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VOLUME6

Titles60through74

1998

REVISEDCODEOFWASHINGTON

Publishedundertheauthorityofchapter1.08RCW.

Containing all laws of a general and permanent nature through the 1998regularsession,which adjourned sine die March 12, 1998.

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(1998 Ed.) [preface-pi)" 

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REVISEDCODEOFWASHINGTON

1998Edition

'1998StateofWashington 

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CERTIFICATE

The 1998 edition of the Revised Code ofWashington,published officially by the Statute LawCommittee,is, in accordance with RCW 1.08.037, certified to comply with the currentspecificationsof thecommittee.

MARY F.GALLAGHERDILLEY,Chair, STATUTELAWCOMMITTEE

(1998 Ed.) [PreCac_pii] 

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# • CHAPTER 70.10SD RCW

HAZARDOUS WASTE CLEANUP--MODEL TOXICS CONTROLACT

Sections

70.105D.010 70.105D.020 70.105D.030 70.105D.040 70.105D.050 70.105D.060 70.105D.070 70.105D.080 70.105D.090

70.105D.900 70.105D.905 70.105D.910 70.105D.915 70.105D.920 70.105D;921 Declaration ofpolicy. Definitions. Department's powers and duties. Standard of liability--Settlement. Enforcement. Timing of review. Toxics control accounts. Private right of action--Remedial action costs. Remedial actions--Exemption from procedural requirements. Short title--1989 c 2. Captions--1989 c 2. Construction--1989 c 2. Existing agreements--1989 c 2. Effective date--1989 c 2. Severability--1989 c 2.



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• NOTES:

Environmental certificationprograms--Fees--Rules--Liability: RCW 43.21A.175.

RCW70.10SD.010 Declaration ofpolicy. (1) Eachperson has

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 of the present generation for the benefit offuture generations. (2) A healthful environment is now threatened by the irresponsible use'anddisposal ofhazardous substances. There are hundreds ofhazardous waste sites in this state, and more will be created ifcurrent waste practices continue. Hazardous waste sites threaten the state's water resources, including those used for public drinking water. Many ofourmunicipal landfills are current

orpotential hazardous waste sites andpresent serious threats to human health and environment. The costs of eliminating these threats inmany cases are beyond the financial means of our local governments and ratepayers. The mainpurpose ofchapter 2, Laws of 1989 is to raise sufficient funds to clean up all hazardous waste sites andtoprevent the creation of future hazards due to improper disposal oftoxic wastes into the state's land andwaters. (3) Many farmers and small business owners who have followed the law with respect to their uses of pesticides and other chemicals nonetheless may face devastating economic consequences because their uses have contaminated the environment or the water supplies oftheirneighbors. Witha source of funds, the state may 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.

RCW (11/12/97 10:43) [ 1 ](4) It is in the public Is interest to efficiently use our finite landbase, to integrate our landuse planningpolicies 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 expeditiously, eachresponsibleperson shouldbe liablejointlyand severally. [1994 c 254 §- 1; 1989 c 2 § 1 (Initiative Measure No. 97, approvedNovember 8, 1988).J

RCW 70.10SD.020 Definitions. (1) "Agreed order" means an order issued by the department under this chapter with which the potentiallyliableperson receiving the order agrees to comply. An agreedordermaybeused to require orapprove anycleanupor other remedial actions but it is not a settlement under RCW 70.105D.040(4) and shall not contain a covenant not to sue, or provide protection from claims for contribution, or provide eligibility for public funding of remedial actions under RCW 70.105D.070(2)(d)(xi). (2) "Department" means the department ofecology. (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

consumeruse, has been deposited, stored, disposed of, 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 Law 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 ofthe obligation, or any other comparable formal or informal manner, whether pursuant to law or under warranties, covenants, conditions, representations, or promises from the borrower, bywhichthe holder acquires title to orpossession of a facility securing a loan or other obligation. (7) "Hazardous substance" means:

.(a) Any dangerous or extremelyhazardous waste as defined in RCW70.105.010 (5) and (6), orany dangerous orextremelydangerous
waste designatedby rule pursuant to chapter 70.105 RCW; (b) Any hazardous substance as defined inRCW 70.105.010(14)

or any hazardous substance as definedby rule pursuant to chapter 70.105 RCW; (c) Any substance that, on March I, 1989, is a hazardous substance under section 101.(14) of the federal cleanup law, 42 U.S.C. Sec. 9601(14); (d) Petroleum orpetroleumproducts; and 

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RCW (11/12/97 10:43) [ 2 ]

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• (e) Any substance orcategory of 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 whencontainedin anunderground 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. (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 ownershipprimarilytoprotect a security interest, or a receiver, court-appointedtrustee, orotherpersonwho acts onbehalfor for the benefit of a holder. Aholder can be a public or privately ownedfinancial institution, receiver, conservator, loanguarantor,

orother similarpersons that loanmoney orguarantee 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 ofmoney or credit. (10) "Indicia of ownership" means evidence of a security interest, evidence of an interest in a security interest, or evidence of an interest in a facility securing a loan or other obligation, including any legal or equitable title to a facility acquired incident to foreclosure and its equivalents. Evidence of such interests includes, mortgages, deeds of trust, sellers interest in a real estate contract, liens, surety bonds, and guarantees ofobligations, title heldpursuant to a lease**~inancing** transaction in which the lessor does not select initially the leased facility, or legal or equitable title obtainedpursuant to foreclosure andtheirequivalents. Evidence of such 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 protect 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) "Owner or operator" means: (a) Anypersonwithanyownership interest in the facility or who exercises any control over the facility; or (b) In the case of an abandoned facility, any personwho had owned, oroperated, orexercisedcontrol overthe facility any time before its abandonment;

RCW (11/12/97 10:43) [ 3 ]The term does not include: (i) An agency ofthe state orunit of local government which acquiredownership orcontrol involuntarilythroughbankruptcy, tax delinquency, abandonment, orcircumstances in which the government involuntarily acquires title. This exclusion does not apply to an agencyofthe state orunit of local government whichhas caused or contributed to the release or threatened release of a hazardous substance from the facility; (ii) Apersonwho, without participating in the management of

a facility, holds indicia of ownership primarily to protect the person's security interest in the facility. Holders after foreclosure and its equivalent andholders who engage in any of the activities identified in subsection (13)(e) through (g) of this section shall not lose this exemptionprovided the holder complies with all of the following: (A) The holderproperlymaintains the environmental compliance

measures already inplace at the facility; (B) The holdercomplies with the reporting requirements in the rules adoptedunder this chapter; (C) The holder complies with anyorder issued to the holderby the department to abate an imminent or substantial endangerment; (D) The holder allows the department or potentially liable
persons under an order, 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 any ownership 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 likely to 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 orengage in activities that result in exposure ofhumans orthe environment to the contaminated groundwater that has migrated onto the property; (D) If requested, the persqn allows the department, potentially liable persons who are subject to an order, agreed order, orconsent decree, andthe authorized employees, agents, or contractors of each, access to the property to conduct remedial actions required by the department. The person may attempt to negotiate an access· agreement before allowing access; and

. (E) Legal withdrawal of groundwater·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 or who are otherwise liable under RCW 70.10SD.040(1) (b), 

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RCW (11/12/97 10:43) [ 4 ]

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• (C), (d), and (e); provided, however, that a holder shall not lose this exemptionifit establishes that any suchnewrelease has been remediated according to the requirements of this chapter and that
any hazardous substances remaining at the facility after remediation ofthe new release are divisible from suchnew release. (13) "Participation inmanagement" means exercising decisionmaking control over the borrower's operation of the facility, environmental compliance, or assuming ormanifesting responsibility for the overallmanagement ofthe enterprise encompassing the dayto-day decisionmaking of the enterprise. Thetermdoes not include anyofthe following: (a) Aholder withthe mere 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 corne into compliance with any applicable laws or regulations at the facility for which indicia ofownership is held; (d) a holderwho requires a borrower to 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 facilityprimarily to protect a security interest; and (h) a prospective holder who, as

a conditionofbecoming a holder, requires an owner or operator to conduct an environmental audit, conduct an environmental site assessment, corne into compliance with any applicable laws or regulations, or conduct remedial actions prior to holding a security interest is not participating in the management of the facility. (14) "Person" means an individual, firm, corporation, association, partnership, consortium, joint venture, commercial entity, state government agency, unit of local government, federal government agency, or Indian tribe. (15) "Policing activities" means actions the holder takes to insure that the borrower complies with the terms of the loan or security interest or actions the holder takes or requires the borrower to take to maintain the value of the security. Policing activities include: Requiring the borrower to conduct remedial actions at the facility during the term of the security interest; requiring the borrower to comply or come into compliance with applicable federal, state, and local environmental and other laws, regulations, andpermits during the term of the security interest; securingorexercising authority tomonitoror inspect the facility including on-site inspections, or to monitor or inspect the borrower's business or financial condition during the term ofthe securityinterest; 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 (11/12/97 10:43) [ 5 ]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 emergencyrequires otherwise. (17) "Prepare a facility for sale, transfer, or assignment"

means to secure access to the facility; performroutinemaintenance

on the facility; remove inventory; equipment, or structures; properly maintain environmental compliance measures already in place at the facility; conduct remedial actions to clean up releases at the facility; or to perform other similar activities intended to preserve the value of the facility where the borrower has defaulted on the loan or otherwise breached the security agreement or after foreclosure and its equivalents and in anticipation ofa pending sale, transfer, or assignment," primarily
to protect the holder's 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 thanprimarilyto protect

a security interest. For facilities that have been acquired through foreclosure or its equivalents priorto July 23, 1995, this five-yearperiod shall begin as of July 23, 1995. (19) "Public notice" means, at a minimum, adequate notice mailed to all persons who have made timely request of the department and to persons residing in the potentially affected vicinityofthe proposed action; mailed to appropiiate 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 ordisposal 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 potential threat posed by hazardous substances to human health or the environment" including any investigative andmonitoring activities with respect to any release or threatenedrelease of a hazardous substance and
anyhealth assessments orhealtheffects studies conductedinorder
to determine the risk orpotential risk to human health. (22) "Security interest" means an interest in a facility createdorestablishedfor thepurpose of securing a loan orother 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

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• andleasebacks, 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 orother obligation. (23) "Industrialproperties" meansproperties that are orhave been characterized by, or are to be committed to, traditional industrial uses such as processing ormanufacturing ofmaterials, marine terminal and transportation areas and facilities, fabrication, assembly, treatment, ordistribution 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 notplanningunder chapter 36.70ARCWandthe cities within them, zoned for industrial use and adjacent to properties currently used ordesignated for industrial purposes. (24) "Workout activities" means those actions by which a holder, at anytime priorto foreclosure and its equivalents, seeks
toprevent, cure, ormitigate a defaultby the borrowerorobligor;

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

orexercising rights pursuant to an assignment ofaccounts orother
amounts owedto 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, or guidance; and exercising any right or remedy the holder

### is entitled to by law or under any warranties, covenants, conditions, representations, or promises from the borrower. [1997 c 406 § 2; 1995 c 70 § 1; 1994 c 254 § 2; 1989 c 2 § 2 (Initiative Measure No. 97, approvedNovember 8, 1988).]

NOTES:

Findings--Intent--1997 c 406: "The legislature finds that: (1) Engrossed Substitute House Bill.No. 1810 enacted during the 1995 legislative session [1995 c 359] authorized establishment of the model toxics control act policy advisory committee, a twenty-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 ofthe 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

RCW (11/12/97 10:43) 7 ]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 § 1.]

RCW 70.1050.030 Department's powers and duties. (I) The department may exercise the following powers in addition to any otherpowers grantedby law: (a) Investigate, provide for investigating, or require potentially liable persons to investigate any releases or threatened releases of hazardous substances, including but not limitedto inspecting, sampling, ortesting to determine the nature

or extent of any release or threateried release. If there is a reasonablebasis tobelieve that a release orthreatenedrelease of

a hazardous substance may exist, the department's authorized employees, agents, or contractors may enterupon anypropertyand conduct investigations. The department shall give reasonable noticebefore 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**thr~atened** releases 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 maximum extentpracticable and shall provide for

orrequire 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 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 70.105D.020(7) and classify substances and products as hazardous substances forpurposes 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
necessary to protect human health and the environment from a release·or threatened release of a hazardous substance from a facility. Prior to establishing a deed restriction under this subsection, the department shall notify and seek comment from a 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 of human health and the environment; (h) Require holders to conduct remedial actions necessary to abate an imminent or substantial endangerment pursuant to RCW 70.105D.020(12)(b)(ii)(C); 

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• (i) Provide informal advice and assistance to persons regarding the administrative and technical requirements of this chapter. This may include site-specific advice to persons who are conductingorotherwise interested in independent remedial actions. Any suchadvice orassistance shall be advisoryonly, and shall not be binding on the department. As a part ofproviding this advice andassistance for independent remedial actions, the department may prepare writtenopinions regarding whetherthe independent remedial actions or proposals for those actions meet the substantive requirements 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 ofthe state are immune from all liability, andno 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 investigativeplans orremedial plans for releases or threatened releases, and**(~ii)** concurrent public notice of all 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 suchexemptions from reporting

as the department deems appropriate, howeverthis requirement shall
notmodifyanyexistingrequirements provided forunderother 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 may pose 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 forremedial 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 properties cleanedup to industrial standards cannot be converted to nonindustrial uses without approval from the

RCW (11/12/97 10:43) [ 9 ]department. The departmentmay require that a property cleanedup to industrial standards is cleaned up to a more stringent applicable standard as a conditionofconversionto a nonindustrial

use. Industrial clean-up standards may not be applied to industrial properties where**haz~rdous** substances remaining at the propertyafterremedial 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 andappropriate 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 alsoprovide the legislature and the public eachyearwith an accounting of the department's 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 twomanagementpriorities underRCW70.105.150, 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 sites andto encouragepersons to provide information about hazardous waste sites. [1997 c 406 § 3; 1995 c 70 § 2. Prior: 1994 c 257 § 11i 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 operatorof the facility; (b) Anypersonwho ownedoroperated the facility at the time ofdisposal 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 arrangedwith a transporter for transport for disposal ortreatment ofthe hazardous substances at the facility, orotherwise generated 

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hazardous wastes disposed of or treated at the facility;

RCW (11/12/97 10:43) [ 10 

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• (d) Any person (i) who accepts or accepted any hazardous substance for transport to a disposal, treatment, orotherfacility selected by such person from which there is a release or a 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 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**~everally,** 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 of God; (ii) An act ofwar; or (iii) An act or omission of a thirdparty (including but not limitedto a trespasser) otherthan (A) an employee oragent of the
person asserting the defense, or (B) any person whose act or omission occurs in connect.Lon 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 anowner, 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 ofwhichhas resulted inorcontributedto the need for the remedial action, was released

ordisposed of on, in, or at the facility. This subsection (b) is limited as follows: (i) To establish that a person had no reason to know, the
person must; have undertaken, at the time of acquisition, all appropriate inquiry into the previous ownership and uses of the property, consistent withgoodcommercial 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

RCW (11/12/97 10:43) [ 11 ]threatened release of a hazardous substance when the'person owned the real property andwho subsequently transferredownership ofthe 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 contributed to the release or threatened release of a hazardous substance at the facility; (c) Anynatural personwho 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 person who, without compensation, assists the resident in the use ofthe substance; or (iii) a person who is employed by the resident, but who is not an independent contractor; (d) Any person who, for the purpose of growing food crops, applies pesticides or fertilizers without negligence and in accordance with all applicable laws and regulations. (4) There may be no settlement by the state with any person potentially liable under this chapter except in accordance with this section.

. (a) The attorney general may agree to a settlement'with any potentially liable person only if the department finds, after public notice and any required hearing, that the proposed settlement would lead to a more expeditious cleanup of hazardous substances in compliance with cleanup standards under RCW 70.105D.030(2)(e) and with any remedial orders issued by the department. Wheneverpracticable and in the public interest, the attorneygeneral may expedite such a settlement withpersons whose contribution is insignificant in amount**a~d** toxicity. 

### Ahearing shall be required only if at least ten persons request one or if the department determines'a hearing is necessary. (b) 

### Asettlement agreement under this section shall be entered

as a consent decree issuedby a court of competentjurisdiction. (c) 

### Asettlement agreement may contain a covenant not to sue onlyofa scope commensurate with 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 regarding matters 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

owner or operatorunder 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 person1s ownership interest or operator status acquired as a successor in interest to the owneror operatorwithwhomthe state has entered into a consent decree; and 

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# •

• (ii) The stay of enforcement under this subsection does not apply if the consent decree was based on circumstances unique to the settling party that do not exist with regard to the successor in interest, such as financial hardship. For consent decrees entered into before July 27, 1997, at the request of a settling party or a potential successor owner or operator, the attorney general shall issue a written opinion on whether a consent decree contains suchunique circumstances. For all otherconsent decrees, suchunique circumstances shall be specified inthe consent decree. (f) Any personwho is not subject to enforcement by the state under (e) of this subsection is not liable for claims for contribution regarding matters addressed in the settlement. (5) (a) In addition to the settlement authorityprovidedunder subsection (4} of this section, the attorneygeperal may agree to

a settlementwith 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 or reuse ofthe facility is not likelyto contribute to the existing release orthreatenedrelease, interfere withremedial actions that may be needed at the site, or increase healthrisks topersons at or in the vicinity ofthe 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 settlements that will provide a substantial public benefit, including, but not limited to the reuse of a vacant or abandoned manufacturing or industrial facility, or the development of a facility by a governmental entity to address an important public
purpose. (6) Nothing inthis chapteraffects ormodifies in anywayany person's right to seek or obtain relief under other statutes or under common law, including but not limited to damages for injury

or loss resulting from a release or threatened release of 

### a hazardous substance. No settlement by the department or remedial action ordered by a court or the department affects any person's right to obtain a remedyunder common law orother statutes. [1997

c 406 § 4; 1994 c 254 § 4; 1989 c 2 § 4 (Initiative"MeasureNo. 97, approvedNovember 8, 1988).J

NOTES:

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



# • RCW 70.105D.050 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 departmentbelieves remedial action is in the public interest, the director shall issue orders or agreed orders requiring

RCW (11/12/97 10:43) [ 13 

### Jpotentially 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 brought by the attorney general for: (a) Up to three times the amount of any costs incurredby the
state as a result of the party's refusal to comply; and (b) Acivil penaltyofup to twenty-five thousand dollars for each day the party refuses to comply. The treble damages andcivilpenaltyunderthis subsectionapply to all recovery actions filed on or afterMarch I, 1989. (2) Anypersonwho incurs costs complyingwith an order issued under subsection (1) of this section may petition the department for reimbursement of those costs. If the department refuses to grant reimbursement, the personmay within thirty days thereafter file suit and recover costs by proving that he or she was not a liable person under RCW 70.105D.040 and that the costs incurred

were reasonable. (3) The attorney general shall seek, by filing an action if
necessary, to recover the amounts spent by the department for investigative and remedial actions and orders, and agreed orders, including amounts spent prior to March I, 1989. (4) The attorney general may bring an action to secure such reliefas is necessaryto 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 thirty days before commencing the action, the personmust give notice of intent to sue, unless a substantial endangerment exists. The courtmayaward attorneys' fees andothercosts to the prevailingparty in the action. (b) Civil actions under this section andRCW 70.105D.060 may be brought in the superidr court of Thurston county or of the county inwhich the release orthreatened·release exists. [1994 c 257 § 12; 1989 c 2 § 5 (Initiative Measure No. 97, approved November 8, 1988).]

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 RCW 70.105D.050(3); (2) in a suit by the department to enforce anorderor an agreed order, or seek a civil penaltyunder 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) ina citizen's suit under RCW 70.105D.050(5)

. The court shall uphold the department Is actions unless theywere arbitrary and capricious. [1994 c 257 § 13; 198.9·c 2 § 6 (Initiative Measure No. 97, approvedNovember 8, 1988).]

. 

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RCW (11/12/97 10:43) [ 14 ]

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••

• NOTES:

*Reviser'snote: RCW70.105D.020 was amendedby 1994 c 254 § 2, changing subsection (8) to subsection (9); and was subsequently amended by 1995 c 70 § I, changing subsection (9) to subsection (15); and was subsequently amended by 1997 c 406 § 2, changing subsection (15) to subsection (16).

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 andwhich 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
account maybe usedonly to carryout 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 Is responsibility for solid waste planning, management, regulation, enforcement, technical assistance, and public education required under chapter 70.95 RCW; (iii) The hazardous waste cleanup program required under this chapter; (iv) State matching funds required under the federal cleanup law; (v) Financial assistance for local programs in accordance with chapters 70.95, 70.95C, 70.95I, and 70.105 RCW; (vi) State government programs for the safe reduction, recycling, or disposal ofhazardous 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 under RCW70.105D.030(2)(e) but only when the"amount and

terms of such funding are established under a settlement agreement under RCW 70.105D.040(4) and when the director has found that the funding will achieve both (A) a substantially more expeditious or enhanced cleanup thanwould otherwise occur, and (B) the prevention

ormitigation ofunfair economic hardship; and (xii) Development anddemonstration 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**con~rol** account: Those revenues which are raisedby the tax {!

RCW (11/12/97 10:43) [ 15 ]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 inthe 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 chapter70.105 RCW; and (iii) solidwaste plans andprograms under 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 be appropriatedto the department ofhealth
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 under RCW 70.119A.115 by June 30, 1995. (4) Except for unanticipated receipts under RCW 43.79.260 through 43.79.282, moneys in the state and local toxics control
accounts maybe spent only after appropriationby statute. (5) One percent of the moneys deposited into the state and local toxics control accounts shall be allocated only for public participationgrants to persons who maybe adversely affectedby a release or threatenedrelease 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. Nogrant mayexceed sixtythousand dollars. Grants maybe renewed annually. Moneys appropriated for public participation from either account which are not expended at the close ofanybiennium shall revert to the state toxics control account. (6) Nomoneys deposited into either the state or local toxics control account may be used for solidwaste incinerator 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
sp.s. c 13 § 69; 1989 C2 § 7 (Initiative Measure No. 97, approved November 8, 1988).]

NOTES: 

# o**Findings--Intent-~1997** c406: 70.105D.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 (f), a personmaybring a private right of action, including a claim for contribution or for declaratory relief, against any other person liable under RCW 70.105D.040 for the recovery of remedial action

RCW (11/12/97 10:43) [ 16 ]

# • costs. In the action, natural resource damages paid to the state underthis chaptermay alsobe 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 substantial equivalent of a department-conducted or departmentsupervised remedial action. Substantial equivalence shall be determinedbythe court withreference 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 prevailingparty 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 actionmayhave arisen. To the extent a cause ofaction has 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--Intent--1997 c 406: 70.105D.020. See note following RCW



# •

• Effective date--1993 c 326: "This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and shall take effect immediately [May 12, 1993)." [1993 c 326 § 2.)

Severability--1993 c 326: "If any provision of this act or its application to anypersonor circumstance is held invalid, the remainder ofthe act or the application of the provision to other
persons or circumstances is not affected." [i993 c 326 § 3.)

RCW70.105D.090 Remedial actions--Exemption fromprocedural requirements. (I) A person conducting a remedial action at a facility under a consent decree, order, or agreed order, and the department when it conducts a remedial action, are exempt from the procedural requirements of chapters 70.94, 70.95, 70.105, 75.20, 90.48, and 90.58 RCW, and the procedural requirements of any laws requiring orauthorizing local government permits or approvals for the remedial action. The department shall ensure compliance with the substantiveprovisions of chapters 70.94, 70.95, 70.105, 75.20, 90.48, and 90.58 RCW, and the substantive provisions of any laws requiring or authorizing local government permits of approvals. The department shall establish procedures for ensuring that such remedial actions complywith 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 inthis section is intendedtoprohibit implementing agencies from charging a fee to the person conducting the remedial action to

RCW (11/12/97 10:43) [ 17 )defray the costs of services rendered relating to the substantive requirements for the remedial action. (2) An exemption in this section or in RCW 70.94.335, 70.95.270, 70.105.116, 75.20.025, 90.48.039, and 90.58.355 shall
not apply if the department determines that the exemption would result in loss of approval from a federal agency necessary for the
state to administer any federal law, including the federal resource conservation and recovery act, the federal clean water act, the federal clean air act, andthe federal coastal zone management act. Such a determination by the department shall not affect the applicabilityofthe exemptions to other statutes specified in this section. [1994 c 257 

## s 14.]

NOTES:

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

RCW 70.105D.900 Short title--1989 c 2. This act shall be known as "the model toxics control act." [1989 c 2 § 22 (Initiative Measure No. 97, approved November 8, 1988).]

RCW 70.105D.905 Captions--1989 c 2. As used in this act, captions constitute no part of the law. [1989 c 2 § 21 (Initiative Measure No. 97, approvedNovember 8, 1988).]

RCW 70.105D.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).] 

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RCW 70.105D.915 orders and decrees in andbinding. [1989 c November 8, 1988).] Existing agreements--1989 c 2. The consent effect on March 1, 1989, shall remain valid 2 § 20 (Initiative Measure No. 97, approved

RCW 70.105D.920 Effective date--1989 c 2. (1) Sections 1 through 24 ofthis act shall take effect March 1, 1989, except that the director of ecology and the director of revenue may take whateveractions maybe necessary to ensure that sections 1 through 24 of this act are implemented on their effective date. *(2) This section does not apply and shall have no force or effect if (a) this act is passed by the legislature in the 1988 regular session or (b) no bill is enacted by the legislature involvinghazardous substance cleanup (alongwith anyother subject matter) betweenAugust 15, 1987, and January 1,1988. [1989 c 2 § 26 (Initiative Measure No. 97, approved November 8, 1988).]

NOTES:

RCW (11/12/97 10:43) [ 18 ]

# , 

# •

•

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

RCW70.10SD.921 Severability--1989 c 2. If anyprovision 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 orcircumstances is not affected. [1989 c 2 § 18 (Initiative Measure No. 97, approvedNovember 8, 1988).]

RCW (11/12/97 10:43) [ 19 ]