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VOLUME6

Titles60through74

1998

REVISEDCODEOFWASHINGTON

Publishedundertheauthorityofchapter1.08 RCW.

Containing all laws of a general andpermanentnature through the 1998 regular session, which adjourned sine die March12, 1998. 

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(1998 Ed.) [Preface-pi]

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REVISEDCODEOFWASIllNGTON

1998Edition

°1998StateofWashington 

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CERTIFICATE

The 1998 edition of the Revised Code of Washington, publishedofficiallyby the Statute LawCommittee,is, in accordance with RCW1.08.037,certified to comply with thecurrentspecificationsof thecommittee.

MARY F.GALLAGHERDILLEY,Chair, STATUTELAWCOMMITTEE



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(1998 Ed.) [PreCace-pill 

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# • CHAPTER 70.105 RCW

HAZARDOUS WASTE MANAGEMENT

Sections



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• 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. Solidwastes--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 ofdepartment to regulate PCBwaste. Regulation ofwastes 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 ofnotification forms or annual reports to officials responsible for fire protection. Rules implementedunder RCW 70.10S.130--Review. Department's authority to participate in and administer federal act. Declaration--Management ofhazardous waste-- Priorities--Definitions. Waste management study--Public hearings--Adoption or modification of rules--Recommendations to legislature. Disposal ofdangerous 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 andpenalties--Earnings. Hazardous waste management plan. Hazardous waste management facilities--Department to develop criteria for siting. Department to adopt rules forpermits 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 planpreparation, 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 ofRCW 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. 

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c

Environmental certificationprograms--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 andhazardous 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 

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• RCW 70.105.005 Legislative declaration. hereby finds and declares: (I) The health and welfare of the people of the state depend

on clean andpure environmental resources unaffectedbyhazardous waste contamination. At the same time, the quality of life of the people ofthe state is inpartbasedupon a large variety ofgoods produced by the economy of the state. The complex industrial processes thatproduce 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 toprotectpublic health andthe 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 healthandthe environment andto meet thepublic's concerns regarding the acceptance ofneeded 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 andregional nature offacilities 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 canbe sited. It is therefore the intent ofthe legislature topreempt local government Is authority to approve, deny, or otherwise regulate disposal and incineration facilities, and to vest inthe 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 completepreemptive authority also be vested in the department for

RCW (2/23/98 8:48) [ 3treatment 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, otherrequirement, ordecision shall prohibit on the basis of landuse 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 primaryrole inprovidinghazardous waste management facilities and services in the state. It is the intent of the legislature that this rolebe encouragedandcontinue 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 underthis chapterdue to their small quantity orhousehold origin have the potential to pose significant risk to public health and the environment ifnot properlymanaged. It is the intent ofthe 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-riskwaste, with assistance and coordinationprovidedby the department. [1985 c 448 § 2.]

NOTES:

Severability--1985 c 448: "If any provision of this act or its application to anypersonor 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, andmanagement of hazardous waste whichwill prevent land, air, and water pollution and conserve the natural, economic, andenergyresources ofthe state. To this end it is the purpose of this chapter: (I) Toprovide broadpowers ofregulation to the department of ecologyrelating to management ofhazardous wastes and releases of hazardous substances; (2) To promote waste reduction and to encourage other improvements in waste management practices; (3) Topromote cooperationbetween state and local governments by assigning responsibilities for planning for hazardous wastes to the state andplanning formoderate-riskwaste to local government; (4) Toprovide forpreventionofproblems related to improper 

# ·0

management ofhazardous substances before suchproblems 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 ofthe 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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• RCW70.105.010 Definitions. The words andphrases defined in this section shall have the meanings indicated when used in this chapterunless the context clearly requires otherwise. (1) "Department" means the department of ecology. (2) "Director" means the directorofthe department ofecology

or the director's designee. (3) "Disposal site" means a geographical site in oruponwhich hazardous wastes are disposedof in accordance with the provisions of this chapter. (4) "Dispose or disposal" means the discarding or abandoning ofhazardous wastes orthe treatment, decontamination, orrecycling of suchwastes once they have been discarded or abandoned. (5) "Dangerous wastes" means anydiscarded, useless, unwanted,

or abandoned substances, including but not limited to certain pesticides, orany residues orcontainers of such substances which

are disposed of in such quantity or concentration as to pose a substantialpresent orpotential hazard to human health, wildlife,

or the environment because such wastes or constituents or combinations of suchwastes: (a) Have short-lived, toxic properties thatmay cause death, injury, or illness orhave mutagenic, teratogenic, or carcinogenic properties; or (b) Are corrosive, explosive, flammable, or may generate pressure through decomposition or othermeans. (6) "Extremely hazardous waste" means any dangerous waste which(a) willpersist in a hazardous form for several years ormore at a disposal site andwhich in its persistent form (i) presents a significant environmental hazard and may be concentratedby livingorganisms througha food chainormay affect the genetic make-up ofman orwildlife, and (ii) is highly toxic to man orwildlife (b) if disposed of at a disposal' site in such quantities as wouldpresent an extreme hazard to man or the environment. (7) "Person" means any person, firm, association, county, public ormunicipal orprivate corporation, agency, orotherentity whatsoever. (8) "Pesticide" shall have the meaning of the term as defined inRCW 15.58.030 as now orhereafter amended.

. (9) "Solidwaste advisory committee" means the same advisory committee as perRCW 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 underthis chapterandthat 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) "Preemptedfacility" 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 

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pile to be closed as a landfill. (13) "Hazardous household substances" means those substances identifiedby the department as hazardous household substances in the guidelines developedunderRCW 70.105.220. (14) "Hazardous substances" means any liquid, solid, gas, or sludge, including anymaterial, substance, product, commodity, or waste, regardless of quantity, that exhibits any of the characteristics or criteria of hazardous waste as described in rules adoptedunder 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-riskwaste" means (a) anywaste that exhibits any of the'properties of hazardous waste but is exempt from regulationunderthis chapter solelybecause 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,

ordispose ofdangerous orextremelyhazardous 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 

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closure entails the physical characterizationofremainingwastes 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 applicationto any**perso~** or circumstance is held invalid, the remainder ofthe act orthe 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 afternotice andpublic hearing shall: (1) Adopt.regulations designating as extremely hazardous wastes subject to the provisions of this chapterthose ·substances which exhibit characteristics consistent with the definition provided in RCW 70.105.010(6); (2) Adopt andmay revise when appropriate, minimum standards and regulations for disposal of extremely hazardous wastes to 

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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

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• 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 directoroffire 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.

RCW70.105.025 Environmental excellence programagreements-- Effect onchapter. Notwithstanding anyotherprovisionof law, any legal requirement under this chapter, including any standard, limitation, rule, ororderis supersededandreplacedin accordance with the terms and provisions of an environmental excellence programagreement, enteredinto under chapter 43.21KRCW. [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 depositorofhazardouswaste--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 extremelyhazardous wastes for disposal, the amount ofsuchwastes, the general chemical andmineral 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 safetymeasures tobe taken incase of accidental contact with the particularextremely 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 2ndex.s. c 101 § 3.]

RCW 70.105.035 Solid wastes--Conditionally exempt from chapter. Solid wastes that designate as dangerous waste or extremelyhazardous waste but do not designate as hazardous waste under federal laware conditionallyexempt from the requirements of this chapter, if: (1) Thewaste is generatedpursuant to a consent decree issued under chapter 70.105D RCW; (2) The consent decree characterizes the solid waste and specifiesmanagement practices and a department-approved treatment

ordisposal location;

RCW (2/23/98 8:48) [ 7 ](3) The management practices are consistent with RCW 70.105.150 and are protective ofhuman health and the environment

as determinedby the department of ecology; and (4) Waste treatedordisposedof on-site will be managed ina 

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manner determined by the department to be as protective of human health and the environment as clean-up standards pursuant to chapter 70.105DRCW. This section shall not be interpretedto limit the abilityof the department to apply any requirement of this chapter through a consent decree issuedunderchapter 70.105D RCW, ifthe 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, eitherdirectlyorby agreement withpublic orprivate persons or entities: PROVIDED, That lands acquired under this section shall not be inconsistent.with a local comprehensiveplan approvedpriorto January 1, 1976: AND PROVIDED.FURTHER, That no lands acquired under this section shall be subject to· land use regulationby a local government. 

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(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 suchas toprovide a reasonable profit. [1975-'76 2ndex.s. c 101 § 4.]

.RCW 70.105.050 Disposal at other than approved site prohibited--Disposal of radioactive wastes. (1) Noperson shall dispose of designated extremely hazardous wastes at any disposal site in the state other than the disposal site established and approved for suchpurpose underprovisions ofthis chapter, except: (a) When suchwastes 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 suchwastes are managed on-site as partofa remedial action conductedby the department orbypotentiallyliablepersons undera consentdecree issuedbythe 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 ofthe nuclearregulatory commission and (b) permittedby 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 ]

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• disposal, all reasonable methods of treatment, detoxification, neutralization, orotherwaste management methodologies designed to mitigate hazards associatedwiththese 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** Reviewofrules, 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 reviewedby the solidwaste advisorycommittee for the purpose ofrecommending revisions, additions, ormodifications thereto as provided for the review of solidwaste regulations and standards pursuant to chapter 70.95 RCW. [1975-'76 2ndex.s. c 101 § 6.]

RCW70.105.070 Criteria for rece1v1ngwaste at disposal site. The department may elect to receive dangerous waste at the site providedunder 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 coverdisposal (3) it canbe reasonably demonstrated that there is no other disposal sites inthe 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 personwho fails to complywith anyprovisionofthis chapteror of the rules adoptedthereunder shall be subjected to a penalty in an amount ofnot more than ten thousand dollars perday for every such violation. Each and every suchviolation 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 violatedthe provisions ofthis section and shall be subject to the penaltyhereinprovided. (2) Thepenaltyprovided 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: Seenote following RCW 70.105.097. Purpose--Short Captions--1987 c 109: tit1e--Construction--Ru1es--Severabi1ity-- See notes following RCW 43.21B.001. 

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RCW 70.105.085 Vio1ations--Crimina1 penalties. Any person who knowinglytransports, 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 violationplaces anotherperson in imminent danger of death or serious bodily injury; or (2) a class C felony if the person knows that the conduct constituting the violationplaces anyproperty of anotherperson or any natural

resources owned by the state of Washington or any of its local governments in imminent danger ofharm. As used in this section, "imminent danger" means that there is a substantial likelihood that harmwill be experiencedwithin a reasonable periodoftime should the dangernot be eliminated. As used inthis section, "knowingly" refers to an awareness of facts, not awareness of law. Violators shall be punished as providedunder RCW 9A.20.021. [1989 c 2 § 15 (Initiative Measure No. 97, approvedNovember 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--Grossmisdemeanor. Inadditionto 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 anyviolationofanyprovisions of this chapter, orofthe 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 notmore than one year, for each separate violation. Each andevery suchviolation shall be a separate and distinct offense. In case of continuing violation, every day's continuance shall'be

a separate anddistinct offense. [1984 c 237 § 1; 1983 c 172 § 3; 1975-'76 2nd ex.s. c 101 § 9.]

NOTES:

Severabi1ity--1983 c 172: Seenote following RCW 70.105.097. 

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RCW 70.105.095 Vio1ations--Orders--Pena1ty for noncomp1iance--Appea1. (1) Whenever on the basis on any information the department determines that a personhas violated or is about to violate anyprovision of this chapter, the department may issue an order requiring compliance either immediately or 

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within a specifiedperiodoftime. The order shall be deliveredby registeredmail orpersonally to the person against whomthe order is directed.

RCW (2/23/98 8:48) [ 10 ]

# • (2) Any person who fails to take corrective action as specifiedin a compliance order shall be liable for a civilpenalty of not more than ten thousand dollars for each day of continued noncompliance. In addition, the department may suspend orrevoke anypermits and/or certificates issuedundertheprovisions 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.



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

RCW70.105.097 Action for damages resulting fromviolation-- Attorneys' fees. Aperson injured as a result of a violation of this chapterorthe rules adoptedthereundermay bring an action in superior court for the recovery of the damages. A conviction or impositionofa penaltyunderthis chapteris not a prerequisite to

an action under this section. The court may awardreasonable attorneys' fees to a prevailing injuredparty in anactionunder this section. [1983 c 172 § 1.]

NOTES:

Severability--1983 c 172: "If any provision of this act or its applicationto anypersonor 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 inperforming its duties under this chaptermay: (1) Conduct studies and coordinate research programs pertaining to extremely hazardous waste management; (2) Rendertechnical assistance to generators ofdangerous and extremelyhazardous wastes and to state and local agencies in the planning and operation ofhazardous waste programs; (3) Encourage and provide technical assistance to waste generators to form and operate a "waste exchange" for the purpose offinding users for dangerous and extremely hazardous wastes that would otherwise be disposed of: PROVIDED, That such technical assistance shall not violate the confidentiality ofmanufacturing processes; and (4) Provide for appropriate surveillance and monitoring of extremelyhazardous waste disposal practices in the state. [1975- '76 2nd ex.s. c 101 § 10.]

RCW.70.105.105 Dutyofdepartment to regulate PCBwaste. 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) [ 11terminationoftheiruseful lives andwhichcontainpolychlorinated biphenyls (PCB's) andwhose disposal is not regulatedunder40 CFR part 761. Nothing inthis section shall prohibit suchwastes from being incineratedordisposedof at facilities permitted tomanage 

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PCBwastes under 40 CFRpart 761. [1985 c 65 § 1.]

RCW 70.105.109 Regulation of wastes with radioactive and hazardous components. The department of ecologymay regulate all hazardous wastes, includingthose composed ofboth radioactive and hazardous components, to the extent it is not preemptedby federal law. [1987 c 488 § 2.]

.

RCW70.105.110 Regulation ofdangerous wastes associatedwith energy facilities. (1) Nothing inthis chapter shall alter, amend,

or supersede the provisions of chapter 80.50 RCW, except that, notwithstanding anyprovision of chapter 80.50 RCW, regulation of dangerous wastes associatedwith energy facilities from generation to disposal shall be solelyby the department pursuant to chapter 70.105 RCW. Inthe 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 inspectionbythe department that maybe 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 2ndex.s. c 101 § 11.]

RCW70.105.111 Radioactive wastes--Authorityofdepartment of social andhealth services. Nothing inthis chapterdiminishes 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.]

RCW70.105.112 Applicationofchapter to special incinerator ash. This chapter does not apply to special incinerator ash regulatedunderchapter70.138 RCWexcept that, forpurposes ofRCW 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. 

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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 issuedpursuant to chapter 70.105D RCW, or to the department of ecology when it conducts a remedial actionunder chapter70.105D RCW. The department of ecology shall

ensure compliance withthe substantive requirements ofthis chapter throughthe consent decree, order, or agreed order issuedpursuant to chapter70.105DRCW, orduring the department-conductedremedial action, throughtheprocedures developedbythe department pursuant to RCW 70.105D.090. [1994 c 257 § 17.]

NOTES:

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

RCW70.105.120 Authorityofattorneygeneral. At the request ofthe department, the attorneygeneral is authorizedtobring such injunctive, declaratory, or other actions to enforce any requirement of this chapter. [1980·c 144 § 2.]

RCW70.105.130 Department's powers as designatedagencyunder federal act. (1) The department is designated as the state agency for implementingthe federal resource conservation andrecovery act (42 U.S.C. Sec. 6901 et seq.). (2) Thepowergrantedto the department bythis 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 ofpesticides 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) Amanifest 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 regulatedunder this section for the purposes of inspection, monitoring, and sampling; and (e) Adopt rules necessary to implement this section. [1980 c 144 § 1.]

RCW70.105.135 Copies ofnotification for.ms or annual reports to officials responsible for fire protection. Any person who generates, treats, stores, disposes, orotherwise handles dangerous

or extremely hazardous wastes shall provide copies of any notification forms, or annual reports that are requiredpursuant to RCW 70.105.130 to the fire departments or fire districts that service the areas inwhichthe 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 providedto the sheriffor other county official designated pursuant to RCW 48.48.060 upon the- request of the

RCW (2/23/98 8:48) [ 13 ]sherifforothercountyofficial. 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 inand is empowered to administer all aspects of theprograms ofthe federal Resource Conservation andRecoveryAct,

as it exists on June 7,1984, (42 U.S.C. Sec. 6901 et seq.), contemplated forparticipationand administration by a state under that act. [1984 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 ofhazardous waste-- Priorities--Definitions. The legislature hereby declares that: (1) The'healthandwelfare of the people of

..the state depend

on clean andpure.environmental resources unaffectedbyhazardous waste contamination. Management and regulation ofhazardous waste 

# 0

disposal should encourage practices which result in the least amount ofwaste beingproduced. Towards that end, the legislature finds that the following priorities in the management ofhazardous waste are necessary and shouldbe followed in orderofdescending priority as applicable: (a) Waste reduction; (b) Waste recycling; (c) Physical, chemical, andbiological 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 recyclablebyproduct, reduce toxicity, or substantially reduce the volume ofmaterial 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 whichwaste is placed in or on land andwhich is not

RCW (2/23/98 8:48) [ 14 ]

# •

•

• a landtreatment facility, surface impoundment, or injectionwell. [1983 1stex.s. c 70 § 1.]

RCW 70.105.160 Waste management study--Public hearings-- Adoptionormodification ofrules--Recommendations to legislature. The department shall conduct a study to determine the best managementpractices for categories ofwaste for the prioritywaste 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 priorityofRCW 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 studiedby the department. After conducting the study, the department shall prepare new rules or modify existing rules as appropriate to promote implementation of the priorities establishedinRCW 70.105.150 formanagementpractices whichassure
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, regardingpolicy options (such as fee incentives, disposal bans, etc.) that will be used to reduce the production of dangerous and extremely hazardous waste inWashington state. The studies shall be updated.at least onceevery 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 applicationto anyperson 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 theprocessing or issuance ofany or all federal, state, and local permits for disposal ofdangerous wastes, no disposal of dangerous wastes at a commercial off-site land disposal facility may be undertakenprior 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 undertakenbythe department underRCW70.105.160 to determine the best management practices for various waste categories underthe prioritywaste management methods established in

### RCW70.105.150 are completed for the particularwastes orwaste categories to be disposed of and any regulatory revisions deemed necessarybythe department are proposed and do not prohibit land disposal of suchwastes; or (c) Final regulations have been adoptedbythe department that allow for such disposal.

RCW (2/23/98 8:48) [ 15 ]

### (2) Constructionoffacilities used solely for the purpose of disposal ofwastes thathave notmet the requirements of subsection (1) ofthis section shall not be undertakenby anydeveloperofa 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 subjected 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 suchrules. [1984 c 254 § 

### 1.]

NOTES:

*Reviser's note:· 

### RCW 70.105A.060 was repealedby 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 authorizedtopromote the prioritywaste managementmethods. listed inRCW70.105.150 byestablishingor assisting inthe establishment of: (1) Consultative services which, in conjunction with any business or industryrequesting such service, study and recommend alternative waste management practices; and (2) technical assistance, such as a toll-free telephone service, to persons interestedinwaste management alternatives. Anyperson receiving such service or assistance may, in accordance with state law, request confidential treatment of information about their manufacturing orbusiness practices. [1983 1st ex.s. c 70 § 

### 3.]

RCW70.105.180 Dispositionof fines andpenalties--Earnings. 

### All fines and penalties col.Lect

### ed under this chapter shall be deposited in the hazardous waste control andelimination account, which is hereby created in the state treasury. Moneys in the account collected from fines and penalties shall be expended exclusivelyby the department ofecology for the purposes of *this act, subject to legislative appropriation. Other sources offunds 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 1stex.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 ]

# •

•

• RCW 70.105.200 Hazardous waste management plan. (1) The department shall develop, and shallupdate 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, orotherwise manage hazardous waste; (b) Aforecast 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) Sitingpolicies as deemed appropriate by the department; and (f) A plan or program to provide appropriate public information andeducation 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 carriedout 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 planby interested citizens, LocaLgovernment, business and industry, environmental groups, and otherentities as appropriate. (3) Siting criteria shall be completedby December 31, 1986. Other plan components listed in subsection (1) of this section shall be completedby.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 coordinatedprograms throughout the state. [1985 c 448 § 4.]

NOTES:

Severability--1985 c 448: Seenote 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 wastemanagement facilities. These criteriawill 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-termand long-term risks and costs thatmay result fromhazardous waste management facilities. These criteria may vary by type of facilities and may consider natural site characteristics and engineeredprotection. 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 ofutilities andpublic services; (II) Compatibilitywith existing uses of land; (12) Shorelines and wetlands; (13) Sole-source aquifers; (14) Natural hazards; and (15) Otherfactors as determinedbythe 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 necessaryregarding the permitting of such facilities to ensure theemost 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 ofhazardous waste in a county or city landfill. [1994

c 254 § 7.]

RCW 70.105.220 Local governments to prepare local hazardous wasteplans--Basis--Elements required. (I) Each local government,

or combination of contiguous local governments, is directed to prepare a local hazardous waste planwhich shall be based on state guidelines and include the following elements: (a) Aplanorprogramtomanage moderate-riskwastes that are

.generated or otherwise present within the jurisdiction. This

element shall include an assessment of the quantities, types, generators, and fate ofmoderate-riskwastes in the jurisdiction. 

# c=J

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

RCW (2/23/98 8:48) [ 18 ]

# •

•

• moderate-risk waste, appropriate to each local area, to ensure protection ofthe environment andpublic 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) Thepotential hazards to human health and the environment resulting from improperuse and disposal of the waste; and (ii) Proper methods of handling, reducing, recycling, and disposing of the waste;

. (c) An inventoryofall existing generators ofhazardous waste and facilities managing hazardous waste within the jurisdiction. This inventory shall be based on dataprovidedby the department; (d) Adescription 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 consideredpart of the local hazardous waste planning requirements; and (f) Otherelements as deemed appropriate by local government. (2) To the maximum extent practicable,

.the local hazardous waste plan shall be coordinated with other hazardous materialsrelatedplans andpolicies in the jurisdiction. (3) Local governments shall coordinate with those persons involved inprovidingprivately ownedhazardous andmoderate-risk waste facilities and services as follows: If a local government determines that a moderate-risk waste will be or is adequately managedbyone ormoreprivately 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 takenbya local government under this subsectionmay include, but

are not limitedto, restricting orprohibiting the landdisposal 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) Inpreparingthe 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 neededtoprovide informationto improve andupdate the guidelines. (5) The department shall consult with retailers, trade associations, public interest groups, and appropriate units of local government to encourage the development ofvoluntarypublic 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) Eachlocal government, orcombination of contiguous local governments, shall submit its local hazardous waste'plan or amendments thereto to the department. The department shall approve
ordisapprove local hazardous waste plans oramendments byDecember 31, 1990, orwithinninetydays 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 wasteplanunless the plan for that jurisdiction has been approvedby the department. (8) Each local government, orcombination of contiguous local governments, shall implement the local hazardous wasteplanfor its jurisdictionbyDecember 31, 1991. (9) The departmentmaywaive the specific requirements ofthis section for any local government if such local government demonstrates to the satisfaction of the department that the objectives oftheplanning 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: RCW70.951.020.

RCW 70.105.221 Local governments to prepare local hazardous waste plans--Used oil recycling element. Local governments and combinations oflocal governments shall amendtheirlocal 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 satisfactionof the department that existing zoning allows designated zone facilities as permitteduses; 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 approvedby 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 bepreparedin consultationwith local governments and shall be completedby December 31, 1986.

RCW (2/23/98 8:48) 20

# •

'.



# • (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 preemptiveprovisions 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 landuse zoningprovisions shall designate eligible geographic areas within their jurisdiction, basedon siting criteria adopted in accordance withRCW 70.105.210. The area designation shall be subject to the same requirements as iftheywere zone designations. (6) Each local government, orcombination ofcontiguous 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, andguidelines for developing designated zones: PROVIDED, That the department shall consider local zoning in place as of January I, 1985, orother special situations or conditions which may exist in the jurisdiction. If approval is denied, the department shall statewithinninetydays fromthe date of submissionthe facts upon whichthat decision is basedand shall submit the statement to the local government together with any other comments or recommendations it deems appropriate. The localgovernment shall have ninety days after it receives the statement from the department to make modifications designed to eliminate the inconsistencies andresubmit the designation to the department for approval. Any designations shall take effect when approvedby 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 immediatelypreceding the calendaryear 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 withRCW 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.

RCW70.105.230 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 departmentbyOctober 31, 1987, a letter of intent stating that it intends to (a) identify, ordesignate ifnecessary, eligible zones for designated zone facilities no laterthan 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) [ 21indicate whether these requirements will be completed in conjunctionwith 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 fromthe 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: Seenote 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 departmentmaymake andadminister 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-fivepercent of the estimatedcost ofthe workto beperformed. Local governments maymeet their share ofcosts with cashorcontributed services. Local governments, orcombinationof contiguous local governments, conductingpilotprojects 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. Ifa pilotproject has been conducted for all moderateriskwastes, onlythe portionofthe 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 suchprocedures in applying for andusing grants as may be establishedby the department. [1986 c 210 § 2; 1985 c 448 § 9.]

NOTES:

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

RCW70.105.240 Statepreemption--Department sole authority-- Local requirements superseded--State authorityoverdesignated zone facilities. (1) As ofJuly 28, 1985, the state preempts the field of state, regional, or local permitting and regulating of all preempted facilities as defined inthis 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, orboard, 

# 0

orany local orregional 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 operationofsuch facilities. Permits issuedby the department shall be in lieu of any and all permits, approvals, certifications, or conditions of any other state, regional, or local governmental authoritywhichwould otherwise apply. (2) The department shall ensure that anypermits issuedunder this chapterinvoking thepreemption authorityofthis sectionmeet the substantive requirements ofexisting state laws and regulations to the extent such laws and regulations are not inconsistent or in conflictwithany oftheprovisions of this chapter. In the event that any of the provis;i.ons of this :chapter, or any of the regulations promulgatedhereunder, 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 operationof preempted facilities shall be deemed superseded. However, in issuingpermits 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 regardto anydesignated 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: subject 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 anypersonwho 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 maybe appealedbythe department or the governing body of the local government to the pollution control hearings board establishedunder 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 implementationoflocal hazardous wasteplans. [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-~Agreements**may constitute conditions for per.mit. (1) In order to promote identification, discussion, negotiation, andresolutionofissues relatedto siting ofhazardous 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 facilityproponents, host communities, andother interestedpersonsi.

. (c) May adopt rules specifying procedures for facility proponents, host communities, and citizens to follow·inproviding opportunities for conflict resolution activities, including the use ofdispute resolution centers establishedpursuant 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 deemedvalidby the department maybe written as conditions binding on a permit issuedunder 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 appropriatedby the legislature. [1985 c 448 § 15.]

NOTES:

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

# o

o



# o

RCW (2/23/98 8:48) [ 24 ]**-~----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 closureunderthis chapterin 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) Programelements or activities for which service charges maybe assessed include: (a) Office, staff, and staff support for the purposes of facility orunit permit development, review, and issuance; and (b) Actions takento 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, ordispose of dangerous or extremely hazardous waste that contains both a nonradioactive hazardous component and a radioactive component shall notbe subject to service charges priorto such rule making. Facilitiesundergoing closureunderthis chapterinthose instances where closure entails the physical characterization of remaining wastes whichcontainbotha nonradioactive hazardous component and

a radioactive component or the management of such wastes through treatmentorremoval shall notbe subject to service charges prior to suchrule making. [1989 c 376 § 2.]

NOTES:

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

RCW70.105.300 Metalsminingandmillingoperations permits-- Inspections by department of ecology. .Lf a metals mining and millingoperationis issueda permitpursuant 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 compliancewiththe conditions ofanypermit issued to it pursuant to this chapter. The department shall conduct additional inspections during the constructionphase ofthe 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) 25RCW 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.

RCW70.105A.035 Revision of fees toprovide a waste reduction and recycling incentive. The legislature is encouraged to revise the hazardous waste fees prescribed in *RCW 70.105A.030 ina manner whichprovides an incentive for waste reduction andrecycling. If priortoMarch 1, 1989, *RCW 70.105A.030 as it exi.stedonAugust 1, 1987, has notbeen amended in a manner which specificallyprovides

an incentive forhazardous 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 repealedby 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 CONTROLACT

Sections

70.105D.010

.Declaration ofpolicy. 

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RCW (2/23/98 8:48) [ 26 ]

# • 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. Standardof liability--Settlement. Enforcement. Timing of review. Toxics control accounts. Private right of action--Remedial action costs. Remedial actions--Exemption fromprocedural 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 certificationprograms--Fees--Rules--Liability: RCW 43.21A.175

..

RCW70.1050.010 Declaration ofpolicy. (1) Eachpersonhas

a fundamental and inalienable right to a healthful environment, and each person has a responsibility to preserve and enhance that right. Thebeneficial stewardship of the land, air, andwaters of the state is a solemnobligation ofthe present generation for the benefit of future generations. (2) A.healthful environment is now threatened by the irresponsible use anddisposal ofhazardous substances. There are hundreds ofhazardous waste sites in this state, andmore will be createdifcurrent wastepractices continue. Hazardous waste sites threaten the state's water resources, including those used for public drinkingwater. Many ofourmunicipal landfills are current

orpotential hazardous waste sites andpresent serious threats to human health and environment. The costs of eliminating these threats in many cases are beyond the financial means ofour local governments andratepayers. The mainpurpose ofchapter 2, Laws of 1989 is to raise sufficient funds to clean up all hazardous waste sites andtoprevent the creationof 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.t

### h 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 oftheirneighbors. With a source offunds, the statemay assist these farmers andbusiness 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 landbase, to integrate our landuse planning policies with

our clean-up policies, and to clean up and reuse contaminated industrial properties in order to minimize industrial development pressures onundeveloped 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, eachresponsible person shouldbe liablejointlyand severally. [1994 c 254 § 1; 1989 c 2 § 1 (Initiative Measure No. 97, approvedNovember 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 personreceiving the order agrees to comply. An agreedordermay be usedto require orapprove anycleanup orother remedial actions

.but it is not a settlement under RCW 70.105D.040(4) and shall not corrta 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 directorofecologyorthe director's designee. (4) "Facility" means (a) any building, structure, installation, equipment, pipe orpipeline (including anypipe 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
areawhere a hazardous substance, other than a consumerproduct in

consumer use, has been deposited, stored, disposedof, orplaced,

or otherwise come to be located. (5) "Federal cleanup law" means the federal comprehensive environmental response, compensation, and liabilityact of 1980, 42 U.S.C. Sec. 9601 et seq., as amendedby 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, bywhich the holder acquires title to orpossession of a facility securing a loan orotherobligation. (7) "Hazardous substance" means: (a) Any dangerous orextremelyhazardous waste as defined in RCW 70.105.010 (5) and (6), or anydangerous orextremelydangerous waste designatedby rule pursuant to chapter 70.105 RCW; (b) Anyhazardous substance as defined inRCW 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) Petroleumorpetroleumproducts; and (e) Any substance or categoryof substances, including solid waste decompositionproducts, determinedbythe directorbyrule 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 whencontained inanunderground storage tank fromwhich 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 ]

# •

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• (8) "Independent remedial actions" means remedial

.actions conductedwithout department oversight or approval, andnot under

an order, agreed order, or consent decree. (9) "Holder" means a person who holds indicia of ownership primarily to protect a security interest. Aholder 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 ownershipprimarilyto protect a security interest, or a receiver, court-appointedtrustee, orotherpersonwho acts onbehalf or for the benefit of a holder. Aholder can be a public or privately owned financial institution, receiver, conservator, loanguarantor,

orother similarpersons that loanmoney 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 ofmoneyor 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 acquiredincident 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 ofobligations, title heldpursuant to a lease financing transaction in which the lessor does not select initially the leased facility, or legal or equitable title obtainedpursuant to foreclosure andtheirequivalents. Evidence ofsuch interests also includes assignments, pledges, orotherrights to orotherforms of encumbrance against the facility that are heldprimarilytoprotect

a security interest. (11) "Operating a facility primarily to p.rot.ect; a security interest" occurs when all ofthe 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. Operatinga facility for longer than one yearprior to foreclosure

or its equivalents shall be presumed to be operating the facility for other than to protect a security interest. (12) "Owneror operator" means: (a) Any personwithanyownership interest in the facility or who exercises any control over the facility; or (b) In the case of an abandoned facility, anyperson who had owned, oroperated, orexercised**con~rol** overthe facility any time before its abandonment; The term does not include: (i) An agency of the state orunit of local government which acquiredownership orcontrol involuntarilythroughbankruptcy, tax delinquency, abandonment, orcircumstances inwhich the government involuntarilyacquires title. This exclusion does not apply to an agencyofthe state orunit of local governmentwhichhas caused or contributed to the release or threatened release of a hazardous substance from the facility;

RCW (2/23/98 8:48) [ 29 ](ii) Apersonwho, withoutparticipating 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 andholders who engage inanyof the activities identified in subsection (13)(e) through (g) of this section shall not lose this exemptionprovided the holder complies with all ofthe following: (A) The holderproperlymaintains the environmental compliance

measures already in place at the facility; (B) The holder complies withthe reporting requirements inthe rules adoptedunder this chapter; (C) The holder complies withany order issuedto the holderby the department to abate an imminent or substantial endangerment; (D) The holder allows the department or potentially liable persons underanorder, agreedorder, or settlement agreement under this chapteraccess 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 adoptedunder this chapter; and (F) The holder does not exacerbate an existing release; or (iii) Anypersonwho has anyownership interest in, operates,

orexercises control overreal propertywhere a hazardous substance has come to be located solely as a result of migration of the hazardous substance to the real property through the groundwater 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 likelyto cause or contribute to a release of the hazardous substance that has migrated onto the property; (B) Thepersonhas not causedorcontributedto the release of the hazardous substance; (C) The person does not engage in activities that damage or interfere with the operation of remedial actions installedon the person's property or engage in activities that result in exposure ofhumans orthe environment to the contaminated ground water that has migratedonto the property; (D) If requested, the person allows the department, potentially liable persons who are subject to an order, agreed order, orconsent decree, andthe authorized employees, agents, or contractors of e?ch, access'to the property to conduct remedial actions required by the department. The person may att.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) ofthis subsection does not apply to holders who cause or contribute to a new release or threatened release orwho are otherwise liable underRCW 70.10SD.040(1) (b), (c), (d), and (e); provided, however, that a holder shall not lose this exemption ifit establishes that any suchnewrelease has been remediated according to the requirements of this chapter and that any hazardous substances remaining at the facility after remediationofthe new release are divisible from suchnewrelease. (13) "Participation inmanagement" means exercising decisionmaking control over the borrower's operation of the facility, environmental compliance, orassuming ormanifesting responsibility

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RCW (2/23/98 8:48) [ 30 ]

# •

•

• for the overall management Of the enterprise encompassing the dayto-daydecisionmaking ofthe enterprise. The termdoes not include anyof the following: (a) Aholder withthemere capacityorability to influence, or the unexercised right to control facility operations; (b) a holderwho 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 ofownership is held; (d) a holderwho requires a borrowerto conduct remedial actions including setting minimumrequirements, but does not otherwise control ormanage the borrower's remedial actions orthe scope ofthe 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 borrowerto continue to operate, a facility primarily to protect a security interest; and (h) a prospective holderwho, as
a conditionofbecoming a.holder, requires an owner oroperator 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 termof the security interest; requiring the borrower to comply or come into compliance with applicable federal, state, and local environmental and other laws, regulations, andpermits during the termof the security interest; securingorexercising authoritytomonitororinspect 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; ortaking other actions necessary to adequately police the loan or security interest such as requiring a borrower to comply with any warranties, covenants, conditions, representations, orpromises 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; performroutine 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) [ 31releases at the facility; or to perform other similar activities intended to preserve the value ofthe facility where the borrower has defaulted on the loan or otherwise breached the security agreement or after foreclosure and its equivalents and in anticipationofa pending sale, transfer, or assignment, primarily to protect the holder Is security interest in the facility. A holdercanprepare a facility for sale, transfer, orassignment for up to one yearprior 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 indiciaofownership is heldprimarily for the purpose of securing payment orperformance ofanobligation. The termdoes 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 ofownership after foreclosure or its equivalents for longer than five years shall be considered to be holding the indicia ofownership for purposes other thanprimarily toprotect

a security interest. For facilities that have been acquired through foreclosure orits equivalents priorto July23, 1995, this five-year period shall begin as ofJuly 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 vicinityoftheproposedaction; 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 orunintentional entryof any hazardous substance into the environment, including but not limited to the abandonment or disposal of containers ofhazardous 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 andmonitoring activities withrespect to any release orthreatened release of a hazardous substance and anyhealthassessments orhealtheffects studies conductedin order to determine the risk orpotential risk to human health. (22) "Security interest" means an interest in a facility createdorestablishedfor thepurpose of securing a loanorother 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 otherobligation. (23) "Industrialproperties" means properties that are orhave been characterized by, or are to be committed to, tr-aditional industrial uses such as processing ormanufacturing ofmaterials, 

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RCW (2/23/98 8:48) [ 32 ]

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• marine terminal and transportation areas and facilities, fabrication, assembly, treatment, or distribution ofmanufactured products, or storage ofbulkmaterials, that are either: (a) Zoned for industrial use by a city or county conducting landuse planning under chapter 36.70ARCW; or (b) Forcounties notplanningunderchapter36.70ARCWandthe cities within them, zoned for industrial use and adjacent to properties currentlyusedor designated for industrial purposes. (24) IIWorkout activitiesII means those actions by which a holder, at any timepriorto foreclosure and its equivalents, seeks toprevent, cure, ormitigate a default bytheborrowerorobligor;

or to preserve, or prevent the diminution of, the value of the security. Workout activities include: Restructuring or renegotiating.the terms ofthe security interest; requiringpayment of additional rent or interest; exercising forbearance; requiring

orexercisingrights pursuant to an assignment ofaccounts orother amounts owed to anobligor; requiring orexercisingrights pursuant to an escrow agreement pertaining to amounts owed to an obligor; providing specific or general financial or other advice, suggestions, counseling, orguidance; 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, approvedNovember 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-twomembercommittee representing a broadrange ofinterests 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. Manymembers 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 intendedto implement those recommended statutory changes." [1997

c 406 

## s 1.]

RCW (2/23/98 8:48) [ 33 JRCW 70.10SD.030 Department's powers and duties. (1) The department may exercise the following powers in addition to any otherpowers 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 limitedto inspecting, sampling, ortesting to determine the nature

or extent of any release or threatened.release. If there is a reasonable basis to believe that a release orthreatenedrelease of

a hazardous substance may exist, the department's authorized employees, agents, or contractors may enterupon anyproperty and conduct investigations. The department shall give reasonable notice before enteringpropertyunless an emergencyprevents such notice. The department mayby 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) ofthis subsection) to remedy releases or threatenedreleases ofhazardous 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 maximumextentpracticable and shall provide for

or require adequate monitoring to ensure the effectiveness ofthe remedial action; (c) Indemnify contractors retained by the department for carrying out investigations andremedial actions, but not for any 

# 0..\

contractor's reckless orwilful misconduct; (d) Carryout all stateprograms authorizedunder 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 ofRCW 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 cityorcountydepartment with landuseplanning 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 ofhuman 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 topersons who are conducting orotherwise interested in independent remedial actions.

### O~ Any suchadvice or assistance shall be advisoryonly, and shall not be binding on the department. As a part ofproviding this advice

RCW (2/23/98 8:48) [ 34 ]

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• andassistance for independent remedial actions, the department may prepare writtenopinions regardingwhetherthe 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 incurredby the department inproviding 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 thereafterenforce, rules underchapter 34.05 RCW to: (a) Provide for public participation, including at least (i) the establishment ofregional citizen's advisory committees, (ii) public notice ofthe development of investigative plans orremedial plans for releases or threatened releases, and (iii) concurrent public notice ofall compliance orders, agreed orders, enforcement orders, ornotices ofviolation;

. (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 ninetydays ofdiscovery, including such exemptions from reporting

as the department deems appropriate, howeverthis requirement shall notmodify anyexisting requirements provided for underother laws; (d) Establishreasonable deadlines not to exceed ninety days for initiating an investigationofa hazardous waste site after the department receives notice or otherwise receives information that the site maypose a threat to human health or the environment and other reasonable deadlines for remedying releases or threatened releases at the site; (e) Publishandperiodicallyupdate minimum cleanup standards for remedial actions at least as stringent as the cleanup standards under section 121 ofthe federal cleanup law, 42 U.S.C. Sec. 9621, andat 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 adoptedunder this subsection shall ensure that industrial**properti~s** cleanedup to industrial standards cannot be converted to nonindustrial uses without approval from the department. The department may require that a property cleanedup to industrial standards is cleaned up to a more stringent applicable standardas a conditionofconversion 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 afterremedial actionpose a threat to humanhealthor 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 andmeans and appropriate standingenvironmental committees ofthe senate andhouse ofrepresentatives 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 eachyearwith 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 managementpriorities underRCW 70.105.150, and all funds expendedunder this chapter. (4) The department shall establisha scientific advisoryboard 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 forpurposes ofRCW 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, approvedNovember 8, 1988).J

NOTES: 

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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) ofthis section, the following persons are liable with respect to a facility: (a) The owner or operator of the facility; (b) Anypersonwho ownedoroperated the facility at the time of disposal or release of the hazardous substances; (c) Any person who owned or possessed a hazardous substance andwho by contract, agreement, or otherwise arranged for disposal

or treatment of the hazardous substance at the facility, or arrangedwitha transporter for transport for disposal ortreatment ofthe hazardous substances at the facility, orotherwise 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, orother facility selected by such person from which there is a release or a 

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threatened release for which remedial action is required, unless such facility, at the time ofdisposal or treatment, could legally receive such substance; or (ii) who accepts a hazardous substance

RCW (2/23/98 8:48) 36 ]

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• 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 forwhichremedial action is required at the facility.

, (2) Eachpersonwho 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 threatenedreleases ofhazardous substances. The attorneygeneral, at the request ofthe department, is empoweredto recover all costs and damages frompersons 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 wouldbe otherwise responsible was caused solelyby: (i) An act ofGod; (ii) An act ofwar; or (iii) An act or omission ofa thirdparty (includingbut not limitedto a trespasser) otherthan (A) anemployee 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 exercisedthe utmost care withrespect to the hazardous substance, the foreseeable acts or.omissions of the third party, and the foreseeable consequences of those acts or omissions; (b) Anypersonwho is an owner, past owner, orpurchaser of a facility andwho can establishby 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 orthreatened release ofwhich has resulted inorcontributedto 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, consistentwithgoodcommercial or customarypractice in

an effort to minimize liability. Any court interpreting this subsection (b) shall take into account any specializedknowledge 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 contaminationby appropriate inspection; (ii) The defense contained in this subsection (b) is not available to anypersonwho had actual knowledge of the release or threatenedrelease ofa hazardous substance when the person owned the real propertyandwho subsequentlytransferredownership of the propertywithout first disclosing suchknowledge 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 naturalpersonwho uses a hazardous substance lawfully andwithout negligence for anypersonal or domestic purpose in or
neara dwelling oraccessory structure when that person is: (i) A resident ofthe dwelling; (ii) a personwho, without compensation, assists the resident in the use ofthe substance; or (iii) aperson 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. Wheneverpracticable and in the public interest, the attorneygeneral mayexpedite such a settlement withpersons 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) Asettlement agreement underthis section shall be entered

as a consent decree issuedby a court of competent jurisdiction. (c) 

### Asettlement agreement may contain a covenant not to sue onlyofa scope commensuratewith the settlement agreement in favor ofanypersonwithwhomthe attorneygeneral has settledunder 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) 

### Apartywho has resolved its liability to the state under this section shall not be liable for claims for contribution regardingmatters addressed in the settlement. The settlement does not discharge any of the other liable parties but it reduces the total potential liabilityofthe others to the state by the amount of the settlement. (e) If the state has entered into a consent decree with an
owneroroperatorunder 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 couldenforce against the settlingparty, if: (i) The successorowneroroperator is liable with respect to the facility solely due to that person Is ownership interest or operator status acquired as a successorin interest to the owneror operatorwithwhomthe 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 settlingparty 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 onwhether a consent decree contains suchunique circumstances. Forall otherconsent decrees, suchuniqUe circumstances shall be specified inthe consent decree. (f) Any personwho 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 additionto the settlement authorityprovidedunder subsection (4) of this section, the attorney general may agree to

a settlement with a personnot 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 adoptedunder this chapter; and (iii) Based on available information, the department determines that the redevelopment orreuse of the facility is not likelyto contribute to the existing release orthreatenedrelease, interferewithremedial actions that may be needed at the site, or increase healthrisks topersons at or inthe vicinityofthe 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 inthis chapteraffects ormodifies in anywayany person's right to seek or obtain relief under other statutes or undercommon law, includingbut 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 obtaina remedyundercommon laworother statutes. [1997

c 406 § 4; 1994 c 254 § 4; 1989 c 2 § 4 (InitiativeMeasureNo. 97, approvedNovember 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, orthreatened 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 liablepersonwho refuses, without sufficient cause, to complywith

an order or agreed order of the director is liable in an action broughtbythe attorney general for: (a) Upto three times the amount of any costs incurredby the state as a result of the party's refusal to comply; and

RCW (2/23/98 8:48) [ 39

### .J(b) Acivil penaltyofup to twenty-five thousand dollars for each day the party refuses to comply. The treble damages and civil penaltyunderthis subsectionapply to all recovery actions filed on or afterMarch 1, 1989. (2) Anypersonwho incurs costs complyingwithanorder issued under subsection (1) of this section may petition the department for reimbursement of those costs. If the department refuses to grant reimbursement, the personmaywithin 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 reliefas 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 performanynondiscretionarydutyunderthis chapter. At least thirtydays before commencing the action, the personmust give notice of intent to sue, unless a iubstantial endangerment exists. The courtmay award attorneys' fees and othercosts 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 inwhichthe release orthreatened 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 orderor 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 orremedial action; and (5) in a citizen's suitunder 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, approvedNovember 8, 1988)

### .J

NOTES: 

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o

*Reviser'snote: RCW 70.105D.020 was amendedby 1994 c 254 § 2, changing subsection (8) to subsection (9); andwas 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 raisedby the tax imposedunderRCW 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 recoveredunder this chapter; and (d) any othermoney appropriated

or transferred to the account by the legislature. Moneys in the accountmaybe 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 programrequired 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) Apublic participationprogram, 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 underRCW 70.105D.030(2)(e) but only when the amount and
terms of such funding are establishedunder a settlement agreement under RCW 70.105D.040(4) and when the director has found that the funding will achieve both (A) a substantiallymore expeditious or enhanced cleanup thanwould otherwise occur, and (B) the prevention

ormitigation ofunfair economic hardship; and (xii) Development and demonstration of alternative management technologies designed to carry out the top two hazardous waste management priorities ofRCW 70.105.150. (3) The following moneys shall be deposited into the local toxics control account: Those revenues which are raisedby 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 usedby 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 andprograms under

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

# 0

to implement programs to reduce testing requirements under the federal safe drinking water act for public water systems. The department ofhealth shall reimburse the account from fees assessed underRCW 70.119A.115 byJune 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 appropriationby statute. (5) One percent of the moneys deposited into the state and local toxics control accounts shall be aliocated only for public participationgrants topersons who maybe adversely affectedby a release Qrthreatenedrelease of a hazardous substance and to notfor-profit public interest organizations. The primarypurpose 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 solidandhazardous waste management priorities. No grant mayexceed sixtythousand dollars. Grants maybe renewed annually. Moneys appropriated for public participation from either account whichare not expendedat the close ofanybiennium shall revert to the state toxics control account. (6) Nomoneys deposited into either the state or local toxics control account may beused for solidwaste**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 personmaybring a private right of action, including a claimfor 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 underthis chaptermay also be recovered. Recovery shall be based

on suchequitable 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 ]

# • determinedbythe courtwith reference to the rules adoptedby the department underthis chapter. Anactionunder this sectionmaybe 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 actionmay have arisen. To the extent a cause of actionhas arisen prior to May 12, 1993, this section applies retroactively, but in all otherrespects 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 anypersonor 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.]

RCW70.10SD.090 Remedial actions--Exemption fromprocedural requirements. (1) A person conducting a remedial.action at a facility under a consent decree, order, or agreed order, and the departmentwhen 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 substantiveprovisions ofchapters 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 intendedto 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 ofapproval 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 airact, andthe federal coastal zonemanagement act. Such a determination by the department shall not af fect : the applicabilityofthe exemptions to other statutes specifiedinthis 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, approvedNovember 8, 1988).]

RCW 70.1050.905 Captions--1989 c 2. As used in this act, captions constitute nopart ofthe law. [1989 c 2 § 21 (Initiative Measure No. 97, approvedNovember 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, approvedNovember 8, 1988).] 

# .. \

RCW 70.1050.915 orders anddecrees in and binding. [1989 c November 8, 1988).] Existing agreements--1989 c 2. The consent effect on March 1, 1989, shall remainvalid 2 § 20 (Initiative Measure No. 97, approved

# c~

RCW 70.1050.920 Effective date.--1989 c 2. (1) Sections 1 through 24 ofthis act shall take effectMarch 1, 1989, except that the director of ecology and the director of revenue may take whateveractions may benecessary 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 involvinghazardous substance cleanup (alongwith any othersubject matter) betweenAugust 15, 1987, and January 1, 1988. [1989 c 2 § 26 (Initiative Measure No. 97, approvedNovember 8, 1988).]

NOTES:

*Reviser's note: Neither condition contained in subsection (2) was met.

RCW70.1050.921 Severability--1989 c 2. Ifanyprovision of this act or its application to anyperson or circumstance is held invalid, the remainder of the act or the application of the provisionto otherpersons or circumstances is notaffected. [1989**Ur~** c 2 § 18 (Initiative Measure No. 97, approvedNovember 8, 1988).]

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