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

• the land, air, and waters of the state is a solemn obligation ofthe present generation for the benefit of future genera-

. lions. (2) A healthful environment is now threatened by the irresponsible use and disposal ofhazardous substances. There are hundreds of hazardous waste sites in this state, and



### more will be created ifcurrent waste practices continue. Hazardous waste sites threaten the state's water resources, including those used for public drinking water. Many 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 ofour 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 oftoxic 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 ofpesticides and otherchemicals nonetheless may face devastating economic consequences because their uses have contaminated the environmentor the water supplies oftheir neighbors. With

a source offunds, the state may assist these farmers and business owners, as well as those persons who sustain damages, such as the lossoftheir drinking water supplies, as

a result ofthe contamination. (4) It is in the public's interest to efficiently use our

• finite land base, to integrate our land use planning policies with our clean-up policies, and to clean up and reuse contaminated industrial properties in order to minimize industrial developmentpressures 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 Declarationof policy. Definitions. Department's powers and duties. Standard ofliability-Settlement. Enforcement. Timing ofreview. Toxicscontrol accounts. Privaterightofaction-Remedial actioncosts. Remedialactions-c-Exemption fromproceduralreo quirernents. Shorttitle-1989 c 2. Captions-1989 c 2. Construction-1989 c 2. Existingagreements-1989 c 2. Effectivedate-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 CodificationTables. VolumeO.



### RCW 70.1050.020 Definitions. (1) 

### "Agreed order"

means an order issued by the departrrient under this chapter with which the potentiallyliable 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 departmentof ecology. (3) "Director" means the director ofecology 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 chapter70.105 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 ofsubstances, including solid waste decomposition products, determined by the director by rule to present a threat to human health or the environment ifreleased into the

### environment.

(1994) [Ch. 7o.tOSD-p. 1)• c
y



### Hazardous Waste 

### Oeanup-Model Toxlcs Control Act 70.105D.010

The term hazardous substance does not include any of the 

### following when contained in an underground storagetank 

### from which there is not a release: Crude oil or any fraction thereofor 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, orcircumstances 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 ofa 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 oflocal 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 ofthe department and to persons residing in the potentially affected vicinity ofthe proposed action; mailed to appropriate news media; published in the newspaper oflargest circulation in the 

### city or county of theproposed action; and opportunity for interestedpersons to comment (II) 

### "Release" means any intentional or unintentional entry ofany hazardous substance into the environment, including but not limited to the abandonment or disposal of containers ofhazardous 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) "Industrialproperties" meansproperties that 

### are or have been characterized by, or are to be committed to, traditional industrial uses such as processing or manufacturing ofmaterials, marine terminal and transportation areas and facilities, fabrication, assembly, treatment, or distribution ofmanufactured products, or storage ofbulk materials, that

are either: (a) Zoned for industrial usebyacity or county conducting land use planning under chapter 36.7OA RCW; or
[Cb. 10.105D-p. 2J k/) 

### (b) For counties not planning under chapter 36.70A RCW andthe 

### cities within them,zonedforindustrialuse

# 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 ofany release or threatened release. 

### If there is a reasonable basis to believe that a release or threatened release ofa 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 ofwitnesses and the

### production of documents or other information that the department deems necessary; (b) Conduct, provide for conducting, or require potentially liable persons to conduct remedial actions (including investigations under (a) ofthis subsection) to remedy releases or 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 outinvestigations 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 ofRCW 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 protecthuman healthand the

### environment from a release or threatened release ofa 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

### useplanning authority for

### real property subject to a deed restriction; (g) 

### Enforce the application of permanent and effective institutional. controls that

### are necessaryfor a remedial action to be protective of human health and the 

### environment; and(.'-'" (h) 

### Take any other actions necessary to carry out" th" ) provisions ofthis chapter, includingthe

### power to adopt

### rules~ under chapter 34.05 RCW.

(1994). t

1 

# ..

Hazardous Waste**Cleanu~Model** 

### Tones Control 

### Ad 70.1050.030

(2) The department shall immediately implement all

• provisions ofthis 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 ofregional citizen's advisory committees, (ii) public notice ofthe development ofinvestigative plans, or remedial plans for releases or threatened releases. and (ill)
concurrent public notice ofall compliance orders. agreed orders, enforcement orders, or notices ofviolation; (b) Establish a hazard ranking system for hazardous waste sites; (c) Establish reasonable deadlines not to exceed ninety days for initiating

## an investigation ofahazardous 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 ofthe 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 ofeach even-numbered year, the department shall develop, with public notice and hearing, and submitto the ways and means and appropriate standing environmental committees ofthe senate and house of representatives a ranked list ofprojects 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 ofthe 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 ofsubstances as hazardous substances for purposes ofRCW

• 70.1050.020(6) and the classification ofsubstances or products as hazardous substances for purposes ofRCW 82.21.020(1). The board shall consist offive independent members 

### to serve staggered three-yearterms. No members
may be employees ofthe 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 aprogram

### 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 wasamendedby 1994c 254§ 3and by 1994c 257§ II. eachwithoutreference totheother. Bothamendments are incorporated in thepublica/ion ofthissection pursuant toRCW 1.12.025(2). For rule ofconstruction. seeRCW 1.12.025(I). Severablllty-l994 e 157: See DOlefollowing RCW36.70A.210.

RCW 70.10SD.040 Standard

# orIlabilitySettlement. (l) Except as provided in subsection (3) ofthis section, the following persons are liable with respect to a facility: (a) The owner or operator of the facility; (b) Any person who owned or operated the facility at the time ofdisposal or release ofthe 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 thefacility, or arranged with atransporter for transport for disposal or treatment ofthe hazardous substances at the facility. or otherwise generated hazardous wastes disposed of or treated at thefacility; ,,' (d) Any person (i) who accepts or accepted any hazardous substance for transport to adisposal, treatment. or other facility selectedby such person from which 

### there is a relm

or a threatened release for which remedial action is 

### required, unless such facility, at the time ofdisposal or treatment, could legally receive such substance; or (ii) who accepts a hazardous substance for transport to such a facility and has reasonable grounds to believe that such facility is.not operated in accordance with chapter 70.105 RCW; and (e) Any person who both sells a hazardous substance and is responsible for written instructions for its use 

### if(i)\the substance is used according to the instructions and (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 ofhazardous substances. The attorney general, attherequest ofthe 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 ofa hazardous substance for which the
person would be otherwise responsible was caused solely by: (i) 

### An act ofGod;

, (ii) 

### An act ofwar, or (iii) 

### An act or omission of a third party (including but
not limited to a trespasser) other than (A) an employee or agentofthe person asserting the defense, or (B) any person whose act or omission occurs inconnection with acontractual 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 '(

, : ",i

### 70.105D.040 Hazardous Waste**C1eanu~MOdeJ** 

### Toxles ControfAct

-**-------~--~.--.** 

### ---- -

utmost care with respect to the hazardous substance. the foreseeable acts or omissions ofthe 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 ofthe 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 ofwhich 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 aperson had noreason to know, the
person must have undertaken. at the time ofacquisition. 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 ofthe person, the relationship ofthe purchase price to the value of the property ifuncontaminated. 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 ofthe release or threatened release ofahazardous substance when the person owned the real property and who subsequently transferred ownership ofthe property without first disclosing such knowledge to the transferee; (iii) The defense containedin this subsection (b) is not available to any person who. by any· act or omission, caused

or contributed to the release or threatened release ofa hazardous substance at the facility; (c) Any natura} person who uses ahazardous 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 ofthe 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 ofgrowing 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 ifthe department finds, afterpublic notice and hearing, that the proposed settlement would lead to a more expeditious cleanup ofhazardous substances in compliance with cleanup standards underRCW 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 agreementunderthis section shall be entered as a consent decree issued by a court ofcompetent jurisdiction.

[Cb. 10.1OSD-p.

### 41 (c) A settlement agreement may contain a covenant not to sue only ofa scope commensurate with the settlement " agreement in favor ofany person with whom the anomer \ general has settled under this section. Any covenant not

## lOJ sue shall contain a reopenerclause which requires the court to amend the covenant not to sue if factors not known at the time of entry of thesettlement 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 settlementdoes not discharge any ofthe other liable parties but itreduces thetotal potential liability of the others to the state by the amount ofthesettlement. (5) In addition to the settlement authority provided under subsection (4) ofthis 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 ofa vacant or abandoned manufacturing or industrial facility, or the development ofa 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 ofthe 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 orloss resulting from a release or threatened release ofa 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 theremedial action: Any liable person who refuses. withoilt sufficientcause, to comply with an orderor agreedorderof the director is liable in an action brought by the attorney general for: (a) Up to three times theamount ofany costs incurred by the state as a resultofthe party's refusal to comply; anr-,\ (b) A civil penalty of up

### totwenty-five thousanddol1aJ.U for each day the party refuses to comply.

(1994)**~I**

### Hazardous Waste Oeanup-Model Toxks Control Act 'I'

,

# "



# •

•

• 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) ofthis section may petition the department for reimbursement ofthose costs. 

### Ifthe 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 ifnecessary. to recover the amounts spent by the department for investigative and remedial actions and orders, and agreed orders, including amounts spent priorto March I, 1989. (4) The attorney general may bring an action to secure such reliefas is necessary to protect human health and the environment under this chapter. (5)(a) Any person may commence a civil action to compel the department to perform any nondiscretionary duty under this chapter. At least thirty days before commencing the action, the person.must give notice ofintent to sue, unless a substantial endangerment exists. The court may award attorneys' fees and othercosts to the prevailingparty 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 ofreview. 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 bereviewable exclusively in superior court and only at the following times: (1)

### Ina 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 seeka 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 thedepartment'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 underRCW 82.21.030 and which

are attributable to that portion oftherateequalto thirty-three one-hundredths ofone percent; (b) the costs ofremedial 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 ofthis 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 ofhazardous wastes from households, small businesses, and agriculture; (vii) Hazardous materials emergency response training; (viii) Water and environmental health protection and monitoring programs; (ix) Programs authorized under chapter 70.146 RCW; (x) A public participation program, including regional citizen advisory committees; (xi) Public funding to assist potentially liable persons to pay for the costs ofremedial action in compliance with cleanup standards under RCW 70.1050.030(2)(d) but only when theamount and terms ofsuch 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 ofunfair economic hardship; and (xii) Development and demonstration ofalternative management technologies designed to carry out the topjwo hazardous waste managementpriorities ofRCW 70. lOS.150. (3) The following moneys shall be deposited into. the local toxics control account: Those revenues which" are raisedby the tax imposed under RCW 82.21.030 and which

are attributable to that portion ofthe rate equal to thirtyseven one-hundredths ofone percent. (a) Moneys deposited 

### in thelocal toxics control account shall be used-by the department for grants or loans to local governments for the following purposes in descending order ofpriority: (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 establishedin chapters 70.105, 70.95C.70.95I, and 70.95 RCW. (b) Funds may also be appropriated to the departmentof healthto implementprograms to reduce testing requirements under the federal safe drinking water act for public water systems. The department ofhealth shall reimburse the
account from fees assessed under RCW 70.119A.115 by June 30, 1995. (4) Except for unanticipated receipts under RCW 43.79.260 through 43.79.282, moneys in the state and local toxics control accounts may bespent only afterappropriation by statute.

[Ch. 70.105D--p. 

### 51.

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...

# _-_

...

# -_

..

# _---_.

70.10SD.070

. 

### Hazardous Waste**a~up-Model** Tones Control 

### Ad**.~**



# .. "

(5) One percent of the moneys deposited into the state and local toxics control accounts shall beallocated only for public participation grants to persons who may beadversely affected by a release or threatened release ofa hazardous substance and to not-for-profitpublic interestorganizations. The primary purpose ofthese grants is to facilitate the participation by persons and organizations in the investigation and remedying ofreleases or threatened releases of hazardous substances and to implementthe 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 ofany 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'ectivedates--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 ofremedial action costs. 

### In the action. natural resource damages paid to thestate under this chaptermay 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 ofremedial action
costs shall be limited to those remedial actions that. when evaluated as a whole. are the substantial equivalent ofa 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 afterremedial 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 ofaction regardless ofwhen the cause ofaction may have arisen. To the extent a cause ofaction has arisen priorto May 12. 1993. this section applies retroactively. but in all other respects it applies prospectively. [1993 c 326 § 1.]

ED'edive date-I993 e326: "This act is necessary fortheimmediate preservation of the public peace. health, or safety. or support ofthesQ!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 ofthis let or ill application to any person orcircumstance is held invalid, the**~rnaiJJCa** of the actorthe application ofthe provision to otherpenoosor 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 ofchapters 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 

### governmentpermits or approvals for the remedial action. The department shall ensure compliance with thesubstantive provisions of chapters 70.94. 70.95, 70.105. 75.20. 90.48, and 90.58 

### RCW. and the substantive provisions ofany laws requiring or authorizing local government permits ofapprovals. 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 governmentscharged 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 thissection. 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 sectionor in RCW 70.94.335, 70.95.270.70.105.116.15.20.025.90.48.039, and 90.58.355 shall not apply 

### ifthe departmentdetermines that

### the exemption would result 

### in loss ofapproval from a federal agency
necessary for the state to administer any federal laW("\ including thefederal resource conservation 

### andrecovery ac ) the federal clean water act, the federal clean airact, andthe

4 federal coastal zone management act. Such a determination by the department shall not affect the applicability of the exemptions to otherstatutes specifiedin thissection. [1994 c 251 § 14.] Severability-l994c 257: See note followingRCW 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 ofthe law. [1989 c 2 § 21 (Initiative Measure No. 97. approved November 8, 1988).]

RCW 70.10SD.910 Construction-1989 c 2. The provisions ofthis act are to be liberally construed to effectuate the policies and purposes ofthis act. In the event of conflict between the provisions ofthis act and any other act, the provisions ofthis 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 ofthis act shall take effect March I, 1989. except that the director ofecology and the directorof

revenue may take whatever actions may be necessary to ensure that sections 1 through 24 ofthis 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 ofthis act or its application to any person or circumstance is held invalid. the remainderofthe act or the application ofthe provision to other persons orcircumstances 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]