(dissenting) — The majority concludes no right of contribution exists under The Model Toxics Control Act (MTCA), RCW 70.105D. I cannot agree. The majority's analysis overlooks many crucial considerations: (1) the MTCA was modeled after two federal statutes, both of which provide for a right of contribution; (2) the MTCA expressly provides for joint and several liability, which under Washington law creates a right of contribution; (3) language in the MTCA presupposes the existence of a right of contribution; and (4) recognition of a right of contribution furthers the remedial purposes of the MTCA. I would conclude a right of contribution exists under the MTCA.
The MTCA was patterned after two federal statutes: the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA),5 and CERCLA's 1986 reenactment, the Superfund Amendments and Reauthorization Act of 1986 (SARA).6 See Comment, Through the Looking Glass: A Comparison of Covered Persons, Defenses, and Liability Under CERCLA and the Washington State Model Toxic Control Act of 1988 (Initiative 97, 1988 General Election), 25 Gonz. L. Rev. 253, 254 & n.8 (1989-1990) (noting that the liability provisions of the MTCA follow "almost word-for-word" from CERCLA and SARA); majority, at 427. Given the similarity in the provisions between the MTCA and these federal statutes, the federal statutes and their construction *430in the federal courts should be considered persuasive authority on the issue currently before us. See Inland Empire Distrib. Sys., Inc. v. Utilities & Transp. Comm'n, 112 Wn.2d 278, 283, 770 P.2d 624, 87 A.L.R.4th 627 (1989).
Although CERCLA in its original form did not expressly create a right of contribution, almost all federal courts held that a right of contribution existed. See United States v. New Castle Cy., 642 F. Supp. 1258, 1262 (D. Del. 1986) (the courts are "in basic agreement" that a right to contribution exists under CERCLA); Sand Springs Home v. Interplastic Corp., 670 F. Supp. 913, 916-17 (N.D. Okla. 1987) (referring to numerous courts supporting a right of contribution and only one distinguishable case to the contrary); Colorado v. ASARCO, Inc., 608 F. Supp. 1484, 1491-92 (D. Colo. 1985) (citing many cases supporting a right of contribution and only one distinguishable case to the contrary); Note, Contribution Under CERCLA: Judicial Treatment After SARA, 14 Colum. J. Envtl. L. 267, 267 n.3, 275 n.40 (1989); Dubuc & Evans, Jr., Recent Developments Under CERCLA: Toward a More Equitable Distribution of Liability, 17 Envtl. L. Rep. 10197, 10200 (1987).
Moreover, the other model for the MTCA — SARA — expressly recognizes a right of contribution for response costs. 42 U.S.C. § 9613(f)(1). What we have then is a state statute patterned after two federal statutes, one of which expressly created a right of contribution and the other of which by judicial construction included this right. It would seem natural that if the drafters of the MTCA intended to deviate from the federal statutes and disallow contribution actions, they would have expressly stated this intent.
The majority does not reach this natural conclusion. Rather, it notes that the more recent federal legislation, SARA, expressly creates a right of contribution. The majority reasons that if the drafters of the MTCA had intended for a right of contribution to exist, they would have incorporated SARA's language into the state statute. See majority, at 427-28. I disagree with this reasoning. The majority has pointed to no other statutory language and to *431no legislative history supporting its conclusion that the drafters' failure to include express language represented a specific intent to prohibit contribution actions. The more logical inference is that the drafters of the MTCA assumed the express language was not needed when the right existed as a matter of implication even without the express language. Accordingly, on this basis alone I would construe the MTCA as supporting a right of contribution.
Moreover, the other language of the MTCA presents additional evidence that the drafters intended for a right of contribution to exist. In at least two respects, the MTCA's language reveals an intent to create this right. First, language in the MTCA presupposes a right of contribution generally: "A party who has resolved its liability to the state under this subsection shall not be liable for claims for contribution regarding matters addressed in the settlement." RCW 70.105D.040(4)(d). This language at least suggests that claims for contribution may be brought under other circumstances, that is, when a party has not settled with the State.
Second, and more importantly, the drafters expressly created joint and several liability for remedial action costs:
Each person who is hable under this section is strictly hable, jointly and severally, for all remedial action costs and for ah natural resource damages resulting from the releases or threatened releases of hazardous substances. . . .
(Italics mine.) RCW 70.105D.040(2).
Under Washington law, jointly and severally hable parties may maintain contribution actions against one another. RCW 4.22.040(1).7 Therefore, the MTCA's establishment of joint and several liability directly creates a right of contribution.
*432The majority refuses to take into account the clear mandate of RCW 4.22.040. The majority instead concludes the federal court's question precludes this court from analyzing any statute other than the MTCA. See majority, at 428. I cannot agree. The certified question does not require this court to analyze the MTCA in a vacuum.8 If the MTCA calls for joint and several liability, which in turn directly gives rise to a right of contribution, can it really be said that a right of contribution does not exist under the MTCA?
One can only wonder how the federal court will respond to the majority's truncated analysis. The majority's analysis naturally raises the question whether RCW 4.22.040 in conjunction with the MTCA creates a right of contribution. Because this is a matter of state law interpretation, the federal court will likely have to certify another question to this court, this time making explicit what is already implicit in its current question. No good purpose is served by prolonging the litigation in this case.
Even as a simple matter of policy, it is difficult to understand why the majority strains to deny a right of contribution under the MTCA. A right of contribution furthers the MTCA's remedial purposes by expediting and facilitating environmental cleanups. This point is emphasized in an affidavit from the Director of the Department of Ecology:
In order for private parties to have incentives to pursue independent remedial actions, it is essential that the judicial branch recognize a private right of contribution for independently incurred response costs. If the Model Toxics Control Act is interpreted to bar private claims for contribution, the effect could be to drastically reduce the number of independent *433remedial actions and thwart the statutory objective to clean up all hazardous waste sites in the state of Washington. In my experience as the Director, private parties are willing to take significant independent remedial actions, even where the responsibility for the hazardous waste condition is shared with other potentially responsible parties, provided that such private parties have a realistic opportunity to recover a fair share of the cost from other potentially responsible parties. If a right of contribution to enforce sharing of clean up and response costs is denied, the effect will be to seriously reduce and impede independent remedial actions.
Supplemental Record, Exhibit D, Attachment A, at 2.
Moreover, a right of contribution is advisable as a matter of policy in the context of joint and several Kability. As one commentator has phrased this point,
[J]oint and several liability and contribution are companion rights. Indeed, fairness dictates that when a court holds parties jointly and severally liable for a hazardous waste release, one party should not bear the entire burden of the judgment while the other parties escape liability.
(Footnote omitted.) Note, A Right of Contribution Under CERCLA: The Case for Federal Common Law, 71 Cornell L. Rev. 668, 689 (1985-1986). The United States Supreme Court has noted similar policy concerns:
Recognition of the right [of contribution] reflects the view that when two or more persons share responsibility for a wrong, it is inequitable to require one to pay the entire cost of reparation, and it is sound policy to deter all wrongdoers by reducing the likelihood that any will entirely escape liability.
(Footnote omitted.) Northwest Airlines, Inc. v. Transport Workers Union, 451 U.S. 77, 88, 67 L. Ed. 2d 750, 101 S. Ct. 1571 (1981).
I would answer the certified question by holding that a right of contribution exists under the MTCA.
Andersen, J., concurs with Johnson, J., with respect to the answer to the certified question.
Pub. L. No. 96-510, 94 Stat. 2767 (1980) (codified at 42 U.S.C. § 9601 et seq.).
Pub. L. No. 99-499, 100 Stat. 1613 (1986) (codified at 42 U.S.C. § 9601 et seq. and other provisions of the U.S.C.).
The text of RCW 4.22.040(1) reads as follows:
A right of contribution exists between or among two or more persons who are jointly and severally liable upon the same indivisible claim for the same injury, death or harm, whether or not judgment has been recovered against all or any of them. It may be enforced either in the original action or by a separate action brought for that purpose. The basis for contribution among hable persons is the comparative fault of each such person. However, the *432court may determine that two or more persons are to be treated as a single person for purposes of contribution.
The Legislature's restriction of joint and several liability in the 1986 tort reform act does not apply to actions relating to hazardous wastes or substances. See RCW 4.22.070(3)(a); Sofie v. Fibreboard Corp., 112 Wn.2d 636, 667-68, 771 P.2d 711, 780 P.2d 260 (1989).
The majority implicitly recognizes as much when it looks to federal statutes in its analysis of the question; the majority does not explain why certain statutes, but not others, may be used in interpreting the MTCA.