BILL REQ. #:  H-1535.1 

READ FIRST TIME 02/11/09.   

     AN ACT Relating to establishing a statewide CBRNE response program; amending RCW 43.43.938; adding a new chapter to Title 43 RCW; creating new sections; and making an appropriation.

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

NEW SECTION.  Sec. 1   (1) The legislature finds that the threat of an incident caused by a chemical, biological, radioactive, nuclear, or explosive agent occurring in the state poses a severe threat to the health, safety, and welfare of the citizens of the state of Washington. In order to mitigate any damage that may be caused by CBRNE incidents, it is necessary that the state have a coordinated and comprehensive plan to respond to these dangerous and deadly incidents.
     (2) The legislature further finds that the current system of relying almost exclusively on local jurisdictions to respond to CBRNE incidents is inadequate because it stretches the capabilities of local jurisdictions, it lacks uniformity in training, equipment, and response standards, and it hinders the ability of jurisdictions to cooperate in the event of a catastrophic incident. Major portions of the state lack protection from CBRNE incidents because many local jurisdictions simply do not have the capabilities to respond to these incidents.
     (3) The legislature further finds that an active response capability will mitigate the need for large scale environmental cleanup efforts. Additionally, the legislature recognizes that future appropriations and grant proceeds are often predicated upon the current success of a program. Accordingly, the legislature intends to begin the implementation of a statewide CBRNE response program by funding the program in two phases.

NEW SECTION.  Sec. 2   The director shall establish and maintain a statewide CBRNE response program. However, the overall statewide CBRNE response program described and organized pursuant to sections 3 through 14 of this act shall be developed in two phases as follows:
     (1) Phase one shall consist of the following:
     (a) The state treasurer shall transfer funds as may be necessary from the local toxics control account to the statewide CBRNE response account, established in section 11 of this act, for the CBRNE program design and development phase during the 2009-2011 biennium.
     (b) The director shall:
     (i) Provide for appropriate staff and administrative support necessary to design a statewide CBRNE program to fully develop its infrastructure.
     (ii) Create and adopt any rules, procedures, policies, or standards that are necessary to implement and administer the provisions of this chapter.
     (iii) Create a policy advisory group and an operations advisory group to assist in the design and development of the program as specified under section 7 of this act.
     (iv) Identify the specific start-up costs to train and equip each CBRNE regional response team to meet a type one state defined standard.
     (v) Analyze in detail the costs to operate and sustain a fully implemented CBRNE program, as described in phase two, and as designed during phase one of the program.
     (vi) Develop and sign an interlocal agreement with each CBRNE regional response team as specified under section 6 of this act.
     (vii)     Develop a cost recovery program as specified under section 12 of this act.
     (viii) Seek and acquire supplementary grants from public and private sources, in addition to identified sources, to help fund the operation and administration of the program as specified under section 13 of this act.
     (2) Phase two shall consist of the following:
     (a) The state treasurer shall transfer such funds as may be necessary from the local toxics control account, or from another source or sources identified during phase one, to the statewide CBRNE response account for the full implementation and operation of the statewide CBRNE program.
     (b) The director shall:
     (i) Implement and administer a fully operational statewide CBRNE response program as provided for under this act and as designed during phase one.
     (ii) Procure the equipment and logistical support necessary to achieve and sustain a type one capability for each CBRNE response team as defined during phase.
     (iii) Implement an appropriate training and exercise program that achieves and sustains the standards defined during phase one.
     (iv) Implement an aggressive cost recovery program as specified under section 12 of this act.
     (v) Monitor mission effectiveness and program efficiency by carefully measuring team performance against established standards; by evaluating team capabilities through annual exercises; by measuring team readiness through periodic inspections; and by evaluating program administration through periodic audits.

NEW SECTION.  Sec. 3   The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.
     (1) "CBRNE agent" means a chemical, biological, radioactive, nuclear, or explosive agent.
     (2) "CBRNE incident" means an incident creating a danger or the possibility of a danger to persons, property, or the environment as a result of spillage, seepage, fire, explosion, or release of a CBRNE agent.
     (3) "Director" means the director of fire protection in the Washington state patrol.

NEW SECTION.  Sec. 4   (1) The overall statewide CBRNE response program must include:
     (a) The division of the state into five CBRNE response regions;
     (b) A network of two regional CBRNE teams, one hazmat and one bomb, to respond to CBRNE incidents within their respective regions and to operate outside their respective regions to assist other regional teams when needed;
     (c) Standards for training, equipment, and operational procedures for regional teams and other responders concerning responses to CBRNE incidents;
     (d) Procedures for reimbursing regional teams for costs as a result of approved responses; and
     (e) Procedures for recovering response costs from parties responsible for causing a CBRNE incident.
     (2) The director shall adopt any rules necessary to implement and administer the provisions of this chapter.
     (3) The requirement of the program under this chapter is subject to appropriation by the legislature.

NEW SECTION.  Sec. 5   (1) The director shall divide the state into five CBRNE response regions. In making this division, the director must consider: (a) The history of any CBRNE or hazardous materials incident locations throughout the state and the factors that contribute to those incidents; (b) the current geographical distribution of CBRNE or hazardous materials responders; and (c) any existing regional divisions in the state.
     (2) After consultation with the policy and operations advisory groups established under section 7 of this act, the director may, with good cause, modify boundaries of the established regions.

NEW SECTION.  Sec. 6   (1) After consultation with the policy and operations advisory groups established under section 7 of this act, the director shall determine the number of technicians and the level of training required of the response teams for that region. These determinations must be made based upon the risk that each region faces from a CBRNE incident.
     (2) The director shall contract with two regional response teams from each of the five regions. The director may contract only with a unit of local government with respect to a regional response team. Units of local government that are located in the same region may enter into intergovernmental agreements for the formation of a regional response team.

NEW SECTION.  Sec. 7   (1) Two advisory groups are created to assist the director in implementing and managing the program. The policy advisory group will advise the director on budget, staffing, policy, and other management-related issues. The operations advisory group will advise the director on technical and operational issues, including training, equipment, response, and performance standards. Both advisory groups serve a strictly advisory role to the director in all matters.
     (2) The policy advisory group shall consist of six members appointed by the director and shall include: (a) Two members nominated by and representing the Washington association of sheriffs and police chiefs; (b) two members nominated by and representing the Washington state fire chiefs association; (c) one member nominated by and representing the Washington state emergency management council; and (d) one member representing the director's office.
     (3) The operations advisory group shall consist of voting and nonvoting members. Voting members shall include two members from each CBRNE response region appointed by and representing the contracting units of local government under section 6(2) of this act. Nonvoting members shall include one appointed representative from each of the following state agencies: Ecology, health, transportation, Washington state patrol office of the state fire marshal, military, and the emergency management division of the military department. In addition, the director shall seek appointment of one tribal nation representative and two private sector representatives.
     (4) All members serve at the discretion of the appointing authority.
     (5) Members shall be reimbursed for travel expenses as provided in RCW 43.03.050 and 43.03.060.

NEW SECTION.  Sec. 8   (1) The primary duty of a regional response team is to stabilize a CBRNE incident. Regional response teams are limited to emergency responses and the evaluation and documentation functions arising from CBRNE incidents that threaten life, property, or the environment. A regional response team must respond to the best of its ability, subject to the limitations of available equipment and personnel. Regional response teams must work with known local hazard industries, emergency response and management agencies, and local emergency planning committees to ensure an appropriate integration of plans, training, and operational response.
     (2) A regional response team may sample, test, analyze, treat, remove, recover, package, monitor, or track the involvement of a CBRNE agent only if it is incidentally necessary to identify a CBRNE agent, prevent the release or threat of a release of a CBRNE agent, or stabilize a CBRNE incident.
     (3) The activities of a regional response team are limited to those that can be accomplished safely to stabilize a CBRNE incident and, except as may be incidentally necessary, do not include the transport, storage, disposal, or remedial cleanup of CBRNE agents.
     (4) A regional response team is not required to maintain general security or safety perimeters, locate underground utilities, ensure appropriate traffic control services, conduct hydrological investigations and analysis, or provide testing, removal, or disposal of underground storage tank contamination at or near the CBRNE incident to which the team is dispatched.

NEW SECTION.  Sec. 9   The director must establish procedures for the dispatch of a regional response team to a CBRNE incident. These procedures must include standards for the evaluation of a CBRNE incident by a state or local agency and, if the incident cannot be controlled with local resources, a process for the state or local agency to request the assistance of a regional response team.

NEW SECTION.  Sec. 10   (1) If a unit of local government requests the assistance of a regional response team under the dispatch procedures set forth under section 9 of this act, then, upon the team's arrival, the unit of local government must provide the team with site-specific and geographical and topological information sufficient to support the tactical decisions required by the situation.
     (2) A unit of local government, upon request by the appropriate regional response team, must provide any preplanning information that the team reasonably requests. This information may include, without limitation:
     (a) Facility site-specific floor plans and occupancy information;
     (b) Local maps; and
     (c) An inventory of the types and levels of emergency operational support and resources available locally.
     (3) A unit of local government, upon request by the appropriate regional response team, must provide any site security that the team reasonably requests. This may include, without limitation: (a) Site perimeter control; (b) force protection; and (c) site safety searches or sweeps.
     (4) A unit of local government, upon request by the appropriate regional response team, must provide any logistical support that the team reasonably requests. This support may include, without limitation: (a) Food and water; (b) a source of water for fire suppression and decontamination; (c) fuel and other supplies; (d) shelter; and (e) interoperable communications.
     (5) A unit of local government, upon request by the appropriate regional response team, must provide a national incident management system compliant incident command and control structure to ensure all tactical decisions and operations are carried out in a safe and uniform manner by all participating responders.

NEW SECTION.  Sec. 11   (1) The statewide CBRNE response account is created in the custody of the state treasurer.
     (2) The account shall contain all of the following:
     (a) All moneys recovered from cost reimbursements under section 12 of this act;
     (b) All grant proceeds not otherwise required to be maintained in a separate account;
     (c) All moneys transferred under section 2 of this act; and
     (d) Any other moneys appropriated or transferred to the account by the legislature.
     (3) Expenditures from the account may be used only as provided in this act. Only the director or his or her designee may authorize expenditures from the account. The account is subject to allotment procedures under chapter 43.88 RCW, but an appropriation is not required for expenditures.

NEW SECTION.  Sec. 12   (1) If a specific person or entity is responsible for the necessary expenses incurred by the director or a CBRNE regional response team pertaining to its response to a CBRNE incident, then the director shall notify the responsible party by appropriate order. The director may not issue an order pertaining to a project or activity that was completed more than five years prior to the date of the proposed issuance of the order. The order must state the findings of the director concerning liability, the amount of necessary expenses incurred in conducting the response, and a notice that the amount is due and payable immediately upon receipt of the order.
     (2) The director may, upon application from the recipient of an order received within thirty days after the receipt of the order, reduce or set aside, in its entirety, the amount due and payable if it appears from the application, and from any further investigation the director may desire to undertake, that a reduction or setting aside is just and fair under all the circumstances.
     (3) If the responsible party fails to pay the amount specified in the order issued by the director or if an application has been made within thirty days as provided in this section and the amount provided in the order issued by the department subsequent to such application is not paid within fifteen days after receipt thereof, the attorney general, upon request of the director, shall bring an action on behalf of the state in the superior court of Thurston county or any county in which the person to which the order is directed does business, or in any other court of competent jurisdiction, to recover the amount specified in the final order of the director.
     (4) No order issued under this section may be construed as an order within the meaning of RCW 43.21B.310 and is not appealable to the hearings board.
     (5) All moneys recovered under this section must be deposited into the statewide CBRNE response account established under section 11 of this act.
     (6) For the purposes of this section, "necessary expenses" means the expenses incurred by the director and assisting state or local agencies for (a) investigating the source of the incident; (b) conducting actions to stabilize the CBRNE incident; and (c) enforcing the provisions of this chapter and collecting for damages caused by a CBRNE incident.

NEW SECTION.  Sec. 13   (1) The director shall establish procedures to actively seek grants from public or private sources for the operation and administration of the statewide CBRNE response program. The director shall work in cooperation with the state military department and local jurisdictions to obtain grant funding for the program.
     (2) Grant proceeds must be deposited into the statewide CBRNE response account, or if required as a condition of the grant into a dedicated grant fund.

Sec. 14   RCW 43.43.938 and 1995 c 369 s 18 are each amended to read as follows:
     (1) Wherever the term state fire marshal appears in the Revised Code of Washington or the Washington Administrative Code it shall mean the director of fire protection.
     (2) The chief of the Washington state patrol shall appoint an officer who shall be known as the director of fire protection. The board, after consulting with the chief of the Washington state patrol, shall prescribe qualifications for the position of director of fire protection. The board shall submit to the chief of the Washington state patrol a list containing the names of three persons whom the board believes meet its qualifications. If requested by the chief of the Washington state patrol, the board shall submit one additional list of three persons whom the board believes meet its qualifications. The appointment shall be from one of the lists of persons submitted by the board.
     (3) The director of fire protection may designate one or more deputies and may delegate to those deputies his or her duties and authorities as deemed appropriate.
     (4) The director of fire protection, in accordance with the policies, objectives, and priorities of the fire protection policy board, shall prepare a biennial budget pertaining to fire protection services. Such biennial budget shall be submitted as part of the Washington state patrol's budget request.
     (5) The director of fire protection, shall implement and administer, within constraints established by budgeted resources, the policies, objectives, and priorities of the board and all duties of the chief of the Washington state patrol that are to be carried out through the director of fire protection. Such administration shall include negotiation of agreements with the state board for community and technical colleges, the higher education coordinating board, and the state colleges and universities as provided in RCW ((43.63A.320)) 43.43.934. Programs covered by such agreements shall include, but not be limited to, planning curricula, developing and delivering instructional programs and materials, and using existing instructional personnel and facilities. Where appropriate, such contracts shall also include planning and conducting instructional programs at the state fire service training center.
     (6) The director of fire protection shall establish and maintain the statewide CBRNE response program required under this act.
     (7) The chief of the Washington state patrol, through the director of fire protection, shall seek the advice of the board in carrying out his or her duties under law.

NEW SECTION.  Sec. 15   The sum of one million two hundred thousand dollars, or as much thereof as may be necessary, is appropriated for the biennium ending June 30, 2011, from the local toxics control account to the Washington state patrol for the purposes of implementing phase one of the statewide CBRNE response program.

NEW SECTION.  Sec. 16   Sections 2 through 13 of this act constitute a new chapter in Title 43 RCW.