Bird-Johnson Corp. v. Dana Corp.

833 P.2d 375, 119 Wash. 2d 423, 35 ERC (BNA) 1601, 1992 Wash. LEXIS 199

• Court: Washington Supreme Court
• Decided: July 16, 1992
• Docket: 58207-6
• Status: Published

Opinions

Durham, J.

In a federal action, plaintiff Bird-Johnson Corporation (Bird-Johnson) seeks contribution from defendant Dana Corporation (Dana) for the environmental cleanup of a marine propeller manufacturing site. The United States District Court has certified the following question to us:

Can the plaintiff maintain a private right of action for contribution under the MTCA [Model Toxics Control Act (MTCA), RCW 70.105D] for the recovery of remedial action costs (as that phrase is defined in the MTCA)?

We answer that question in the negative.¹

Bird-Johnson and Dana are past owners and operators of a propeller plant near Seattle's Lake Union. Dana, or a subsidiary company, owned and operated the plant from 1972 to 1981. In 1986, following a few intervening owners, Bird-Johnson purchased the plant, and operated it for almost 3 years. Bird-Johnson sold the site in October 1989 to William R. Matthews and Robin M. Farwell. As part of the sales contract, Bird-Johnson agreed to clean up any hazardous substances on the property. Bird-Johnson alleges that the environmental audit it commissioned revealed soil and groundwater contamination with petroleum products, PCBs and carbon tetrachloride, which were partly the result of Dana's operation of the plant. Bird-Johnson claims that it has incurred remedial action costs in investigating and cleaning up the plant.

In June 1990, the Washington Department of Ecology (DOE) served "Proposed Finding of Potential Liability Status" letters on Bird-Johnson, Dana, and other former owners of the site. DOE has not brought any enforcement action under the MTCA with respect to the plant site, nor has it declared Bird-Johnson or Dana to be a potentially hable party under the MTCA. Bird-Johnson alleges that it met with the DOE and agreed in May of 1990 to take independent remedial actions in accord with the applicable DOE regulations.

In December 1990, Bird-Johnson filed suit against Dana in federal district court, alleging six causes of action, including a claim under the MTCA for contribution. Dana moved to dismiss Bird-Johnson's contribution action for failure to state a claim under Fed. R. Civ. P. 12(b)(6). Judge Thomas S. Zilly denied defendant's motion without prejudice and certified the question of contribution under the MTCA to this court.

The MTCA was originally adopted as Initiative 97 on the November 1988 general election ballot. It was designed "to raise sufficient funds to clean up all hazardous waste sites and to prevent the creation of future hazards due to improper disposal of toxic wastes into the state's land and waters." RCW 70.105D.010(2). Tb effectuate this purpose, the act establishes specific mechanisms whereby the DOE can investigate, declare "potentially hable persons",² and require the cleanup of hazardous waste sites. See RCW 70.105D.030; RCW 70.105D.050(1). The Attorney General is given the authority to enforce the DOE's orders. RCW 70.105D.050.

Bird-Johnson first urges this court to find a private right of contribution in the express language of the initiative.³ It points to the following section from the MTCA:

A party who has resolved its liability to the state under this subsection shall not be liable for claims for contribution regarding matters addressed in the settlement. The settlement does not discharge any of the other liable parties but-it reduces the toted potential liability of the others to the state by the amount of the settlement.

RCW 70.105D.040(4)(d).

Such a passing reference to the word "contribution" carries no independent significance. This language, by itself, is insufficient to create an MTCA-based right of contribution. It refers only to the interaction between the MTCA and other potential causes of action for contribution. See, e.g., RCW 4.22.040; 42 U.S.C. § 9613(f)(1). In accord with our long-standing rule of statutory construction, we cannot proceed beyond the ordinary meaning of this language. State v. Smith, 117 Wn.2d 263, 270-71, 814 P.2d 652 (1991). Although the MTCA is "to be liberally construed to effectuate [its] policies and purposes", RCW 70.105D.910, this court will not countenance strained or unrealistic interpretations of the initiative's language. Draper Mach. Works, Inc. v. Department of Natural Resources, 117 Wn.2d 306, 315, 815 P.2d 770 (1991).

Bird-Johnson next argues that a right of contribution can be implied from the MTCA's broad remedial purposes. In assessing this argument, we are aided by reference to the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA or Superfund Act), 42 U.S.C. § 9601 et seq., and its 1986 reenactment, the Superfund Amendments and Reauthorization Act of 1986 (SARA). The MTCA was heavily patterned after these two federal statutes.⁴ As such, federal cases interpreting similar language in CERCLA and SARA are persuasive, although not controlling, when interpreting the MTCA. See Hoffer v. State, 113 Wn.2d 148, 151, 776 P.2d 963 (1989).

Initially, CERCLA did not include any language establishing an express right of contribution. Nevertheless, some federal courts interpreted it to include a right of contribution. See, e.g., Wickland Oil Terminals v. ASARCO, Inc., 792 F.2d 887 (9th Cir. 1986). Any confusion was resolved by SARA, which explicitly provided that "[a]ny person may seek contribution from any other person who is liable or potentially liable". 42 U.S.C. § 9613(f)(1).

It is noteworthy that these 15 words from SARA which created an express right of contribution were not inserted into the MTCA. The MTCA's drafters could easily have included language providing for contribution, especiaHy since SARA provided a ready model, but they did not. The omission of these words is a clear indication that the MTCA's drafters did not intend to adopt CERCLA's more expansive contribution provision. See Everett Concrete Prods., Inc. v. Department of Labor & Indus., 109 Wn.2d 819, 826, 748 P.2d 1112 (1988). We will not imply a private cause of action when the drafters of a statute evidenced a contrary intent; public policy is to be declared by the Legislature, not the courts. See Burkhart v. Harrod, 110 Wn.2d 381, 385, 755 P.2d 759 (1988). Obviously, the Legislature can amend the MTCA to include a right of contribution if it so desires.

Bird-Johnson also relies upon a DOE regulation which recognizes an MTCA-based right of contribution. WAC 173-340-550(5). An administrative agency, however, cannot modify or amend a statute by regulation. State v. Thompson, 95 Wn.2d 753, 759, 630 P.2d 925 (1981). When exercising its rule-making authority, an agency may draft only those rules which fit within the framework and policy of the applicable statute. RCW 34.05.570(3); Kitsap-Mason Dairymen s Ass'n v. State Tax Comm'n, 77 Wn.2d 812, 815, 467 P.2d 312 (1970). The rule in question creates a cause of action beyond that contained in the MTCA, and clearly exceeds the Department's authority to "[c]onduct, provide for conducting, or require potentially liable persons to conduct remedial actions ... to remedy releases or threatened releases of hazardous substances." RCW 70.105D.030(1)(b). Stated simply, when statutory authority is lacking, DOE cannot create a new cause of action by fiat.

Finally, Bird-Johnson argues that Washington's contribution statute, RCW 4.22.040, offers an independent right of contribution, apart from any MTCA-based right. We do not reach this issue because the certified question only inquires about the availability of a right of contribution under the terms of the MTCA itself.

In sum, the answer to the certified question is "no". The language of the MTCA does not create an express right of contribution, and an implied right of contribution is inappropriate where the drafters have evidenced a contrary intent.

Dore, C.J., and Brachtenbach, Dolliver, Smith, and Guy, JJ., concur.

1 The dissent would reach the additional question of whether plaintiffs have a right of contribution under RCW 4.22. However, we do not have jurisdiction to go beyond the specific question posed by the federal court. See RCW 2.60; RAP 16.16.

2 Under RCW 70.105D.020, "potentially liable person" is defined as "any person whom the department finds, based on credible evidence, to be liable under RCW 70.105D.040."

3 The plaintiff and amicus would have this court apply a less rigorous standard for construing initiatives than statutes passed by the Legislature. However, it has long been the rule that "[i]nitiatives are to be interpreted according to the general rules of statutory construction.” (Citations omitted.) Spokane v. Taxpayers, 111 Wn.2d 91, 97, 758 P.2d 480 (1988).

4 See generally Comment, Through the Looking Glass: A Comparison of Covered Persons, Defenses, and Liability Under CERCLA and the Washington State Model Toxic Control Act of 1988 (Initiative 97, 1988 General Election), 25 Gonz. L. Rev. 253, 254 (1989-1990).