WAC 173-340-545   Private rights of action.  (1) Purpose. A private right of action is a legal claim authorized by RCW 70.105D.080 under which a person may recover costs of remedial action from other persons liable under the act. RCW 70.105D.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.

     (3) Public notice requirements. This subsection shall be used to determine if reasonable steps have been taken to provide advance public notice under subsection (2)(c)(iii) of this section. These public notice procedures apply only to interim actions or cleanup actions conducted as independent remedial actions after December 25, 1993. The notice may be combined with any notices under another law. For interim actions or cleanup actions conducted as independent remedial actions before December 25, 1993, the department recognizes little or no public notification typically occurred because there were no department-specified requirements other than the reporting requirements in this chapter. For these actions, this chapter contains no other specific public notice requirements or guidance, and the court will need to determine such requirements, if any, on a case-by-case basis. For independent remedial actions consisting of site investigations and studies, it is anticipated that public notice would not normally be done since often these early phases of work are to determine if a release even requires an interim action or cleanup action. For the purposes of this section only, unless the court determines other notice procedures are adequate for the site-specific circumstances, the following constitutes adequate public notice for independent remedial actions and supersedes the requirements in WAC 173-340-600:

     (a) Except for emergency remedial actions, written notification has been mailed at least fifteen days before beginning construction of the interim action or cleanup action to the last known address of the following persons:

     (i) The department (which shall publish a summary of the notice in the Site Register);

     (ii) The local jurisdictional health department/district;

     (iii) The town, city or county with land use jurisdiction;

     (iv) The land owners identified by the tax assessor at the time the action is begun for that portion of the facility where the interim action or cleanup action is being conducted; and

     (v) Persons potentially liable under RCW 70.105D.040 known to the person conducting the interim action or cleanup action. In identifying persons potentially liable under RCW 70.105D.040 who are to be noticed under this provision, the person conducting the remedial action need only make a reasonable effort to review information currently readily available. Where the interim action or cleanup action is complex, written notification before beginning detailed design is recommended but not required. For emergency remedial actions, written notice should be provided as soon as practicable;

     (b) The written notification includes: A brief statement describing the releases being remedied and the interim actions or cleanup actions expected to be conducted; the schedule for these interim actions or cleanup actions; and, for persons potentially liable under RCW 70.105D.040 known to the person conducting the interim actions or cleanup actions, a statement that they could be held liable for the costs of remedial actions being conducted; and

     (c) Posting a sign at the site at a location visible to the general public indicating what interim actions or cleanup actions are being conducted and identifying a person to contact for more information. Except for emergency remedial actions this sign should be posted not later than the beginning of construction of any interim action or cleanup action and should remain posted for the duration of the construction. For emergency remedial actions posting of a sign should be done as soon as practicable;

     (4) Technical standards and evaluation criteria. This subsection shall be used to determine if the remedial actions have been conducted substantially equivalent with the technical standards and evaluation criteria contained in this chapter. For the purposes of this section, remedial actions shall be deemed to comply with subsection (2)(c)(iv) of this section if they have been conducted substantially equivalent with the technical standards and evaluation criteria contained in the following sections, where applicable. Except for a restrictive covenant under WAC 173-340-440, where documents are required by the following sections, the documents prepared need not be the same in title or format. Other documents can be used in place of the documents specified in these sections as long as sufficient information is included in the record to serve the same purpose. When using the following sections to determine substantial equivalence it should be recognized that there are often many alternative methods for cleanup of a facility that would comply with these provisions. When this chapter requires a consultation with, or an approval or determination by the department, such a consultation, approval or determination is not necessary for remedial actions to meet the substantial equivalence requirement under this section; however, the remedial action must still be conducted substantially equivalent with the substantive requirements of those provisions. In applying these sections, reference should be made to the other applicable sections of this chapter, with particular attention to WAC 173-340-130 (Administrative principles), WAC 173-340-200 (Definitions), and WAC 173-340-210 (Usage).

     (a) WAC 173-340-350 (Remedial investigation/feasibility study);

     (b) WAC 173-340-355 (Development of cleanup action alternatives that include remediation levels);

     (c) WAC 173-340-357 (Quantitative risk assessment of cleanup action alternatives);

     (d) WAC 173-340-360 (Selection of cleanup actions);

     (e) WAC 173-340-380 (Cleanup action plan);

     (f) WAC 173-340-400 (Cleanup actions);

     (g) WAC 173-340-410 (Compliance monitoring requirements);

     (h) WAC 173-340-430 (Interim actions);

     (i) WAC 173-340-440 (Institutional controls);

     (j) WAC 173-340-450 (Releases from underground storage tanks);

     (k) WAC 173-340-700 through 173-340-760 (Cleanup standards); and

     (l) WAC 173-340-810 through 173-340-850 (General provisions).



[Statutory Authority: Chapter 70.105D RCW. 01-05-024 (Order 97-09A), § 173-340-545, filed 2/12/01, effective 8/15/01.]