T•

• Chapter 70.105D RCW

HAZARDOUS WASTE CLEANUP-MODEL TOXICS

CONTROL ACT

RCW 70.1050.010 Declaration of policy. (1) Each

person has a fundamental and inalienable right to a healthful

environment, and each person has a responsibility to preserve and enhance that right. The beneficial stewardship of

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the land, air, and waters of the state is a solemn obligation

of the present generation for the benefit of future genera- .

lions.

(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 *this act 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.

(4) It is in the public's interest to efficiently use our

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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.

Sections

70.1050.010

70.1050.020

70.1050.030

70.1050.040

70.1050.050

70.1050.060

70.1050.070

70.1050.080

70.1050.090

70.1050.900

70.1050.905

70.1050.910

70.1050.915

70.1050.920

70.1050.921

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-c-Exemption from procedural reo

quirernents.

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.

(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).]

·Revlser's Dote: For codification of "this act" [1989 c 21, see

Codification Tables. Volume O.

RCW 70.1050.020 Definitions. (1) "Agreed order"

means an order issued by the departrrient 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 70.1050.040(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) "Hazardous substance" means:

(a) Any dangerous or extremely hazardous waste as

defined in RCW 70.105.010 (5) and (6), or any dangerous or

extremely dangerous waste designated by rule pursuant to

chapter 70.105 RCW;

(b) Any hazardous substance as defined in RCW

70.105.010(14) or any hazardous substance as defined by

rule pursuant to chapter 70.105 RCW;

(c) Any substance that, on March I, 1989, is a hazardous substance under section 101(14) of the federal cleanup

law, 42 U.S.C. Sec. 9601(14); .

(d) Petroleum or petroleum products; and

(e) Any substance or category of substances, including

solid waste decomposition products, determined by the

director by rule to present a threat to human health or the

environment if released into the environment.

(1994) [Ch. 7o.tOSD-p. 1)
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70.105D.010 Hazardous Waste Oeanup-Model Toxlcs Control Act

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.

(7) "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;

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; or .

(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.

(8) "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. "

(9) "Potentially liable person" means any person whom

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

under RCW 70.1050.040. The department shall give notice

to any such person and allow an opportunity for comment

before making the finding, unless an emergency requires

otherwise.

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

notice mailed to all persons who have made timely request

of the department and to persons residing in the potentially

affected vicinity of the proposed action; mailed to appropriate news media; published in the newspaper of largest

circulation in the city or county of the proposed action; and

opportunity for interested persons to comment

(II) "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.

(12) "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.

(13) "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 bya city or county conducting land use planning under chapter 36.7OA RCW; or

[Cb. 10.105D-p. 2J

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(b) For counties not planning under chapter 36.70A

RCW and the cities within them, zoned for industrial use anqr)

adjacent to properties currently used or designated. ~ol~

industrial purposes. [1994 c 254 § 2; 1989 c 2 § 2 (Initiative Measure No. 97, approved November 8, 1988).]

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 threatened release. If

there is a reasonable basis to believe that a release or

threatened release of a hazardous substance may exist, the

department's authorized employees. agents, or contractors

may enter upon any property and conduct investigations.

The department shall give reasonable notice before entering

property unless an emergency prevents such notice. The

department may by subpoena require the attendance or

testimony of witnesses and the production of documents or

other information that the department deems necessary;

(b) Conduct, provide for conducting, or require potentially liable persons to conduct remedial actions (including

investigations under (a) of this subsection) to remedy

releases or threatened releases of hazardous substances. In

carrying out such powers, the department's authorized

employees, agents, or contractors may enter upon property(~...

The department shall give reasonable notice before enterin~ \

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(6) 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 deed restrictions where necessary to

protect human healthand theenvironment 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; and(.'-'"

(h) Take any other actions necessary to carry out" th" )

provisions of this chapter, including thepower to adopt rules~ under chapter 34.05 RCW.

(1994)
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.. Hazardous Waste Cleanu~ModelTones Control Ad 70.1050.030

(2) The department shall immediately implement all

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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 (ill)

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) Establish reasonable deadlines not to exceed ninety

days for initiating an investigation of a hazardous waste site

after the department 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;

(d) 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

(e) 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 department. The department may require that a

property cleaned up to industrial standards is cleaned up to

a more stringent applicable standard as a condition of

conversion to a nonindustrial use. Industrial clean-up

standards may not be applied to industrial properties where

hazardous substances remaining at the property after remedial action pose a threat to human health or the environment

, in adjacent nonindustrial areas.

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

the department shall develop, with public notice and hearing,

and submit to the ways and means and appropriate standing

environmental committees of the senate and house of

representatives a ranked list of projects and expenditures

recommended for appropriation from both the state and local

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 meetirig 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

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70.1050.020(6) 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

(1994)

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. [1994 c

257 § II; 1994 c 254 § 3; 1989 c 2 § 3 (Initiative Measure

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

Revlwr's note: Thissection was amended by 1994c 254 § 3 and by

1994c 257 § II. each without reference to the other. Both amendments are

incorporated in the publica/ion of thissection pursuant to RCW 1.12.025(2).

For rule of construction. see RCW 1.12.025(I).

Severablllty-l994 e 157: See DOle following RCW 36.70A.210.

RCW 70.10SD.040 Standard or IlabilitySettlement. (l) Except as provided in subsection (3) of this

section, the following persons are liable with respect to a

facility:

(a) The owner or operator of the facility;

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

the time of disposal or release of the hazardous substances;

(c) Any person who owned or possessed a hazardous

substance and who by contract, agreement. or otherwise

arranged for disposal or treatment of the hazardous substance

at the facility, or arranged with a transporter for transport for

disposal or treatment of the hazardous substances at the

facility. or otherwise generated hazardous wastes disposed of

or treated at the facility; ,,'

(d) Any person (i) who accepts or accepted any hazardous substance for transport to a disposal, treatment. or other

facility selected by such person from which there is a relm

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 (iilethe

use constitutes a release for which remedial action is

required at the facility.

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

strictly liable, jointly and severally, for all remedial action

costs and for all natural resource damages resulting from the

releases or threatened releases of hazardous substances. The

attorney general, at the request of the department. is empowered to recover all costs and damages from persons liable

therefor.

(3) The following persons are not liable under this

section:

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

threatened release of a hazardous substance for which the

person would be otherwise responsible was caused solely by:

(i) An act of God; ,

(ii) An act of war, or

(iii) An act or omission of a third party (including but

not limited to a trespasser) other than (A) an employee or

agent of the person asserting the defense, or (B) any person

whose act or omission occurs in connection with a contractual relationship existing, directly or i¢irectly. with the person

asserting this defense to liability. This defense only applies

where the person asserting the defense has exercised the

(Ch. 70.105D--p. 31

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70.105D.040 Hazardous Waste C1eanu~MOdeJ Toxles ControfAct - -------~--~.--. - --- -

utmost care with respect to the hazardous substance. the

foreseeable acts or omissions of the third party, and the

foreseeable consequences of those acts or omissions;

(b) Any person who is an owner. past owner. or

.purchaser of a facility and who can establish by a preponderance of the evidence that at the time the facility was acquired by the person. the person had no knowledge or reason

to know that any hazardous substance. the release or

threatened release of which has resulted in or contributed to

the need for the remedial action. was released or disposed of

on, in. or at the facility. This subsection (b) is limited as

follows:

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

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

appropriate inquiry into the previous ownership and uses of

the property. consistent with good commercial or customary

practice in an effort to minimize liability. Any court

interpreting this subsection (b) shall take into account any

specialized knowledge or experience on the part of the

person, the relationship of the purchase price to the value of

the property if uncontaminated. commonly known or

reasonably ascertainable information about the property, the

obviousness of the presence or likely presence of contamination at the property. and the ability to detect such contamination by appropriate inspection;

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

available to any person who had actual knowledge of the

release or threatened release of a hazardous substance when

the person owned the real property and who subsequently

transferred ownership of the property without first disclosing

such knowledge to the transferee;

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

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

or contributed to the release or threatened release of a

hazardous substance at the facility;

(c) Any natura} 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 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)(d) and with any remedial orders issued by

the department. Whenever practicable and in the public

interest. the attorney general may expedite such a settlement

with persons whose contribution is insignificant in amount

and toxicity.

(b) A settlement agreement under this section shall be

entered as a consent decree issued by a court of competent

jurisdiction.

[Cb. 10.1OSD-p. 41

(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 anomer \

general has settled under this section. Any covenant not lOJ

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.

(5) In addition to the settlement authority provided

under subsection (4) of this section, the anomey general may

agree to a settlement with a person not currently liable for

remedial action at a facility who proposes to purchase,

redevelop, or reuse the facility, provided that:

(a) The settlement 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;

(b) The settlement will yield substantial new resources

to facilitate cleanup;

(c) The settlement will expedite remedial action consistent with the rules adopted under this chapter; and

(d) Based on available information. the department.-c;

dete~nes that th~ redevelopme~t ~r reuse of the facility i(;

not likely to contnbute to the exisung 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.

(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 C0IDn:\on law or other statutes. [1994 c 254 § 4; 1989

c 2 § 4 (Initiative Measure No. 97, approved November 8,

1988).]

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 potentially liable persons to provide

the remedial action: Any liable person who refuses. withoilt

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; anr-,\

(b) A civil penalty of up totwenty-five thousand dol1aJ.U

for each day the party refuses to comply.

(1994)

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Hazardous Waste Oeanup-Model Toxks Control Act

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The treble damages and civil penalty under this subsection

apply to all recovery actions filed on or after March l, 1989.

(2) Any person who incurs costs complying with an

order issued under subsection (I) of this section may petition

the department for reimbursement of those costs. If the

depanment 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

70.1050.040 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

70.1050.060 may be brought in the superior court of

Thurston county or of the county in which the release or

threatened release exists. [1994 c 257 § 12; 1989 c 2 § 5

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

Severability-l994 e 257: See DOte following RCW 36.70A.270.

RCW 70.10SD.060 Timing of review. The

department's investigative and remedial decisions under

RCW 70.1050.030 and 70.1050.050 and its decisions

regarding liable persons under *RCW 70.1050.020(8) and

70.1050.040 shall be reviewable exclusively in superior

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

suit under RCW 70.1050.050(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 70.1050.050(2); (4) in a suit by the

department to compel investigative or remedial action; and

(5) in a citizen's suit under RCW 70.1050.050(5). The

court shall uphold the department's actions unless they were

arbitrary and capricious. [1994 c 257 § 13; 1989 c 2 § 6

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

·Reviwr's note: RCW 70.1050.020 was amended by 1994 c 254 §

2 changing subsection (8) to subsection (9).

Severability-I994 c 257: See note following RCW 36.70A.270.

RCW 70.1050.070 Toxles control accounts. (I) The

state toxics control account and the local toxics control

ac~ount 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

70.105D~050

used only to carry out the purposes of this chapter, including

but not limited to the following activities:

(i) The state's responsibility for hazardous waste

planning, management, regulation, enforcement. technical

assistance, and public education required under chapter

70.105 RCW;

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

management, regulation, enforcement, technical assistance,

and public education required under chapter 70.95 RCW;

(iii) The hazardous waste cleanup program required

under this chapter;

(iv) State matching funds required under the federal

cleanup law; .

(v) Financial assistance for local programs in accordance

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

(vi) State government programs for the safe reduction,

recycling, or disposal of hazardous wastes from households,

small businesses, and agriculture;

(vii) Hazardous materials emergency response training;

(viii) Water and environmental health protection and

monitoring programs;

(ix) Programs authorized under chapter 70.146 RCW;

(x) A public participation program, including regional

citizen advisory committees;

(xi) Public funding to assist potentially liable persons to

pay for the costs of remedial action in compliance with

cleanup standards under RCW 70.1050.030(2)(d) but only

when the amount and terms of such funding are established

under a settlement agreement under RCW 70.1050.040(4)

and when the director has found that the funding ~:ill

achieve both (A) a substantially more expeditious orenhanced cleanup than would otherwise occur, and (BHbe

prevention or mitigation of unfair economic hardship; and

(xii) Development and demonstration of alternative

management technologies designed to carry out the top jwo

hazardous waste management priorities of RCW 70. lOS.150.

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

local toxics control account: Those revenues which" are

raised by the tax imposed under RCW 82.21.030 and which

are attributable to that portion of the rate equal to thirtyseven 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.70.95I,

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.

[Ch. 70.105D--p. 51.
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70.10SD.070 . Hazardous Waste a~up-ModelTones Control Ad

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(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 not-for-profit public interest organizations.

The primary purpose of these grants is to facilitate the

participation by persons and organizations in the investigation and remedying of releases or threatened releases of

hazardous substances and to implement the state's solid and

hazardous waste management priorities. No grant may

exceed fifty thousand dollars though it 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. [1994 c 252 § 5; 1991 sp.s. c 13

§ 69; 1989 c 2 § 7 (Initiative Measure No. 91. approved

November 8. 1988).]

Finding-Effective date-I994 e 252: See notes following RCW

70.tt9A.020.

Efl'ective dates--Severablllty-I991 sp.s.e 13: See notes following

RCW 18.08.240.

RCW 70.105D.080 Private right 01 actionRemedial action costs. Except as provided in RCW

70.1050.040(4)(d). 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

70.1050.040 for the recovery of remedial action costs. In

the action. natural resource damages paid to the state under

this chapter may also be recovered. Recovery shall be based

on such equitable factors as the court determines are appropriate. Remedial action costs shall include reasonable

attorneys' fees and expenses. Recovery of remedial action

costs shall be limited to those remedial actions that. when

evaluated as a whole. are the substantial equivalent of a

department-conducted or department-supervised 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. [1993 c 326 § 1.]

ED'edive date-I993 e 326: "This act is necessary for theimmediate

preservation of the public peace. health, or safety. or support of the sQ!e

government and its existing public institutions•.and shall take effect

immediately [May 12. 1993)." [1993 c 326 § 2.)

Severabillty-1993 e 326: "If any provision of this let or ill

application to any person or circumstance is held invalid, the ~rnaiJJCa of

the act or the application of the provision to otherpenoos or circUlllSlmlCel

is not affected." [1993 e 326 § 3.1

[Cb. 70.10SD---p. 6]

RCW 70.1OSD.09O Remedial actions-Exemption

from procedural requirements. (I) A person conductinr---\

a remedial action at a facility under a consent decree. ordelU

or agreed order. and the department when it conducts a

remedial action. are exempt from the procedural requirements of chapters 70.94. 70.95, 70.105. 75.20. 90.48. and

90.58 RCW. and the procedural requirements of any laws

requiring or authorizing local government permits or approvals for the remedial action. The department shall ensure

compliance with the substantive provisions of chapters 70.94.

70.95, 70.105. 75.20. 90.48, and 90.58 RCW. and the

substantive provisions of any laws requiring or authorizing

local government permits of approvals. The department

shall establish procedures for ensuring that such remedial

actions comply with the substantive requirements adopted

pursuant to such laws, and shall consult with the state

agencies and local governments charged with implementing

these laws..The procedures shall provide an opportunity for

comment by the public and by the state agencies and local

governments that would otherwise implement the laws

referenced in this section. Nothing in this section is intended

to prohibit implementing agencies from charging a fee to the

person conducting the remedial action to defray the costs of

services rendered relating to the substantive requirements for

the remedial action.

(2) An exemption in this section or in RCW 70.94.335,

70.95.270.70.105.116.15.20.025.90.48.039, 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 ac )

the federal clean water act, the federal clean air act, and the 4

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 251 § 14.]

Severability-l994 c 257: See note following RCW 36.70A.270.

RCW 70.10SD.900 Short title-1989 e 1. This act

shall be known as "the mode) toxics control act" [1989 c 2

§ 22 (Initiative Measure No. 97. approved November 8.

1988).]

RCW 70.10SD.90S· Captions-1989 c 1. 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 70.10SD.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. 91. approved November 8, 1988).]

RCW 70.10SD.915 Existing agreements-1989 c 1.

The consent orders and decrees in effect on March 1. 1989~"

shall remain valid and binding. [1989 c 2 § 20 (I!litiatiJ\...-)

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

(1994)
'I

••

•

Hazardous Waste Cleanup-Model Toxies Control Act

RCW 70.1050.920 Errective date-1989 c 2. (1)

Sections 1 through 24 of this act shall take effect March I,

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).] .

-Reviser's Dote: Neithercondition contained in subsection (2) was

met.

RCW 70.1050.921 Severability-1989 c 2. If any

provision of this act or its application to any person or

circumstance is held invalid. the remainder of the act or the

application of the provision to other persons or circumstances is not affected. [1989 c 2 § 18 (Initiative Measure No.

97. approved November 8, 1988).]

70.1050.920

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(1994) [Ch. 70.105D--p. 7]