Toxics Cleanup Program |
Policies and Guidance |
List of Policies...
Toxics Cleanup Program |
Policies and Guidance |
List of Policies...
APPROVED BY: ________________
PRO 800 OBTAINING A SUBPOENA OR WARRANT TO ACCESS PROPERTY OR INFORMATION
ACTION BY: ACTION:
Site Manager 1. Provides reasonable notice to the
site owner and operator consistent with
POL 800A or POL 800B.
2. Attempts and fails to access site
and/or information.
3. In consultation with Section
Supervisor, informs the Program Manager
about the need for a warrant or
subpoena and provides supporting
evidence.
Program Manager 4. Requests permission from the
Director's Office to pursue Attorney
General assistance in acquiring a
warrant.
Site Manager 5. Upon receiving permission from the
Program Manager to continue, contacts
the Ecology Division of the Attorney
General's Office for assistance.
Assistant Attorney General 6. Requests specific information from
the site manager to prepare the
Affidavit In Support Of The Application
For Access.
Site Manager 7. Provides information or prepares
affidavit at the AAG's request.
Assistant Attorney General 8. Prepares warrant or subpoena.
9. Files warrant or subpoena with
court.
10. Gets judge's signature on the
warrant or subpoena.
11. Arranges for service of the warrant
or subpoena.
Site Manager 12. Accompanies process server to the
site and gains access.
13. Conducts investigation.
14. Prepares a report, including an
inventory of samples and evidence
collected.
Assistant Attorney General 15. Provides the court with
investigation report and
sample/evidence inventory showing that
the warrant or subpoena has been
executed and the inspection completed
within the specified time frame.
[INTENT TO ACCESS PROPERTY]
[SAMPLE LETTER]
[Date]
[OWNER or OPERATOR NAME]
[ADDRESS]
RE: Property Access Pursuant To The Model Toxics Control Act (Ch. 70.105D RCW)
Dear [OWNER or OPERATOR NAME]
Under the Model Toxics Control Act (Ch. 70.105D RCW) the Department of Ecology is authorized to enter property, to review documents, and to conduct investigations and cleanup of hazardous waste sites. Unless earlier access is granted by an owner or operator of a facility, the Department is required to provide owners and operators with either, a 24 hour notice in person or over the phone, or a 3 day written notice by regular mail, explaining the need and intent to access property.
Ecology intends to begin [AN INVESTIGATION] [CLEANUP WORK] at the above mentioned site on [DATE]. During this [INVESTIGATION/CLEANUP], Ecology employees and/or contractors plan to [TAKE SOIL AND WATER SAMPLES, SURVEY THE PROPERTY, TAKE PHOTOGRAPHS, AND PHOTOCOPY WRITTEN DOCUMENTS FROM YOUR FILES.]
If samples are taken, you or your contractors may obtain a split sample for independent analysis as long as this does not interfere with the Department's activities. The Department will make sampling results available as soon as it is reasonably possible. We anticipate this phase of the [INVESTIGATION/CLEANUP] will take approximately [NUMBER] day(s).
The Toxics Cleanup Program wishes to pursue this action in a cooperative manner to ensure an efficient, prompt and effective cleanup of the hazardous waste site. Please be aware that it is not our intention to disrupt the ongoing operations at your site and we will make every effort to avoid doing so.
In preparation for the Department's entry to your facility, please complete the enclosed consent form and have it ready when the investigator arrives on [DATE] at approximately [TIME]. If you cannot be present at this time, please designate an appropriate contact person who is authorized to allow the investigator access to the required locations and documents at your facility. Your cooperation in this matter is appreciated.
Enclosed please find a copy of Ch. 70.105D RCW, the Model Toxics Control Act and Ch. 173-340 WAC, the implementing regulations for the act. If you have any questions regarding this notice or the Department's intentions at your site, please call [SITE MANAGER OR ECOLOGY CONTACT] at [PHONE]. The Department will keep you informed of pertinent information as the [INVESTIGATION/CLEANUP] proceeds.
Sincerely,
[SECTION HEAD]
Department of Ecology
Toxics Cleanup Program
[REGIONAL OFFICE]
Enclosures
[FORM 1]
NAME:
ADDRESS:
PHONE:
I give my consent to the employees, agents, and contractors of the Department of Ecology to enter and have access to my property at the above address, at reasonable times for the investigation and cleanup of the release of hazardous substances at that site.
______________________________________
(Signature & Date)
[FORM 2]
NAME:
ADDRESS:
PHONE:
I give my consent to the employees, agents, and contractors of the Department of Ecology to enter and have access to my property at the above address, at reasonable times for the investigation and cleanup of the release of hazardous substances at that site.
Access to the property may be for any of the following purposes:
Please Initial The Following:
____ 1. The drilling of holes for subsurface soil, water, and gas investigations;
____ 2. The taking of air, water, and soil samples;
____ 3. Constructing and maintaining monitoring and extraction wells;
____ 4. Surveying, staking subsurface utility locations, and other actions
related to the
investigation and monitoring of subsurface contamination; and
____ 5. Reviewing and copying written materials pertinent to the release of
hazardous
substances at the site.
____ 6. To conduct actions to cleanup a release or threatened release of
hazardous
substances.
__________________________________
(Signature & Date)
Office of the Attorney General
Ecology Division
4407 Woodview Drive S.E.
Mail Stop QA-44
Olympia, WA 98504-8077
(206) 459-6157
IN THE MATTER OF ) No.[#]
)
[NAME OF OWNER/OPERATOR] )
) AFFIDAVIT IN SUPPORT OF
) APPLICATION FOR
) [EMERGENCY] ACCESS
) FOR INVESTIGATION AND
) REMEDIAL ACTION UNDER
) RCW 70.105D.030(1)(a), (b)
TO: THE SUPERIOR COURT JUDGE
SUPERIOR COURT OF _____________ COUNTY,
WASHINGTON
(Name of Ecology Inspector or Agent), being first duly sworn upon oath, according to law, deposes and says:
1. I am (describe official title, function and agency affiliation).
2. As part of my duties with the Department of Ecology, (describe specific job functions which brought this about).
3. (Detailed description of conditions comprising emergency).
4. Sections (a) and (b) of RCW 70.105D.030(1) respectively authorize the Washington Department of Ecology to (a) investigate and to (b) remediate releases or threatened releases of hazardous substances.
Both subparts (a) and (b) contain identical language providing that "[i]f 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 [(a) investigation or (b) remediation]." Id. Furthermore, both (a) and (b) provide that "[t]he department shall give reasonable notice before entering the property unless an emergency prevents such notice." Id. [For other than emergencies, include a statement that you gave reasonable notice before attempting to enter the property. State the form of the notice, i.e. written or verbal, the date of notice and that access was denied.]
This affidavit is made in support of an application for a warrant to enter, inspect, sample, monitor, review, and, [if necessary] to effect [emergency] remedial action to abate a condition which presents an [imminent danger] [threat] to human life and public health. [human health and the environment]
5. I am also seeking a warrant based on my belief that a specific condition exists on or at (name of premises) which requires [immediate] corrective action pursuant to RCW 70.105D.030(1)(b). This belief is based on description of inspection . . . DELETE THIS FOR THE REAL ONE: [Describe the chronology of the inspection or otherwise how information came to the Department of Ecology which led to the conclusion that the warrant here applied for is essential to carry out the [emergency] remediation called for in RCW 70.105D.030(1)(b).]
6. For the purpose of remedying the emergency condition on or at (name of premises), it will be necessary for contractors who are agents of the Department of Ecology to perform the following activities: Enumerate specific remediation to be accomplished).
7. The remediation will be conducted as soon as practicable after issuance of the warrant.
8. A return will be made to the Court at the completion of the remediation.
_________________________________
(Signature of Affiant)
(Job title of Affiant)
Washington Department of Ecology
SUBSCRIBED AND SWORN to before me this _____ day of _________________, 1991.
__________________________________
NOTARY PUBLIC, in and for the
State of Washington, residing at
_____________________________.
My commission expires ______________.
Office of the Attorney General
Ecology Division
4407 Woodview Drive S.E.
Mail Stop QA-44
Olympia, WA 98504-8077
(206) 459-6157
IN THE MATTER OF ) No.[#]
)
[NAME OF OWNER/OPERATOR] )
) WARRANT FOR [EMERGENCY]
) ACCESS FOR INVESTIGATION AND
) REMEDIAL ACTION UNDER
) RCW 70.105D.030(1)(a), (b)
TO: [name of Ecology officer] WASHINGTON DEPARTMENT OF ECOLOGY, AND ANY OTHER AUTHORIZED OFFICER OR OFFICIAL OF THE STATE OF WASHINGTON, COUNTY OF [NAME OF COUNTY], ANY SHERIFF, FIRE MARSHALL, AND ANY AUTHORIZED U.S. ENVIRONMENTAL PROTECTION AGENCY OFFICER OR UNITED STATES MARSHALL.
Application having been made by [NAME OF ECOLOGY INSPECTOR OR AGENT], Washington Department of Ecology Agent, stating that at the following premises located in [NAME OF COUNTY] County, Washington:
[NAME AND ADDRESS OF TARGET PREMISES] that [DESCRIBE THE SPECIFIC CONDITIONS CREATING THE EMERGENCY OR REASONS FOR ACCESS].
The Court has reasonable grounds to believe that conditions exist [URGENTLY] requiring inspection and remediation pursuant to RCW 70.105D.030(1)(a) and (b) and that therefore there exist conditions supporting the issuance of a warrant for inspection and remedial action under the Model Toxics Control Act, RCW 70.105D.030 (1)(a) and (b).
IT IS HEREBY ORDERED AND COMMANDED that the Department of Ecology, through its duly authorized representatives and contractors, the County SHERIFF for [NAME OF COUNTY], the County Fire Marshall for [NAME OF COUNTY], or any other authorized agent of the U.S. Environmental Protection Agency or U.S. Marshall, shall IMMEDIATELY AND WITHOUT DELAY be authorized and have entry to the above-described premises, as follows:
[PARAGRAPH ABOUT WHAT'S GOING TO HAPPEN THERE-SPECIFICALLY ENUMERATE THE ACTIVITIES WHICH ARE TO OCCUR UPON THE TARGET PREMISES; FOR EXAMPLE, INSPECTION, DRILLING, ECOLOGY CONTRACTORS WORK, ETC. ALSO STATE HOW MANY PEOPLE WILL BE NECESSARY TO CARRY OUT THESE ACTIVITIES ON THE SITE.]
IT IS FURTHER ORDERED that a copy of this warrant shall be left at the premises at the time of entry, and that an inventory or list describing any and all records copied, samples taken, evidence seized and sketches or diagrams made be furnished by the Department of Ecology authorized representative to [NAME OF PREMISES OWNER].
IT IS FURTHER ORDERED that the duration of this inspection and remedial action shall be of such reasonable length to enable the Department of Ecology representative to satisfactorily complete such inspection and remediation, but in no case later than [TEN (10) OR WHATEVER YOU THINK IS NECESSARY] days from the date hereof.
IT IS FURTHER ORDERED that a prompt return of this warrant and any inventory shall be made to this Court showing that the warrant has been executed and that the inspection has been completed within the time specified above.
DATED this __________ day of ______________________, 19______, at LOCATION WHERE WARRANT ISSUED].
________________________________________________
SUPERIOR COURT JUDGE, [NAME OF COUNTY]
COUNTY