Washington State Court Finds Seller of Home Who Was Unaware of Leak Heating Oil Tank Does Not Qualify As Innocent Party

Plaintiffs purchase home in 2000 that had 720 heating oil tank. As part of remodeling In 2004, they converted the home to natural gas and remove UST. In 2007, they discover that a return line associated with the former tank had over time leaked significant oil into the soil around the home remodel home. After incurring approximately $200K in cleanup costs, they file lawsuit against seller of home. The trial court denied the plaintiff's motion to dismiss affirmative defenses and the plaintiffs sought review of these pre-trial rulings.

In response to statutory contribution claim under the state Model Toxics Control Act (MTCA), defendant asserts innocent purchaser since they were unaware of the leaking piping and therefore did not contribute or cause the petroleum contamination. However, the court ruled that the phrase did not require knowledge and that an owner is strictly liable even where they unknowingly or unintentionally discharge hazardous substances.  Since defendants acknowledged that the fuel oil leaked during the time they operated the heating system, court ruled defendants' were not innocent purchasers.

The defendants also asserted a  "domestic use" defense on grounds that residential oil is frequently stored in USTs. However, the court ruled that the domestic use exclusion does not apply to oil leaking from defective underground piping. To hold otherwise, the court said, would do violence to the public policy underlying the MCTA to ensure impose broad strict liability for improper disposal of hazardous wastes.

On a contractual claim, the defendants asserted that the plaintiffs assumed the risk of possible contamination when they failed to object to the UST during their inspection period. The court said the RESPA statement did not expressly allocate MCTA liability  and that the Buyers only had a general right of inspection regarding hazardous materials. The court noted that the contingency pertaining to the UST was 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 court said the buyer was expresslly prohibited from conducting any testing.  The inspection report did not there might have been an abandoned UST in the front yard and the Buyers confirmed with Seller that no such abandoned tank existed. Thus, the court said, the inspection report did not provide the plaintiffs with an ability to terminate the contact.   Grey v Leach, 2010 Wash. App. LEXIS 2720 (Ct. App. 12/13/10)