Washington Administrative Code › Title 173 - Ecology, Department of (See also Titles 197, 317, 372, and 508) › Chapter 173-340 - Model Toxics Control Act-Cleanup › Part 5 - ADMINISTRATIVE PROCEDURES FOR REMEDIAL ACTIONS › Section 173-340-545 - Private rights of action

Current through Register Vol. 24-14, July 15, 2024
(1)
Purpose.
A private right of action is a legal claim authorized by
				RCW
				   70A.305.080 under which a person may recover
				costs of remedial action from other persons liable under the act.
				RCW
				   70A.305.080 limits recovery of remedial
				action costs to those remedial actions that, when evaluated as a whole, are the
				substantial equivalent of a department-conducted or department-supervised
				remedial action. The purpose of this section is to facilitate private rights of
				action and minimize department staff involvement in these actions by providing
				guidance to potentially liable persons and the court on what remedial actions
				the department would consider the substantial equivalent of a
				department-conducted or department-supervised remedial action. In determining
				substantial equivalence, the department anticipates the requirements in this
				section will be evaluated as a whole and that a claim would not be disallowed
				due to omissions that do not diminish the overall effectiveness of the remedial
				action.
(2)
Substantial
				equivalent.
For the purposes of this section, the department considers
				the following remedial actions to be the substantial equivalent of a
				department-conducted or department-supervised remedial action.
(a) A remedial action conducted by the
				department;
(b) A remedial action
				that has been or is being conducted under an order or decree and the remedial
				requirements of the order or decree have been satisfied for those portions of
				the remedial action for which the private right of action is being sought;
				or
(c) A remedial action that has
				been conducted as an independent remedial action that includes the following
				elements:
(i) Information on the site and
				remedial actions conducted has been reported to the department in accordance
				with WAC 173-340-300,
				173-340-450 and
				173-340-515, as
				applicable;
(ii) The department has
				not objected to the remedial action being conducted or any such objection has
				been cured as determined by the court;
(iii) Except for emergency remedial actions,
				before conducting an interim action or cleanup action, reasonable steps have
				been taken to provide advance public notice;
(iv) The remedial actions have been conducted
				substantially equivalent with the technical standards and evaluation criteria
				described in subsection (4) of this section; and
(v) For facilities where hazardous substances
				have been disposed of as part of the remedial action, documentation is
				available indicating where these substances were disposed of and that this
				disposal was in compliance with applicable state and federal laws. It is not
				the intent of this provision to require extensive documentation. For example,
				if the remedial action results in solid wastes being transported offsite for
				disposal, it would be sufficient to have records indicating the wastes have
				been disposed of at a permitted solid waste or hazardous waste
				landfill.