (Seattle) was quoted in an article by Bloomberg Environment titled "Timber Firm’s State Superfund Suit Against Wash. DNR Felled." The article focuses on a recent contaminated site lawsuit between timber company Pope Resources LP and the Washington Department of Natural Resources (DNR), Pope Resources, LP v. Washington Dep’t of Natural Resources, No. 94084-3, --- P.3d ---- , 2018 WL 2347105 (Wash. May 24, 2018). Last week, the Washington Supreme Court ruled in the suit that the DNR is not liable as an owner or operator under the state Superfund law, the Model Toxics Control Act (MTCA), for contamination of public land leased to Pope.

Emerson stated that the case has "huge potential consequences for liability determinations at existing and future" contaminated sites under MTCA. "The court reached an unexpected outcome, in my opinion, that will clearly impact cleanup negotiation and litigation both at similar sites on state-owned land and at many other sites as well," Emerson said.

The court ruled that the DNR did not own the site or act as an operator because it wasn't actively involved in the operational decisions at the site, but Emerson noted that "the court did not say the state or state agencies could never be liable as owners under MTCA." According to Emerson, however, "it certainly raises the likelihood—as in this specific case—that the state may escape liability for contamination at sites on state-owned land.... That could significantly increase the relative liability of other private parties at such sites—particularly at aquatic sediment sites that are common in Washington."

To read the full Bloomberg Environment article, click here.

For a more detailed analysis of the Washington Supreme Court's decision from Emerson, David Weber (Principal, Seattle), and Gus Winkes (Associate, Seattle), click here.