The redefining of “Decommission” in the Model Toxics Control Act

Commercial property owners sometimes run across the unexpected on their property during excavations and/or renovations. One of the most difficult (and feared) situation is that of locating an underground fuel storage tank on your property. The reason why this can be challenging to a landowner is because of how stringent Washington State’s environmental regulations are. The Model Toxics Control Act (“MTCA”, or “MoTCA” as it is often called) provides the statutory authority to demand clean-up/remediation of these underground tanks. The Washington Administrative Code, section 173-340, outlines with specificity the limitations to remediation of these tanks. On March 3, 2010, according to a Board of Health Resolution No. 2010-4225, the manner in which tanks are “decommissioned” was altered.

Up until March 3, 2010, an option that property owners had in decommissioning these tanks was to extract whatever fuel remained, then fill it with inert material. The tank would stay underground, but it would be harmless as it would contain no fuel and would be full of soil. This is no longer an option. “Decommissioning” now means that the tank must be fully removed from the property. This is significant, as the costs involved in removing a tank vs. filling it with inert material, is substantial.