6011-S

AN ACT Relating to the cleanup of hazardous waste sites; amending RCW 70.105D.020 and 70.105D.080; adding a new section to chapter 70.105D RCW; and creating a new section.

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

Sec. 1. RCW 70.105D.020 and 1989 c 2 s 2 are each amended to read as follows:

(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., as 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 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.

(6) "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.

(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 70.105D.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.

(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 abandonment or disposal of containers of hazardous substances.

(11) "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. These terms also include the provision of drinking water, including the construction of necessary delivery systems, when undertaken to minimize any threat or potential threat to human health posed by a facility at which a release of a hazardous substance has occurred.

NEW SECTION. Sec. 2. A new section is added to chapter 70.105D RCW to read as follows:

For the purpose of conducting a remedial action or requiring potentially liable persons to take remedial action under this chapter, and for the purpose of making grants for remedial actions from the local toxics control account, the department shall give a high priority to facilities where the release of hazardous substances has resulted in the closing of drinking water wells or has contaminated a principal drinking water supply, or a substantial threat exists that such a closure or contamination may occur.

Sec. 3. RCW 70.105D.080 and 1993 c 326 s 1 are each amended to read as follows:

(1) Except as provided in RCW 70.105D.040(4)(d), a person may bring a private right of action, including a claim for contribution or for declaratory relief, against any other person liable under RCW 70.105D.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, except that the person may obtain up to double its damages for certain remedial action costs under the limitations of subsection (2) of this section. 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.

(2)(a) In an action to recover remedial action costs under this section, a person may recover up to double its costs of:

(i) Conducting studies to determine the nature and extent of the release at the facility;

(ii) Determining the identity of potentially liable persons with respect to the facility, and the relative contribution of such persons to the release at the facility; and

(iii) Taking interim remedial actions necessary to prevent imminent danger to public health or to the environment.

(b) To be eligible under this subsection, the person must establish the following:

(i) That prior to incurring the costs, the person provided notice to the defendant proposing a convenient method of negotiating the responsibilities for conducting and funding the remedial actions at the facility; and

(ii) The defendant without good cause refused to participate in such negotiations. In determining good cause under this subsection, the court shall consider the reasonableness of the method of negotiation proposed by the person seeking recovery, information available to the defendant at the time of the notice regarding whether the defendant was a liable person under RCW 70.105D.040, and the financial and personnel resources available to the defendant for participating in such negotiations.

(c) This subsection shall not apply to costs incurred by a person subsequent to the defendant's agreement to participate in conducting or funding remedial actions.

NEW SECTION. Sec. 4. By December 1, 1994, the department of ecology shall submit a report to the appropriate standing committees of the legislature on the means by which the state may exercise greater oversight of the competence of remedial action contractors. In conducting the report, the department shall review the practices and professional standards of individuals and firms providing services in all aspects of remedial action of hazardous substances, including sites listed on the hazardous waste site list established under chapter 70.105D RCW, the cleanup, removal, and replacement of underground storage tanks and home heating oil tanks, and other remedial actions. The report shall advise whether a state certification system may assist in ensuring that industry standards are observed in a greater proportion of cases, and, if so, what the elements of a certification system may include. The report shall also review existing industry standards and mechanisms by which such standards may be enforced upon individuals and firms doing business in this state.

In preparing the report, the department shall obtain the assistance and views of the department of labor and industries, as well as the views of business organizations, citizen groups, and such professional organizations in the state who represent remedial action contractors.