Contractor Jailed in Reservoir Pollution Case
After admitting in a guilty plea to polluting a water reservoir with concrete slurry, a Gig Harbor project manager will now spend 30 days in federal prison.
The contractor was in the middle of filling a caisson, located in the reservoir, with concrete when the concrete pumps broke. According to the guilty plea, the project manager then directed the caisson to be evacuated of concrete, which lead to disposal of the slurry into the reservoir.
Division 1: Drilling Subcontractor Not Liable for Cleanup Costs as "Operator" under MTCA
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."