LEACH, A.C.J.
¶ 1 Mark and Kristina Grey, the current owners of residential property contaminated with fuel oil, brought this action against the former owners, James and Sue Leach.
¶ 2 We hold that because the Leaches, as operators of the heating system, contributed to the contamination, they are not "innocent
¶ 3 In February 2000, the Greys purchased a house, originally built in 1924, from the Leaches, who purchased it in 1966. A 720-gallon underground storage tank (UST) supplied oil to the furnace used to heat the house. This oil flowed through supply and return lines running beneath a concrete slab in the basement floor. According to the Leaches' age-dating expert, small holes in one of the return lines had leaked fuel oil since 1987 and possibly as far back as 1971. The record contains no evidence that anyone knew or had reason to know about this leak at the time of the sale.
¶ 4 In 2004, as part of an extensive remodel, the Greys decommissioned the oil tank and converted the house to natural gas heat. In 2007, they discovered that the return line had leaked over time, releasing a significant quantity of oil into the ground under and around the residence. This caused soil contamination exceeding levels for residential-unrestricted use allowed by MTCA. The Greys claim to have incurred more than $200,000 in remediation costs. In this action they seek to establish their entitlement to an equitable contribution from the Leaches under RCW 70.105D.080.
¶ 5 In a second amended answer, the Leaches raised a number of affirmative defenses, including statutory "innocent purchaser" and "domestic use" defenses and a claim that the parties' REPSA allocated clean-up liability to the Greys.
¶ 6 The Greys filed a motion for partial summary judgment, seeking a determination that the Leaches were liable under MTCA and that the parties' REPSA did not bar their claims. The Leaches filed a cross motion, asking the court to dismiss the Greys' claims on the basis of the two MTCA defenses described above. The court essentially denied both motions and held that the REPSA did not bar the Greys' MTCA claims. The court denied reconsideration.
¶ 7 The Greys then asked the trial court to certify for discretionary review whether the statutory "innocent purchaser" and "domestic use" defenses were available to the Leaches. While this motion was pending, the Greys sought discretionary review of these two issues. The trial court then certified them for review. The Leaches separately sought discretionary review of three trial court orders. We granted review of the two certified issues and whether the parties' REPSA barred the Greys' MTCA claim. We denied the balance of the Leaches' motion for discretionary review and consolidated the two cases.
¶ 8 This court reviews a summary judgment order de novo, engaging in the same inquiry as the trial court.
¶ 9 The trial court certified for discretionary review two legal issues of first impression for Washington courts. These are whether, under MTCA, either the "innocent purchaser" defense (RCW 70.105D.040(3)(b)) or the "domestic purpose" defense (RCW 70.105D.040(3)(c)) applies to former owners of a house when the residential heating system operated by them leaked oil into the ground and contaminated it during their ownership.
¶ 10 RCW 70.105D.040 generally provides that each owner and operator of a "facility" is strictly liable, jointly and separately, for all remedial action costs and for all natural resource damages resulting from the release of hazardous substances. RCW 70.105D.040(3) excludes from liability certain categories of persons, including "innocent purchasers" (RCW 70.105D.040(3)(b)) and those lawfully and without negligence using a hazardous substance for a "personal or domestic purpose" (RCW 70.105D.040(3)(c)).
¶ 11 The Leaches admit that "without their knowledge, or having reason to know,... a release of home heating oil that was used for heating their house, occurred on the property while they owned it." Home heating oil is a hazardous substance for purposes of MTCA.
¶ 12 In November 1988, voters enacted the MTCA with Initiative Measure No. 97 (I-97). This initiative repealed legislation adopted earlier that year that I-97 proponents considered too lenient and too great a departure from the federal legislation after which it was patterned.
¶ 13 RCW 70.105D.040(3)(b) provides that an owner, past owner, or purchaser of the facility is not liable if he or she can
Three limitations apply to this exclusion. It does not apply to an owner who (1) "had actual knowledge of the release or threatened release of a hazardous substance" on the property and transferred the property without disclosing such knowledge,
¶ 14 The Leaches contend that they qualify for this exclusion because the words "caused or contributed to the release or threatened release of a hazardous substance" imply intentional or negligent conduct, and they neither intentionally nor negligently released heating oil. The Greys contend that the plain and ordinary meaning of these words does not include any element of intent or negligence and that, by operating a heating system that released oil, the Leaches "caused or contributed to the release ... of a hazardous substance." We agree with the Greys.
¶ 15 The MTCA does not define "caused" or "contributed." We may resort to dictionary definitions to give undefined terms their plain and ordinary meaning, unless a contrary intent appears within the statute.
¶ 16 Here, the Leaches acknowledge that fuel oil leaked into the ground during the time they owned the property through their operation of the heating system. They "caused" or "contributed" to the release of fuel oil producing the contaminated soil requiring remediation. The "innocent purchaser" exclusion does not apply to them.
¶ 17 We next address the availability of the "domestic purpose" exclusion, RCW 70.105D.040(3)(c), which provides that "any natural person" is not liable if that person
¶ 18 The Leaches contend that this exclusion applies to past owners, such as themselves, who used home heating oil (the hazardous substance) lawfully and without negligence in their home heating system (the domestic purpose). The Greys disagree, contending that "domestic uses" allowed under the MTCA do not include leaking home heating oil. Again, we agree with the Greys.
¶ 19 The MTCA does not define "use." Webster's defines it as "habitual or customary practice: accustomed or usual procedure," "quality of being suitable for employment: capability of filling a need," and "to put to action or service."
¶ 20 Our construction of the two exclusions at issue furthers the public policy underlying MTCA, while those advanced by the Leaches do not. It declares that its primary purpose "is 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."
¶ 21 Because the Leaches' remaining contentions regarding these defenses simply recast their arguments considered in this opinion, we need not address them. We conclude that the Leaches were not "innocent purchasers" and, under the facts of this case, leaking fuel oil into the ground is not a "domestic use" under the Act.
¶ 22 Finally, we address whether the parties' REPSA bars the Greys' MTCA claim.
¶ 23 The parties agree that the REPSA did not expressly allocate MTCA liability to either party. Instead, the Leaches contend that the Greys assumed the risk of heating oil contamination because they had notice of possible contamination at the time of purchase, had an opportunity to inspect for hazardous substances, and, having found none, waived their inspection contingency.
¶ 24 "The touchstone of contract interpretation is the parties' intent."
¶ 25 Here, an inspection addendum conditioned the REPSA as follows,
The inspection contingency also specifically limited these inspection rights with a paragraph titled "Oil Storage Tanks," providing that "[a]ny inspection regarding oil storage tanks or contamination from such tanks shall be 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 parties agree that Greys did not request, and Leaches did not authorize, any additional inspection.
¶ 26 The agreement provided two procedural options following the inspection. The one not selected by the parties allowed the buyer to disapprove the inspection "for any reason in Buyer's sole discretion." The option agreed upon by the parties provided,
And if the seller refused to make the requested repairs, the buyer could elect to terminate the agreement and seek an earnest money refund.
¶ 27 The REPSA is unambiguous. It provided the Grays with a general right to inspect for hazardous substances but expressly limited the scope of any inspection for oil storage tanks or contamination from them. The REPSA only allowed the Greys to determine a tank's presence. It expressly prohibited the Greys from conducting any testing that would have disclosed the leaking and contamination ultimately discovered. Thus, the REPSA did not permit the Greys to conduct the detailed testing the Leaches insist the Greys had a duty to perform.
¶ 28 The Leaches emphasize that they had no reason to suspect a leak in the return pipes but insist that the inspection report the Greys received provided them with the ability to either terminate the REPSA or conduct further testing. It did neither because the report did not identify any condition related to the heating system to which the Greys could object. The report stated,
¶ 29 Following their receipt of this report, the Greys confirmed with the Leaches that no abandoned tank existed in the front yard. The record contains no facts controverting this representation. The report does not identify any condition to which the Greys could object to satisfy the postinspection procedure required by the REPSA. It does not describe any leak in the heating system or evidence of contamination. In short, the inspection report provided the Grays with no ability to terminate their obligation to purchase from the Leaches or to demand further testing.
¶ 30 The Leaches further contend that the "contents of the Inspection Addendum created a genuine issue of material fact for trial on the issue of whether the Greys intended to allocate the risk of environmental liabilities when they bought the property from the Leaches." However, the Leaches do not identify the fact at issue or provide argument explaining this contention. Furthermore, "[I]nterpretation of a contract provision is a question of law only when (1) the interpretation does not depend on the use of extrinsic evidence, or (2) only one reasonable inference can be drawn from the extrinsic evidence."
¶ 31 Finally, the Leaches claim that the trial court erred when it failed to strike Mr. Grey's statements that neither party "intended, or at any time contemplated as part of the transaction, to transfer, allocate or assume the risk of any environmental liabilities." This argument fails. Only erroneous evidentiary rulings resulting in prejudice warrant reversal.
¶ 32 Both parties request attorney fees for expenses incurred at trial and on appeal. However, neither party has yet prevailed in this case. Any determination of an entitlement to fees must await the trial court's resolution of this case on its merits.
¶ 33 Under the MTCA, an "innocent purchaser" does not include a former property owner who contributed to that property's contamination, even when that contribution occurred without an intentional or negligent release of the hazardous substance. Under the facts of this case, leaking fuel oil into the ground is not a "domestic use" under the Act. The trial court erred when it denied the Greys' motion to dismiss these two MTCA defenses. The trial court correctly decided that the REPSA did not bar the Greys' MTCA claims. We reverse in part and affirm in part.
WE CONCUR: ELLINGTON and COX, JJ.