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VOLUME 6

Titles 60 through 74

1998

REVISED CODE OF WASHINGTON

Published under the authority of chapter 1.08 RCW.

Containing all laws of a general and permanent nature through the 1998 regular session, which adjourned sine die

March 12, 1998.

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(1998 Ed.) [Preface-p i]
•

REVISED CODE OF WASIllNGTON

1998 Edition

°1998 State of Washington

••

CERTIFICATE

The 1998 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.

MARY F. GALLAGHER DILLEY, Chair,

STATUTE LAW COMMITTEE

••

(1998 Ed.) [PreCace-p ill

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---------------- IfII.
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CHAPTER 70.105 RCW

HAZARDOUS WASTE MANAGEMENT

Sections

•

•

70.105.005

70.105.007

70.105.010

70.105.020

70.105.025

70.105.030

70.105.035

70.105.040

70.105.050

70.105.060

70.105.070

70.105.080

70.105.085

70.105.090

70.105.095

70.105.097

70.105.100

70.105.105

70.105.109

70.105.110

70.105.111

70.105.112

70.105.116

70.105.120

70.105.130

70.105.135

70.105.140

70.105.145

70.105.150

70.105.160

70.105.165

Legislative declaration.

Purpose.

Definitions.

Standards and regulations--Adoption--Notice and

hearing--Consultation with other agencies.

Environmental excellence program agreements--Effect

f on chapter.

List and information to be furnished by depositor of

hazardous waste--Rules and regulations.

Solid wastes--Conditionally exempt from chapter.

Disposal site or facility--Acquisition--Disposal fee

schedule.

Disposal at other than approved site prohibited--

Disposal of radioactive wastes.

Review of rules, regulations, criteria and fee

schedules.

Criteria for receiving waste at disposal site.

Violations--Civil penalties.

Violations--Criminal penalties.

Violations--Gross misdemeanor.

Violations--Orders--Penalty for noncompliance--

Appeal. .

Action for damages resulting from violation--

Attorneys' fees.

Powers and duties of department.

Duty of department to regulate PCB waste.

Regulation of wastes with radioactive and hazardous

components.

Regulation of dangerous wastes associated with energy

facilities.

Radioactive wastes--Authority of department of social

and health services.

Application of chapter to special incinerator ash.

Hazardous substance remedial actions--Procedural

requirements not applicable.

Authority of attorney general.

Department's powers as designated agency under

federal act.

Copies of notification forms or annual reports to

officials responsible for fire protection.

Rules implemented under RCW 70.10S.130--Review.

Department's authority to participate in and

administer federal act.

Declaration--Management of hazardous waste--

Priorities--Definitions.

Waste management study--Public hearings--Adoption or

modification of rules--Recommendations to

legislature.

Disposal of dangerous wastes at commercial off-site

land disposal facilities--Limitations.

RCW (2/23/98 8:48) [ 1 ]
70.105.170

70.105.180

70.105.200

70.105.210

70.105.215

70.105.21.7

70.105.220

70.105.221

70.105.225

70.105.230

70.105.235

70.105.240

70.105.245

70.105.250

70.105.255

70.105.260

70.105.270

70.105.280

70.105.300

70.105.900

NOTES:

Waste management--Consultative services--Technical

assistance--Confidentiality.

Disposition of fines and penalties--Earnings.

Hazardous waste management plan.

Hazardous waste management facilities--Department to

develop criteria for siting.

Department to adopt rules for permits for hazardous

substances treatment facilities.

Local government regulatory authority to prohibit or

condition.

Local governments to prepare local hazardous waste

plans--Basis--Elements required.

Local governments to prepare local hazardous waste

plans--Used oil recycling element ..

Local governments to designate zones--Departmental

guidelines--Approval of local government zone

designations or amendments--Exemption.

Local governments to submit letter of intent to

identify or designate zones and submit management

plans--Department to prepare plan in event of

failure to act. .

Grants to local governments for plan preparation,

implementation, and designation of zones--Matching

funds--Qualifications.

State preemption--Department sole authority--Local

requirements superseded--State authority over

designated zone facilities.

Department may require notice of intent for

management facility permit.

Appeals to pollution control hearings board.

Department to provide technical assistance with local

plans.

Department to assist conflict resolution activities

related to siting facilities--Agreements may

constitute conditions for permit.

Requirements of RCW 70.105.200 through 70.105.230 and

70.105.240(4) not mandatory without legislative

appropriation.

Service charges.

Metals mining and milling operations permits--

Inspections by department of ecology.

Short title--1985 c 448.

c

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

43.21A.175.

Hazardous materials incidents, handling and liability: RCW

70.136.010 through 70.136.070. .

Hazardous waste fees: Chapter 70.105B RCW.

Radioactive and hazardous waste emergency response programs, state

coordinator: RCW 38.52.030.

Transport of hazardous materials, state patrol authority over:

Chapter 46.48 RCW.

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RCW (2/23/98 8:48) [ 2 ]
The legislature ..

•

•

•

RCW 70.105.005 Legislative declaration.

hereby finds and declares:

(I) The health and welfare of the people of the state depend

on clean and pure environmental resources unaffected by hazardous

waste contamination. At the same time, the quality of life of the

people of the state is in part based upon a large variety of goods

produced by the economy of the state. The complex industrial

processes that produce these goods also generate waste byproducts,

some' of which are hazardous to the public health and the

environment if improperly managed.

(2) Safe and responsible management of hazardous waste is

necessary to prevent adverse effects on the environment and to

protect public health and safety.

(3) The availability of safe , effective, economical, and

environmentally sound facilities for the management of hazardous

waste is essential to protect public health and the environment and

to preserve the economic strength of the state.

(4) Strong and effective enforcement of federal and state

hazardous waste laws and regulations is essential to protect the

public health and the environment and to meet the public's concerns

regarding the acceptance of needed new hazardous waste management

facilities.

(5) Negotiation, mediation, and similar conflict resolution

techniques are useful in resolving concerns over the local impacts

of siting hazardous waste management facilities.

(6) Safe and responsible management of .. hazardous waste

requires an effective planning process that involves local and

state governments, the public, and industry.

(7) Public acceptance and successful siting of needed new'

hazardous waste management facilities depends on several factors,

including:

(a) Public confidence in the safety of the facilities;

(b) Assurance that the hazardous waste management priorities'

established in this chapter are being carried out to the maximum

degree practical;

(c) Recognition that all state citizens benefit from certain

products whose manufacture results in the generation of hazardous

byproducts, and that all state citizens must, therefore, share in

the responsibility for finding safe and effectiv~ means to manage

this hazardous waste; and

(d) Provision of adequate opportunities for citizens to meet

with facility operators and resolve concerns about local hazardous

waste management facilities.

(8) Due to the controversial and regional nature of facilities

for the disposal and incineration of hazardous waste, the

facilities have had difficulty in obtaining necessary local

approvals. The legislature finds that there is a state-wide

interest in assuring that such facilities can be sited.

It is therefore the intent of the legislature to preempt local

government I s authority to approve, deny, or otherwise regulate

disposal and incineration facilities, and to vest in the department

of ecology the sole authority among state, regional, and local

agencies to approve, deny, and regulate preempted facilities, as

defined in this chapter.

In addition, it is the intent of the legislature that such

complete preemptive authority also be vested in the department for

RCW (2/23/98 8:48) [ 3
treatment and storage facilities, in addition to disposal and

incineration facilities, if a local government fails to carry out

its responsibilities established in RCW 70.105.225.

It is further the intent of the legislature that no local

ordinance, permit requirement, other requirement, or decision shall

prohibit on the basis of land use considerations the construction

of a hazardous waste management facility within any zone designated

and approved in accordance with this chapter, provided that the

proposed site for the facility is consistent with applicable state

siting criteria.

(9) With the exception of the disposal site authorized for

acquisition under this chapter, the private sector has had the

primary role in providing hazardous waste management facilities and

services in the state. It is the intent of the legislature that

this role be encouraged and continue into the future to the extent

feasible. Whether privately or publicly owned and operated,

hazardous waste management facilities and services should be

subject to strict governmental regulation as provided under this

chapter.

(10) Wastes that are exempt or excluded from full regulation

under this chapter due to their small quantity or household origin

have the potential to pose significant risk to public health and

the environment if not properly managed. It is the intent of the

legislature that the specific risks posed by such waste be

investigated and assessed and that programs be carried out as

necessary to manage the waste appropriately. In addition, the

legislature finds that, because local conditions vary substantially

in regard to the quantities, risks, and management opportunities

available for such wastes, local government is the appropriate

level of government to plan for and carry out programs to manage

moderate-risk waste, with assistance and coordination provided by

the department. [1985 c 448 § 2.]

NOTES:

Severability--1985 c 448: "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." [1985 c 448 § 19.]

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. RCW 70.105.007 Purpose. The purpose of this chapter is to

establish a comprehensive state-wide framework for the planning,

regulation, control, and management of hazardous waste which will

prevent land, air, and water pollution and conserve the natural,

economic, and energy resources of the state. To this end it is the

purpose of this chapter:

(I) To provide broad powers of regulation to the department of

ecology relating to management of hazardous wastes and releases of

hazardous substances;

(2) To promote waste reduction and to encourage other

improvements in waste management practices;

(3) To promote cooperation between state and local governments

by assigning responsibilities for planning for hazardous wastes to

the state and planning for moderate-risk waste to local government;

(4) To provide for prevention of problems related to improper ·0

management of hazardous substances before such problems occur; and

RCW. (2/23/98 8 :48) [ 4 ]
(5) To assure that needed hazardous waste management

facilities may be sited in the state, and to ensure the safe

operation of the facilities. [1985 c 448 § 3.]

• NOTES:

Severability--1985 c 448: See note following RCW 70.105.005.

means all contiguous land and structures,

and improvements on the land used for

treating, incinerating, or disposing of

•

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RCW 70.105.010 Definitions. The words and phrases defined in

this section shall have the meanings indicated when used in this

chapter unless the context clearly requires otherwise.

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

(2) "Director" means the director of the department of ecology

or the director's designee.

(3) "Disposal site" means a geographical site in or upon which

hazardous wastes are disposed of in accordance with the provisions

of this chapter.

(4) "Dispose or disposal" means the discarding or abandoning

of hazardous wastes or the treatment, decontamination, or recycling

of such wastes once they have been discarded or abandoned.

(5) "Dangerous wastes" means any discarded, useless, unwanted,

or abandoned substances, including but not limited to certain

pesticides, or any residues or containers of such substances which

are disposed of in such quantity or concentration as to pose a

substantial present or potential hazard to human health, wildlife,

or the environment because such wastes or constituents or

combinations of such wastes:

(a) Have short-lived, toxic properties that may cause death,

injury, or illness or have mutagenic, teratogenic, or carcinogenic

properties; or

(b) Are corrosive, explosive, flammable, or may generate

pressure through decomposition or other means.

(6) "Extremely hazardous waste" means any dangerous waste

which

(a) will persist in a hazardous form for several years or more

at a disposal site and which in its persistent form

(i) presents a significant environmental hazard and may be

concentrated by living organisms through a food chain or may affect

the genetic make-up of man or wildlife, and

(ii) is highly toxic to man or wildlife

(b) if disposed of at a disposal' sit e in such quantities as

would present an extreme hazard to man or the environment.

(7) "Person" means any person, firm, association, county,

public or municipal or private corporation, agency, or other entity

whatsoever.

(8) "Pesticide" shall have the meaning of the term as defined

in RCW 15.58.030 as now or hereafter amended.

. (9) "Solid waste advisory committee" means the same advisory

committee as per RCW 70.95.040 through 70.95.070.

(10) "Designated zone facility" means any facility that

requires an interim or final status permit under rules adopted

under this chapter and that is not a preempted facility as defined

in this section.

(11) "Facility"

other appurtenances,

recycling, storing,

hazardous waste.

RCW (2/23/98 8:48) [ 5 ]
.(12) "Preempted facility" means any facility that includes as

a significant part of its activities any of the following

operations: (a) Landfill, (b) incineration, (c) land treatment,

(d) surface impoundment to be closed as a landfill, or (e) waste c.

pile to be closed as a landfill.

(13) "Hazardous household substances" means those substances

identified by the department as hazardous household substances in

the guidelines developed under RCW 70.105.220.

(14) "Hazardous substances" means any liquid, solid, gas, or

sludge, including any material, substance, product, commodity, or

waste, regardless of quantity, that exhibits any of the

characteristics or criteria of hazardous waste as described in

rules adopted under this chapter.

(15) "Hazardous waste" means and includes all dangerous and

extremely hazardous waste, including substances composed of both

radioactive and hazardous components.

(16) "Local government" means a city, town, or county.

(17) "Moderate-risk waste" means (a) any waste that exhibits

any of the' properties of hazardous waste but is exempt from

regulation under this chapter solely because the waste is generated

in quantities below the threshold for regulation, and (b) any

household wastes which are generated from the disposal of

substances identified by the department as hazardous household

substances.

(18) "Service charge" means an ·assessment imposed under. RCW

70.105.280 against those facilities that store, treat, incinerate,

or dispose of dangerous or extremely hazardous waste that contains

both a nonradioactive hazardous component and a radioactive

componerit. Service charges shall also apply to facilities

undergoing closure under this chapter in those instances where 0

closure entails the physical characterization of remaining wastes

which contain both a nonradioactive hazardous component and a

radioactive component or the management of such wastes through

treatment or removal, except any commercial low-level radioactive

waste facility. [1989 c 376 § 1; 1987 c 488 § 1; 1985 c 448 § 1;

1975-'76 2nd ex.s. c 101 § 1.]

NOTES:

Severability--1989 c 376: "If any provision of this act or

its application to any perso~ or circumstance is held invalid, the

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

persons or circu~stances is not affected." [1989 c 376 § 4.]

Severability--1985 c 448: See note following RCW 70.105.005.

RCW 70.105.020 Standards and regulations- -Adoption- -Notice

and hearing--Consultation with other agencies. The department

after notice and public hearing shall:

(1) Adopt. regulations designating as extremely hazardous

wastes subj ect to the provisions of this chapter those ·substances

which exhibit characteristics consistent with the definition

provided in RCW 70.105.010(6);

(2) Adopt and may revise when appropriate, minimum standards

and regulations for disposal of extremely hazardous wastes to 0

protect against hazards to the public" and to the environment.

Before adoption of.such standards and regulations, the department

RCW.(2/23/98 8:48) [ 6
•

•

•

shall consult with appropriate agencies of interested local

governments and secure technical assistance from the department of

agriculture, the department of social and health services, the

department of fish and wildlife, the department of natural

resources, the department of labor and industries, and the

department of community, trade, and economic development, through

the director of fire protection. [1994 c 264 § 42; 1988 c 36 § 28;

1986 c 266 § 119; 1975-'76 2nd ex.s. c 101. § 2.]

NOTES:

Severability--1986 c 266: See note following RCW 38.52.005.

RCW 70.105.025 Environmental excellence program agreements--

Effect on chapter. Notwithstanding any other provision of law, any

legal requirement under this chapter, including any standard,

limitation, rule, or order is superseded and replaced in accordance

with the terms and provisions of an environmental excellence

program agreement, entered into under chapter 43.21K RCW. [1997 c

381 § 23.]

NOTES:

Purpose--1997 c 381: See RCW 43.21K.005.

RCW 70.105.030 List and information to be furnished by

depositor of hazardous waste--Rules and regulations. (1) After the

effective date of the regulations adopted by the department

designating extremely hazardous wastes, any person planning to

dispose of extremely hazardous waste as designated by the

department shall provide the operator of the disposal site with a

list setting. forth the extremely hazardous wastes for disposal, the

amount of such wastes, the general chemical and mineral composition

of such waste listed by approximate maximum and minimum

percentages, and the origin of any such waste. .Such list, when

appropriate, shall include information on antidotes, first aid, or

safety measures to be taken in case of accidental contact with the

particular extremely hazardous waste being disposed.

(2) The department shall adopt and enforce all rules and

regulations including the form and content of the list, necessary

and appropriate to accomplish the purposes of subsection (1) of

this section. [1975-'76 2nd ex.s. c 101 § 3.]

RCW 70.105.035 Solid wastes--Conditionally exempt from

chapter. Solid wastes that designate as dangerous waste or

extremely hazardous waste but do not designate as hazardous waste

under federal law are conditionally exempt from the requirements of

this chapter, if:

(1) The waste is generated pursuant to a consent decree issued

under chapter 70.105D RCW;

(2) The consent decree characterizes the solid waste and

specifies management practices and a department-approved treatment

or disposal location;

RCW (2/23/98 8:48) [ 7 ]
(3) The management practices are consistent with RCW

70.105.150 and are protective of human health and the environment

as determined by the department of ecology; and

(4) Waste treated or disposed of on-site will be managed in a C

manner determined by the department to be as protective of human

health and the environment as clean-up standards pursuant to

chapter 70.105D RCW.

This section shall not be interpreted to limit the ability of

the department to apply any requirement of this chapter through a

consent decree issued under chapter 70.105D RCW, if the department

determines these requirements to be appropriate. Neither shall

this section be interpreted to limit the application of this

chapter to a cleanup conducted under the federal comprehensive

environmental response, compensation, and liability act (42 U.S.C.

Sec. 9601 et seq., as amended). [1994 c 254 § 5.]

RCW 70.105.040 Disposal site or facility--Acquisition--

Disposal fee schedule. (1) The department through the department

of general administration, is authorized to acquire interests in

real property from the federal government 9n the Hanford

Reservation by gift, purchase, lease, or other means, to be used

for the purpose of developing, operating, and maintaining an

extremely hazardous waste disposal site or facility by the

department, either directly or by agreement with public or private

persons or entities: PROVIDED, That lands acquired under this

section shall not be inconsistent. with a local comprehensive plan

approved prior to January 1, 1976: AND PROVIDED. FURTHER, That no

lands acquired under this section shall be subj ect to· land use

regulation by a local government. C

(2) The department may establish an appropriate fee schedule

for use of such disposal· facilities to offset the cost of

administration of this chapter and the cost of development,

operation, maintenance, and perpetual management of the disposal

site. If operated by a private entity, the disposal fee may be

such as to provide a reasonable profit. [1975-'76 2nd ex.s. c 101

§ 4.]

.RCW 70.105.050 Disposal at other than approved site

prohibited--Disposal of radioactive wastes. (1) No person shall

dispose of designated extremely hazardous wastes at any disposal

site in the state other than the disposal site established and

approved for such purpose under provisions of this chapter, except:

(a) When such wastes are going to a processing facility which

will result in the waste being reclaimed, treated, detoxified,

neutralized, or otherwise processed to remove its harmful

properties or characteristics; ·or

(b) When such wastes are managed on-site as part of a remedial

action conducted by the department or by potentially liable persons

under a consent decree issued by the department pursuant to chapter

70.105D RCW. .

(2) Extremely hazardous wastes that contain radioactive

components may be disposed at a radioactive waste disposal site

that is (a) owned by the United States department of energy or a

licensee of the nuclear regulatory commission and (b) permitted by

the department and operated in compliance with the provisions of

this chapter. However, prior to disposal, or as a part of

RCW (2/23/98 8:48) [ 8 ]
•

•

disposal, all reasonable methods of treatment, detoxification,

neutralization, or other waste management methodologies designed to

mitigate hazards associated with these wastes shall be employed, as

required by applicable federal and state laws and regulations.

[1994 c 254 § 6; 1987 c 488 § 4; 1975-'76 2nd ex.s: c 101 § 5.]

RCW 70.~05.060 Review of rules, regulations, criteria and fee

schedules. All rules, regulations, criteria, and fee schedules

adopted by the department to implement the provisions of this

chapter shall be reviewed by the solid waste advisory committee for

the purpose of recommending revisions, additions, or modifications

thereto as provided for the review of solid waste regulations and

standards pursuant to chapter 70.95 RCW. [1975-'76 2nd ex.s. c 101

§ 6.]

RCW 70.105.070 Criteria for rece1v1ng waste at disposal site.

The department may elect to receive dangerous waste at the site

provided under this chapter, provided

(1) it is upon request of the owner, producer, or person

having custody of the waste, and

(2) upon the paYment of a fee to cover disposal

(3) it can be reasonably demonstrated that there is no other

disposal sites in the state that will handle such dangerous waste, and .

(4) the site is designed to handle such a request or can be

modified to the extent necessary to adequately dispose of the

waste, or

(5) if a demonstrable emergency and potential threat to the

public health and safety exists. [1975-'76 2nd ex.s. c 101 § 7.]

RCW 70.105.080 Violations--Civil penalties. (1) Except as

provided in RCW 43.05.060 through 43.05.080 and 43.05.150, every

person who fails to comply with any provision of this chapter or of

the rules adopted thereunder shall be subjected to a penalty in an

amount of not more than ten thousand dollars per day for every such

violation. Each and every such violation shall be a separate and

distinct offense. In case of continuing violation, every day's

continuance shall be a separate and distinct violation. Every

person who, through an act -of commission or omission, procures,

aids, or abets in the violation shall be considered to have

violated the provisions of this section and shall be subject to the

penalty herein provided.

(2) The penalty provided for in this section shall be imposed

pursuant to the procedures in RCW 43.21B.300. [1995 c 403 § 631;

1987 c 109 § 12; 1983 c 172 § 2; 1975-'76 2nd ex.s. c 101 § 8.]

NOTES:

Findings--Short title--Intent--1995 c 403: See note following

RCW 34.05.328.

•

Part headings not law--Severability--1995 c 403:

43.05.903 and 43.05.904.

See RCW

RCW (2/23/98 8:48) [ 9 ]
Severabi1ity--1983 c 172: See note following RCW 70.105.097.

Purpose--Short

Captions--1987 c 109:

tit1e--Construction--Ru1es--Severabi1ity--

See notes following RCW 43.21B.001.

o

RCW 70.105.085 Vio1ations--Crimina1 penalties. Any person

who knowingly transports, treats, stores, handles, disposes of, or

exports a hazardous substance in violation of this chapter is

guilty of: (1) A class B felony if the person knows at the time

that the conduct constituting the violation places another person

in imminent danger of death or serious bodily injury; or (2) a

class C felony if the person knows that the conduct constituting

the violation places any property of another person or any natural

resources owned by the state of Washington or any of its local

governments in imminent danger of harm. As used in this section,

"imminent danger" means that there is a substantial likelihood that

harm will be experienced within a reasonable period of time should

the danger not be eliminated. As used in this section, "knowingly"

refers to an awareness of facts, not awareness of law. Violators

shall be punished as provided under RCW 9A.20.021. [1989 c 2 § 15

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

NOTES:

Short tit1e--Captions--Construction--Existing agreements--

Effective date--Severabi1ity--1989 c 2: See RCW 70.105D.900

through 70.105D.921, respectively.

RCW 70.105.090 Vio1ations--Gross misdemeanor. In addition to

the penalties imposed pursuant to RCW 70.105.080, any person who

violates any provisions of thi~ chapter, or of the rules

implementing this chapter, and any person who knowingly aids or

abets another in conducting any violation of any provisions of this

chapter, or of the rules implementing this chapter, shall be guilty

of a gross misdemeanor and upon conviction thereof shall be

punished by a fine of not less than one hundred dollars nor more

than ten thousand dollars, and/or by imprisonment in the county

jail for not more than one year, for each separate violation. Each

and every such violation shall be a separate and distinct offense.

In case of continuing violation, every day's continuance shall' be

a separate and distinct offense. [1984 c 237 § 1; 1983 c 172 § 3;

1975-'76 2nd ex.s. c 101 § 9.]

NOTES:

Severabi1ity--1983 c 172: See note following RCW 70.105.097.

o

RCW 70.105.095 Vio1ations--Orders--Pena1ty for

noncomp1iance--Appea1. (1) Whenever on the basis on any

information the department determines that a person has violated or

is about to violate any provision of this chapter, the department

may issue an order requiring compliance either immediately or 0

within a specified period of time. The order shall be delivered by

registered mail or personally to the person against whom the order

is directed.

RCW (2/23/98 8:48) [ 10 ]
•

(2) Any person who fails to take corrective action as

specified in a compliance order shall be liable for a civil penalty

of not more than ten thousand dollars for each day of continued

noncompliance. In addition, the department may suspend or revoke

any permits and/or certificates issued under the provisions of this

chapter to a person who fails to comply with an order directed

against him.

(3) Any order may be appealed pursuant to RCW 43. 21B. 310.

[1987 c 109 § 16; 1983 c 172 § 4.]

NOTES:

Purpose--Short

Captions--1987 c 109:

title--Construction--Rules--Severability--

See notes following RCW 43.21B.001.

•

•

Severability--1983 c 172: See note following RCW 70.105.097.

RCW 70.105.097 Action for damages resulting from violation--

Attorneys' fees. A person injured as a result of a violation of

this chapter or the rules adopted thereunder may bring an action in

superior court for the recovery of the damages. A conviction or

imposition of a penalty under this chapter is not a prerequisite to

an action under this section.

The court may award reasonable attorneys' fees to a prevailing

injured party in an action under this section. [1983 c 172 § 1.]

NOTES:

Severability--1983 c 172: "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." [1983 c 172 § 5.]

RCW 70.105.100 Powers and duties of department. The

department in performing its duties under this chapter may:

(1) Conduct studies and coordinate research programs

pertaining to extremely hazardous waste management;

(2) Render technical assistance to generators of dangerous and

extremely hazardous wastes and to state and local agencies in the

planning and operation of hazardous waste programs;

(3) Encourage and provide technical assistance to waste

generators to form and operate a "waste exchange" for the purpose

of finding users for dangerous and extremely hazardous wastes that

would otherwise be disposed of: PROVIDED, That such technical

assistance shall not violate the confidentiality of manufacturing

processes; and

(4) Provide for appropriate surveillance and monitoring of

extremely hazardous waste disposal practices in the state. [1975-

'76 2nd ex.s. c 101 § 10.]

RCW.70.105.105 Duty of department to regulate PCB waste. The

department of ecology shall regulate under chapter 70.105 RCW,

wastes generated from the salvaging, rebuilding, or discarding of

transformers or capacitors that have been sold or otherwise

transferred for salvage or disposal after the completion or L

.~.;

RCW (2/23/98 8:48) [ 11
termination of their useful lives and which contain polychlorinated

biphenyls (PCB's) and whose disposal is not regulated under 40 CFR

part 761. Nothing in this section shall prohibit such wastes from

being incinerated or disposed of at facilities permitted to manage 0

PCB wastes under 40 CFR part 761. [1985 c 65 § 1.]

RCW 70.105.109 Regulation of wastes with radioactive and

hazardous components. The department of ecology may regulate all

hazardous wastes, including those composed of both radioactive and

hazardous components, to the extent it is not preempted by federal

law. [1987 c 488 § 2.] .

RCW 70.105.110 Regulation of dangerous wastes associated with

energy facilities. (1) Nothing in this chapter shall alter, amend,

or supersede the provisions of chapter 80.50 RCW, except that,

notwithstanding any provision of chapter 80.50 RCW, regulation of

dangerous wastes associated with energy facilities from generation

to disposal shall be solely by the department pursuant to chapter

70.105 RCW. In the implementation of said section, the department

shall consult and cooperate with the energy facility site

evaluation council and, in order to reduce duplication of effort

and to provide necessary coordination of monitoring and on-site

inspection programs at energy facility sites, anyon-site

inspection by the department that may be required for the purposes

of this chapter shall be performed pursuant to an interagency

coordination agreement with the council.

(2) To facilitate the implementation of this chapter, the

energy facility site evaluation council may require certificate

holders to remove from their energy facility sites any dangerous

wastes, controlled by this chapter, within ninety days of their

generation. [1987 c 488 § 3; 1984 c 237 § 3; 1975- 176 2nd ex.s. c

101 § 11.]

RCW 70.105.111 Radioactive wastes--Authority of department of

social and health services. Nothing in this chapter diminishes the

authority of t.he department of social and health services to

regulate the radioactive portion of mixed, wastes pursuant to

chapter 70.98 RCW. [1987 c 488 § 5.]

RCW 70.105.112 Application of chapter to special incinerator

ash. This chapter does not apply to special incinerator ash

regulated under chapter 70.138 RCW except that, for purposes of RCW

4.22.070(3) (a), special incinerator ash shall be considered

hazardous waste. [1987 c 528 § 9.]

NOTES:

Severability--1987 c 528: See RCW 70.138.902.

c

RCW 70.105.116 Hazardous substance remedial actions--

Procedural requirements not applicable. The procedural 0

requirements of this chapter shall not apply to any person

condu~ting a remedial action at a facility pursuant to a consent

RCW (2/23/98 8:48) [ 12
•

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•

decree, order, or agreed order issued pursuant to chapter 70.105D

RCW, or to the department of ecology when it conducts a remedial

action under chapter 70.105D RCW. The department of ecology shall

ensure compliance with the substantive requirements of this chapter

through the consent decree, order, or agreed order issued pursuant

to chapter 70.105D RCW, or during the department-conducted remedial

action, through the procedures developed by the department pursuant

to RCW 70.105D.090. [1994 c 257 § 17.]

NOTES:

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

RCW 70.105.120 Authority of attorney general. At the request

of the department, the attorney general is authorized to bring such

injunctive, declaratory, or other actions to enforce any

requirement of this chapter. [1980· c 144 § 2.]

RCW 70.105.130 Department's powers as designated agency under

federal act. (1) The department is designated as the state agency

for implementing the federal resource conservation and recovery act

(42 U.S.C. Sec. 6901 et seq.).

(2) The power granted to the department by this section is the

authority to:

(a) Establish a permit system for owners or operators of

facilities which treat, store, or dispose of dangerous wastes:

PROVIDED, That spent containers of pesticides or herbicides which

have been used in normal farm operations and which are not

extremely hazardous wastes, shall not be subject to the permit

system;

(b) Establish standards for the safe transport, treatment,

storage, and disposal of dangerous wastes as may be necessary tb

protect human health and the environment;

(c) Establish, to implement this section:

(i) A manifest system to track dangerous wastes;

(ii) Reporting, monitoring, recordkeeping, labeling, sampling

requirements; and

(iii) Owner, operator, and transporter responsibility;

(d) Enter at reasonable times establishments regulated under

this section for the purposes of inspection, monitoring, and

sampling; and

(e) Adopt rules necessary to implement this section. [1980 c

144 § 1.]

RCW 70.105.135 Copies of notification for.ms or annual reports

to officials responsible for fire protection. Any person who

generates, treats, stores, disposes, or otherwise handles dangerous

or extremely hazardous wastes shall provide copies of any

notification forms, or annual reports that are required pursuant to

RCW 70.105.130 to the fire departments or fire districts that

service the areas in which the wastes are handled upon the request

of the fire departments or fire districts. In areas that are not

serviced by a fire department or fire district, the forms or

reports shall be provided to the sheriff or other county official

designated pursuant to RCW 48.48.060 upon the- request of the

RCW (2/23/98 8:48) [ 13 ]
sheriff or other county official. This section shall not apply to

the transportation of hazardous wastes. [1986 c 82 § 1.]

RCW 70.105.140 Rules implemented under RCW 70.105.130-- 0

Review. Rules implementing RCW 70.105.130 shall be submitted to

the house and senate committees on ecology for review prior to

being adopted in accordance with chapter 34.05 RCW. [1980 c 144 §

3. ]

RCW 70.105.145 Department's authority to participate in and

administer federal act. Notwithstanding any other provision of

chapter 70.105 RCW, the department of ecology is empowered to

participate fully in and is empowered to administer all aspects of

the programs of the federal Resource Conservation and Recovery Act,

as it exists on June 7,1984, (42 U.S.C. Sec. 6901 et seq.),

contemplated for participation and administration by a state under

t hat act. [19 84 c 23 7 § 2; 1983 c 27 0 § 2.]

NOTES:

Severability--1983 c 270: See note following RCW 90.48.260.

RCW 70.105.150 Declaration--Management of hazardous waste--

Priorities--Definitions. The legislature hereby declares that:

(1) The 'health and welfare of the people of.. the state depend

on clean and pure .environmental resources unaffected by hazardous

waste contamination. Management and regulation of hazardous waste 0

disposal should encourage practices which result in the least

amount of waste being produced. Towards that end, the legislature

finds that the following priorities in the management of hazardous

waste are necessary and should be followed in order of descending

priority as applicable:

(a) Waste reduction;

(b) Waste recycling;

(c) Physical, chemical, and biological treatment;

(d) Incineration;

(e) Solidification/stabilization treatment;

(f) Landfill.

(2) As used in this section:

(a) "Waste reduction" means reducing waste so that hazardous

byproducts are not produced;

(b) "Waste recycling" means reusing. waste materials and

extracting valuable materials from a waste stream;

(c) "Physical, chemical, and biological treatment" means

processing the waste to render it completely innocuous, produce a

recyclable byproduct, reduce toxicity, or substantially reduce the

volume of material requiring disposal; . (d) "Incineration" means reducing the volume or toxicity of

wastes by use of an enclosed device .using controlled flame

combustion;

(e) "Solidification/stabilization treatment" means the use of

encapsulation techniques to solidify wastes and make them less

permeable or leachable; and ~) (f) "Landfill" means a disposal facility, or part of a

facility, at which waste is placed in or on land and which is not

RCW (2/23/98 8:48) [ 14 ]
•

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•

a land treatment facility, surface impoundment, or injection well.

[1983 1st ex.s. c 70 § 1.]

RCW 70.105.160 Waste management study- -Public hearings--

Adoption or modification of rules--Recommendations to legislature.

The department shall conduct a study to determine the best

management practices for categories of waste for the priority waste

management methods established in RCW 70.105.150, with due

consideration in the course of the study to sound environmental

management and available technology. As an element· of the study,

the department shall review methods that will help achieve the

priority of RCW 70.105.150(1) (a), waste reduction. Before issuing

any proposed regulations, the department shall conduct public

hearings regarding the best management practices for the various

waste categories studied by the department. After conducting the

study, the department shall prepare new rules or modify existing

rules as appropriate to promote implementation of the priorities

established in RCW 70.105.150 for management practices which assure

use of sound environmental management techniques and available

technology. The preliminary study shall be completed by July I,

1986, and the rules shall be adopted by July I, 1987. The solid

waste advisory committee shall review the studies and the new or

modified rules and submit recommendations to the legislature by

January I, 1988, regarding policy options (such as fee incentives,

disposal bans, etc.) that will be used to reduce the production of

dangerous and extremely hazardous waste in Washington state.

The studies shall be updated. at least once every five years.

The funding for these studies shall be from the hazardous waste

control and elimination account, subject to legislative

appropriation. [1984 c 254 § 2; 1983 1st ex.s. c 70 § 2.]

NOTES:

Severability--1984 c 254: "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." [1984 c 254 § 3.]

RCW 70.105.165 Disposal of dangerous wastes at commercial

off-site land disposal facilities--Limitations. (1) Independent of

the processing or issuance of any or all federal, state, and local

permits for disposal of dangerous wastes, no disposal of dangerous

wastes at a commercial off-site land disposal facility may be

undertaken prior to July I, 1986, unless:

(a) The disposal results from actions taken under *RCW

70.105A.060 (2) and (3), or results from other emergency

situations; or

(b) Studies undertaken by the department under RCW 70.105.160

to determine the best management practices for various waste

categories under the priority waste management methods established

in RCW 70.105.150 are completed for the particular wastes or waste

categories to be disposed of and any regulatory revisions deemed

necessary by the department are proposed and do not prohibit land

disposal of such wastes; or

(c) Final regulations have been adopted by the department that

allow for such disposal.

RCW (2/23/98 8:48) [ 15 ]
(2) Construction of facilities used solely for the purpose of

disposal of wastes that have not met the requirements of subsection

(1) of this section shall not be undertaken by any developer of a

dangerous waste disposal facility. . (3) The department shall prioritize the studies of waste 0

categories undertaken under RCW 70.105.160 to provide initial

consideration of those categories most likely to be suitable for

land disposal. Any regulatory changes deemed necessary by the

department shall be proposed and subj ected to the rule-making

process by category as the study of each waste category is

completed. All of the study shall be completed, and implementing

regulations proposed, by July 1, 1986.

(4) Any final permit issued by the department before the

adoption of rules promulgated as a result of the study conducted

under RCW 70.105.160 shall be modified as necessary to be

consistent with such rules. [1984 c 254 § 1.]

NOTES:

*Reviser's note:· RCW 70.105A.060 was repealed by 1990 c 114

§ 21.

Severability--1984 c 254: See note following RCW 70.105.160.

RCW 70.105.170 Waste management- -Consultative services--

Technical assistance--Confidentiality. Consistent with the

purposes of RCW 70.105.150 and 70.105.160, the department is

authorized to promote the priority waste management methods. listed

in RCW 70.105.150 by establishing or assisting in the establishment

of: (1) Consultative services which, in conjunction with any

business or industry requesting such service, study and recommend

alternative waste management practices; and (2) technical

assistance, such as a toll-free telephone service, to persons

interested in waste management alternatives. Any person receiving

such service or assistance may, in accordance with state law,

request confidential treatment of information about their

manufacturing or business practices. [1983 1st ex.s. c 70 § 3.]

RCW 70.105.180 Disposition of fines and penalties--Earnings.

All fines and penalties col.Lect ed under this chapter shall be

deposited in the hazardous waste control and elimination account,

which is hereby created in the state treasury. Moneys in the

account collected from fines and penalties shall be expended

exclusively by the department of ecology for the purposes of *this

act, subject to legislative appropriation. Other sources of funds

deposited in this account may also be used for the purposes of

*this act. All earnings of investments of balances in the

hazardous waste control and elimination account shall be credited

to the general fund~ [1985 c 57 § 70; 1983 1st ex.s. c 70 § 4.]

NOTES:

c

*Reviser's note: "This act" [1983 1st ex.s. c 70] consists of 0

RCW 70.105.150, 70.105.160, 70.105.170, and 70.105.180.

Effective date--1985 c 57: See note following RCW 18.04.105.

RCW (2/23/98 8:48) 16 ]
•

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RCW 70.105.200 Hazardous waste management plan. (1) The

department shall develop, and shall update at least once every five

years, a state hazardous waste management plan. The plan shall

ipclude, but shall not be limited to, the following elements:

(a) A state inventory and assessment of the capacity of

existing facilities to treat, store, dispose, or otherwise manage

hazardous waste;

(b) A forecast of future hazardous waste generation;

(c) A description of the plan or program required by RCW

70.105.160 to promote the waste management priorities established

in RCW 70.105.150;

(d) Siting criteria as appropriate for hazardous waste

management facilities, including such criteria as may be

appropriate for the designation of eligible zones for designated

zone facilities. However, these criteria shall not prevent the

continued operation, at or below the present level of waste

management activity, of existing facilities on the basis of their

location in areas other than those designated as eligible zones

pursuant to RCW 70.105.225;

(e) Siting policies as deemed appropriate by the department;

and

(f) A plan or program to provide appropriate public

information and education relating to hazardous waste management.

The department shall ensure to the maximum degree practical that

these plans or programs are coordinated with public education

programs carried out by local government under RCW 70.105.220.

(2) The department shall seek, encourage, and assist

participation in the development, revision, and implementation of

the state hazardous waste management plan by interested citizens,

LocaL government, business and industry, environmental groups, and

other entities as appropriate.

(3) Siting criteria shall be completed by December 31, 1986.

Other plan components listed in subsection (1) of this section

shall be completed by.June 30, 1987.

(4) The department shall incorporate into the state hazardous

waste management plan those elements of the local hazardous waste

management plans that it deems necessary to assure effective and

coordinated programs throughout the state. [1985 c 448 § 4.]

NOTES:

Severability--1985 c 448: See note following RCW 70.105.005.

RCW 70.105.210 Hazardous waste management facilities--

Department to develop criteria for siting. By May 31, 1990, the

department shall develop and adopt criteria for the siting of

hazardous waste management facilities. These criteria will be part

of the state hazardous waste management plan as described in RCW

70.105.200. To the· extent practical, these criteria shall be

designed to minimize the short-term and long-term risks and costs

that may result from hazardous waste management facilities. These

criteria may vary by type of facilities and may consider natural

site characteristics and engineered protection. Criteria may be

established for:

(1) Geology;

RCW (2/23/98 8:48) 17
(2) Surface and groundwater hydrology;

(3) Soils;

(4) Flooding;

(5) Climatic factors;

(6) Unique or endangered flora and fauna; c=J

(7) Transportation routes;

(8) Site access;

(9) Buffer zones;

(10) Availability of utilities and public services;

(II) Compatibility with existing uses of land;

(12) Shorelines and wetlands;

(13) Sole-source aquifers;

(14) Natural hazards; and

(15) Other factors as determined by the department. [1989 1st

ex.s. c 13 § 2; 1985 c 448 § 5.]

NOTES:

Severability--1985 c 448: See note following RCW 70.105.005.

RCW 70.105.215 Department to adopt rules for permits for

hazardous substances treatment facilities. The legislature

recognizes the need for new, modified, or expanded facilities to

treat, incinerate, or otherwise process or dispose of hazardous

substances safely. In order to encourage the development of such

facilities, the department shall adopt rules as necessary regarding

the permitting of such facilities to ensure thee most expeditious

permit processing possible consistent with the substantive

rhequirements ,of applicable law. If ownerhs and operator~ are nodt O.

t e same ent1ty, the operator shall be t e perm1t app11cant an

responsible for the development of the permit application and all

accompanying materials, as long as the owner also signs the

application and certifies its ownership of the real property

described in the application, and acknowledges its awareness of the

contents of the application and receipt of a copy thereof. [1986

c 210 § 3.]

RCW 70.105.217 Local government regulatory authority to

prohibit or condition. Nothing in this chapter shall' alter or

affect the regulatory authority of a county, city, or

jurisdictional health district to condition or prohibit the

acceptance of hazardous waste in a county or city landfill. [1994

c 254 § 7.]

RCW 70.105.220 Local governments to prepare local hazardous

waste plans--Basis--Elements required. (I) Each local government,

or combination of contiguous local governments, is directed to

prepare a local hazardous waste plan which shall be based on state

guidelines and include the following elements:

(a) A plan or program to manage moderate-risk wastes that are

. generated or otherwise present within the jurisdiction. This

element shall include an assessment of the quantities, types,

generators, and fate of moderate-risk wastes in the jurisdiction. c=J

The purpose of this element is to develop a system of managing

RCW (2/23/98 8:48) [ 18 ]
•

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•

moderate-risk waste, appropriate to each local area, to ensure

protection of the environment and public health;

(b) A plan or program to provide for ongoing public

involvement and public education in regard to the management of

moderate-risk waste. This element shall provide information

regarding:

(i) The potential hazards to human health and the environment

resulting from improper use and disposal of the waste; and

(ii) Proper methods of handling, reducing, recycling, and

disposing of the waste; .

(c) An inventory of all existing generators of hazardous waste

and facilities managing hazardous waste within the jurisdiction.

This inventory shall be based on data provided by the department;

(d) A description of the public involvement .process used in

developing the plan;

(e) A description of the eligible zones designated in

accordance with RCW 70.105.225. However, the requirement to

designate eligible zones shall not be considered part of the local

hazardous waste planning requirements; and

(f) Other elements as deemed appropriate by local government.

(2) To the maximum extent practicable, . the local hazardous

waste plan shall be coordinated with other hazardous materialsrelated plans and policies in the jurisdiction.

(3) Local governments shall coordinate with those persons

involved in providing privately owned hazardous and moderate-risk

waste facilities and services as follows: If a local government

determines that a moderate-risk waste will be or is adequately

managed by one or more privately owned facilities or services at a'

reasonable price, .the local government shall take actions to

encourage the use of that private facility or service. Actions

taken by a local government under this subsection may include, but

are not limited to, restricting or prohibiting the land disposal of

a moderate-risk waste at any transfer station or land disposal

facility within its jurisdiction.

(4) (a) The department shall prepare guidelines for the

development of local hazardous waste plans. The guidelines shall

be prepared in consultation with local governments and shall be

completed by December 31, 1986. The guidelines shall include a

list of substances identified as hazardous household substances.

(b) In preparing the guidelines under (a) of this subsection,

the department shall review and assess information on pilot

projects that have been conducted for moderate-risk waste

management. The department shall encourage additional pilot

projects as needed to provide information to improve and update the

guidelines.

(5) The department shall consult with retailers, trade

associations, public interest groups, and appropriate units of

local government to encourage the development of voluntary public

education programs on the proper handling of hazardous household

substances.

(6) Local hazardous waste plans shall be completed and

submitted to the department no later than June 30, 1990. 'Local

governments may from time to time amend the local plan.

(7) Each local government, or combination of contiguous local

governments, shall submit its local hazardous waste' plan or

amendments thereto to the department. The department shall approve

or disapprove local hazardous waste plans or amendments by December

31, 1990, or within ninety days of submission, whichever is later.

RCW (2/23/98 8:48) [ 19 ]
The department shall approve a local hazardous waste plan if it

determines that the plan is consistent with this chapter and the

guidelines under subsection (4) of this section. If approval is

denied, the department shall submit its objections to the local

government within ninety days of submission. However, for plans c=J

submitted between January I, 1990, and June 30,1990, the

department shall have one hundred eighty days to submit its

objections. No local government is eligible for grants under RCW

70.105.235 for implementing a local hazardous waste plan unless the

plan for that jurisdiction has been approved by the department.

(8) Each local government, or combination of contiguous local

governments, shall implement the local hazardous waste plan for its

jurisdiction by December 31, 1991.

(9) The department may waive the specific requirements of this

section for any local government if such local government

demonstrates to the satisfaction of the department that the

objectives of the planning requirements have been met. [1992 c 17

§ 1; 1986 c 210 § 1; 1985 c 448 § 6.]

NOTES:

Severability--1985 c 448: See note following RCW 70.105.005.

Used oil recycling element: RCW 70.951.020.

RCW 70.105.221 Local governments to prepare local hazardous

waste plans--Used oil recycling element. Local governments and

combinations of local governments shall amend their local hazardous

waste plans required under RCW 70.105.220 to comply with RCW

70.951.020. [1991 c 319 § 312.]

NOTES:

.:

Severability- -Part headings not law- -1991 c 319:

70.95F.900 and 70.95F.901.

See RCW

RCW 70.105.225 Local governments to designate zones--

Departmental guidelines- -Approval of local government zone

designations or amendments--Exemption. (I) Each local government,

or combination of contiguous local governments, is directed to:

(a) Demonstrate to the satisfaction of the department that existing

zoning allows designated zone facilities as permitted uses; or (b)

designate land use zones within its jurisdiction in which

designated zone facilities are permitted uses. The zone

designations shall be consistent with the state siting criteria

adopted in accordance with RCW 70.105.210, except as may be

approved by the department in accordance with subsection (6) of

this section.

(2) Local governments shall not prohibit the processing or

handling of hazardous waste in zones in which the processing or

handling of hazardous substances is not prohibited. This

subsection does not apply in residential zones.

(3) The department shall prepare guidelines, as appropriate,

for the designation of zones under this section. The guidelines c=J

shall be prepared in consultation with local governments and shall

be completed by December 31, 1986.

RCW (2/23/98 8:48) 20
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•

(4) The initial designation of zones shall be completed or

revised, and submitted to the department within eighteen months

after the enactment of siting criteria in accordance with RCW

70.105.210. Local governments that do not comply with this

submittal deadline shall be subject to the preemptive provisions of

RCW 70.105.240(4) until such time as zone designations are.

completed and approved by the department. Local governments may

from time to time amend their designated zones.

(5) Local governments without land use zoning provisions shall

designate eligible geographic areas within their jurisdiction,

based on siting criteria adopted in accordance with RCW 70.105.210.

The area designation shall be subject to the same requirements as

if they were zone designations.

(6) Each local government, or combination of contiguous local

governments, shall submit its designation of zones or amendments

thereto to the department. The department shall approve or

disapprove zone designations or amendments within ninety days of

submission. The department shall approve eligible zone

designations if it determines that the proposed zone designations

are consistent with this chapter, the applicable siting criteria,

and guidelines for developing designated zones: PROVIDED, That the

department shall consider local zoning in place as of January I,

1985, or other special situations or conditions which may exist in

the jurisdiction. If approval is denied, the department shall

state within ninety days from the date of submission the facts upon

which that decision is based and shall submit the statement to the

local government together with any other comments or

recommendations it deems appropriate. The local government shall

have ninety days after it receives the statement from the

department to make modifications designed to eliminate the

inconsistencies and resubmit the designation to the department for

approval. Any designations shall take effect when approved by the

department.

(7) The department may exempt a local government from the

requirements of this section if:

(a) Regulated quantities of hazardous waste have not been

generated within the jurisdiction during the two calendar years

immediately preceding the calendar year during which the exemption

is requested; and

(b) The local government can demonstrate to the satisfaction

of the department that no significant portion of land within the

jurisdiction can meet the siting criteria adopted in accordance

with RCW 70.105.210. [1989 1st ex.s. c 13 § 1; 1985 c 448 § 7.]

NOTES:

Severability--1985 c 448: See note following RCW 70.105.005.

RCW 70.105.230 Local governments to submit letter of intent

to identify or designate zones and submit management plans--

Department to prepare plan in event of failure to act. (1) Each

local government is directed, to submit to the director of the

department by October 31, 1987, a letter of intent stating that it

intends to (a) identify, or designate if necessary, eligible zones

for designated zone facilities no later than June 30, 1988, and (b)

submit a complete local hazardous waste management plan to the

department no later than June 30, 1990. The letters shall also

RCW (2/23/98 8:48) [ 21
indicate whether these requirements will be completed in

conjunction with other local governments.

(2) If any local government fails to submit a letter as

provided in subsection (1) (b) of this section, or fails to adopt a

local hazardous waste plan for its jurisdiction in accordance with

the time schedule provided in this chapter, or fails to secure

approval from the department for its local hazardous waste plan in

accordance with the time schedule provided in this chapter, the

department ahaLl, prepare a hazardous waste plan for the local

jurisdiction. [1985 c 448 § 8.]

NOTES:

Severability--1985 c 448: See note following RCW 70.105.005.

o

RCW 70.105.235 Grants to local governments for plan

preparation, implementation, and designation of zones- -Matching

funds--Qualifications. (1) Subject to legislative appropriations,

the department may make and administer grants to local governments

for (a) preparing and updating local hazardous waste plans, (b)

implementing approved local hazardous waste plans, and (c)

designating eligible zones for designated zone facilities as

required under this chapter.

(2) Local governments shall match the funds provided by the

department for planning or designating zones with an amount not

less than twenty-five percent of the estimated cost of the work to

be performed. Local governments may meet their share of costs with

cash or contributed services. Local governments, or combination of

contiguous local governments, conducting pilot projects pursuant to 0

RCW 70.105.220(4) may subtract the cost of those pilot projects

conducted for hazardous household substances from their share of

the cost. If a pilot project has been conducted for all moderaterisk wastes, only the portion of the cost that applies to hazardous

household substances shall be subtracted. The matching funds

requirement under this subsection shall be waived for local

governments, or combination of contiguous local governments, that

complete and submit their local hazardous waste plans under RCW

70.105.220(6) prior to June 30, 1988.

(3) Recipients of grants shall meet such qualifications and

follow such procedures in applying for and using grants as may be

established by the department. [1986 c 210 § 2; 1985 c 448 § 9.]

NOTES:

Severability--1985 c 448: See note following RCW 70.105.005.

RCW 70.105.240 State preemption--Department sole authority--

Local requirements superseded--State authority over designated zone

facilities. (1) As of July 28, 1985, the state preempts the field

of state, regional, or local permitting and regulating of all

preempted facilities as defined in this chapter. The department of

ecology is designated the sole decision-making authority with

respect to permitting and regulating such facilities and no other

state agency, department, division, bureau, commission, or board, 0

or any local or regional political subdivision of the state, shall

"have any permitting or regulatory authority with respect to such

RCW (2/23/98 8:48) [ 22 ]
•

•

•

facilities including, but not limited to, the location,

construction, and operation of such facilities. Permits issued by

the department shall be in lieu of any and all permits, approvals,

certifications, or conditions of any other state, regional, or

local governmental authority which would otherwise apply.

(2) The department shall ensure that any permits issued under

this chapter invoking the preemption authority of this section meet

the substantive requirements of existing state laws and regulations

to the extent such laws and regulations are not inconsistent or in

conflict with any of the provisions of this chapter. In the event

that any of the provis;i.ons of t h i s : chapter, or any of the

regulations promulgated hereunder, are in conflict with any other

state law or regulations, such other law or regulations shall be

deemed superseded for purposes of this chapter.

(3) As of July 28, 1985, any ordinances, regulations,

requirements, or restrictions of regional or local governmental·

authorities regarding the location, construction, or operation of

preempted facilities shall be deemed superseded. However, in

issuing permits under this section, the department shall consider

local fire and building codes and condition such permits as

appropriate in compliance therewith.

(4) Effective July 1, 1988, the department shall have the same

preemptive authority as defined in subsections (1) through (3) of

this section in regard to any designated zone facility that may be

proposed in any jurisdiction where the designation of eligible

zones pursuant to RCW 70.105.225 has not been completed and

approved by the department. Unless otherwise preempted by this

subsection, designated zone facilities shall bE: subj ect to all

applicable state and local laws, regulations, plans, and ot.herrequirements. [1985 c 44,8 § 10.]

NOTES:

Severability--1985 c 448: See note following RCW 70.105.005.

RCW 70.105.245 Department may require notice of intent for

management facility permit. The department may adopt rules to

require any person who intends to file an application for a permit

for a hazardous waste management facility to file a notice of

intent with the department prior to submitting the application.

[1985 c 448 § 11.]

NOTES:

Severability--1985 c 448: See note following RCW 70.105.005.

RCW 70.105.250 Appeals to pollution control hearings board.

Any disputes between the department and the governing bodies of

local governments in regard to the local planning requirements

under RCW 70.105.220 and the designation of zones under RCW

70.105.225 may be appealed by the department or the governing body

of the local government to the pollution control hearings board

established under chapter 43.21B RCW. [1985 c 448 § 12.]

RCW (2/23/98 8:48) [ 23 ]
to support such conflict resolution

rules as appropriate to govern the

NOTES:

Severability--1985 c 448: See note following RCW 70.105.005.

RCW 70.105.255 Department to provide technical assistance

with local plans. The department shall provide technical

assistance to local governments in the preparation, review,

revision, and implementation of local hazardous waste plans. [1985

c 448 s 13.]

NOTES:

Severability--1985 c 448: See note following RCW 70.105.005.

RCW 70.105.260 Department to assist conflict resolution

activities related to siting facilities-~Agreementsmay constitute

conditions for per.mit. (1) In order to promote identification,

discussion, negotiation, and resolution of issues related to siting

of hazardous waste management facilities, the department:

(a) Shall compile and maintain information on the use and

availability of conflict resolution techniques and make this

information available to industries, state and local government

officials, and other citizens; .

(b) Shall encourage and assist in facilitating conflict

resolution activities, as appropriate, between facility proponents,

host communities, and other interested personsi. .

(c) May adopt rules specifying procedures for facility

proponents, host communities, and citizens to follow· in providing

opportunities for conflict resolution activities, including the use

of dispute resolution centers established pursuant to chapter 7.75

RCWi and

(d) May expend funds

activities, and may adopt

support.

(2) Any agreements reached under the processes described in

subsection (1) of this section and deemed valid by the department

may be written as conditions binding on a permit issued under this

chapter. [1985 c 448 § 14.]

NOTES:

Severability--1985 c 448: See note following RCW 70.105.005.

RCW 70.105.270 Requirements of RCW 70.105.200 through

70.105.230 and 70.105.240(4) not mandatory without legislative

appropriation. The requirements of RCW 70.105.200 through

70.105.230 and 70.105.240 (4) shall not become mandatory until

funding is appropriated by the legislature. [1985 c 448 § 15.]

NOTES:

Severability--1985 c 448: See note following RCW 70.105.005.

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-~----1
•

•

RCW 70.105.280 Service. charges. (I) The department may

assess reasonable service charges against those facilities that

store, treat, incinerate, or dispose of dangerous or extremely

hazardous waste that contains both a nonradioactive hazardous

component and a radioactive component or which are undergoing

closure under this chapter in those instances where closure entails

the physical characterization of remaining wastes which contain

both a nonradioactive hazardous component and a radioactive

component or the management of such wastes through treatment or

removal, except any commercial low-level radioactive waste

facility. Service charges may not exceed the costs to the

department in carrying out the duties of this section.

(2) Program elements or activities for which service charges

may be assessed include:

(a) Office, staff, and staff support for the purposes of

facility or unit permit development, review, and issuance; and

(b) Actions taken to determine and ensure compliance with the

state's hazardous waste management act.

(3) Moneys collected through the imposition of such service

charges shall be deposited in the state toxics control account.

(4) The department shall adopt rules necessary to implement

this section. Facilities that store, treat, incinerate, or dispose

of dangerous or extremely hazardous waste that contains both a

nonradioactive hazardous component and a radioactive component

shall not be subject to service charges prior to such rule making.

Facilities undergoing closure under this chapter in those instances

where closure entails the physical characterization of remaining

wastes which contain both a nonradioactive hazardous component and

a radioactive component or the management of such wastes through

treatment or removal shall not be subject to service charges prior

to such rule making. [1989 c 376 § 2.]

NOTES:

Severability--1989.c 376: See note following RCW 70.105.010.

RCW 70.105.300 Metals mining and milling operations permits--

Inspections by department of ecology. .Lf a metals mining and

milling operation is issued a permit pursuant to this chapter, then

it will be subject to special inspection requirements. The

department of ecology shall inspect these mining operations at

least quarterly in order to ensure that the operation is in

compliance with the conditions of any permit issued to it pursuant

to this chapter. The department shall conduct additional

inspections during the construction phase of the mining operation

in order to ensure compliance with this chapter. [1994 c 232 §

19. ]

NOTES:

•

Severability--1994 c 232: See RCW 78.56.900.

Effective date--1994 c 232 §§ 6-8 and 18-22:

78.56.902.

See RCW

RCW (2/23/98 8:48) 25
RCW 70.105.900 Short title--1985 c 448. This chapter shall

be known and may be cited as the hazardous waste management act.

[1985 c 448 § 16.]

NOTES:

Severability--1985 c 448: See note following RCW 70.105.005.

CHAPTER 70.105A RCW

HAZARDOUS WASTE FEES

Sections

70.105A.035 Revision of fees to provide a waste reduction and

recycling incentive.

NOTES:

Hazardous waste management: Chapter 70.105 RCW.

RCW 70.105A.035 Revision of fees to provide a waste reduction

and recycling incentive. The legislature is encouraged to revise

the hazardous waste fees prescribed in *RCW 70.105A.030 in a manner

which provides an incentive for waste reduction and recycling. If

prior to March 1, 1989, *RCW 70 .105A. 030 as it exi.sted on August 1,

1987, has not been amended in a manner which specifically provides

an incentive for hazardous waste reduction and recycling, then (1)

the requirement to pay the fees prescribed in that section is

eliminated solely for fees due and payable on June 30, 1989; and

(2) the department of ecology shall prepare, and submit to the

legislature by January 1, 1990, a proposed revision designed to

provide an incentive for hazardous waste reduction and recycling.

[1989 c 2 § 16 (Initiative Measure No. 97, approved November 8,'

1988) .J

NOTES:

*Reviser's note: RCW 70.105A.030 was repealed by 1990 c 114

§ 21.

Short title--Captions--Construction--Existing agreements--

Effective date--Severability--1989 c 2: See RCW 70.105D.900

through70.105D.921, respectively.

CHAPTER 70.105D RCW

HAZARDOUS WASTE CLEANUP--MODEL TOXICS CONTROL ACT

Sections

70.105D.010 . Declaration of policy.

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•

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:

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.

Severability--1989 c 2.

•

•

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 used 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 hazards due to improper

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

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

the law wi.th 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.

(4) It is in the public'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

RCW (2/23/98 8:48) [ 27 ]
i

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).]

RCW 7.0.1050.020 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 corrt a i.n 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 L~w 99-499.

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

foreclosure sale, acquisition, or assignment of title in lieu of

foreclosure, termination of a lease, or other repossession,

acquisition of a right to title 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 I, 1989, is a hazardous

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

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

(d) Petroleum or petroleum products; and

(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.

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RCW (2/23/98 8:48) [ 28 ]
•

•

•

(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 indicia 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 in a 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 the

leased facility, 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) "Operating a facility primarily to p.rot.ect; a security

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

the facility where the 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 interest.

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) In the case of an abandoned facility, any person who had

owned, or operated, or exercised con~rol over the facility any time

before its abandonment;

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;

RCW (2/23/98 8:48) [ 29 ]
(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; or

(iii) 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 subject to an order, agreed

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

contractors of e?ch, access' to the property to conduct remedial

actions required by the department. The person may a t t.empt; 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) (iii) .

The exemption in (b) (ii) of this subsection does not apply to

holders who cause or contribute to a new release or threatened

release or who are otherwise liable under RCW 70.10SD.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.

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

environmental compliance, or assuming or manifesting responsibility

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RCW (2/23/98 8:48) [ 30 ]
•

•

•

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

The term does not include any of the following: (a) A holder

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

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

requires a borrower to conduct an environmental auditor an

environmental site assessment at the facility for which indicia of

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

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

facility 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

department finds, based on credible evidence, to be liable 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

RCW (2/23/98 8:48) [ 31
releases at the facility; or to perform other similar activities

intended to preserve the value of the facility where the borrower

has 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 I 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

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) "Public 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 comment.

(20) "Release" 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) "Remedy" or "remedial action" means any action or

expenditure consistent with the purposes of this chapter to

identify, eliminate, or minimize any threat or pqtential 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) "Security interest" 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) "Industrial properties" means properties that are or have

been characterized by, or are to be committed to, t r-adi t i onal

industrial uses such as processing or manufacturing of materials,

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RCW (2/23/98 8:48) [ 32 ]
•

•

•

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 under chapter 36.70A RCW; or

(b) For counties not planning under chapter 36.70A RCW and the

cities within them, zoned for industrial use and adj acent to

properties currently used or designated for industrial purposes.

(24) IIWorkout activitiesII 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

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. [1997 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: liThe 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 s 1.]

RCW (2/23/98 8:48) [ 33 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 0

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 threatened release 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 department 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. In conducting, providing for, or requiring

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 0..\

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 70.10SD.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

rtecessary 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 .10SD. 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. O~ Any such advice or assistance shall be advisory only, and shall not

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

RCW (2/23/98 8:48) [ 34 ]
•

•

•

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

requlrements of this chapter or whether the department believes

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, and 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 implement 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:

(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 standards under state and federal law; and

(f) Apply industrial clean-up standards at industrial

properties. Rules adopted under this subsection shall ensure that

industrial properti~s 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

RCW (2/23/98 8:48) [ 35 ]
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 toxics control accounts. The department

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

accounting of the department1s activities supported by

appropriations from the state toxics control account, including a

list of known hazardous waste sites and their hazard rankings,

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

reimbursed for travel expenses as provided in RCW 43.03.050 and

43.03.060.

(5) The department shall establish a program to identify

potential hazardous waste §ites and to encourage persons to provide

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

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

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

NOTES:

o

o

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 0

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

RCW (2/23/98 8:48) 36 ]
•

•

•

for transport to such a facility and has reasonable grounds to

believe that such facility is not.: operated in accordance with

chapter 70.105 RCW; 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

'existing, directly or indirectly, with the person asserting 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 the 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 actual 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

RCW (2/23/98 8:48) [ 37 ]
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 in or

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 cleanup standards under RCW

70.10SD.030(2) (e) and with any remedial orders issued 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

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

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 I 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

o

o

o

RCW (2/23/98 8:48) [ 38 ]
•

•

general 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 (~) 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 settlement 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

abandoned commercial or industrial contaminated property. The

attorney general and the department may give priority to

set~lements 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--Intent--1997 c 406:

70.105D.020.

See note following RCW

•

RCW 70.10SD.OSO Enforcement. (1) 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 departtment 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

RCW (2/23/98 8:48) [ 39 .J
(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 (1) 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 not 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 iubstantial endangerment

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

prevailing party in the action.

(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. 030 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 R~W 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:

o

o

*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 0

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

subsection (15) to subsection (16).

RCW (2/23/98 8:48) [ 40 J
•

•

•

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

RCW 70.105D.070 Toxics control accounts. (1) The state

toxics control account and the local 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; (c) penalties collected or

recovered under 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, technical 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;

(iv) State matching funds required under the federal cleanup

law;

(v) Financial assistance for local programs in accordance with

chapters 70.95, 70.95C, 70.95I, 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

technologies 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 the following purposes in descending order of priority: (i)

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

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

RCW (2/23/98 8:48) [ 41 ]
chapters 70.95, 70.95C, 70.951, and 70.105 RCW. 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.

(b) Funds may also b~ appropriated to the department of health 0

to implement programs to reduce testing requirements under the

federal safe drinking water act for public water systems. The

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 maybe spent only after appropriation by statute.

(5) One percent of the moneys deposited into the state and

local toxics control accounts shall be aliocated only for public

participation grants to persons who may be adversely affected by a

release Qr threatened release of a hazardous substance and to notfor-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

state's solid and hazardous waste management priorities. 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 toxics

control account may be used for solid waste incinera~or feasibility

studies, construction, maintenance, or operation.. (7) The department shall adopt rules for grant or loan

issuance and performance. [1997 c 406 § 5; 1994 c 252 § 5; 1991 0

sp.s. c 13 § 69; 1989 c 2 § 7 (Initiative Measure No. 97, approved

November 8, 1988).]

NOTES:

Findings-.-Intent--1997 c 406:

70.10SD.020.

See note following RCW

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

70.119A.020.

Effective dates--Severability--1991 sp.s. c 13:

following RCW 18.08.240. . See notes

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

costs. Except as provided in RCW 70.105D.040(4) (d) and (£), 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 70.10SD.040 for 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.

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 0

substantial equivalent of a department-conducted or department- .

supervised remedial action. Substantial equivalence shall be

RCW (2/23/98 8:48) 42 ]
•

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 regardless 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--rntent--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.]

Severabi1ity--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 substantive requirements 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 implementing agencies from

charging 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.

(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

conservation and recovery act, the federal clean water act, the

RCW (2/23/98 8:48) 43 ]
federal clean air act, and the federal coastal zone management act.

Such a determination by the department shall not a f f ect : the

applicability of the exemptions to other statutes specified in this

section. [1994 c 257 § 14.]

NOTES:

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).]

Existing agreements--1989 c 2. The consent

effect on March 1, 1989, shall remain valid

2 § 20 (Initiative Measure No. 97, approved c~

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

matter) between August 15, 1987, and January 1, 1988. [1989 c 2 §

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

NOTES:

*Reviser's note: Neither condition contained in subsection

(2) was met.

RCW 70.1050.921 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 Ur~

c 2 § 18 (Initiative Measure No. 97, approved November 8, 1988).]

RCW (2/23/98 8:48) [ 44 ]