AN
ACT Relating to implementing the model toxics control act policy advisory
committee recommendations; amending RCW 70.105D.020, 70.105D.030, 70.105D.040,
70.105D.070, and 70.105D.080; and creating a new section.
BE IT
ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
NEW
SECTION. Sec. 1. The
legislature finds that:
(1)
Engrossed Substitute House Bill No. 1810 enacted during the 1995 legislative
session authorized establishment of the model toxics control act policy
advisory committee, a twenty-two member committee representing a broad range of
interests including the legislature, agriculture, large and small business,
environmental organizations, and local and state government. The committee was
charged with the task of providing advice to the legislature and the department
of ecology to more effectively implement the model toxics control act, chapter
70.105D RCW.
(2)
The committee members committed considerable time and effort to their charge,
meeting twenty-six times during 1995 and 1996 to discuss and decide issues. In
addition, the committee created four subcommittees that met over sixty times
during this same period. There were also numerous working subgroups and
drafting committees formed on an ad hoc basis to support the committee's work.
Many members of the public also attended these meetings and were provided
opportunities to contribute to the committee deliberations.
(3)
The policy advisory committee completed its work and submitted a final report
to the department of ecology and the legislature on December 15, 1996. That
report contains numerous recommendations for statutory changes that were agreed
to by consensus of the committee members or obtained broad support of most of
the committee members. This act is intended to implement those recommended
statutory changes.
Sec.
2. RCW
70.105D.020 and 1995 c 70 s 1 are each amended to read as follows:
(1)
"Agreed order" means an order issued by the department under this
chapter with which the potentially liable person receiving the order agrees to
comply. An agreed order may be used to require or approve any cleanup or other
remedial actions but it is not a settlement under RCW 70.105D.040(4) and shall
not contain a covenant not to sue, or provide protection from claims for
contribution, or provide eligibility for public funding of remedial actions
under RCW 70.105D.070(2)(d)(xi).
(2)
"Department" means the department of ecology.
(3)
"Director" means the director of ecology or the director's designee.
(4)
"Facility" means (a) any building, structure, installation, equipment,
pipe or pipeline (including any pipe into a sewer or publicly owned treatment
works), well, pit, pond, lagoon, impoundment, ditch, landfill, storage
container, motor vehicle, rolling stock, vessel, or aircraft, or (b) any site
or area where a hazardous substance, other than a consumer product in consumer
use, has been deposited, stored, disposed of, or placed, or otherwise come to
be located.
(5)
"Federal cleanup law" means the federal comprehensive environmental
response, compensation, and liability act of 1980, 42 U.S.C. Sec. 9601 et seq.,
as amended by Public Law 99-499.
(6)
"Foreclosure and its equivalents" means purchase at a foreclosure
sale, acquisition, or assignment of title in lieu of foreclosure, termination
of a lease, or other repossession, acquisition of a right to title or
possession, an agreement in satisfaction of the obligation, or any other
comparable formal or informal manner, whether pursuant to law or under
warranties, covenants, conditions, representations, or promises from the borrower,
by which the holder acquires title to or possession of a facility securing a
loan or other obligation.
(7)
"Hazardous substance" means:
(a)
Any dangerous or extremely hazardous waste as 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 1, 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.
The
term hazardous substance does not include any of the following when contained
in an underground storage tank from which there is not a release: Crude oil or
any fraction thereof or petroleum, if the tank is in compliance with all
applicable federal, state, and local law.
(8)
"Independent remedial actions" means remedial actions conducted
without department oversight or approval, and not under an order, agreed order,
or consent decree.
(9)
"Holder" means a person who holds indicia of ownership primarily to
protect a security interest. A holder includes the initial holder such as the
loan originator, any subsequent holder such as a successor-in-interest or
subsequent purchaser of the security interest on the secondary market, a
guarantor of an obligation, surety, or any other person who holds indicia of
ownership primarily to protect a security interest, or a receiver,
court-appointed trustee, or other person who acts on behalf or for the benefit
of a holder. A holder can be a public or privately owned financial
institution, receiver, conservator, loan guarantor, or other similar persons
that loan money or guarantee repayment of a loan. Holders typically are banks
or savings and loan institutions but may also include others such as insurance
companies, pension funds, or private individuals that engage in loaning of
money or credit.
(((9)))
(10) "Indicia of ownership" means evidence of a security interest,
evidence of an interest in a security interest, or evidence of an interest in a
facility securing a loan or other obligation, including any legal or equitable
title to a facility acquired incident to foreclosure and its equivalents.
Evidence of such interests ((include[s])) includes, mortgages,
deeds of trust, sellers interest in a real estate contract, liens, surety
bonds, and guarantees of obligations, title held pursuant to a lease financing
transaction in which the lessor does not select initially the leased facility,
or legal or equitable title obtained pursuant to foreclosure and their
equivalents. Evidence of such interests also ((include[s])) includes
assignments, pledges, or other rights to or other forms of encumbrance against
the facility that are held primarily to protect a security interest.
(((10)))
(11) "Operating a facility primarily to protect a security
interest" occurs when all of the following are met: (a) Operating the
facility where the borrower has defaulted on the loan or otherwise breached the
security agreement; (b) operating the facility to preserve the value of the
facility as an ongoing business; (c) the operation is being done in
anticipation of a sale, transfer, or assignment of the facility; and (d) the
operation is being done primarily to protect a security interest. Operating a
facility for longer than one year prior to foreclosure or its equivalents shall
be presumed to be operating the facility for other than to protect a security
interest.
(((11)))
(12) "Owner or operator" means:
(a)
Any person with any ownership interest in the facility or who exercises any
control over the facility; or
(b)
In the case of an abandoned facility, any person who had owned, or operated, or
exercised control over the facility any time before its abandonment;
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. Holders after foreclosure and its equivalent and holders who engage
in any of the activities identified in subsection (((12))) (13)(e)
through (g) of this section shall not lose this exemption provided the holder
complies with all of the following:
(A)
The holder properly maintains the environmental compliance measures already in
place at the facility;
(B)
The holder complies with the reporting requirements in the rules adopted under
this chapter;
(C)
The holder complies with any order issued to the holder by the department to
abate an imminent or substantial endangerment;
(D)
The holder allows the department or potentially liable persons under an order,
agreed order, or settlement agreement under this chapter access to the facility
to conduct remedial actions and does not impede the conduct of such remedial
actions;
(E)
Any remedial actions conducted by the holder are in compliance with any
preexisting requirements identified by the department, or, if the department
has not identified such requirements for the facility, the remedial actions are
conducted consistent with the rules adopted under this chapter; and
(F)
The holder does not exacerbate an existing release; or
(iii)
Any person who has any ownership interest in, operates, or exercises control
over real property where a hazardous substance has come to be located solely as
a result of migration of the hazardous substance to the real property through
the ground water from a source off the property, if:
(A)
The person can demonstrate that the hazardous substance has not been used,
placed, managed, or otherwise handled on the property in a manner likely to
cause or contribute to a release of the hazardous substance that has migrated
onto the property;
(B)
The person has not caused or contributed to the release of the hazardous
substance;
(C)
The person does not engage in activities that damage or interfere with the
operation of remedial actions installed on the person's property or engage in
activities that result in exposure of humans or the environment to the
contaminated ground water that has migrated onto the property;
(D)
If requested, the person allows the department, potentially liable persons who
are subject to an order, agreed order, or consent decree, and the authorized
employees, agents, or contractors of each, access to the property to conduct
remedial actions required by the department. The person may attempt to
negotiate an access agreement before allowing access; and
(E)
Legal withdrawal of ground water does not disqualify a person from the
exemption in this subsection (12)(b)(iii).
The
exemption in (b)(ii) of this subsection (((11)(b)(ii))) does not
apply to holders who cause or contribute to a new release or threatened release
or who are otherwise liable under RCW 70.105D.040(1) (b), (c), (d), and (e);
provided, however, that a holder shall not lose this exemption if it
establishes that any such new release has been remediated according to the
requirements of this chapter and that any hazardous substances remaining at the
facility after remediation of the new release are divisible from such new
release.
(((12)))
(13) "Participation in management" means exercising
decision-making control over the borrower's operation of the facility,
environmental compliance, or assuming or manifesting responsibility for the
overall management of the enterprise encompassing the day-to-day decision making
of the enterprise.
The
term does not include any of the following: (a) A holder with the mere
capacity or ability to influence, or the unexercised right to control facility
operations; (b) a holder who conducts or requires a borrower to conduct an
environmental audit or an environmental site assessment at the facility for
which indicia of ownership is held; (c) a holder who requires a borrower to
come into compliance with any applicable laws or regulations at the facility
for which indicia of ownership is held; (d) a holder who requires a borrower to
conduct remedial actions including setting minimum requirements, but does not
otherwise control or manage the borrower's remedial actions or the scope of the
borrower's remedial actions except to prepare a facility for sale, transfer, or
assignment; (e) a holder who engages in workout or policing activities
primarily to protect the holder's security interest in the facility; (f) a
holder who prepares a facility for sale, transfer, or assignment or requires a
borrower to prepare a facility for sale, transfer, or assignment; (g) a holder
who operates a facility primarily to protect a security interest, or requires a
borrower to continue to operate, a facility primarily to protect a security
interest; and (h) a prospective holder who, as a condition of becoming a
holder, requires an owner or operator to conduct an environmental audit,
conduct an environmental site assessment, come into compliance with any
applicable laws or regulations, or conduct remedial actions prior to holding a
security interest is not participating in the management of the facility.
(((13)))
(14) "Person" means an individual, firm, corporation,
association, partnership, consortium, joint venture, commercial entity, state
government agency, unit of local government, federal government agency, or
Indian tribe.
(((14)))
(15) "Policing activities" means actions the holder takes to
insure that the borrower complies with the terms of the loan or security
interest or actions the holder takes or requires the borrower to take to
maintain the value of the security. Policing activities include: Requiring
the borrower to conduct remedial actions at the facility during the term of the
security interest; requiring the borrower to comply or come into compliance
with applicable federal, state, and local environmental and other laws,
regulations, and permits during the term of the security interest; securing or
exercising authority to monitor or inspect the facility including on-site
inspections, or to monitor or inspect the borrower's business or financial
condition during the term of the security interest; or taking other actions
necessary to adequately police the loan or security interest such as requiring
a borrower to comply with any warranties, covenants, conditions,
representations, or promises from the borrower.
(((15)))
(16) "Potentially liable person" means any person whom the
department finds, based on credible evidence, to be liable under RCW
70.105D.040. The department shall give notice to any such person and allow an
opportunity for comment before making the finding, unless an emergency requires
otherwise.
(((16)))
(17) "Prepare a facility for sale, transfer, or assignment"
means to secure access to the facility; perform routine maintenance on the
facility; remove inventory, equipment, or structures; properly maintain
environmental compliance measures already in place at the facility; conduct
remedial actions to clean up releases at the facility; or to perform other
similar activities intended to preserve the value of the facility where the
borrower has defaulted on the loan or otherwise breached the security agreement
or after foreclosure and its equivalents and in anticipation of a pending sale,
transfer, or assignment, primarily to protect the holder's security interest in
the facility. A holder can prepare a facility for sale, transfer, or
assignment for up to one year prior to foreclosure and its equivalents and
still stay within the security interest exemption in subsection (((11)))
(12)(b)(ii) of this section.
(((17)))
(18) "Primarily to protect a security interest" means the
indicia of ownership is held primarily for the purpose of securing payment or
performance of an obligation. The term does not include indicia of ownership
held primarily for investment purposes nor indicia of ownership held primarily
for purposes other than as protection for a security interest. A holder may
have other, secondary reasons, for maintaining indicia of ownership, but the
primary reason must be for protection of a security interest. Holding indicia
of ownership after foreclosure or its equivalents for longer than five years
shall be considered to be holding the indicia of ownership for purposes other
than primarily to protect a security interest. For facilities that have been
acquired through foreclosure or its equivalents prior to July 23, 1995, this
five-year period shall begin as of July 23, 1995.
(((18)))
(19) "Public notice" means, at a minimum, adequate notice
mailed to all persons who have made timely request of the department and to
persons residing in the potentially affected vicinity of the proposed action;
mailed to 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.
(((19)))
(20) "Release" means any intentional or unintentional entry of
any hazardous substance into the environment, including but not limited to the
abandonment or disposal of containers of hazardous substances.
(((20)))
(21) "Remedy" or "remedial action" means any action
or expenditure consistent with the purposes of this chapter to identify, eliminate,
or minimize any threat or potential threat posed by hazardous substances to
human health or the environment including any investigative and monitoring
activities with respect to any release or threatened release of a hazardous
substance and any health assessments or health effects studies conducted in
order to determine the risk or potential risk to human health.
(((21)))
(22) "Security interest" means an interest in a facility
created or established for the purpose of securing a loan or other obligation.
Security interests include deeds of trusts, sellers interest in a real estate
contract, liens, legal, or equitable title to a facility acquired incident to
foreclosure and its equivalents, and title pursuant to lease financing
transactions. Security interests may also arise from transactions such as sale
and leasebacks, conditional sales, installment sales, trust receipt
transactions, certain assignments, factoring agreements, accounts receivable
financing arrangements, easements, and consignments, if the transaction creates
or establishes an interest in a facility for the purpose of securing a loan or
other obligation.
(((22)))
(23) "Industrial properties" means properties that are or have
been characterized by, or are to be committed to, traditional industrial uses
such as processing or manufacturing of materials, marine terminal and
transportation areas and facilities, fabrication, assembly, treatment, or
distribution of manufactured products, or storage of bulk materials, that are
either:
(a)
Zoned for industrial use by a city or county conducting land use planning under
chapter 36.70A RCW; or
(b)
For counties not planning under chapter 36.70A RCW and the cities within them,
zoned for industrial use and adjacent to properties currently used or
designated for industrial purposes.
(((23)))
(24) "Workout activities" means those actions by which a
holder, at any time prior to foreclosure and its equivalents, seeks to prevent,
cure, or mitigate a default by the borrower or obligor; or to preserve, or
prevent the diminution of, the value of the security. Workout activities
include: Restructuring or renegotiating the terms of the security interest;
requiring payment of additional rent or interest; exercising forbearance;
requiring or exercising rights pursuant to an assignment of accounts or other
amounts owed to an obligor; requiring or exercising rights pursuant to an
escrow agreement pertaining to amounts owed to an obligor; providing specific
or general financial or other advice, suggestions, counseling, or guidance; and
exercising any right or remedy the holder is entitled to by law or under any
warranties, covenants, conditions, representations, or promises from the
borrower.
Sec.
3. RCW
70.105D.030 and 1995 c 70 s 2 are each amended to read as follows:
(1)
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 entering property unless an emergency prevents such notice. In
conducting, providing for, or requiring remedial action, the department shall
give preference to permanent solutions to the maximum extent practicable and
shall provide for or require adequate monitoring to ensure the effectiveness of
the remedial action;
(c)
Indemnify contractors retained by the department for carrying out
investigations and remedial actions, but not for any contractor's reckless or
wilful misconduct;
(d)
Carry out all state programs authorized under the federal cleanup law and the
federal resource, conservation, and recovery act, 42 U.S.C. Sec. 6901 et seq.,
as amended;
(e)
Classify substances as hazardous substances for purposes of RCW 70.105D.020(7)
and classify substances and products as hazardous substances for purposes of
RCW 82.21.020(1);
(f)
Issue orders or enter into consent decrees or agreed orders that include, or
issue written opinions under (i) of this subsection that may be conditioned
upon, deed restrictions where necessary to protect human health and the
environment from a release or threatened release of a hazardous substance from
a facility. Prior to establishing a deed restriction under this subsection,
the department shall notify and seek comment from a city or county department
with land use planning authority for real property subject to a deed
restriction;
(g)
Enforce the application of permanent and effective institutional controls that
are necessary for a remedial action to be protective of human health and the
environment;
(h)
Require holders to conduct remedial actions necessary to abate an imminent or
substantial endangerment pursuant to RCW 70.105D.020(((11))) (12)(b)(ii)(C);
((and))
(i)
Provide informal advice and assistance to persons regarding the
administrative and technical requirements of this chapter. This may include
site-specific advice to persons who are conducting or otherwise interested in
independent remedial actions. Any such advice or assistance shall be advisory
only, and shall not be binding on the department. As a part of providing this
advice and assistance for independent remedial actions, the department may
prepare written opinions regarding whether the independent remedial actions or
proposals for those actions meet the substantive requirements of this chapter
or whether the department believes further remedial action is necessary at the
facility. The department may collect, from persons requesting advice and
assistance, the costs incurred by the department in providing such advice and
assistance; however, the department shall, where appropriate, waive collection
of costs in order to provide an appropriate level of technical assistance in
support of public participation. The state, the department, and officers and
employees of the state are immune from all liability, and no cause of action of
any nature may arise from any act or omission in providing, or failing to
provide, informal advice and assistance; and
(j)
Take any other actions necessary to carry out the provisions of this chapter,
including the power to adopt rules under chapter 34.05 RCW.
(2)
The department shall immediately implement all provisions of this chapter to
the maximum extent practicable, including investigative and remedial actions
where appropriate. The department shall adopt, and thereafter enforce, rules
under chapter 34.05 RCW to:
(a)
Provide for public participation, including at least (i) the establishment of
regional citizen's advisory committees, (ii) public notice of the development
of investigative plans or remedial plans for releases or threatened releases,
and (iii) concurrent public notice of all compliance orders, agreed orders,
enforcement orders, or notices of violation;
(b)
Establish a hazard ranking system for hazardous waste sites;
(c)
Provide for requiring the reporting by an owner or operator of releases of
hazardous substances to the environment that may be a threat to human health or
the environment within ninety days of discovery, including such exemptions from
reporting as the department deems appropriate, however this requirement shall
not modify any existing requirements provided for under other laws;
(d)
Establish reasonable deadlines not to exceed ninety days for initiating an
investigation of a hazardous waste site after the department receives notice
or otherwise receives information that the site may pose a threat to human
health or the environment and other reasonable deadlines for remedying releases
or threatened releases at the site;
(((d)))
(e) Publish and periodically update minimum cleanup standards for
remedial actions at least as stringent as the cleanup standards under section
121 of the federal cleanup law, 42 U.S.C. Sec. 9621, and at least as stringent
as all applicable state and federal laws, including health-based standards
under state and federal law; and
(((e)))
(f) Apply industrial clean-up standards at industrial properties. Rules
adopted under this subsection shall ensure that industrial properties cleaned
up to industrial standards cannot be converted to nonindustrial uses without
approval from the 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 meeting its top two management priorities under RCW 70.105.150,
and all funds expended under this chapter.
(4)
The department shall establish a scientific advisory board to render advice to
the department with respect to the hazard ranking system, cleanup standards,
remedial actions, deadlines for remedial actions, monitoring, the
classification of substances as hazardous substances for purposes of RCW
70.105D.020(7) and the classification of substances or products as hazardous
substances for purposes of RCW 82.21.020(1). The board shall consist of five
independent members to serve staggered three-year terms. No members may be
employees of the department. Members shall be reimbursed for travel expenses
as provided in RCW 43.03.050 and 43.03.060.
(5) The department shall establish a program to identify potential
hazardous waste sites and to encourage persons to provide information about
hazardous waste sites.
Sec.
4. RCW
70.105D.040 and 1994 c 254 s 4 are each amended to read as follows:
(1)
Except as provided in subsection (3) of this section, the following persons are
liable with respect to a facility:
(a)
The owner or operator of the facility;
(b)
Any person who owned or operated the facility at the time of disposal or release
of the hazardous substances;
(c)
Any person who owned or possessed a hazardous substance and who by contract,
agreement, or otherwise arranged for disposal or treatment of the hazardous
substance at the facility, or arranged with a transporter for transport for
disposal or treatment of the hazardous substances at the facility, or otherwise
generated 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 release or a threatened release for which remedial action is
required, unless such facility, at the time of disposal or treatment, could
legally receive such substance; or (ii) who accepts a hazardous substance for
transport to such a facility and has reasonable grounds to believe that such
facility is not operated in accordance with chapter 70.105 RCW; and
(e)
Any person who both sells a hazardous substance and is responsible for written
instructions for its use if (i) the substance is used according to the
instructions and (ii) the use constitutes a release for which remedial action
is required at the facility.
(2)
Each person who is liable under this section is strictly liable, jointly and
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 indirectly, with the person asserting this
defense to liability. This defense only applies where the person asserting the
defense has exercised the utmost care with respect to the hazardous substance,
the foreseeable acts or omissions of the third party, and the foreseeable
consequences of those acts or omissions;
(b)
Any person who is an owner, past owner, or purchaser of a facility and who can
establish by a preponderance of the evidence that at the time the facility was
acquired by the person, the person had no knowledge or reason to know that any
hazardous substance, the release or threatened release of which has resulted in
or contributed to the need for the remedial action, was released or disposed of
on, in, or at the facility. This subsection (b) is limited as follows:
(i)
To establish that a person had no reason to know, the person must have undertaken,
at the time of acquisition, all appropriate inquiry into the previous ownership
and uses of the property, consistent with good commercial or customary practice
in an effort to minimize liability. Any court interpreting this subsection (b)
shall take into account any specialized knowledge or experience on the part of
the person, the relationship of the purchase price to the value of the property
if uncontaminated, commonly known or reasonably ascertainable information about
the property, the obviousness of the presence or likely presence of
contamination at the property, and the ability to detect such contamination by
appropriate inspection;
(ii)
The defense contained in this subsection (b) is not available to any person who
had actual knowledge of the release or threatened release of a hazardous
substance when the person owned the real property and who subsequently
transferred ownership of the property without first disclosing such knowledge
to the transferee;
(iii)
The defense contained in this subsection (b) is not available to any person
who, by any act or omission, caused or contributed to the release or threatened
release of a hazardous substance at the facility;
(c)
Any natural person who uses a hazardous substance lawfully and without negligence
for any personal or domestic purpose in or near a dwelling or accessory
structure when that person is: (i) A resident of the dwelling; (ii) a person
who, without compensation, assists the resident in the use of the substance; or
(iii) a person who is employed by the resident, but who is not an independent
contractor;
(d)
Any person who, for the purpose of growing food crops, applies pesticides or
fertilizers without negligence and in accordance with all applicable laws and
regulations.
(4)
There may be no settlement by the state with any person potentially liable
under this chapter except in accordance with this section.
(a)
The attorney general may agree to a settlement with any potentially liable
person only if the department finds, after public notice and any required
hearing, that the proposed settlement would lead to a more expeditious cleanup
of hazardous substances in compliance with cleanup standards under RCW
70.105D.030(2)(((d))) (e) and with any remedial orders issued by
the department. Whenever practicable and in the public interest, the attorney
general may expedite such a settlement with persons whose contribution is
insignificant in amount and toxicity. A hearing shall be required only if
at least ten persons request one or if the department determines a hearing is
necessary.
(b)
A settlement agreement under this section shall be entered as a consent decree
issued by a court of competent jurisdiction.
(c)
A settlement agreement may contain a covenant not to sue only of a scope commensurate
with the settlement agreement in favor of any person with whom the attorney
general has settled under this section. Any covenant not to sue shall contain
a reopener clause which requires the court to amend the covenant not to sue if
factors not known at the time of entry of the settlement agreement are
discovered and present a previously unknown threat to human health or the
environment.
(d)
A party who has resolved its liability to the state under this section shall
not be liable for claims for contribution regarding matters addressed in the
settlement. The settlement does not discharge any of the other liable parties
but it reduces the total potential liability of the others to the state by the
amount of the settlement.
(e)
If the state has entered into a consent decree with an owner or operator under
this section, the state shall not enforce this chapter against any owner or
operator who is a successor in interest to the settling party unless under the
terms of the consent decree the state could enforce against the settling party,
if:
(i)
The successor owner or operator is liable with respect to the facility solely
due to that person's ownership interest or operator status acquired as a
successor in interest to the owner or operator with whom the state has entered
into a consent decree; and
(ii)
The stay of enforcement under this subsection does not apply if the consent
decree was based on circumstances unique to the settling party that do not
exist with regard to the successor in interest, such as financial hardship.
For consent decrees entered into before the effective date of this section, at
the request of a settling party or a potential successor owner or operator, the
attorney general shall issue a written opinion on whether a consent decree
contains such unique circumstances. For all other consent decrees, such unique
circumstances shall be specified in the consent decree.
(f)
Any person who is not subject to enforcement by the state under (e) of this
subsection is not liable for claims for contribution regarding matters
addressed in the settlement.
(5)(a)
In addition to the settlement authority provided under subsection (4) of this
section, the attorney 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))) (i)
The settlement will yield substantial new resources to facilitate cleanup;
(((c)))
(ii) The settlement will expedite remedial action consistent with the
rules adopted under this chapter; and
(((d)))
(iii) Based on available information, the department determines that the
redevelopment or reuse of the facility is not likely to contribute to the
existing release or threatened release, interfere with remedial actions that
may be needed at the site, or increase health risks to persons at or in the
vicinity of the site.
(b)
The legislature recognizes that the state does not have adequate resources to
participate in all property transactions involving contaminated property. The
primary purpose of this subsection (5) is to promote the cleanup and reuse of
vacant or abandoned commercial or industrial contaminated property. The
attorney general and the department may give priority to settlements that will
provide a substantial public benefit, including, but not limited to the reuse
of a vacant or abandoned manufacturing or industrial facility, or the
development of a facility by a governmental entity to address an important
public purpose.
(6)
Nothing in this chapter affects or modifies in any way any person's right to
seek or obtain relief under other statutes or under common law, including but
not limited to damages for injury or loss resulting from a release or
threatened release of a hazardous substance. No settlement by the department
or remedial action ordered by a court or the department affects any person's
right to obtain a remedy under common law or other statutes.
Sec.
5. RCW
70.105D.070 and 1994 c 252 s 5 are each amended to read as follows:
(1)
The state toxics control account and the local toxics control account are
hereby created in the state treasury.
(2)
The following moneys shall be deposited into the state toxics control account:
(a) Those revenues which are raised by the tax imposed under RCW 82.21.030 and
which are attributable to that portion of the rate equal to thirty-three
one-hundredths of one percent; (b) the costs of remedial actions recovered
under this chapter or chapter 70.105A RCW; (c) penalties collected or recovered
under this chapter; and (d) any other money appropriated or transferred to the
account by the legislature. Moneys in the account may be used only to carry
out the purposes of this chapter, including but not limited to the following
activities:
(i)
The state's responsibility for hazardous waste planning, management,
regulation, enforcement, technical assistance, and public education required
under chapter 70.105 RCW;
(ii)
The state's responsibility for solid waste planning, management, regulation,
enforcement, technical assistance, and public education required under chapter
70.95 RCW;
(iii)
The hazardous waste cleanup program required under this chapter;
(iv)
State matching funds required under the federal cleanup law;
(v)
Financial assistance for local programs in accordance with chapters 70.95,
70.95C, 70.95I, and 70.105 RCW;
(vi)
State government programs for the safe reduction, recycling, or disposal of
hazardous wastes from households, small businesses, and agriculture;
(vii)
Hazardous materials emergency response training;
(viii)
Water and environmental health protection and monitoring programs;
(ix)
Programs authorized under chapter 70.146 RCW;
(x)
A public participation program, including regional citizen advisory committees;
(xi)
Public funding to assist potentially liable persons to pay for the costs of
remedial action in compliance with cleanup standards under RCW 70.105D.030(2)(((d)))
(e) but only when the amount and terms of such funding are established
under a settlement agreement under RCW 70.105D.040(4) and when the director has
found that the funding will achieve both (A) a substantially more expeditious
or enhanced cleanup than would otherwise occur, and (B) the prevention or
mitigation of unfair economic hardship; and
(xii)
Development and demonstration of alternative management technologies designed
to carry out the top two hazardous waste management priorities of RCW
70.105.150.
(3)
The following moneys shall be deposited into the local toxics 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 thirty-seven
one-hundredths of one percent.
(a)
Moneys deposited in the local toxics control account shall be used by the
department for grants or loans to local governments for the following purposes
in descending order of priority: (i) Remedial actions; (ii) hazardous waste
plans and programs under chapter 70.105 RCW; and (iii) solid waste plans and
programs under chapters 70.95, 70.95C, 70.95I, 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.
(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)) sixty
thousand dollars ((though it)). Grants may be renewed annually.
Moneys appropriated for public participation from either account which are not
expended at the close of any biennium shall revert to the state toxics control
account.
(6)
No moneys deposited into either the state or local toxics control account may
be used for solid waste incinerator feasibility studies, construction,
maintenance, or operation.
(7)
The department shall adopt rules for grant or loan issuance and performance.
Sec.
6. RCW
70.105D.080 and 1993 c 326 s 1 are each amended to read as follows:
Except
as provided in RCW 70.105D.040(4) (d) and (f), a person may bring a
private right of action, including a claim for contribution or for declaratory
relief, against any other person liable under RCW 70.105D.040 for the recovery
of remedial action 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.
