# .'



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# ,e Chapter70.105D RCW HAZARDOUS WASTE CLEANUP--,MODELTOXICS CONTROLACT

Sections ' 70.1050.010 Declaration of policy. 70.1050.020 Definitions. 70.1050.030 Department's powers and duties. 70.1050.040 Standard of liability, 70.1050.050 Enforcement. 70.1050.060 Timing of review. 70.1050.070 Toxics controlaccounts. 70.1050.900 Shontitle-I989 c 2. 70.1050.905 Captions-1989c 2. 70.1050.910 Construction-I989 c 2. 70.1050.915 Existingagreements-1989 c 2, 70.1050.920 Effectivedate-1989 c 2. 70.1050.921 Severability-I989 c 2.



### 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 of the present generation for the benefitoffuture generations. (2) A healthful environment is nowthreatened by the irresponsible use and disposal of hazardous substances. There are hundreds of hazardous waste sites in this state, and more will becreated ifcurrentwaste 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. Themain purpose of-this actis to raise sufficient funds
to clean up all hazardous waste sites and to preventthe creation of future hazards due to improper disposal of toxicwastes into the state's land and waters. (3) Many farmers and small business owners who havefollowed the law with respectto theirusesof 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 assistthese farmers and business owners. as well as those persons who sustain damages. such as the loss of their, drinkingwatersupplies, as a resultof the contamination.

.(4) Because it is 

### often difficult or impossible to allocate responsibility among persons liable for hazardous W8$tesites and because it is essential that sites be**.,~ned** 

### up well and expeditiously, each responsible perion should be liablejointly and severally. [1989 e 2 

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

_ .

(1989 Laws) ·Rtyiser's noer.For codification of 'this act' (1989c 21.see Codification Tables. VolumeO.



### RCW 70.1050.020 Definitions. (1) "Department" means the department of ecology.

'(2) "Director" means the director of ecology or the director's designee. (3) "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. (4) "Federal cleanup law' means the federal comprehensive environmental response, compensation, and liability act of 1980, 42 U.S.C. Sec. 9601 et seq., a.s, amended by Public Law 99-499. (5) "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 tochapter70.105 RCW; (b) Any hazardous substance as defined in RCW 70.105.010(14) or any hazardous substance as defined by rule pursuantto chapter70.105 RCW;

,

, (c) Any substance that, on March 1, 1989, is 

### a hazardous substance under section 101(14) of the federal cleanuplaw, 42 U.S.C. Sec. 9601(14); (d) Petroleumor petroleum 'products; and (e) Any substanceorcategoryofsubstances, including solid waste decomposition products. determined by the director by rule to present a threat to human health or the environmentif

### released intotheenvironment. ' Thetermhazardoussubstancedoes not include any of the following when contained in an underground storage tankfrom which there is 

### not a release: Crudeoil or any fraction thereofor petroleum. if

### the tank is 

### in compliancewith all 

### applicable federal. state, andlocal law.

, (6) "Owneror operator" means: (a)'.Any person with anyownership interest in the fa

### cilityerwho exercises any control overthe facility; or . (b) In' the case ,of an abandoned facility. any person who had 'owned. or operated. or exercised control over thefacility any timebefore its abandonment;" ,: Thetermdoes not include:" " -"f.

,,'t: '. ' 

### (i) An"

### agency. of the stateor unit of local government 'which acquired ownership or control involuntarily,

through bankruptcy. tax delinquency. abandonment, or

(CIL'70.105D RCW-p II70.105D.020 Hazardous Waste Cleanup**---~---- ~.** 

I 

# l circumstances in which the government involuntarily acquires title. This exclusion does not apply to an agency ofthe stateor 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 ofownership primarily to protect the person's security interest in the facility. (7) "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. 

### (8) "Potentially liable person" means any person whom the department finds. based on credible evidence.
to be liable under RCW 70.1050.040. The department shan give notice to any such person and allow an opportunity for commentbefore making the finding, unless an
emergencyrequires otherwise. (9) "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. (10) "Release" means any intentional or unintentional entry of any hazardous substance into the environment, including but not limited to the abandonmentor disposal ofcontainers ofhazardous substances. (11) "Remedy" or "remedial action" means any action or expenditure consistent with the purposes of this chapterto 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. [1989 c 2 

### § 2 (Initiative Measure No. 97. approved November

### 8.1988).]

RCW 70.105D.03O Department's powers and duties. (1) The department may exercise the following powers in addition to any otherpowers granted by law: (a) Investigate. provide for investigating, or require potentiany liable persons to investigate any releases or threatened releases of hazardous substances. including but not limited to inspecting, sampling. or testing to determinethe natureor extentofanyreleaseorthreatened 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.shan give reasonable notice before entering property.unless an emer- 

### .gcncy prevents such notice. The department may by

. subpoena require theattendance or testimony of wit- ",ncsscs and the production ofdocuments or other.infor**mation~ t~t**  thedepartmentdeems necessary;

(CIa.70.1051>RCW-p

### 21 (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 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 70.1050.020(5) and classify substances and products as hazardous substances for purposes of RCW·82.2J.020(I); and (f) Take any other actions necessary to carry out the provisions of this chapter, including the power to adopt rules underchapter 34.05 RCW. (2) The department shall immediately implement all provisions of this chapter to the maximum extent practicable, including investigativeand remedial actions where appropriate; The department, within nine months after March I, 1989. shall adopt, and thereafterenforce, 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 of the development of investigative plans or remedial plans for releases or threatened releases. and (iii) concurrentpublic notice of all complianceorders, enforcementorders. or notices of violation; (b) Establish a hazard ranking system for hazardous
waste sites;

. (c) Establish reasonable deadlines not to exceed ninetydays for initiatingan investigation of a hazardous
waste site afterthedepartmentreceives information that the site may pose a threatto human health or the environment and other reasonable deadlines for remedying releases or threatened releases atthe site; and (d) Publish andperiodicallyupdate minimum cleanup standards for remedialactions atleast 

### asstringent

### asthe cleanup standards' under section 121 of the federal cleanup law, 42 U.s.C. 

### Sec. 9621, and at least 

### as.strin**gen~/as** all applicable state and federal Jaws, including healtb-based standards understateand federal law. (3) Before November 1st of each even-numbered

..year, the department shall develop, with public notice

and.hearing. and submit totheways and means and appropriatestandingenvironmental committeesof the senate and house ofrepresentatives a ranked listof

### projects and expenditures recommended for appropriation.from

(1989 laws) 

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..**::.~**.. '- 

# ::0: l:Iazardous Waste qeanup

. 70.105D.040

both the state and local toxies 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 70.1050.020(5) 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 thedepartment. 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. [1989

### c2 § 3 (Initiative Measure No. 97. approved November 8. 1988).]

RCW 70.105D;040 Standard ofliability. (l) Except as provided in subsection (3) ofthis section. the follow-. ing persons are liable with respect to a facility: (a) The owner oroperatorofthe 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 ofthe hazardous substances at the facility, or otherwise generated hazardous wastes disposedof 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 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) whoaccepts a hazardous substance for transport to such a facility and has reasonable grounds to believethat such facility is notoperated in accordance withchapter 70.10S 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 useconstitutes a release for which remedial / action is required at the facility.

. i (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 

### -die releases or threatened releases of hazardous

(1989 Laws) 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 ofwar; 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 whoseactor omission occurs inconnection 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 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 of the purchase-price to the value ofthe 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 theabilityto detectsuchContamination by appropriate inspection; (ii) The defense contained in this subsection (b) is not availableto any person who had actual knowledge ofthe release or threatened release ofa hazardous 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 contained in this subsection (b) is


### notavailableto any person who, by any'actor omission. caused or contributed to the release or threatened release ofa hazardous substanceatthe facility; (c) Any natural person who uses a hazardous sub-

-stance 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 ofthe substance; or (iii) a



### ICla. 70.I05DRCW--1l 3170.1050.040 Hazardous WasteCleanup**'~.**



# o

o 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 settlementby the state with any person potentialIy liable under this chapter'except in accordance with this subsection. (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 70.1050.030(2)(d) and with ariy 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 amountand toxicity. (b) A settlement agreement under this subsection shall be entered as a consent decree issued by a court of competentjurisdiction. (c) A settlement agreement may contain a covenant not to sue only of a scope commensurate with the settle- .
ment 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 ofentry of the settlement agreement are discovered and present a previously unknown threat to humanhealth or the environment. (d) A party who has resolved its liability to the state under this subsection shall not be liable for claims for contribution regarding matters addressed in the settlement. Thesettlementdoes notdischarge any of the other liablepartiesbutit reduces the total potential liability of theothers to the state by the amountofthe settlement. (5) 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 settlementby 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. [1989 

### c 2 

### § 4 (Initiative Measure No. 91, approvedNovember8, 1988).]

RCW 70.1050.050 Enforcement. (I) 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 requiring potentially liable persons to provide the remedial action. Any liable person who refuses, without sufficient·

### cause. to comply with 

### an order



# ..9fthe director is liable in an action brought by the at-



### .tomeygeneralfor:

."".

. :.

. . . Cal Up to three times the amount of any costs 

### incurred by the state as a result ofthe party's refusal to comply;and

.

. . 

### ICIL.7o.1OSDRCW;-1'

### 4J (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 1. 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. 

### Ifthe department refuses to grant reimbursement. the person may within thirtydays 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 werereasonable

.. (3) The attorney general shall seek. by filing an actionif necessary. to recover. the amounts spent by the department for investigative and remedial actions and orders, including amounts spent prior to March 1. 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' 

### Iees 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. [1989 c 2 § 5 (Initiative Measure No. 97, approved November 8, 1988).]

RCW 70.105D.06O Timing of review. The depart-"\ ment's investigative and remedial decisions under RCW ) 70.105D.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 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 departmentto compel investigative or remedial action; and (5) in a citizen's suit urider RCW 70.1050.050(5). The)' court shall uphold the department's actions unless they

were arbitrary and capricious. [1989 

### c 2 § 6 (Initiative Measure No. 91, approved NovernberB, 1988).]

. <, RCW 70.1OSD.070 Toxies control accounts. (I) The
state toxlcscontrolaccount and the local toxies control
accountare herebyCreatedin the statetreasury. (2YThe 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 arc attributable to that portion of the rate equalto thirty-tbreeone-hundredthsofonepercent; (b) the costs of-remedial actions recovered under this chapter or chapter 10.105A RCW after March I. 1989; (c) penalties collected or recovered under this chapter;and (d) any other 

### moneyappropriated or transferred to the

(1989 Laws)

# .. . Hazardous Waste Cleanup 70.1050.920

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. techni-. cal 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 RCW 70.95.130. 70.95.140, 70.95.220. 70.95- .230. 70.95.530. 70.105.220, 70.105.225. 70.105.235. and 70.105.260; (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 underchapter 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 70.105D.030(2)(d) butonly when the amount 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 will achieve both (A) a substantially more expeditious or enhanced cleanup than would otherwise
occur, and (B) the prevention or mitigation of unfair economichardship; and (xii) Development and demonstration of alternative management technologiesdesigned 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 toxies control account: Those revenues which are raised by the tax imposed under RCW 82.21.030 and which are attributable to that portion ofthe rate equal
to tbirty-seven one-hundredths ofone percent. Moneys deposited in the local toxies control account shall be used by the department for grants to local governments for the following purposes in descending order ofpriority: (a) Remedial actions; (b) hazardous waste plans and
programs under RCW 70.105.220, 70.105.225, 70.105- .235, and 70.105.260; and (c) solid waste plans and programs underRCW 70.95.130, 70.95.140, 70.95.220, and.**7~.95.230.** 

### Funds for plans and programs shall 

### bealloeated consistent with the priorities and matching requirements established 

### in chapters 70.105 and 70.95 

### RCW. (4) Bxcept for unanticipated receipts under RCW 43- .79.260through 43.79.282, moneys in the state and local

(1989 Laws) toxics control accounts may be spent only after appropriation by statute. All earnings from investment of balances in the accounts. except as provided in RCW 43.84.090. shall be credited to the accounts. (5) One percentof the moneys deposited into the state and local taxies control accounts shall be allocated onlv for public participation grants to persons who may be adversely affected by a release or threatened release ofa hazardous substance and to not-far-profit public interest organizations. The primary purpose ofthese 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 issuance and performance. [1989 c 2 § 7 (Initiative Measure No. 97. approved November 8. 1988).]

RCW 70.1050.900 Short title-1989 c 2. This
act shall be known as "the model toxies control act:" [1989 c 2 

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

RCW 70.1050.905 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 70.1050.910 Construction--1989 c 2. The provisions ofthis act are to beliberally construed to effectuate the policies and purposes of this act. In the
event ofconflict 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).]

RCW 70.1050.915 Existing agreements--1989 e 

### 2. The consentorders and decrees in effect on March I. 1989. shall remain valid and binding. [1989 c 2 

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

RCW 70.1050.920 Effecth'e date--I989 e 

### 2. (I) Sections I through 24 ofthis actshall takeeffect March I, 1989, except that the director ofecology and the director of revenue may take whatever actions may be
necessary to ensure

### thatsections I through 24 ofthis act

are implementedon theireffectivedate. -(2) This section does not apply and shall have no force oreffect 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

(CIa. 70.1050RCW-l'SJ70.105D.920 Hazardous Waste 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).]

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

RCW 70.105D.921 Severability--1989 c 2. Ifany 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).]

(Cb. 70.1050 RCW-f6) <.: /

(1989 Laws) 

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