BILL REQ. #:  S-1977.3 

READ FIRST TIME 03/02/05.   

     AN ACT Relating to providing the department of ecology with lien authority to facilitate the recovery of remedial action costs; amending RCW 70.105D.050 and 70.105D.060; and adding a new section to chapter 70.105D RCW.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION.  Sec. 1   A new section is added to chapter 70.105D RCW to read as follows:
     (1) It is in the public interest for the department to recover remedial action costs incurred in discharging its responsibility under this chapter, as these recovered funds can then be applied to the cleanup of other facilities. Thus, in addition to other cost-recovery mechanisms provided under this chapter, this section is intended to facilitate the recovery of state funds spent on remedial actions by providing the department with lien authority. This will also prevent a facility owner or mortgagee from gaining a financial windfall from increased land value resulting from department-conducted remedial actions at the expense of the state taxpayers.
     (2) If the state of Washington incurs remedial action costs relating to a remedial action of real property, and those remedial action costs are unrecovered by the state of Washington, the department may file a lien against that real property.
     (a) Except as provided in (c) of this subsection, liens filed under this section shall have priority in rank over all other privileges, liens, encumbrances, or other security interests affecting the real property, whenever incurred, filed, or recorded, except for the following liens:
     (i) Local and special district property tax assessments; and
     (ii) Mortgage liens.
     (b) Liens filed pursuant to (a) and (c) of this subsection shall not exceed the remedial action costs incurred by the state.
     (c)(i) If the facility is abandoned or the owner has failed to substantially comply with an order issued under this chapter, the department may choose to limit the amount of the lien to the increase in the fair market value of the real property that is attributable to a remedial action conducted by the department. The increase in fair market value shall be determined by subtracting the county assessor's value of the real property for the most recent year prior to remedial action being initiated from the value of the real property after remedial action. The value of the real property after remedial action shall be determined by the bona fide purchase price of the real property or by a real estate appraiser retained by the department. Liens limited in this way have priority in rank over all other privileges, liens, encumbrances, or other security interests affecting the real property, whenever incurred, filed, or recorded.
     (ii) For the purposes of this subsection, "abandoned" means there has not been significant business activity on the real property for three years or property taxes owed on the real property are three years in arrears prior to the department incurring costs attributable to this lien.
     (d) The department shall, when notifying potentially liable persons of their potential liability under RCW 70.105D.040, include a notice stating that if the department incurs remedial action costs relating to the remediation of real property and the costs are not recovered by the department, the department may file a lien against that real property under this section.
     (e) Except for emergency remedial actions, the department must provide notice to the following persons before initiating remedial actions conducted by persons under contract to the department on real property on which a lien may be filed under this section:
     (i) The real property owner;
     (ii) Mortgagees;
     (iii) Lienholders of record;
     (iv) Persons known to the department to be conducting remedial actions at the facility at the time of such notice; and
     (v) Persons known to the department to be under contract to conduct remedial actions at the facility at the time of such notice.
     For emergency remedial actions, this notice shall be provided within thirty days after initiation of the emergency remedial actions.
     (3) Before filing a lien under this section, the department shall give the owner of real property on which the lien is to be filed and mortgagees and lienholders of record a notice of its intent to file a lien:
     (a) The notice required under this subsection (3) must be sent by certified mail to the real property owner and mortgagees of record at the addresses listed in the recorded documents. If the real property owner is unknown or if a mailed notice is returned as undeliverable, the department shall provide notice by posting a legal notice in the newspaper of largest circulation in the county the site is located. The notice shall provide:
     (i) A statement of the purpose of the lien;
     (ii) A brief description of the real property to be affected by the lien;
     (iii) A statement of the remedial action costs incurred by the state related to the real property affected by the lien;
     (iv) A brief statement of facts showing probable cause that the real property is the subject of the remedial action costs incurred by the department; and
     (v) The time period following service or other notice during which any recipient of the notice whose legal rights may be affected by the lien may comment on the notice.
     (b) Any comments on the notice must be received by the department on or before thirty days following service or other provision of the notice of intent to file a lien.
     (c) If no comments are received by the department, the lien may be filed on the real property immediately.
     (d) If the department receives any comments on the lien, the department shall determine if there is probable cause for filing the certificate of lien. If the department determines there is probable cause, the department may file the lien. Any further challenge to the lien may only occur at the times specified under RCW 70.105D.060.
     (e) If the department has reason to believe that exigent circumstances require the filing of a lien prior to giving notice under this subsection (3), or prior to the expiration of the time period for comments, the department may file the lien immediately. For the purposes of this subsection (3), exigent circumstances include, but are not limited to, an imminent bankruptcy filing by the real property owner, or the imminent transfer or sale of the real property subject to lien by the real property owner, or both.
     (4) A lien filed under this section is effective when a statement of lien is filed with the county auditor in the county where the real property is located. The statement of lien must include a description of the real property subject to lien and the amount of the lien.
     (5) Unless the department determines it is in the public interest to remove the lien, the lien continues until the liability for the remedial action costs have been satisfied through sale of the real property or other means agreed to by the department.
     (6)(a) This section does not apply to real property owned by a local government or special purpose district or real property used solely for residential purposes and consisting of four residential units or less at the time the lien is recorded. This limitation does not apply to illegal drug manufacturing and storage sites under chapter 64.44 RCW.
     (b) If the real property owner has consented to the department filing a lien on the real property, then only subsection (3)(a)(i) through (iii) of this section requiring notice to mortgagees and lienholders of record apply.

Sec. 2   RCW 70.105D.050 and 2002 c 288 s 4 are each amended to read as follows:
     (1) With respect to any release, or threatened release, for which the department does not conduct or contract for conducting remedial action and for which the department believes remedial action is in the public interest, the director shall issue orders or agreed orders requiring potentially liable persons to provide the remedial action. Any liable person who refuses, without sufficient cause, to comply with an order or agreed order of the director is liable in an action brought by the attorney general for:
     (a) Up to three times the amount of any costs incurred by the state as a result of the party's refusal to comply; and
     (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. If the department 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 70.105D.040 and that the costs incurred were reasonable.
     (3) The attorney general shall seek, by filing an action if necessary, to recover the amounts spent by the department for investigative and remedial actions and orders, and agreed orders, including amounts spent prior to March 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' fees and other costs to the prevailing party in the action.
     (b) Civil actions under this section and RCW 70.105D.060 may be brought in the superior court of Thurston county or of the county in which the release or threatened release exists.
     (6) Any person who fails to provide notification of releases consistent with RCW 70.105D.110 or who submits false information is liable in an action brought by the attorney general for a civil penalty of up to five thousand dollars per day for each day the party refuses to comply.
     (7) Any person who owns real property that is subject to a lien filed under section 1 of this act may petition the department to have the lien removed or the amount of the lien reduced. If, after consideration of the petition and the information supporting the petition, the department decides to deny the request, the person may, within ninety days after receipt of the department's denial, file suit for removal or reduction of the lien. The person is entitled to removal of a lien filed under section 1(2)(a) of this act if they can prove by a preponderance of the evidence that the person is not a liable party under RCW 70.105D.040. The person is entitled to a reduction of the amount of the lien if they can prove by a preponderance of the evidence:
     (a) For liens filed under section 1(2)(a) of this act, the amount of the lien exceeds the remedial action costs the department incurred related to cleanup of the real property; and
     (b) For liens filed under section 1(2)(c) of this act, the amount of the lien exceeds the remedial action costs the department incurred related to cleanup of the real property or exceeds the increase of the fair market value of the real property solely attributable to the remedial action conducted by the department.

Sec. 3   RCW 70.105D.060 and 1994 c 257 s 13 are each amended to read as follows:
     The department's investigative and remedial decisions under RCW 70.105D.030 and 70.105D.050, its decisions regarding filing a lien under section 1 of this act, and its decisions regarding liable persons under RCW 70.105D.020(((8) and)) (16), 70.105D.040, 70.105D.050, and section 1 of this act shall be reviewable exclusively in superior court and only at the following times: (1) In a cost recovery suit under RCW 70.105D.050(3); (2) in a suit by the department to enforce an order or an agreed order, or seek a civil penalty under this chapter; (3) in a suit for reimbursement under RCW 70.105D.050(2); (4) in a suit by the department to compel investigative or remedial action; ((and)) (5) in a citizen's suit under RCW 70.105D.050(5); and (6) in a suit for removal or reduction of a lien under RCW 70.105D.050(7). Except in suits for reduction or removal of a lien under RCW 70.105D.050(7), the court shall uphold the department's actions unless they were arbitrary and capricious. In suits for reduction or removal of a lien under RCW 70.105D.050(7), the court shall review such suits pursuant to the standards set forth in RCW 70.105D.050(7).