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VOLUME 6

Titles 60 through 74

2000

REVISED CODE OF WASHINGTON

Published under the authority of chapter 1.08 RCW.

Containing all laws of a general and permanent nature through the 2000 second special session, which adjourned

sine die April 27, 2000.

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REVISED CODE OF WASHINGTON

2000 Edition

C> 2000 State of Washington

CERTIFICATE

The 2000 edition of the Revised Code of Washington, published officially by the Statute Law Committee, is, in

accordance with RCW 1.08.037, certified to comply with the current specifications of the committee.

jJ/#~

JOHN G. SCHULTZ, Chair,

STATUTE LAW COMMITTEE

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[Preface-p ii) (2000 Ed.)

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CHAPTER 70.1050 RCW

HAZARDOUS WASTE CLEANUP--MOOEL TOXICS CONTROL ACT

Sections

70.105D.010

70.105D.020

70.105D.030

70.105D.040

70.105D.050

70.105D.060

70.105D.070

70.105D.080

70.105D.090

70.105D.900

70.105D.905

70.105D.910

70.105D.915

70.105D.920

70.105D.921

NOTES:

Declaration of policy.

Definitions.

Department's powers and duties.

Standard of liability--Settlement.

Enforcement.

Timing of review.

Toxics control accounts.

Private right of action--Remedial action costs.

Remedial actions--Exemption from procedural

requirements.

Short title--1989 c 2.

Captions--1989 c 2.

Construction--1989 c 2.

Existing agreements--1989 c 2.

Effective date--1989 c 2.

Sev~rability--1989 c 2.

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Environmental certification programs--Fees--Rules--Liability: RCW

43.21A.175.

RCW 70.1050.010 Declaration of policy. (1) Each person has

a fundamental and inalienable right to a healthful environment, and

each person has a responsibility to preserve and enhance that

right. The beneficial stewardship of the land, air, and waters of

the state is a solemn obligation of the present generation for the

benefit of future generations.

(2) A healthful environment is now threatened by the

irresponsible use and disposal of hazardous substances. There are

hundreds of hazardous waste sites in this state, and more will be

created if current waste practices continue. Hazardous waste sites

threaten the state's water resources, including those u~ed for

public drinking water. Many of our municipal landfills are current

or potential hazardous waste sites and present serious threats to

human health and environment. The costs of eliminating these

threats in many cases are beyond the financial means of our local

governments and ratepayers. The main purpose of chapter 2, Laws of

1989 is to raise sufficient funds to clean up all hazardous waste

sites and to prevent the creation of future hazard~ due to improper

disposal of toxic wastes into the state's land and waters.

(3) Many farmers and small bysiness owners who have followed

the law with respect to their uses of pesticides and other .

chemicals nonetheless may face devastating economic consequences

because their uses have contaminated the environment or the water

supplies of their neighbors. With a source of funds,the state may

assist these farmers and business owners, as well as those persons

who sustain damages, such as the loss of their drinking water

supplies, as a result of the contamination.

RCW (10/30/0 12:23) 1
(4) It is in the publ I.c I s interest to efficiently use our

finite land base, to integrate our land use planning policies with

our clean-up policies, and to clean up and reuse contaminated

industrial properties in order to minimize industrial development

pressures on undeveloped land and to make clean land available for

future social use.

(5) Because it is often difficult or impossible to allocate

responsibility among persons liable for hazardous waste sites and

because it is essential that sites be cleaned up well and

expeditiously, each responsible person should be liable jointly and

severally. [1994 c 254 § 1; 1989 c 2 § 1 (Initiative Measure No.

97, approved November 8, 1988).J

RCW 70.1050.020 Definitions. (1) "Agreed order" means an

order issued by the department under this chapter with which the

potentially liable person receiving the order agrees to comply. An

agreed order may be used to require or approve any cleanup or other

remedial actions but it is not a settlement under RCW

70.105D.040(4) and shall not contain a covenant not to sue, or

provide protection from claims for contribution, or provide

eligibility for public funding of remedial actions· under RCW

70.105D.070(2) (d) (xi).

(2) "Department" means the department of ecology.

(3) "Director" means the director of ecology or the director's

designee.

(4) "Facility" means (a) any building, structure,

installation, equipment, pipe or pipeline (including any pipe into

a sewer or publicly owned treatment works), well, pit, pond,

lagoon, impoundment, ditch, landfill, storage container, motor

vehicle, rolling stock, vessel, or aircraft, or (b) any site or

area where a hazardous substance, other than a consumer product in

consumer use, has been deposited, stored, disposed of, or placed,

or otherwise come to be located.

(5) "Federal cleanup law" means the federal Comprehensive

environmental response, compensation, and liability act of 1980, 42

U.S.C. Sec. 9601 et seq., as amended by Public Law 99-499.

(6) "Foreclosure and its equivalents" means purchase at a

foreclosure sale, acquisition, or assignment of titl~ in lieu: of

foreclosure, termination of a lease, or other repossession,·

acqui s Lt.Lon of a right ·totitle or possession, an agreement· in

satisfaction of the obligation, or any other comparable formal or

informal manner, whether pursuant to Law or under· warranties,

covenants, conditions, representations, or promises from the

borrower, by which the holder acquires title to or possession of a

facility securing a loan or other obligation. .

(7) "Hazardous substance" means:

(a) Any dangerous or extremely hazardous waste as defined in

RCW 70.105.010 (5) and (6), or any dangerous or extremely dangerous

waste. designated by rule pursuant· to chapter 70.105 RCW;. . (b) Any hazardous substance as defined in RCW 70.105.010(14)

or any hazardous substance as defined by rule pursuant to chapter

70.105 RCW; .

(c) Any substance that, on March 1, 1·989, is a: haaardous :

substance under section 101(14) of the federal cleanup law, 42

U.S.C. Sec. 9601(14);

(d) Petroleum or petroleum products; and

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(e) Any substance or category of substances, including solid

waste decomposition products, determined by the director by rule to

present a threat to human health or the environment if released

into the environment.

The term hazardous substance does not include any of the

following when contained in an underground storage tank from which

there is not a release: Crude oil or any fraction thereof or

petroleum, if the tank is in compliance with all applicable

federal, state, and local law.

(8) "Independent remedial actions"· means remedial actions

conducted without department oversight or approval, and not under

an order, agreed order, or consent decree.

(9) "Holder" means a person who holds iqdicia of ownership

primarily to protect a security interest. A holder includes the

initial holder such as the loan originator, any subsequent holder

such as a successor-in-interest or subsequent purchaser of the

security interest on the secondary market, a guarantor of an

obligation, surety, or any other person who holds indicia of

ownership primarily to protect a security interest, or a receiver,

court-appointed trustee, or other person who acts on behalf or for

the benefit of a holder. A holder can be a public or privately

owned financial institution,. receiver, conservator, loan guarantor,

or other similar persons that loan money or guarantee repayment of

a loan. Holders typically are banks or savings and loan

institutions but may also include others such as insurance

companies, pension funds, or private individuals that engage in

loaning of money or credit.

(10) "Indicia of ownership" means evidence of a security

interest, evidence of an interest in a security interest, or

evidence of an interest in a facility securing a loan or other

obligation, including any legal or equitable title to a facility

acquired incident to foreclosure and its equivalents. Evidence of

such interests includes, mortgages, deeds of trust, sellers

interest ina real estate contract, liens, surety bonds, and

guarantees of obligations, title held pursuant to a lease financing

transaction in which the lessor does not select initially t.he

leased f~cility, or legal or equitable title obtained pursuant to

foreclosure and their equivalents. Evidence of such interests also

includes assignments, pledges, or other rights to or other forms of

encumbrance against the facility that are held primarily to protect

a security interest. . . (11) "Operatin~ a facility primarily to prot~ct a security

interest" occurs when all of the following are met: (a) Operating

the facility where t he. borrower has defaulted on the loan or

otherwise breached the security agreement;.· (b) operating the

facility to preserve the value of the· facility as an ongoing

business; (c) the operation is being done in anticipation of a

sale, transfer, or assignment of the facility; and : (d) .the

operation is being done primarily· to protect a security· int.erest.

Operating a facility for longer than one year prior to foreclosure

or its equivalents shall be presumed to be operating the facility

for other than to protect a security interest.

(12) . "Owner or operator" means:·

(a) Any person with any ownership interest in the facility or

who exercises any control over the facility; or

(b) Tn the case of an abandoned facility, any person who had

owned, or operated, or exercised control over the facility any time

before its abandonment;

RCW (10/30/0 12:23) [ 3 ]
The term does not include:

(i) An agency of the state· or unit of local government which

acquired ownership or control involuntarily through bankruptcy, tax

delinquency, abandonment, or circumstances in which the government

involuntarily acquires title. This exclusion does not apply to an (-"./

agency of the state or unit of local government which has caused or

contributed to the release or threatened release of a hazardous

substance from the facility;

(ii) A person who, without participating in the management of

a facility, holds indicia of ownership primarily to protect the

person's security interest in the facility. Holders after

foreclosure and its equivalent and holders who engage in any of the

activities identified in subsection. (13) (e) through (g) of this

section shall not lose this exemption provided the holder complies

with all of the following:

(A) The holder properly maintains the environmental compliance

measures already in place at the facility;

(B) The holder complies with the reporting requirements in the

rules adopted under this chapter;

(C) The holder complies with any order issued to the holder by

the department to abate an imminent or substantial endangerment;

(D) The holder allows the department or potentially liable

persons under an order, agreed order, or settlement agreement under

this chapter access to the facility to conduct remedial actions and

does not impede the conduct of such remedial actions;

(E) Any remedial actions conducted by the holder are in

compliance with any preexisting requirements identified by the

department, or, if the department has not identified such

requirements for the facility, the remedial actions are conducted

consistent with the rules adopted under this chapter; and

(F) The holder does not exacerbate an existing release. The (;

exemption in this subsection (12) (b) (ii) does not apply to holders

who cause or contribute to a new release or threatened release or

who are otherwise liable under RCW 70 .105D. 040 (1) (b), (c), (d),

and (e); provided, however, that a holder shall not lose this

exemption if it establishes that any such new release. has been

remediated according to the requirements of this chapter and that

any hazardous substances· remaining at the facility after

remediation of the new release are divisible from such new release;

(iii) A fiduciary in his, her, or its personal or individual

capacity. This exemption does not preclude a claim against the

assets of the estate or trust administered by the fiduciary or

against a nonemployee agent or independent contractor retained by

a fiduciary. This exemption also does not apply to the extent that

a person is liable under this chapter independently of the person's

ownership as a fiduciary or for actions taken in a fiduciary

capacity which cause or contribute to a new release or exacerbate

an existing release of hazardous substances. This exemption

applies provided that, to the extent of the fiduciary's powers

granted by law or by the applicable governing instrument granting

fiduciary powers, the fiduciary complies with all of the following:

(A) The fiduciary properly maintains the environmental

compliance measures already in place at the faci~ity;

(B) The fiduciary complies with the reporting requirements in

the rules adopted under this chapter;

. (C) The fiduciary complies with any order issued to the C.; fiduciary by the department to abate an imminent or substantial /

endangerment;

RCW (10/30/0 12:23) [ 4 ]
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(D) The fiduciary allows the department or potentially liable

persons under an order, agreed order, or settlement 'agreement under

this chapter access to the facility to conduct remedial actions and

does not impede the conduct of such remedial actions;

(E) Any remedial actions conducted by the fiduciary are in

compliance with any preexisting requirements identified by the

department, or, if the department has not identified such

requirements for the facility, the remedial actions are conducted

consistent with the rules adopted under this chapter; and

(F) The fiduciary does. not exacerbate an existing release.

The exemption in this subsection (12) (b) (iii) does not apply

to fiduciaries who cause or contribute to a new release or

threatened release or who are. otherwise liable underRCW

70.105D.040(1) (b), (c), (d), and (e); provided however, that a

fiduciary shall not lose this exemption if it establishes that any

such new release has been remediated according to the requirements

of this chapter and that (any hazardous substances remaining at the

facility after remediation of the new release are divisible from

such new release. The exemption in this subsection (12) (b) (iii)

also does not apply where the fiduciary's powers to comply with

this subsection (1~) (b) (iii) are limited by a governing instrument

created with the objective purpose of avoiding liability under this

~hapter or of avoiding compliance with this chapter; or

(iv) Any person who has any ownership interest in, operates,

or exercises control over real property where a hazardous substance

has come to be located solely as a result of migration of the

hazardous substance to the real property- through the ground water

from a source off the property, if:

(A) The person can demonstrate that the hazardous substance

has not been used, placed, managed, or otherwise handled on the

property in a manner likely to cause or contribute to a release of

the hazardous substance that has migrated onto the property;

(B) The person has not caused.or contributed to the release of

the hazardous substance;

(C) The person does not engage in activities that damage or

interfere with the operation of remedial actions installed on the

person's property or engage in activities' that result in exposure

of humans or the environment to the contaminated ground water that

has migrated onto the property; .

(D) If requested, the person allows the - department,

potentially liable persons who are subj ect to an order, agreed

order, or consent decree, and the authorized employees, agents, 'or

contractors of each, access to the property to conduct remedial

actions required by the department. The person may. attempt to

negotiate an access agreement before allowing access; and

(E) Legal withdrawal of ground water does not disqualify a

person from the exemption in this subsection (12) (b) (iv). .

(13) "Participation in management" means exercising decisionmaking control over the borrower's operation of the facility,

environmental compliance, or assuming or manifesting responsibility

for the overall management of the enterprise encompassing the dayto-day decision making of the enterprise.

The term does not include any' of the f'o I''low.inq s (a) A .hoIder

with the mere capacity or ability to influence, or the unexercised

right to control facility operations; (b) a holder who conduGts or

requires a borrower to conduct an environmental audit or an

environmental site assessment at the facility for which indicia of

ownership is held; (c) a holder who requires a borrower to come

'RCW (10/30/0 12:23) [ 5 ]
into compliance with any applicable laws or regulations at the

facility for which indicia of ownership is held; (d) a holder who

requires a borrower to conduct remedial actions including setting

minimum requirements, but does not otherwise control or manage the

borrower's remedial actions or the scope of the borrower's remedial

actions except to prepare a facility for sale, transfer, or

assignment; (e) a holder who engages in workout or policing

activities primarily to protect the holder's security interest in

the facility; (f) a holder who prepares a facility for sale,

transfer, or assignment or requires a borrower to prepare a

faci Li,ty for sale, transfer, or assignment; (g) a holder who

operates a facility primarily to protect a security interest, or

requires a borrower to continue to operate, a facility primarily to

protect a security interest; and (h) a prospective holder who, as

a condition of becoming a holder, requires an owner or operator to

conduct an environmental audit, conduct an environmental site

assessment, come into compliance with any applicable laws or

regulations, or conduct remedial actions prior to holding a

security interest is not participating in the management of the

facility.

(14) "Person" means an individual, firm, corporation,

association, partnership, consortium, joint venture, commercial

entity, state government agency, unit of local government, federal

government agency, or Indian tribe.

(15) "Policing activities" means actions the holder takes to

insure that the borrower complies with the terms of the loan or

security interest or actions the holder takes or requires the

borrower to take to maintain the value of the security. Policing

activities include: Requiring the borrower to conduct remedial

actions at the facility during the term of the security interest;

requiring the borrower to comply or come into compliance with

applicable federal, state, and local environmental and other laws,

regulations, and permits during the term of the security interest;

securing or exercising, authority to monitor or inspect the facility

including, on-site inspections, or to monitor or inspect the'

borrower's business or financial condition during the term of the

security 'interest; or taking other actions necessary to adequately

police the loan or security interest such as requiring a borrower

to comply with any warranties, covenants, conditions,

representations, or promises from the borrower. .

(16) "Potentially liable person" means any person whom the dep~rtment finds, b~sed on credible evidence, tobeiiable under

RCW 70 .105D. 040. The department shall give notice to any such

person' and allow an opportunity. for comment before making the

finding, unless an emergency requires otherwise. .

(17) "Prepare a facility for sale, transfer, or assignment"

means to secure access to the facility; perform routine maintenance

on' the facility; remove inventory, equipment, or structures;

properly maintain environmental compliance measures already in

place at the facility; conduct remedial actions' to clean up

releases at, the ,facilitYi or to perform other similar activities,

intended to preserve the value of the facility where the borrower

.tias defaulted on the- loan or. otherwise breached the security

agreement or after foreclosure and its equivalents and- in

anticipation of a pending sale, transfer, or assignment, primarily

to protect the holder's security interest in the' facility. A

holder can prepare a facility for sale, transfer, or assignment for

up to one year prior to foreclosure and its equivalents and still

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stay within the security interest exemption in subsection

(12) (b) (ii) of this section.

(18) "Primarily to protect a security interest" means the

indicia of ownership is held primarily for the purpose of. securing

payment or performance of an obligation. The term does not include

indicia of ownership held primarily for investment purposes nor

indicia of ownership held primarily for purposes other than as

protection for a security interest. A holder may have other,

secondary reasons, for maintaining indicia of ownership, but the

primary reason must be for protection of a security interest.

Holding indicia of ownership after foreclosure or its equivalents

for longer than five years shall be considered to be holding the

indicia of ownership for purposes other than primarily to protect

a security interest. For facilities that have been' acquired

through foreclosure or its equivalents prior to July 23,1995; this

five-year period shall begin as of July 23, 1995:

(19) "PubLd c notice" means, at a minimum, adequate notice

mailed to all persons who have made timely request of the

department and to persons residing in the potentially affected

vicinity of the proposed action; mailed to appropriate news media;

published in the newspaper of largest circulation in the city or

county of the proposed action; and opportunity for. interested

persons to·~omment. .

(20) IIRelease ll means any intentional or unintentional entry of

any hazardous substance into the environment, including but not

limited to the abandonment or disposal of containers of hazardous.

substances. .

(21) II Remedy II or "remedial action ll means any action or

expenditure consistent with· the purposes of this chapter to

identify, eliminate, or minimize any threat or potential threat

posed by hazardous substances to human health or the environment

including any investigative and monitoring activities with respect

to any release or threatened release of a hazardous substance and

any health assessments. or health effects studies conducted in order

to determine the risk or potential risk to human health.

(22) "Secur Lty interest II means an interest in a facility

created or established for the purpose of securing a loan or other

obligation. Security interests include deeds of trusts, sellers

interest in a real estate contract, liens, legal;' or equitable

title to a facility acquired incident to foreclosure. and its

equivalents, and title pursuant to lease financing transactions.

Security interests may also arise from transactions such· as sale

and leasebacks, .conditional sales,' installment sales, trust receipt

transactions, certain assignments, factoring agreements, accounts

receivable financing arrangements, easements, and consignments, if

the transaction creates or establishes an interest in a facility

for the purpose of securing a loan or other obligation.

(23) IIIndustrial properties" means properties that are or have

been characterized by, or are to be committed to, traditional

industrial uses such as processing or manufacturing of materials,

marine terminal and' transportation areas and facilities,

. fabrication, assembly, treatment, or distribution· of manufactured

products, or storage of bulk materials, that are either: .

(a) Zoned for industrial use by a city or county conducting.

land use planning urider chapter 36.70A RCW; or

(b) For counties not planning under chapter 36. 70ARCW and the.

cities within them, zoned for industrial use arid adjacent to·

properties currently used or designated for industrial purposes.

RCW (10/30/0 12:23) [ 7 ]
(24) "Workout activities" means those actions by which a

holder, at any time prior to foreclosure and its equivalents, seeks

to prevent, cure, or mitigate a default by the borrower or obligor;

or to preserve, or prevent the diminution of, the value of the

security. Workout activities include: Restructuring or C~.; renegotiating the terms of the security interest; requiring payment /

of additional rent or interest; exercising forbearance; requiring

or exercising rights pursuant to an assignment of accounts·or other

amounts owed to an obligor; requiring or exercising rights pursuant

to an escrow agreement pertaining to amounts owed to an obligor;

providing specific or general financial or other advice,

suggestions, counseling, or guidance; and exercising any right or

remedy the holder is entitled to by law or under any warranties,

covenants, conditions, representations, or promises from the

borrower.

(25) (a) "Fiduciary" means a person acting for the benefit of

another party as a bona fide trustee; executor; administrator;

custodian; guardian of estates or guardian ad litem; receiver;

conservator; committee of estates of incapacitated persons; trustee

in bankruptcy; trustee, under an indenture agreement, trust

agreement, lease, or similar financing agreement, for debt

securities, certificates of interest or certificates of

participation in debt securities, or other forms of indebtedness as

to which the trustee is not, in the capacity of trustee, the

lender. Except as pr-ov.i.ded in subsection (12) (b) (ili) of this

section, the liability of a fiduciary under this chapter shall not

exceed the assets held in the fiduciary capacity.

(b) "Fiduciary" does not mean: .

(i) A person acting as a fiduciary with respect to a trust or

other fiduciary estate that was organized for the primary purpose (\../'

of, or is engaged in, actively carrying' on a trade or business for

profit, unless the trust or' other fiduciary estate was created as

part of, or to facilitate, .one or more estate plans or because of

the incapacity of a natural person; .

(ii) A person who acquires ownership or control of a facility

with the objective purpose of avoiding liability of the person or

any other person. It is prima facie evidence that the fiduciary

acquired ownership or control of the facility to avoid liability if

the facility is the only substantial asset in the fiduciary estate

at the time the facility became subject to the fiduciary estate;·

(iii) A person who acts in capacity' other than that of a

fiduciary or in a beneficiary capacity and in that capacity

directly or indirectly' benefits from a trust. or fiduciary

relationship; . (iv) A person who is a beneficiary and fiduciary with respect

to the same fiduciary estate', and who while acting as a fiduciary

receives benefits that .exceedcustomary or reasonable compensation,

and incidental benefits permitted under applicable law;

(v) A person who is a fiduciary and receives benefits that

substantially exceed customary or reasonable compensation, and

incidental benefits permitted under applicable law; or

(vi) A person who acts in the capacity of trustee of state or

federal lands or resources. .

(26) "Fiduciary capacity" means the capacity of a . person

holding. title to a facility, or otherwise having control of an

interest in the facility' pursuant to the exercise of the ( \

responsibilities of the person as a fiduciary. [1998 c 6 § 1; 1997

RCW (10/30/0 12:23) [ 8 ]
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c 406 § 2; 1995 c 70 § 1; 1994 c 254 § 2; 1989 c 2 § 2 (Initiative

Measure No. 97, approved November 8, 1988).J

NOTES:

Findings--Intent--1997 c 406: "The legislature finds that:

(1) Engrossed Substitute House Bill No. 1810 enacted during

the 1995 legislative session [1995 c 359] authorized establishment

of the model toxics control act policy advisory committee, a

twenty-two member committee representing a broad range of interests

including the legislature, agriculture, large and small business,

environmental organizations, and local and state government. The

committee was charged with the task of providing advice to the

legislature and the department of ecology to more effectively

implement the model toxics control act, chapter 70.105D RCW.

(2) The committee members committed considerable time and

effort to their charge, meeting twenty-six times during 1995 and

1996 to discuss and decide issues. In addition, the committee

created four subcommittees that met over sixty times during this

same period. There were also numerous working subgroups and

drafting committees formed on an ad hoc basis to support the

committee's work. Many members of the public also attended these

meetings and were provided opportunities to contribute to the

committee deliberations.

(3) The policy advisory committee completed its work and

submitted a final report. to the department of ecology and the

legislature on December 15, 1996~ That report contains numerous

recommendations for statutory changes that were agreed to by

consensus of the committee members or obtained broad support of

most of the committee members. Chapter 406, Laws of 1997 is

intended to implement those recommended statutory changes." [1997

c 406 § 1. J

RCW 70.10SD.030 Department's powers and duties. (1) The

department may exercise the following powers in addition to any

other powers granted by law: . (a) Investigate, provide for investigating, or require

potentially liable persons to investigate any releases or

threatened releases of hazardous substances, including but not

limited to inspecting, sampling, or testing to determine the nature

or extent of any release or threatened release. If there is a

reasonable basis to believe that a release or thr~atened relea~e of

a hazardous substance may exist, the department's ·authorized

employees, agents, or contractors may enter upon. any property and

conduct investigations. ..The department shall give reasonable

notice before entering property unless an emergency prevents such

notice. The depart.merit : may by subpoena require the attendance or

testimony of witnesses and the production of documents or other

information that the department deems necessary;

(b) Conduct, provide for conducting, or require potentially

liable persons to conduct remedial actions (including

. investigations under (a) of this subsection) to remedy releases or

threatened releases of hazardous substances. In carrying out such

powers, the department's authorized employees, agents, or

contractors may enter upon property. The department· shall give

reasonable notice .before entering property unless an emergency

prevents such notice o.In conducting, providing for, .or requiring

RCW(10j30jO 12:23) [ 9 J
remedial action, the department shall give preference to permanent

solutions to the maximum extent practicable and shall provide for

or require adequate monitoring to ensure the effectiveness of the

remedial action;

'(c) Indemnify contractors retained by the department for

carrying out investigations and remedial actions, but not for any

contractor's reckless or wilful misconduct;

(d) Carry out all state programs authorized under the federal

cleanup law and the federal resource, conservation, and recovery

act, 42 U.S.C. Sec. 6901 et seq., as amended;

(e) Classify substances as hazardous substances for purposes

of RCW 70 .105D. 020 (7) and classify substances and products as

hazardous substances for purposes of RCW 82.21.020(1);

(f) Issue orders or enter into consent decrees or agreed

orders that include, or issue written opinions under (i) of this

subsection that may be conditioned upon, deed restrictions where

necessary to protect human health and the environment from a

release or threatened release of a hazardous· substance from a

facility. Prior to establishing a deed restriction under this

subsection, the department shall notify and seek comment from a

city or county department with land use planning authority for real

property subject to a deed restriction;

(g) Enforce the application of permanent and effective

institutional controls that are necessary for a remedial action to

be protective of human health and the environment;

(h) Require holders to conduct remedial actions necessary to

abate an imminent or substantial endangerment pursuant to RCW

70 .105D. 020 (12) (b) (ii) (C) ;

(i) Provide informal advice and assistance to persons

regarding the administrative and. technical requirements of this

chapter. This may include site-specific advice to persons who are

conducting or otherwise interested in independent remedial actions.

Any such advice or assistance shall be advisory only, and shall not

be binding on the department. As a part of providing this advice

and assistance for independent remedial actions, the department may

prepare written opinions regarding whether the independent remedial

actions or proposals for those actions meet the substantive require~ents of. this chapter orwhet~er the department believe~

further remedial action is necessary at the facility. The

department may collect, from persons requesting advice and

assistance, the. costs incurred by the department in providing such

advice and assistance; however, the department shall, where

appropriate, waive collection of costs in order to provide· an

appropriate level of technical assistance in support of public

participation. The state, the department and officers and

employees of the state are immune from all liability, ahd no cause

of action of any nature may arise from any act or omission in

providing, or failing to provide, informal advice and assistance; and .

(j) Take any other actions necessary to carry out the

provisions of this chapter, including the power to adopt rules

under chapter 34.05 RCW. .

(2) The department shall immediately impiement all provisions

of this chapter to the maximum extent practicable, including

investigative and remedial actions where appropriate. The.

department shall adopt, and thereafter enforce, rules under chapter

34.05 RCW to: ()

RCW (10/30/0 12:23) [ 10 ]
•

•

•

(a) Provide for public participation, including at least (i)

the establishment of regional citizen's advisory committees, (ii)

public notice of the development of investigative plans or remedial

plans for releases. or threatened releases, and (iii) concurrent

public notice of all compliance orders, agreed orders, enforcement

orders, or notices of violation;

(b) Establish a hazard ranking system for hazardous waste

sites;

(c) Provide for requiring the reporting by an owner or

operator of releases of hazardous substances to the environment

that may be a threat to human health or the environment within

ninety days of discovery, including such exemptions from reporting

as the department deems appropriate, however this requirement shall

not modify any existing requirements provided for under other laws;

(d) Establish reasonable deadlines not to exceed ninety days

for initiating an investigation of a hazardous waste site after the

department receives notice or otherwise receives information that

the site may pose a threat to human health or the environment and

other reasonable deadlines for remedying releases or threatened

releases at the site;

(e) Publish and 'periodically update minimum cleanup standards

for remedial actions at least as stringent as the cleanup standards

under section 121 of the federal cleanup law, 42 U.S.C. Sec. 9621,

and at least as stringent as all applicable state and federal laws,

including health~based standaids under state and federal law; and

(f) Apply industrial clean-up standards at industrial

prop~rties. Rules adopted under this ·subsection shall ensure that

industrial properties cleaned up to industrial standards cannot be

converted to nonindustrial uses without approval from the

department. The department may require that a property cleaned up

to industrial standards is cleaned up to a more stringent

applicable standard as a condition of conversion to a nonindustrial

use. Industrial clean-up standards may not be applied to

industrial properties where hazardous substances remaining at the

property after remedial action.pose a threat to human health or the

environment in adjacent nonindustrial areas.

(3). Before November 1st of each even-numbered year, the

department shall develop, with public notice and hearing, and

submit to the ways and means and appropriate standing environmental

committees of the senate and house ·of representatives a ranked list

of projects and expenditures recommended for appropriation from

. both the state and local. t oxi cs control accounts. The department .

shall also provide the legislature and the public each year with an

accounting. of the de~artment's activities' stipported by

appropriations from the state toxics control account, including a

list of known hazardous waste sites and their hazard r ankLnqs ,

actions taken and planned at each site, how the department ·is

meeting its top two management priorities under RCW 70.105.150, and

all funds expended under this chapter.

(4) The department shall establish a scientific advisory board

to render advice to the department with respect to the hazard

ranking system, cleanup standards, remedial actions, deadlines for

remedial actions, monitoring, the' classification of substances as

hazardous substances for purposes of RCW 70.105D. 020 (7) and the

classification of substances or products' as hazardous substances·

for purposes of RCW 82.21.020(1}. The board shall consist of five

independent. members to serve .staggered three -year terms. No

members may be employees of the department. Members shall be

. RCW (10/30/0 12:23) [ 11 ]
reimbursed for travel expenses as provided inRCW 43.03.050 and

43.03.060.

(5) The department shall establish a program to identify

potential hazardous waste sites and to encourage persons to provide

information about hazardous waste sites. [1997 c 406 § 3; 1995 c C

70 § 2. Prior: 1994 c 257 § 11; 1994 c 254 s 3; 1989 c 2 s 3 j

(Initiative Measure No. 97, approved November 8, 1988).J

NOTES:

Findings--Intent--1997 c 406:

70.105D.020.

See note following RCW

Severability~-1994 c 257: See note following RCW 36~70A.270.

RCW 70 .105D. 040 Standard of liability- -Settlement. (1)

Except as provided in subsection (3) of this section, the following

persons are liable with respect to a facility:

(a) The owner or operator of the facility;

(b) Any person who owned or operated the facility at the time

of disposal or release of the hazardous substances;

(c) Any person who owned or possessed a hazardous substance

and who by contract, agreement, or otherwise arranged for disposal

or treatment of the hazardous substance at the facility, or

arranged with a transporter for transport for disposal or treatment

of the hazardous substances at the facility, or otherwise generated

hazardous wastes disposed of or treated at the facility;

(d) Any person (i) who accepts or accepted any hazardous

substance for transport to a disposal, treatment, or other facility

selected by such person from which there is a release or a C~\

threatened release for which remedial action is required, unless/

such facility, at the time of disposal or treatment, could legally

receive such substance; or (ii) who accepts a hazardous substance

for transport to such a facility and has reasonable grounds to

believe that such facility is not operated in accordance with

chapter 70.105 RCWi and

(e) Any person who both sells a hazardous substance and is

responsible for written instructions for its use if (i) the

substance is used according to the instructions and (ii) the use

constitutes a release for which remedial action is required at the

facility. . .

(2) Each person who is liable under this section is strictly

liable, jointly and severally, for all remedial action costs and

for all natural resource damages resulting from the releases or

threatened releases of hazardous substances. The attorney general,

at the request of the department, is empowered to recover all costs

and damages from persons liable therefor.

(3) The following persons are not liable under this section:

(a) Any person who can establish that the release or

threatened release of a hazardous substance for which the person

would be otherwise responsible was caused solely by:

(i) An act of God;

(ii) An act of war; or

(iii) An act or omission of a third party (including but not·

limited to a trespasser) other than (A) an employee or agent of the ( ; .. person asserting the defense, or (B) any person whose act or /'

omission occurs in connection with a contractual relationship

RCW (10/30/0 12:23) [ 12 J
•

•

•

existing, directly or indirectly, with the person assertirig this

defense to liability. This defense only applies where the person

asserting the defense has exercised the utmost care with respect to

the hazardous substance, the foreseeable acts or omissions of the

third party, and the foreseeable consequences of those acts or

omissions;

(b) Any person who is an owner, past owner, or purchaser of a

facility and who can establish by a preponderance of th~ evidence

that at the time the facility was acquired by the person, the

person had no knowledge or reason to know that any hazardous

substance, the release; or threatened release of which has resulted

in or contributed to the need for the remedial action, was released

or disposed of on, in, or at the facility. This subsection (b) is

limited as follows:

(i) To establish that a person had no reason to know, the

person must have undertaken, at the time of acquisition, all

appropriate inquiry into the previous ownership and uses of the

property, consistent with good commercial or customary practice in

an effort to minimize liability. Any court interpreting this

subsection (b) shall take into account any specialized knowledge or

experience on the part of the person, the relationship of the

purchase price to the value of the property if uncontaminated,

commonly known or reasonably ascertainable information about the

property, the obviousness of the ·presence or likely presence of

contamination at the property, and the ability to detect such

contamination by appropriate inspection;

(ii) The defense contained in this subsection (b) is not

available to any person who had actua~ knowledge of the release or

threatened release of a hazardous substance when the person owned

the real property and who subsequently transferred ownership of the.

property without first disclosing such knowledge to the transferee;

(iii) The defense contained in this subsection (b) is not

available to any person who, by any act; or omission, caused or

contributed to the release or threatened release of a hazardous

substance at the facility;

(c) Any natural person who uses a hazardous substance lawfully

and without negligence for. any personal or domestic purpose inor·

near a dwelling or accessory structure when that person is: (i) A

resident of the dwelling; (ii) a person who, without compensation,

assists the resident in the use of the substance; or (iii) a person

who is employed by the resident, but who is·· not an independent

contractor; . .

(d) Any person· who, for. the purpose of growing food crops,

applies pesticides or. fertilizers without negligence and in

accordance with all applicable laws and regulations.

(4) There may be no settlement by the state with any person

potentially liable under this chapter except in accordance with

this section. .

(a) The attorney general may agree to a settlement with any

potentially liable person only if the department finds, after

public notice and any required hearing, that the ·proposed

settlement would lead to a more expeditious cleanup of hazardous

. substances in compliance with cleariupstandards under. RCW.

70. 105D. 030 (2) (e) and with· any remedial orders iSSJlE!d by the

department. Whenever practicable and in the public interest, the

attorney general may expedite such a settlement with persons whose

contribution is insignificant in amount and toxicity. A hearing

RCW (10/30/0 12:23) [ 13 ]
shall be required only if at least ten persons request one or if

the department determines a hearing is necessary.

(b) A settlement agreement under this section shall be entered

as a consent decree issued by a court of competent jurisdiction.

(c) A settlement agreement may contain a covenant not to sue C·~/

only of a scope commensurate with the settlement agreement in favor

of any person with whom the attorney general has settled under this

section. Any covenant not to sue shall contain a reopener clause

which requires the court to amend the covenant not to sue if

factors not known at the time of entry of the settlement agreement

are discovered and present a previously unknown threat to human

health or the environment.

(d) A party who has resolved its liability to the state under

this section 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

total potential liability of the others to the state by the amount

of the settlement.

(e) If the state has entered into a consent decree with an

owner or operator under this section, the state shall not enforce

this chapter against any owner or operator who is a successor in

interest to the settling party unless under the terms of the

consent decree the state could enforce against the settling party~

if:

(i) The successor owner or operator is liable with respect to

the facility solely due to that person's ownership interest or

operator status acquired as a successor in interest to the owner or

operator with whom the state has entered into a consent decree; and

(ii) The stay of enforcement under this subsection does not

apply if the consent decree was based on circumstances unique to

the settling party that do not exist with regard to the successor (.--;

in interest, such as financial hardship. For consent decrees "'-./

entered into before July 27, 1997, at the request of a settling

party or a potential successor owner or operator, the attorney gene~al shall issue a written opinion on whether a consent decree

contains such unique circumstances. For all other consent decrees,

such unique circumstances shall be specified in the consent decree.

(f)· Any person who is not subject to enforcement by the state

under (e) of this subsection· is not liable for claims for

contribution regarding matters addressed in the settlement.

(5) (a) In· addition to the settlement authority provided under

subsection (4) of this section, the attorney general may agree to

a settlement with a person not currently liable for remedial action

at a facility who proposes to purchase, redevelop, or reuse the

facility~ provided that:

(i) The settle~ent will yield substantial new resources to

facilitate cleanup;

(ii) The settlement will expedite remedial action consistent

with the rules adopted under this chapter; and

(iii) Based on available information, the department

determines that the redevelopment or reuse of the facility is not

likely to contribute to the existing release or threatened release,

interfere with remedial actions that may be needed at the site, or

increase health risks to persons at or in the vicinity of the site.

(b) The legislature recognizes that. the state does not have

adequate resources to participate in all property transactions ( )

involving contaminated property. The primary purpose of this ./

subsection (5) is to promote the cleanup and reuse of vacant or

RCW (10/30/0 12:23) [ 14 ]
•

abandoned commercial or industrial contaminated property. The

attorney general and the department may give priority to

settlements that will provide a substantial public benefit,

including, but" not limited to the reuse of a vacant or abandoned

manufacturing or industrial facility, or the development of a

facility by a governmental entity to address an important public

purpose.

(6) Nothing in this chapter affects or modifies in any way any

person's right to seek or obtain relief under other statutes or

under common law, including but not limited to damages for injury

or loss resulting from a release or threatened release of a

hazardous substance. No settlement by the department or remedial

action ordered by a court or the department affects any person's

right to obtain a remedy under common law or other statutes. [1997

c 406 § 4; 1994 c 254 § 4; 1989 c 2 § 4 (Initiative Measure No. 97,

approved November 8, 1988).J

NOTES:

Findings--rntent--1997 c 406:

70.105.0.020.

See note following RCW

•

•

RCW 70.10SD.OSO Enforcement. (I) With respect to any

release, or threatened release, for which the department does not

conduct or contract for conducting remedial action and for which

the department believes remedial action is in the public interest,

the director shall issue orders or agreed orders requiring

potentially liable persons to provide the remedial action. Any

liable person who refuses, without.sufficient cause, to comply with

an order or agreed order of the director is liable in an action

brought by the attorney general for:

(a) Up to three times the amount of any costs incurred by the

state as" a result of ·the party's refusal to comply; and

(b) A civil penalty of up to twenty-five thousand dollars for

each day the party refuses to comply. _

The treble damages and civil penalty under this subsection apply to

all recovery actions filed on or after March 1, 1989.

(2) Any person who incurs costs complying with an order issued

under subsection (I) of this section may petition the department

for reimbursement of those costs. If the department refuses to

grant reimbursement, the person may within thirty days thereafter"

file suit and recover costs by proving that he or she was nQt a

liable person under RCW 70.105D.040 and that the costs incurred

were reasonable. .

(3) The attorney general shall seek, by filing.an action if

necessary, to recover the amounts spent by the department· for

investigative and remedial actions and orders, and agreed orders,

including amounts spent prior to March 1, 1989. "

(4) The attorney general may bring an action to secure such

relief as is necessary to protect human health and the environment

under this chapter.

(5) (a) Any person may commence a civil action to compel the

department to perform any nondiscretionary duty under this chapter.

At least thirty days before commencing the action, the person must

give notice of intent to sue, unless a substantial endangerment

exists. The court may award attorneys'fees and other costs to the

prevailing party in the action .

. RCW (10/30/0 12:23) [ 15 J
(b) Civil actions under this section and RCW 70.105D.060 may

be brought in the superior court of Thurston county or of the

county in which the release or threatened release exists. [1994 c

257 § 12; 1989 c 2 § 5 (Initiative Measure No. 97, approved

November 8, 1988).J

NOTES:

Severability--1994 c 257: See note following RCW 36.70A.270.

RCW 70.105D.060 Timing of review. The department's

investigative and remedial decisions under RCW 70 .105D. 03Q and

70.105D.050 and its decisions regarding liable persons under RCW

*70.105D.020(8) and 70.105D.040 shall be reviewable exclusively in

superior court and only at the following times: (1) In a cost

recovery suit under RCW 70.105D.050(3); (2) in. a suit by the

department to enforce an order or an agreed order, or seek a civil

penalty under this chapter; (3) in a suit for reimbursement under

RCW 70.105D.050(2); (4) in a suit by the department to compel

investigative or remedial action; and (5) in a citizen's suit under

RCW 70.105D.050(5). The court shall uphold the department's

actions unless they were arbitrary and capricious. [1994 c 257 §

13; 1989 c 2 § 6 (Initiative Measure No. 97, approved November 8,

1988) .J

NOTES:

c

*Reviser's note: RCW 70.105D.020 was amended by 1994 c 254 §

2, changing subsection (8) to subsection (9); and was subsequently

amended by 1995 c 70 § 1, changing subsection (9) to subsection (;

(15); and was subsequently amended by 1997 c 406 § 2, changing /

.subsection (15) to subsect~on (16).

Severability--1994 c 257: See note followingRCW 36.70A.270.

RCW 70.105D.070 Toxicscontrol accounts. (i) The state

toxies control account and the loc~l toxics control account are

hereby created in the state treasury.··

(2) The following moneys shall be deposited into the state

toxics control account: (a) Those revenues which are raised by the

tax imposed under RCW 82.21.030 and which are attributable to that

portion of the rate equal to thirty-three one-hundredths of one

percent; (b) the costs of remedial actions recovered under this

chapter or chapter 70.105A. RCW;o (c) . penalties collected or

recovered und~r this chapter; and (d) any other money appropriated

or transferred to the account by the legislature. Moneys. in the

account may be used only to carry out the purposes of this.· chapter,

including but not· limited to the following activities:

(i) The state's responsibility for hazardous waste planning,

management, regulation, enforcement, technicar assistance, and

public education required under chapter 70.105 RCW;

(ii) The state's responsibility for solid waste planning,.·

management"; regulation, enforcement, technical assistance and

public education required under chapter 70.95 RCW; ( ;

(iii) The hazardous waste cleanup program required under this /

chapter;

RCW (10/30/0 12:23) [ 16 J
•

•

•

(iv) State matching funds required under the federal cleanup

law;

(v) Financial assistance for local programs in accordance with

chapters 70.95, 70.95C, 70.951, and 70.105 RCW;

(vi) State government programs for the safe reduction,

recycling, or disposal of hazardous wastes from households, small

businesses, and agriculture;

(vii) Hazardous "materials emergency response training;

(viii) Water "and environmental health protection and

monitoring programs;

(ix) Programs authorized under chapter 70.146 RCW;

(x) A public participation program, including regional citizen

advisory committees;

(xi) Public funding to assist potentially liable persons to

pay for the costs of remedial action in compliance with cleanup

standards under RCW 70.105D.030(2) (e) but only when the amount and

terms of such funding are established under a settlement agreement

under RCW 70.105D.040(4) and when the director has found that the

funding will achieve both (A) a substantially more expeditious or

enhanced cleanup than would otherwise occur, and (B) the prevention

or mitigation of unfair economic hardship; and

(xii) Development and demonstration of alternative management

techriologies designed to carry out the top two hazardous waste

management priorities of RCW 70.105.150.

(3) The following moneys shall be deposited into the local

toxics control account: Those revenues which are raised by the tax

imposed under RCW 82.21.030 and which are attributable to that

portion of the rate equal to thirty-seven one-hundredths of one

percent.

(a) Moneys deposited in the local toxics control account shall

be used by the department for grants or loans to local governments

for th~ following purposes in descending order of priority: (i)

Remedial actions; (ii) hazardous waste plans and programs under

chapter 70.105 RCW; (iii) solid waste plans and programs under

chapters 70.95, 70.95C, 70.951, and 70.105 RCW; and (iv) funds for

a program to assist in the assessment and cleanup of sites of

methamphetamine production, but not to be used for the initial

containment of such "sites, consistent with the responsibilities and

intent of RCW 69.50.511. Funds for plans and programs shall be

allocated consistent with the priorities and matching requirements

established in chapters 70.105, 70. 95C, 70.951, and. 70.95 RCW.

During the 1999-2001 fiscal biennium, moneys in the account may

also be used for the following activities: Conducting a study of

whether dioxins occur in fertilizers, soil amendments," and soils;

reviewing applications for registration of fertilizers; and

conducting a study of plant uptake of metals.

(b) Funds may also be appropriated to the department of health

to implement programs to reduce testing requirements under the

federal safe drinking water act for publi~ water systems. Th~

department of health shall reimburse the account from fees assessed

under RCW 70.119A.115 by June 30, 1995.

(4) Except for unanticipated receipts under RCW 43.79.260

through 43.79.282, moneys in the state and local toxics control

accounts may be spent only after appropriation by statute. . (5) One percent of the moneys deposited into the state and

local taxics control accounts shall be allocated only for public

participation grants to persons who may be adversely affected by a

release or threatened release of a hazardous substance and to notRCW (10/30/0 12:23) [ 17 i
for-profit public interest organizations. The primary purpose of

these grants is to facilitate the participation by persons and

organizations in the investigation and remedying of releases or

threatened releases of hazardous substances and to implement the

during

state's

the

solid

1999-2001

and hazardous

fiscal

waste

biennium,

management

funding

priorities.

may not be granted

However,

to

C

j

entities engaged in lobbying activities, and applicants may not be

awarded grants if their cumulative grant awards under this section

exceed two hundred thousand dollars. No grant may exceed sixty

thousand dollars. Grants may be renewed annually. Moneys

appropriated for public participation from either account which are

not expended at the close of any biennium shall revert to the state

toxics control account.

(6) No moneys deposited into either the state or local taxies

control account may be used for solid waste incinerator feasibility

studies, construction, maintenance, or operation.

(7) The department shall adopt rules for grant or loan

issuance and performance. [2000 2nd sp. s. c 1 § 912; 1999 c 309 §

923. Prior: 1998 c 346 § 905; 1998 c 81 § 2; 1997 c 406 § 5; 1994

c 252 § 5; 1991 sp.s. c 13 § 69; 1989 c 2 § 7 (Initiative Measure

No. 97, approved November 8, 1988).J

NOTES:

Severability--Effective date--2000 2nd sp~s. c 1:. See notes

followingRCW 41.05.143.

Severability--Effective date--1999 c 309: See notes following

RCW 41.45.063.

Construction--Severability--Effective date--1998 c 346: See (\

notes following RCW 50.24.014. .~.

Local governments--Increased service--1998 c 81:· "If this act

mandates an increased level of service by local governments,the

local government may, under RCW 43.135.060 and chapter 4.92 RCW,

submit claims for reimbursement by the legislature.' 'The .cLa i.ms

shall be subject to verification by the office' of financial

management. " [1998 c 81 § 3. J

Findings--Intent--1997 c 406: , 70.105D.020.See note following RCW,

Finding--Effective date--1994 c 252: See notes following RCW

70.119A.020.

Effective dates--Sev~~ability--1991 sp.s. c 13:

following RCW 18.08.240.

See 'notes

RCW 70.105D.080Private right of action--Remedial,action

costs. Except as provided inRCW 70.105D.040(4) (d) and (f), a '

person may bring a private right of action, including a'claim'for

contribution or for declaratory relief, against any other person

liable under RCW 70.105D.040for the recovery of remedial action

costs. In the action, natural resource damages paid to the state

under this chapter may also be recovered. Recovery shall be based ()

on such equitable factors as the court determines are appropriate~

RCW (10/30/0 12:23) [ 18 J
•

Remedial action costs shall include reasonable attorneys' fees and

expenses. Recovery of remedial action costs shall be limited to

those remedial actions that, when evaluated as a whole, are the

substantial equivalent of a department-conducted or departmentsupervised remedial action. Substantial equivalence shall be

determined by the court with reference to the rules adopted by the

department under this chapter. An action under this section may be

brought after remedial action costs are incurred but must be

brought within three years from the date remedial action confirms

cleanup standards are met or within one year of May "12, 1993,

whichever is later. The prevailing party in such an action shall

recover its reasonable attorneys' fees and costs. This section

applies to all causes of action ~egardless of when the cause of

action may have arisen. To the extent a cause of action has arisen

prior to May 12, 1993, this section applies retroactively, but in

all other respects it applies prospectively. [1997 c 406 § 6; 1993

c 326 § 1.]

NOTES:

Findings--Intent--1997 c 406:

70.105D.020.

See note following RCW"

•

•

Effective date- -1993 c 326: "This act is necessary for" the

immediate preservation of the public peace, health, or safety, or

support of the state government and its existing public

institutions, and shall take effect immediately [May 12, 1993];"

[1993 c 326 § 2.]

Severability--1993 c 326: "If any provision of this act or

its application to any person or circumstance is held invalid, the

remainder of the act or the application of the provision to other

persons or circumstances is not affected." [1993 c 326 § 3.]

RCW 70.10SD.090 Remedial actions--Exemption from procedural

requirements. (1) A person conducting a remedial action at a·

facility under a consent decree, order, or agreed order, and the

department when it conducts a remedial action, are exempt from the

procedural requirements of chapters 70.94, 70.95, 70.105,*75.20,

90.48, and 90.58 RCW, and the procedural requirements of" any laws

requiring or authorizing local government permits or approvals for

the remedial action. The department shall ensure compliance with

the substantive provisions of chapters 70.94~" 70.95, 70.105,

*75.20, 90.48, and 90.58 RCW, and the substantive provisions of any

laws requiring or authorizing local" government permits of

approvals. The department shall establish procedures for ensuring

that such remedial actions comply with the substantiyerequirements

adopted pursuant to such laws, and shall consult with the state

agencies and local governments charged with implementing these

laws. The procedures shall provide an opportunity for comment by

the public and by the state agencies and local governments that

would otherwise implement the laws referenced in this section.

Nothing in this section is intended to" prohibit LmpLement.Lnq .

agencies from chargirtg a fee to the person conducting the remedial

action to defray the" costs of services rendered relating to "the

substantive reqUirements for the remedial action.

RCW (10/30/0 12:23) [ 19 ]
(2) An exemption in this section or in RCW 70.94.335,

70.95.270, 70.105.116, **75.20.025, 90.48.039, and 90.58.355 shall

not apply if the department determines that the exemption would

result in loss of approval from a federal agency necessary for the

state to administer any federal law, including the federal resource c./·.. conservation and recovery act, the federal clean water act, the . federal clean air act, and the federal coastal zone management act.

Such a determination by the department shall not affect the

applicability of the exemptions to other statutes specified in this

section. [1994 c 257 § 14.]

NOTES:

Reviser's note: *(1) Chapter 75.20 RCW was recodified as

chapter 77.55 RCW by 2000 c 107. See Comparative Table for that

chapter in the Table of Disposition of Former RCW Sections, Volume

o.

**(2) RCW 75.20.025 was recodified as RCW 77.55.030 pursuant

to 2000 c 107 § 129.

Severability--1994 c 257: See note following RCW 36.70A.270.

RCW 70.1050.900 Short title--1989 c 2. This act shall be

known as "the model toxics control act." [1989 c 2 § 22

(Initiative Measure No. 97, approved November 8, 1988).]

RCW 70.1050.905 Captions--1989 c 2. As used in this act,

captions constitute no part of the law. [1989 c 2 § 21 (Initiative

Measure No. 97, approved November 8, 1988).]

RCW 70.1050.910 Construction--1989 c 2. The provisions of

this act are to be liberally construed to effectuate the policies

and purposes of this act. In the event of conflict between the

provisions of this act and any other act, the provisions of this.

act shall govern. [1989 c 2 § 19 (Initiative Measure No. 97,

approved November 8, 1988).]

RCW 70.1050.915

orders and decrees in

and binding. [1989 c

November 8, 1988).]

Existingagreements--1989 c 2.

effect on March 1, 1989, shall

2 § 20 (Initiative Measure No.

The consent

remain valid

97, approved

RCW 70.1050.920 Effective date--1989 c 2. (1) Sections 1

through 24 of this act shall take effect March 1, 1989, except that

the director of ecology and the director of revenue may take

whatever actions may be necessary to ensure that sections 1 through

24 of this act are implemented on their effective date.

*(2) This section does not apply and shall have no force or

effect if (a) this act is passed by the legislature in the 1988

regular session or (b) no bill is enacted by the legislature

involving hazardous substance cleanup {along with any other subject (\

m

2a6tt{eIr). ~etv.:eenMAugust INS, 1

99 787,

and JanduNary rob l , 198

88'198[189)89]

c 2 s .: . nltlatlve easure o. , approve ove er ,. .

RCW (10/30/0 12:23) [ 20 ]
•

•

•

NOTES:

*Reviser's note: Neither condition contained in subsection

(2) was met.

RCW 70.10SD.921 Severability--1989 c 2. If any provision of

this act or its application to any person or circumstance is held

invalid, the remainder of the act or the application of the

provision to other persons or circumstances is not affected. [1989

c 2 § 18 {Initiative Measure No. 97, approved November 8, 1988).J

RCW (10/30/0 12:23) [ 21