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VOLUME 6

Titles 60 through 74

1998

REVISED CODE OF WASHINGTON

Published under the authority of chapter 1.08 RCW.

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

March 12, 1998.

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(1998 Ed.) [preface-p i)
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REVISED CODE OF WASHINGTON

1998 Edition

'1998 State of Washington

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CERTIFICATE

The 1998 edition of the Revised Code of Washington, published officially by the Statute Law Committee, is, in

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

MARY F. GALLAGHER DILLEY, Chair,

STATUTE LAW COMMITTEE

(1998 Ed.) [PreCac_p ii]

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CHAPTER 70.10SD RCW

HAZARDOUS WASTE CLEANUP--MODEL TOXICS CONTROL ACT

Sections

70.105D.010

70.105D.020

70.105D.030

70.105D.040

70.105D.050

70.105D.060

70.105D.070

70.105D.080

70.105D.090

70.105D.900

70.105D.905

70.105D.910

70.105D.915

70.105D.920

70.105D;921

Declaration of policy.

Definitions.

Department's powers and duties.

Standard of liability--Settlement.

Enforcement.

Timing of review.

Toxics control accounts.

Private right of action--Remedial action costs.

Remedial actions--Exemption from procedural

requirements.

Short title--1989 c 2.

Captions--1989 c 2.

Construction--1989 c 2.

Existing agreements--1989 c 2.

Effective date--1989 c 2.

Severability--1989 c 2.

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NOTES:

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

43.21A.175.

RCW 70.10SD.010 Declaration of policy. (1) Each person has

a fundamental and inalienable right to a healthful environment, and

each person has a responsibility to preserve and enhance that

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

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

benefit of future generations.

(2) A healthful environment is now threatened by the

irresponsible use 'and disposal of hazardous substances. There are

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

created if current waste practices continue. Hazardous waste sites

threaten the state's water resources, including those used for

public drinking water. Many of our municipal landfills are current

or potential hazardous waste sites and present serious threats to

human health and environment. The costs of eliminating these

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

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

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

sites and to prevent the creation of future hazards due to improper

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

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

the law with respect to their uses of pesticides and other

chemicals nonetheless may face devastating economic consequences

because their uses have contaminated the environment or the water

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

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

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

supplies, as a result of the contamination.

RCW (11/12/97 10:43) [ 1 ]
(4) It is in the public I s interest to efficiently use our

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

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

industrial properties in order to minimize industrial development

pressures on undeveloped land and to make clean land available for

future social use.

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

responsibility among persons liable for hazardous waste sites and

because it is essential that sites be cleaned up well and

expeditiously, each responsible person should be liable jointly and

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

97, approved November 8, 1988).J

RCW 70 .10SD. 020 Definitions. (1) "Agreed order" means an

order issued by the department under this chapter with which the

potentially liable person receiving the order agrees to comply. An

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

remedial actions but it is not a settlement under RCW

70 .105D. 040 (4) and shall not contain a covenant not to sue, or

provide protection from claims for contribution, or provide

eligibility for public funding of remedial actions under RCW

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

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

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

designee.

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

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

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

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

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

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

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

or otherwise come to be located.

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

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

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

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

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

foreclosure, termination of a lease, or other repossession,

acquisition of a right to title or possession, an agreement in

satisfaction of the obligation, or any other comparable formal or

informal manner, whether pursuant to law or under warranties,

covenants, conditions, representations, or promises from the

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

facility securing a loan or other obligation.

(7) "Hazardous substance" means: . (a) Any dangerous or extremely hazardous waste as defi ned in

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

waste designated by rule pursuant to chapter 70.105 RCW;

(b) Any hazardous substance as defined in RCW 70.105.010(14)

or any hazardous substance as defined by rule pursuant to chapter

70.105 RCW;

(c) Any substance that, on March I, 1989, is a hazardous

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

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

(d) Petroleum or petroleum products; and

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RCW (11/12/97 10:43) [ 2 ]
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(e) Any substance or category of substances, including solid

waste decomposition products, determined by the director by rule to

present a threat to human health or the environment if released

into the environment.

The term hazardous substance does not include any of the

following when contained in an underground storage tank from which

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

petroleum, if the tank is in compliance with all applicable

federal, state, and local law.

(8) "Independent remedial actions" means remedial actions

conducted without department oversight or approval, and not under

an order, agreed order, or consent decree.

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

primarily to protect a security interest. A holder includes the

initial holder such as the loan originator, any subsequent holder

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

security interest on the secondary market, a guarantor of an

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

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

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

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

owned financial institution, receiver, conservator, loan guarantor,

or other similar persons that loan money or guarantee repayment of

a loan. Holders typically are banks or savings and loan

institutions but may also include others such as insurance

companies, pension funds, or private individuals that engage in

loaning of money or credit.

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

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

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

obligation, including any legal or equitable title to a facility

acquired incident to foreclosure and its equivalents. Evidence of

such interests includes, mortgages, deeds of trust, sellers

interest in a real estate contract, liens, surety bonds, and

guarantees of obligations, title held pursuant to a lease ~inancing

transaction in which the lessor does not select initially the

leased facility, or legal or equitable title obtained pursuant to

foreclosure and their equivalents. Evidence of such interests also

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

encumbrance against the facility that are held primarily to protect

a security interest.

(11) "Operating a facility primarily to protect a security

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

the facility where the borrower has defaulted on the loan or

otherwise breached the security agreement; (b) operating the

facility to preserve the value of the facility as an ongoing

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

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

operation is being done primarily to protect a security interest.

Operating a facility for longer than one year prior to foreclosure

or its equivalents shall be presumed to be operating the facility

for other than to protect a security interest.

(12) "Owner or operator" means:

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

who exercises any control over the facility; or

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

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

before its abandonment;

RCW (11/12/97 10:43) [ 3 ]
The term does not include:

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

acquired ownership or control involuntarily through bankruptcy, tax

delinquency, abandonment, or circumstances in which the government

involuntarily acquires title. This exclusion does not apply to an

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

contributed to the release or threatened release of a hazardous

substance from the facility;

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

a facility, holds indicia of ownership primarily to protect the

person's security interest in the facility. Holders after

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

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

section shall not lose this exemption provided the holder complies

with all of the following:

(A) The holder properly maintains the environmental compliance

measures already in place at the facility;

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

rules adopted under this chapter;

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

the department to abate an imminent or substantial endangerment;

(D) The holder allows the department or potentially liable

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

this chapter access to the facility to conduct remedial actions and

does not impede the conduct of such remedial actions;

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

compliance with any preexisting requirements identified by the

department, or, if the department has not identified such

requirements for the facility, the remedial actions are conducted

consistent with the rules adopted under this chapter; and

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

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

or exercises control over real property where a hazardous substance

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

hazardous substance to the real property through the ground water

from a source off the property, if:

(A) The person can demonstrate that the hazardous substance

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

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

the hazardous substance that has migrated onto the property;

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

the hazardous substance;

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

interfere with ·the operation of remedial actions installed on the

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

of humans or the environment to the contaminated ground water that

has migrated onto the property;

(D) If requested, the persqn allows the department,

potentially liable persons who are subject to an order, agreed

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

contractors of 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) of this subsection does not apply to

holders who cause or contribute to a new release or threatened

release or who are otherwise liable under RCW 70.10SD.040(1) (b),

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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 exemption if it establishes that any such new release has been

remediated according to the requirements of this chapter and that

any hazardous substances remaining at the facility after

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

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

environmental compliance, or assuming or manifesting responsibility

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

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

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

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

requires a borrower to conduct an environmental auditor an

environmental site assessment at the facility for which indicia of

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

into compliance with any applicable laws or regulations at the

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

requires a borrower to conduct remedial actions including setting

minimum requirements, but does not otherwise control or manage the

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

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

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

activities primarily to protect the holder's security interest in

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

transfer, or assignment or requires a borrower to prepare a

facility for sale, transfer, or· assignment; (g) a holder who

operates a facility primarily to protect a security interest, or

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

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

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

conduct an environmental audit, conduct an environmental site

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

securing or exercising authority to monitor or inspect the facility

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

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

security interest; or taking other actions necessary to adequately

police the loan or security interest such as· requiring a borrower

to comply with any warranties, covenants, conditions,

representations, or promises from the borrower.

(16) "Potentially liable person" means any person whom the

department finds, based on credible evidence, to be liable under

RCW (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 emergency requires otherwise.

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

means to secure access to the facility; perform routine maintenance

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

properly maintain environmental compliance measures already in

place at the facility; conduct remedial actions to clean up

releases at the facility; or to perform other similar activities

intended to preserve the value of the facility where the borrower

has defaulted on the loan or otherwise breached the security

agreement or after foreclosure and its equivalents and in

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

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

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

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

stay within the security interest exemption in subsection

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

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

indicia of ownership is held primarily for the purpose of securing

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

indicia of ownership held primarily for investment purposes nor

indicia of ownership held primarily for purposes other than as

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

secondary reasons, for maintaining indicia of ownership, but the

primary reason must be for protection of a security interest.

Holding indicia of ownership after foreclosure or its equivalents

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

indicia of ownership for purposes other than primarily to protect

a security interest. For facilities that have been acquired

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

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

(19) "Public notice" means, at a minimum, adequate notice

mailed to all persons who have made timely request of the

department and to persons residing in the potentially affected

vicinity of the proposed action; mailed to 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 or unintentional entry of

any hazardous substance into the environment, including but not

limited to the abandonment or disposal of containers of hazardous

substances.

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

expenditure consistent with the purposes of this chapter to

identify, eliminate, or minimize any threat or potential threat

posed by hazardous substances to human health or the environment"

including any investigative and monitoring activities with respect

to any release or threatened release of a hazardous substance and

any health assessments or health effects studies conducted in order

to determine the risk or potential risk to human health.

(22) "Security interest" means an interest in a facility

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

obligation. Security interests include deeds of trusts, sellers

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

title to a facility acquired incident to foreclosure and its

equivalents, and title pursuant to lease financing transactions.

Security interests may also arise from transactions such as sale

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and leasebacks, conditional sales, installment sales, trust receipt

transactions, certain assignments, factoring agreements, accounts

receivable financing arrangements, easements, and consignments, if

the transaction creates or establishes an interest in a facility

for the purpose of securing a loan or other obligation.

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

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

industrial uses such as processing or manufacturing of materials,

marine terminal and transportation areas and facilities,

fabrication, assembly, treatment, or distribution of manufactured

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

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

land use planning under chapter 36.70A RCW; or

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

cities within them, zoned for industrial use and adjacent to

properties currently used or designated for industrial purposes.

(24) "Workout activities" means those actions by which a

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

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

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

security. Workout activities include: Restructuring or

renegotiating the terms of the security interest; requiring paYment

of additional rent or interest; exercising forbearance; requiring

or exercising rights pursuant to an assignment of accounts or other

amounts owed to an obligor; requiring or exercising rights pursuant

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

providing specific or general financial or other advice,

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

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

covenants, conditions, representations, or promises from the

borrower. [1997 c 406 § 2; 1995 c 70 § 1; 1994 c 254 § 2; 1989 c

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

NOTES:

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

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

the 1995 legislative session [1995 c 359] authorized establishment

of the model toxics control act policy advisory committee, a

twenty-two member committee representing a broad range of interests

including the legislature, agriculture, large and small business,

environmental organizations, and local and state government. The

committee was charged with the task of providing advice to the

legislature and the department of ecology to more effectively

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

(2) The committee members committed considerable time and

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

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

created four subcommittees that met over sixty times during this

same period. There were also numerous working subgroups and

drafting committees formed on an ad hoc basis to support the

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

meetings and were provided opportunities to contribute to the

committee deliberations.

(3) The policy advisory committee completed its work and

submitted a final report to the department of ecology and the

legislature on December 15, 1996. That report contains numerous

recommendations for statutory changes that were agreed to by

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

intended to 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

other powers granted by law:

(a) Investigate, provide for investigating, or require

potentially liable persons to investigate any releases or

threatened releases of hazardous substances, including but not

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

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

reasonable basis to believe that a release or threatened release of

a hazardous substance may exist, the department's authorized

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

conduct investigations. The department shall give reasonable

notice before entering property unless an emergency prevents such

notice. The department may by subpoena require the attendance or

testimony of witnesses and the production of documents or other

information that the department deems necessary;

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

liable persons to conduct remedial actions (including

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

thr~atened releases of hazardous substances. In carrying out such

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

contractors may enter upon property. The department shall give

reasonable notice before entering property unless an emergency

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

remedial action, the department shall give preference to permanent

solutions to the maximum extent practicable and shall provide for

or require adequate monitoring to ensure the effectiveness of the

remedial action;

(c) Indemnify contractors retained by the department for

carrying out investigations and remedial actions, but not for any

contractor's reckless or wilful misconduct;

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

cleanup law and the federal resource, conservation, and recovery

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

(e) Classify substances as hazardous substances for purposes

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

hazardous substances for purposes of RCW 82.21.020(1);

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

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

subsection that may be conditioned upon, deed restrictions where

necessary to protect human health and the environment from a

release· or threatened release of a hazardous substance from a

facility. Prior to establishing a deed restriction under this

subsection, the department shall notify and seek comment from a

city or county department with land use planning authority for real

property subject to a deed restriction; .

(g) Enforce the application of permanent and effective

institutional controls that are necessary for a remedial action to

be protective of human health and the environment;

(h) Require holders to conduct remedial actions necessary to

abate an imminent or substantial endangerment pursuant to RCW

70.105D.020(12) (b) (ii) (C);

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RCW (11/12/97 10:43) [ 8 ]
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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

conducting or otherwise interested in independent remedial actions.

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

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

and assistance for independent remedial actions, the department may

prepare written opinions regarding whether the independent remedial

actions or proposals for those actions meet the substantive

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 incurred by the department in providing such

advice and assistance; however, the department shall, where

appropriate, waive collection of costs in order to provide an

appropriate level of technical assistance in support of public

participation. The state, the department, and officers and

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

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

providing ,_ or failing to provide, informal advice and assistance;'

and

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

provisions of this chapter, including the power to adopt rules

under chapter 34.05 RCW.

(2) The department shall immediately implement all provisions

of this chapter to the maximum extent practicable, including

investigative and remedial actions where appropriate. The

department shall adopt, and thereafter enforce, rules under chapter

34.05 RCW to:

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

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

public notice of the development of investigative plans or remedial

plans for releases or threatened releases, and (~ii) concurrent

public notice of all compliance'orders, agreed orders, enforcement

orders, or notices of violation;

(b) Establish· a hazard ranking system for hazardous waste

sites;

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

operator of releases of hazardous substances to the environment

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

ninety days of discovery, including such exemptions from reporting

as the department deems appropriate, however this requirement shall

not modify any existing requirements provided for under other laws;

(d) Establish reasonable deadlines not to exceed ninety days

for initiating an investigation of a hazardous waste site after the

department receives notice or otherwise receives information that

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

other reasonable deadlines for remedying releases or threatened

releases at the site;

(e) Publish and periodically update minimum cleanup standards

for remedial actions at least as stringent as the cleanup standards

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

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

including health-based standards under state and federal law; and

(f) Apply industrial clean-up standards at industrial

properties. Rules adopted under this subsection shall ensure that

industrial properties cleaned up to industrial standards cannot be

converted to nonindustrial uses without approval from the

RCW (11/12/97 10:43) [ 9 ]
department. The department may require that a property cleaned up

to industrial standards is cleaned up to a more stringent

applicable standard as a condition of conversion to a nonindustrial

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

industrial properties where haz~rdous substances remaining at the

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

environment in adjacent nonindustrial areas.

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

department shall develop, with public notice and hearing, and

submit to the ways and means and appropriate standing environmental

committees of the senate and house of representatives a ranked list

of projects and expenditures recommended for appropriation from

both the state and local toxics control accounts. The department

shall also provide the legislature and the public each year with 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 two management priorities under RCW 70.105.150, and

all funds expended under this chapter.

(4) "The department shall establish a scientific advisory board

to render advice to the department with respect to the hazard

ranking system, cleanup standards, remedial actions, deadlines for

remedial actions, monitoring, the classification of substances as

hazardous substances for purposes of RCW 70 .105D. 020 (7) and the

classification of substances or products as hazardous substances

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

independent members to serve staggered three-year terms. No

members may be employees of the department. Members shall be

reimbursed for travel expenses as provided in RCW 43.03.050 and

43.03.060.

(5) The department shall establish a program to identify

potential hazardous waste sites and to encourage persons to provide

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

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

(Initiative Measure No. 97, approved November "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) of this section, the following

persons are liable with respect to a facility:

(a) The owner or operator of the facility;

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

of disposal or release of the hazardous substances;

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

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

or treatment of the hazardous substance at the facility, or

arranged with a transporter for transport for disposal or treatment

of the hazardous substances at the facility, or otherwise generated 0

hazardous wastes disposed of or treated at the facility;

RCW (11/12/97 10:43) [ 10 J
•

•

•

•

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

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

selected by such person from which there is a release or a

threatened release for which remedial action is required, unless

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

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

for transport to such a facility and has reasonable grounds to

believe that such facility is not operated in accordance with

chapter 70.105 RCW; and .

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

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

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

constitutes a release for which remedial action is· required at the

facility.

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

liable, jointly and ~everally, for all remedial action costs and

for all natural resource damages resulting from the releases or

threatened releases of hazardous substances. The attorney general,

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

and damages from persons liable therefor.

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

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

threatened release of a hazardous substance for which the person

would be otherwise responsible was caused solely by:

(i) An act of God;

(ii) An act of war; or

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

limited to a trespasser) other than (A) an employee or agent of the

person asserting the defense, or (B) any person whose act or

omission occurs in 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 exercised the utmost care with respect to

the hazardous substance, the foreseeable acts or omissions of the

third party, and. the foreseeable consequences of those acts or

omissions;

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

facility and who can establish by a preponderance of the evidence

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

person had no knowledge or reason to know that any hazardous

substance, the release or threatened release of which has resulted

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

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

limited as follows:

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

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

appropriate inquiry into the previous ownership and uses of the

property, consistent with good commercial or customary practice in

an effort to minimize liability. Any court interpreting this

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

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

purchase price to the value of the property if uncontaminated,

commonly known or reasonably ascertainable information about the

property, the obviousness of the presence or likely presence of

contamination at the property, and the ability to detect such

contamination by appropriate inspection;

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

available to any person who had actual knowledge of the release or

RCW (11/12/97 10:43) [ 11 ]
threatened release of a hazardous substance when the 'person owned

the real property and who subsequently transferred ownership of the

property without first disclosing such knowledge to the transferee;

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

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

contributed to the release or threatened release of a hazardous

substance at the facility;

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

and without negligence for any personal or domestic ·purpose in or

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

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

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

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

contractor;

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

applies pesticides or fertilizers without negligence and in

accordance with all applicable laws and regulations.

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

potentially liable under this chapter except in accordance with

this section. .

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

potentially liable person only if the department finds, after

public notice and any required hearing, that the proposed

settlement would lead to a more expeditious cleanup of hazardous

substances in compliance with cleanup standards under RCW

70 .105D. 030 (2) (e) and with any remedial orders issued by the

department. Whenever practicable and in the public interest, the

attorney general may expedite such a settlement with persons whose

contribution is insignificant in amount a~d toxicity. A hearing

shall be required only if at least ten persons request one or if

the department determines'a hearing is necessary.

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

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

(c) A settlement agreement may contain a covenant not to sue

only of a scope commensurate with the settlement agreement in favor

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

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

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

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

are discovered and present a previously unknown threat to human

health or the environment.

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

this section shall not be liable for claims for contribution

regarding matters addressed in the settlement. The settlement does

not discharge any of the other·liable parties but it reduces the

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

of the settlement.

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

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

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

interest to the settling party unless under the terms of the

consent decree the state could enforce against the settling party,

if:

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

the facility solely due to that person 1 s ownership interest or

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

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

•

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RCW (11/12/97 10:43) [ 12 ]
•

•

(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 such unique circumstances. For all other consent decrees,

such unique circumstances shall be specified in the consent decree.

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

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

contribution regarding matters addressed in the settlement.

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

subsection (4} of this section, the attorney geperal may agree to

a settlement with a person not currently liable for remedial action

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

facility, provided that: "

(i) The settlement will yield substantial new resources to

facilitate cleanup;

(ii) The settlement will expedite remedial action consistent

with the rules adopted under this chapter; and

(iii) Based on available information, the department

determines that the redevelopment or reuse of the facility is not

likely to contribute to the existing release or threatened release,

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

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

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

adequate resources to participate in all property transactions

involving contaminated property. The primary purpose of this

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

abandoned commercial or industrial contaminated property. The

attorney general and the department may give priority to

settlements that will provide a substantial public benefit,

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

manufacturing or industrial facility, or the development of a

facility by a governmental entity to address an important public

purpose.

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

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

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

or loss resulting from a release or threatened release of a

hazardous substance. No settlement by the department or remedial

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

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

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

approved November 8, 1988).J

NOTES:

Findings--Intent--1997 c 406:

70.105D.020.

See note following RCW

•

RCW 70.105D.050 Enforcement. (1) With respect to any

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

conduct or contract for conducting remedial action and for which

the department believes remedial action is in the public interest,

the director shall issue orders or agreed orders requiring

RCW (11/12/97 10:43) [ 13 J
potentially liable persons to provide the remedial action. Any

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

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

brought by the attorney general for:

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

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

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

each day the party refuses to comply.

The treble damages and civil penalty under this subsection apply to

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

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

under subsection (1) of this section may petition the department

for reimbursement of those costs. If the department refuses to

grant reimbursement, the person may within thirty days thereafter

file suit and recover costs by proving that he or she was not a

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

were reasonable.

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

necessary, to recover the amounts spent by the department for

investigative and remedial actions and orders, and agreed orders,

including amounts spent prior to March I, 1989.

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

relief as is necessary to protect human health and the environment

under this chapter.

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

department to perform any nondiscretionary duty under this chapter.

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

give notice of intent to sue, unless a substantial endangerment

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

prevailing party in the action.

(b) Civil actions under this section and RCW 70.105D.060 may

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

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

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

November 8, 1988).]

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 an order or an agreed order, or seek a civil

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

RCW .70 .105D. 050 (2); (4) in a suit by the department to compel

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

RCW 70 .105D. 050 (5) . The court shall uphold the department I s

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

13; 198.9·c 2 § 6 (Initiative Measure No. 97, approved November 8,

1988) .] .

..

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

•

••

•

NOTES:

*Reviser's note: RCW70.105D.020 was amended by 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 raised by the

tax imposed under RCW 82.21.030 and which are attributable to that

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

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

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

recovered under this chapter; and (d) any other money appropriated

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

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

including but not limited to the following activities:

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

management, regulation, enforcement, technical assistance, and

public education required under chapter 70.105 RCW;

(ii) The state I s responsibility for solid waste planning,

management, regulation, enforcement, technical assistance, and

public education required under chapter 70.95 RCW;

(iii) The hazardous waste cleanup program required under this

chapter;

(iv) State matching funds required under the federal cleanup

law;

(v) Financial assistance for local programs in accordance with

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

(vi) State government programs for the safe reduction,

recycling, or disposal of hazardous wastes from households, small

businesses, and agriculture;

(vii) Hazardous materials emergency response training;

(viii) Water and environmental health" protection and

monitoring programs;

(ix) Programs authorized under chapter 70.146 RCW;

(x) A public participation program, including regional citizen

advisory committees;

(xi) PUblic funding to assist potentially liable persons to

pay for the costs of remedial action in compliance with cleanup

standards under 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 than would otherwise occur, and (B) the prevention

or mitigation of unfair economic hardship; and

(xii) Development and demonstration of alternative "management

technologies designed to carry out the top two hazardous waste

management priorities of RCW 70.105.150.

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

toxics con~rol account: Those revenues which are raised by 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 in the local toxics control account shall

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

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

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

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

chapters 70.95, 70.95C, 70.951, and 70.105 RCW. Funds for plans

and programs shall be allocated consistent with the priorities and

matching requirements established in chapters 70.105, 70.95C,

70.951, and 70.95 RCW·.

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

to implement programs to reduce testing requirements under the

federal safe drinking water act for public water systems. The

department of health shall reimburse the account from fees assessed

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

(4) Except for unanticipated receipts under RCW 43.79.260

through 43.79.282, moneys in the state and local toxics control

accounts may be spent only after appropriation by statute.

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

local toxics control accounts shall be allocated only for public

participation grants to persons who may be adversely affected by a

release or threatened release of a hazardous substance and to notfor-profit public interest organizations. The primary purpose of

these grants is to facilitate the participation by persons and

organizations in the investigation and remedying of releases or

threatened releases of hazardous substances and to implement the

state's solid and hazardous waste management priorities. No grant

may exceed sixty thousand dollars. Grants may be renewed annually.

Moneys appropriated for public participation from either account

which are not expended at the close of any biennium shall revert to

the state toxics control account.

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

control account may be used for solid waste 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 C 2 § 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

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

contribution or for declaratory relief, against any other person

liable under RCW 70.105D.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

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

on such equitable factors as the court determines are appropriate.

Remedial action costs shall include reasonable attorneys' fees and

expenses. Recovery of remedial action costs shall be limited to

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

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

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

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

brought after remedial action costs are incurred but must be

brought within three years from the date remedial action confirms

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

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

recover its reasonable attorneys' fees and costs. This section

applies to all causes of action regardless of when the cause of

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

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

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

c 326 § 1.)

NOTES:

Findings--Intent--1997 c 406:

70.105D.020.

See note following RCW

•

•

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

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

support of the state government and its existing public

institutions, and shall take effect immediately [May 12, 1993)."

[1993 c 326 § 2.)

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

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

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

persons or circumstances is not affected." [i993 c 326 § 3.)

RCW 70.105D.090 Remedial actions--Exemption from procedural

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 or authorizing local government permits or approvals for

the remedial action. The department shall ensure compliance with

the substantive provisions of chapters 70.94, 70.95, 70.105, 75.20,

90.48, and 90.58 RCW, and the substantive provisions of any laws

requiring or authorizing local government permits of approvals.

The department shall establish procedures for ensuring that such

remedial actions comply with the substantive requirements adopted

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

and local governments charged with implementing these laws. The

procedures shall provide an opportunity for comment by the public

and by the state agencies and local governments that would

otherwise implement the laws referenced in this section. Nothing

in this section is intended to prohibit implementing agencies from

charging a fee to the person conducting the remedial action to

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, and the federal coastal zone management act.

Such a determination by the department shall not affect the

applicability of the exemptions to other statutes specified in this

section. [1994 c 257 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, approved November 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,

approved November 8, 1988).]

•

o

o

RCW 70.105D.915

orders and decrees in

and binding. [1989 c

November 8, 1988).]

Existing agreements--1989 c 2. The consent

effect on March 1, 1989, shall remain valid

2 § 20 (Initiative Measure No. 97, approved

RCW 70.105D.920 Effective date--1989 c 2. (1) Sections 1

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

the director of ecology and the director of revenue may take

whatever actions may be necessary to ensure that sections 1 through

24 of this act are implemented on their effective date.

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

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

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

involving hazardous substance cleanup (along with any other subject

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

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

NOTES:

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

•

•

•

*Reviser's note: Neither condition contained in subsection

(2) was met.

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

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

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

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

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

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