AN ACT Relating to the energy facility site evaluation council; amending RCW 43.21F.055, 70.105.110, 80.50.020, 80.50.040, 80.50.060, 80.50.071, 80.50.075, 80.50.080, 80.50.090, 80.50.100, 80.50.120, 80.50.130, 80.50.140, 80.50.160, 80.50.175, 80.50.180, 80.50.190, and 90.48.262; reenacting and amending RCW 43.200.040 and 80.50.150; creating new sections; decodifying RCW 80.50.800; and repealing RCW 80.50.030.

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

NEW SECTION. Sec. 1. The energy facility site evaluation council is hereby abolished and its powers, duties, and functions are hereby transferred to the department of ecology.

NEW SECTION. Sec. 2. All reports, documents, surveys, books, records, files, papers, or written material in the possession of the energy facility site evaluation council shall be delivered to the custody of the department of ecology. All cabinets, furniture, office equipment, motor vehicles, and other tangible property employed by the energy facility site evaluation council shall be made available to the department of ecology. All funds, credits, or other assets held by the energy facility site evaluation council shall be assigned to the department of ecology.

Any appropriations made to the energy facility site evaluation council shall, on the effective date of this act, be transferred and credited to the department of ecology.

Whenever any question arises as to the transfer of any personnel, funds, books, documents, records, papers, files, equipment, or other tangible property used or held in the exercise of the powers and the performance of the duties and functions transferred, the director of financial management shall make a determination as to the proper allocation and certify the same to the state agencies concerned.

NEW SECTION. Sec. 3. All classified employees of the energy facility site evaluation council are transferred to the jurisdiction of the department of ecology. All employees classified under chapter 41.06 RCW, the state civil service law, are assigned to the department of ecology to perform their usual duties upon the same terms as formerly, without any loss of rights, subject to any action that may be appropriate thereafter in accordance with the laws and rules governing state civil service.

NEW SECTION. Sec. 4. All rules and all pending business before the energy facility site evaluation council shall be continued and acted upon by the department of ecology. All existing contracts and obligations shall remain in full force and shall be performed by the department of ecology.

NEW SECTION. Sec. 5. The transfer of the powers, duties, functions, and personnel of the energy facility site evaluation council shall not affect the validity of any act performed by such employee prior to the effective date of this act.

NEW SECTION. Sec. 6. If apportionments of budgeted funds are required because of the transfers directed by sections 2 through 5 of this act, the director of financial management shall certify the apportionments to the agencies affected, the state auditor, and the state treasurer. Each of these shall make the appropriate transfer and adjustments in funds and appropriation accounts and equipment records in accordance with the certification.

NEW SECTION. Sec. 7. Nothing contained in sections 1 through 6 of this act may be construed to alter any existing collective bargaining unit or the provisions of any existing collective bargaining agreement until the agreement has expired or until the bargaining unit has been modified by action of the personnel board as provided by law.

Sec. 8. Section 5, chapter 295, Laws of 1981 and RCW 43.21F.055 are each amended to read as follows:

The office shall not intervene in any regulatory proceeding before the Washington utilities and transportation commission or proceedings of utilities not regulated by the commission. Nothing in this chapter abrogates or diminishes the functions, powers, or duties of the ((~~energy facility site evaluation council~~)) department of ecology pursuant to chapter 80.50 RCW, the utilities and transportation commission pursuant to Title 80 RCW, or other state or local agencies established by law.

The office shall avoid duplication of activity with other state agencies and officers and other persons.

Sec. 9. Section 4, chapter 19, Laws of 1983 1st ex. sess. as amended by section 5, chapter 161, Laws of 1984 and by section 91, chapter 287, Laws of 1984 and RCW 43.200.040 are each reenacted and amended to read as follows:

(1) There is hereby created a nuclear waste board. The board shall consist of the following members: The chairman of the advisory council who shall also serve as chairman of the review board, the director of ecology or the director's designee, the director of the energy office or the director's designee, the commissioner of public lands or the commissioner's designee, the secretary of social and health services or the secretary's designee, ((~~the chairman of the energy facility site evaluation council or the chairman's designee,~~)) the director of the Washington state water research center or the director's designee, four members of the state senate, appointed by the president of the senate, and four members of the house of representatives, appointed by the speaker, who shall be selected from each of the caucuses in each house, but no more than two members of each house shall be of the same political party. Legislative members shall be ex officio nonvoting members of the board and shall serve while members of the legislature, at the pleasure of the appointing officer.

(2) Nonlegislative members shall be compensated in accordance with RCW 43.03.240 and shall receive reimbursement for travel expenses incurred in the performance of their duties in accordance with RCW 43.03.050 and 43.03.060. Legislative members shall receive reimbursement for travel expenses incurred in the performance of their duties in accordance with RCW 44.04.120. The legislature shall seek reimbursement from available sources, including the federal government, for legislative expenditures incurred pursuant to the provisions of this chapter.

Sec. 10. Section 11, chapter 101, Laws of 1975-'76 2nd ex. sess. as amended by section 3, chapter 237, Laws of 1984 and RCW 70.105.110 are each amended to read as follows:

(1) With the exception of subsection (2) of this section, nothing in this chapter shall apply to any radioactive waste or radioactive material.

(2) Nothing in this chapter shall alter, amend, or supersede the provisions of chapter 80.50 RCW, except that, notwithstanding any provision of chapter 80.50 RCW, regulation of dangerous wastes associated with energy facilities from generation to disposal shall be solely by the department pursuant to chapter 70.105 RCW. ((In the implementation of said section, the department shall consult and cooperate with the energy facility site evaluation council and, in order to reduce duplication of effort and to provide necessary coordination of monitoring and on-site inspection programs at energy facility sites, any on-site inspection by the department that may be required for the purposes of this chapter shall be performed pursuant to an interagency coordination agreement with the council.))

(3) To facilitate the implementation of this chapter, the ((~~energy facility site evaluation council~~)) department may require certificate holders to remove from their energy facility sites any dangerous wastes, controlled by this chapter, within ninety days of their generation.

Sec. 11. Section 2, chapter 45, Laws of 1970 ex. sess. as last amended by section 2, chapter 371, Laws of 1977 ex. sess. and RCW 80.50.020 are each amended to read as follows:

(1) "Applicant" means any person who makes application for a site certification pursuant to the provisions of this chapter;

(2) "Application" means any request for approval of a particular site or sites filed in accordance with the procedures established pursuant to this chapter, unless the context otherwise requires;

(3) "Person" means an individual, partnership, joint venture, private or public corporation, association, firm, public service company, political subdivision, municipal corporation, government agency, public utility district, or any other entity, public or private, however organized;

(4) "Site" means any proposed or approved location of an energy facility;

(5) "Certification" means a binding agreement between an applicant and the state which shall embody compliance to the siting guidelines, in effect as of the date of certification, which have been adopted pursuant to RCW 80.50.040 as now or hereafter amended as conditions to be met prior to or concurrent with the construction or operation of any energy facility;

(6) "Associated facilities" means storage, transmission, handling, or other related and supporting facilities connecting an energy plant with the existing energy supply, processing, or distribution system, including, but not limited to, communications, controls, mobilizing or maintenance equipment, instrumentation, and other types of ancillary transmission equipment, off-line storage or venting required for efficient operation or safety of the transmission system and overhead, and surface or subsurface lines of physical access for the inspection, maintenance, and safe operations of the transmission facility and new transmission lines constructed to operate at nominal voltages in excess of 200,000 volts to connect a thermal power plant to the northwest power grid: PROVIDED, That common carrier railroads or motor vehicles shall not be included;

(7) "Transmission facility" means any of the following together with their associated facilities:

(a) Crude or refined petroleum or liquid petroleum product transmission pipeline of the following dimensions: A pipeline larger than six inches minimum inside diameter between valves for the transmission of these products with a total length of at least fifteen miles;

(b) Natural gas, synthetic fuel gas, or liquified petroleum gas transmission pipeline of the following dimensions: A pipeline larger than fourteen inches minimum inside diameter between valves, for the transmission of these products, with a total length of at least fifteen miles for the purpose of delivering gas to a distribution facility, except an interstate natural gas pipeline regulated by the United States federal power commission;

(8) "Independent consultants" means those persons who have no financial interest in the applicant's proposals and who are retained by the council to evaluate the applicant's proposals, supporting studies, or to conduct additional studies;

(9) "Thermal power plant" means, for the purpose of certification, any electrical generating facility using any fuel, including nuclear materials, for distribution of electricity by electric utilities;

(10) "Energy facility" means an energy plant or transmission facilities: PROVIDED, That the following are excluded from the provisions of this chapter:

(a) Facilities for the extraction, conversion, transmission or storage of water, other than water specifically consumed or discharged by energy production or conversion for energy purposes; and

(b) Facilities operated by and for the armed services for military purposes or by other federal authority for the national defense;

(11) ((~~"Council" means the energy facility site evaluation council created by RCW 80.50.030~~)) "Department" means the department of ecology;

(12) "Counsel for environment" means an assistant attorney general or a special assistant attorney general who shall represent the public in accordance with RCW 80.50.080;

(13) "Construction" means on-site improvements, excluding exploratory work, which cost in excess of two hundred fifty thousand dollars;

(14) "Energy plant" means the following facilities together with their associated facilities:

(a) Any stationary thermal power plant with generating capacity of two hundred fifty thousand kilowatts or more and floating thermal power plants of fifty thousand kilowatts or more, including associated facilities;

(b) Facilities which will have the capacity to receive liquified natural gas in the equivalent of more than one hundred million standard cubic feet of natural gas per day, which has been transported over marine waters;

(c) Facilities which will have the capacity to receive more than an average of fifty thousand barrels per day of crude or refined petroleum or liquified petroleum gas which has been or will be transported over marine waters, except that the provisions of this chapter shall not apply to storage facilities unless occasioned by such new facility construction;

(d) Any underground reservoir for receipt and storage of natural gas as defined in RCW 80.40.010 capable of delivering an average of more than one hundred million standard cubic feet of natural gas per day; and

(e) Facilities capable of processing more than twenty-five thousand barrels per day of petroleum into refined products;

(15) "Land use plan" means a comprehensive plan or land use element thereof adopted by a unit of local government pursuant to chapters 35.63, 35A.63, or 36.70 RCW;

(16) "Zoning ordinance" means an ordinance of a unit of local government regulating the use of land and adopted pursuant to chapters 35.63, 35A.63, or 36.70 RCW or Article XI of the state Constitution.

Sec. 12. Section 4, chapter 45, Laws of 1970 ex. sess. as last amended by section 1, chapter 254, Laws of 1979 ex. sess. and RCW 80.50.040 are each amended to read as follows:

The ((~~council~~)) department shall have the following powers:

(1) To adopt, promulgate, amend, or rescind suitable rules and regulations, pursuant to chapter 34.04 RCW, to carry out the provisions of this chapter, and the policies and practices of the ((~~council~~)) department in connection therewith;

(2) To appoint an executive secretary to serve at the pleasure of the ((~~council~~)) department;

(3) To appoint and prescribe the duties of such clerks, employees, and agents as may be necessary to carry out the provisions of this chapter: PROVIDED, That such persons shall be employed pursuant to the provisions of chapter 41.06 RCW;

(4) To develop and apply environmental and ecological guidelines in relation to the type, design, location, construction, and operational conditions of certification of energy facilities subject to this chapter;

(5) To establish rules of practice for the conduct of public hearings pursuant to the provisions of the Administrative Procedure Act, as found in chapter 34.04 RCW;

(6) To prescribe the form, content, and necessary supporting documentation for site certification;

(7) To receive applications for energy facility locations and to investigate the sufficiency thereof;

(8) To make and contract, when applicable, for independent studies of sites proposed by the applicant;

(9) To conduct hearings on the proposed location of the energy facilities;

(10) To prepare written reports to the governor which shall include: (a) A statement indicating whether the application is in compliance with the ((~~council's~~)) department's guidelines, (b) criteria specific to the site and transmission line routing, (c) a ((~~council~~)) department recommendation as to the disposition of the application, and (d) a draft certification agreement when the ((~~council~~)) department recommends approval of the application;

(11) To prescribe the means for monitoring of the effects arising from the construction and the operation of energy facilities to assure continued compliance with terms of certification and/or permits issued by the ((~~council~~)) department pursuant to chapter 90.48 RCW or RCW 80.50.040(14): PROVIDED, That any on-site inspection required by the ((~~council shall~~)) department may be performed by other state agencies pursuant to interagency agreement: PROVIDED FURTHER, That the ((~~council~~)) department shall retain authority for determining compliance relative to monitoring;

(12) To integrate its site evaluation activity with activities of federal agencies having jurisdiction in such matters to avoid unnecessary duplication;

(13) To present state concerns and interests to other states, regional organizations, and the federal government on the location, construction, and operation of any energy facility which may affect the environment, health, or safety of the citizens of the state of Washington;

(14) To issue permits in compliance with applicable provisions of the federally approved state implementation plan adopted in accordance with the Federal Clean Air Act, as now existing or hereafter amended, for the new construction, reconstruction, or enlargement or operation of energy facilities: PROVIDED, That such permits shall become effective only if the governor approves an application for certification and executes a certification agreement pursuant to this chapter: AND PROVIDED FURTHER, That all such permits be conditioned upon compliance with all provisions of the federally approved state implementation plan which apply to energy facilities covered within the provisions of this chapter.

Sec. 13. Section 6, chapter 45, Laws of 1970 ex. sess. as last amended by section 5, chapter 371, Laws of 1977 ex. sess. and RCW 80.50.060 are each amended to read as follows:

(1) The provisions of this chapter shall apply to the construction of energy facilities which includes the new construction of energy facilities and the reconstruction or enlargement of existing energy facilities where the net increase in physical capacity or dimensions resulting from such reconstruction or enlargement meets or exceeds those capacities or dimensions set forth in RCW 80.50.020(7) and ((~~(17)~~)) (14), as now or hereafter amended. No construction of such energy facilities may be undertaken, except as otherwise provided in this chapter, after July 15, 1977, without first obtaining certification in the manner provided in this chapter.

(2) The provisions of this chapter shall not apply to normal maintenance and repairs which do not increase the capacity or dimensions beyond those set forth in RCW 80.50.020 (7) and ((~~(17)~~)) (14), as now or hereafter amended.

(3) Applications for certification of energy facilities made prior to July 15, 1977 shall continue to be governed by the applicable provisions of law in effect on the day immediately preceding July 15, 1977 with the exceptions of RCW 80.50.190 and 80.50.071 which shall apply to such prior applications and to site certifications prospectively from July 15, 1977.

(4) Applications for certification shall be upon forms prescribed by the ((~~council~~)) department and shall be supported by such information and technical studies as the ((~~council~~)) department may require.

Sec. 14. Section 16, chapter 371, Laws of 1977 ex. sess. and RCW 80.50.071 are each amended to read as follows:

(1) The ((~~council~~)) department shall receive all applications for energy facility site certification. The following fees or charges for application processing or certification monitoring shall be paid by the applicant or certificate holder:

(a) A fee of twenty-five thousand dollars for each proposed site, to be applied toward the cost of the independent consultant study authorized in this subsection, shall accompany the application and shall be a condition precedent to any further consideration or action on the application by the ((~~council~~)) department. The ((~~council~~)) department shall commission its own independent consultant study to measure the consequences of the proposed energy facility on the environment for each site application. The ((~~council~~)) department shall direct the consultant to study any matter which it deems essential to an adequate appraisal of the site. The full cost of the study shall be paid by the applicant: PROVIDED, That said costs exceeding a total of the twenty-five thousand dollars paid pursuant to subsection (1)(a) of this section shall be payable subject to the applicant giving prior approval to such excess amount.

(b) Each applicant shall, in addition to the costs of the independent consultant provided by subsection (1)(a) of this section, pay such reasonable costs as are actually and necessarily incurred by the ((~~council~~)) department in processing the application. Such costs shall include, but are not limited to, costs of a hearing examiner, a court reporter, additional staff salaries, wages and employee benefits, goods and services, travel expenses within the state and miscellaneous expenses, as arise directly from processing such application.

Each applicant shall, at the time of application submission, deposit twenty thousand dollars, or such lesser amount as may be specified by ((~~council~~)) department rule, to cover costs provided for by subsection (1)(b) of this section. Reasonable and necessary costs of the ((~~council~~)) department directly attributable to application processing shall be charged against such deposit.

The ((~~council~~)) department shall submit to each applicant a statement of such expenditures actually made during the preceding calendar quarter which shall be in sufficient detail to explain such expenditures. The applicant shall pay the state treasurer the amount of such statement to restore the total amount on deposit to the originally established level: PROVIDED, That such applicant may, at the request of the ((~~council~~)) department, increase the amount of funds on deposit to cover anticipated expenses during peak periods of application processing. Any funds remaining unexpended at the conclusion of application processing shall be refunded to the applicant, or at the applicant's option, credited against required deposits of certificate holders.

(c) Each certificate holder shall pay such reasonable costs as are actually and necessarily incurred by the ((~~council~~)) department for inspection and determination of compliance by the certificate holder with the terms of the certification relative to monitoring the effects of construction and operation of the facility.

Each certificate holder, within thirty days of execution of the site certification agreement, shall deposit twenty thousand dollars, or such other amount as may be specified by ((~~council~~)) department rule, to cover costs provided for by subsection (1)(c) of this section. Reasonable and necessary costs of the ((~~council~~)) department directly attributable to inspection and determination of compliance by the certificate holder with the terms of the certification relative to monitoring the effects of construction and operation of the facility shall be charged against such deposit.

The ((~~council~~)) department shall submit to each certificate holder a statement of such expenditures actually made during the preceding calendar quarter which shall be in sufficient detail to explain such expenditures. The certificate holder shall pay the state treasurer the amount of such statement to restore the total amount on deposit to the originally established level: PROVIDED, That if the actual, reasonable, and necessary expenditures for inspection and determination of compliance in the preceding calendar quarter have exceeded the amount of funds on deposit, such excess costs shall be paid by the certificate holder.

(2) If an applicant or certificate holder fails to provide the initial deposit, or if subsequently required payments are not received within thirty days following receipt of the statement from the ((~~council~~)) department, the ((~~council~~)) department may (a) in the case of the applicant, suspend processing of the application until payment is received; or (b) in the case of a certificate holder, suspend the certification.

(3) All payments required of the applicant or certificate holder under this section are to be made to the state treasurer who shall make payments as instructed by the ((~~council~~)) department from the funds submitted. All such funds shall be subject to state auditing procedures. Any unexpended portions thereof shall be returned to the applicant or certificate holder.

Sec. 15. Section 17, chapter 371, Laws of 1977 ex. sess. and RCW 80.50.075 are each amended to read as follows:

(1) Any person required to file an application for certification of an energy facility pursuant to this chapter may apply to the ((~~council~~)) department for an expedited processing of such an application. The application for expedited processing shall be submitted to the ((~~council~~)) department in such form and manner and accompanied by such information as may be prescribed by ((~~council~~)) department rule. The ((~~council~~)) department may grant an applicant expedited processing of an application for certification upon finding that:

(a) The environmental impact of the proposed energy facility;

(b) The area potentially affected;

(d) The degree to which the proposed energy facility represents a change in use of the proposed site

are not significant enough to warrant a full review of the application for certification under the provisions of this chapter.

(2) Upon granting an applicant expedited processing of an application for certification, the ((~~council~~)) department shall not be required to:

(a) Commission an independent study, notwithstanding the provisions of RCW 80.50.071; nor

(b) Hold a contested case hearing under chapter 34.04 RCW on the application.

(3) The ((~~council~~)) department shall adopt rules governing the expedited processing of an application for certification pursuant to this section.

Sec. 16. Section 8, chapter 45, Laws of 1970 ex. sess. as amended by section 6, chapter 371, Laws of 1977 ex. sess. and RCW 80.50.080 are each amended to read as follows:

After the ((~~council~~)) department has received a site application, the attorney general shall appoint an assistant attorney general as a counsel for the environment. The counsel for the environment shall represent the public and its interest in protecting the quality of the environment. Costs incurred by the counsel for the environment in the performance of these duties shall be charged to the office of the attorney general, and shall not be a charge against the appropriation to the ((~~energy facility site evaluation council~~)) department. He shall be accorded all the rights, privileges and responsibilities of an attorney representing a party in a formal action. This section shall not be construed to prevent any person from being heard or represented by counsel in accordance with the other provisions of this chapter.

Sec. 17. Section 9, chapter 45, Laws of 1970 ex. sess. and RCW 80.50.090 are each amended to read as follows:

(1) The ((~~council~~)) department shall conduct a public hearing in the county of the proposed site within sixty days of receipt of an application for site certification: PROVIDED, That the place of such public hearing shall be as close as practical to the proposed site.

(2) The ((~~council~~)) department must determine at the initial public hearing whether or not the proposed site is consistent and in compliance with county or regional land use plans or zoning ordinances. If it is determined that the proposed site does conform with existing land use plans or zoning ordinances in effect as of the date of the application, the county or regional planning authority shall not thereafter change such land use plans or zoning ordinances so as to affect the proposed site.

(3) Prior to the issuance of a ((~~council~~)) department recommendation to the governor under RCW 80.50.100 a public hearing, conducted as a contested case under chapter 34.04 RCW, shall be held. At such public hearing any person shall be entitled to be heard in support of or in opposition to the application for certification.

(4) Additional public hearings shall be held as deemed appropriate by the ((~~council~~)) department in the exercise of its functions under this chapter.

Sec. 18. Section 10, chapter 45, Laws of 1970 ex. sess. as last amended by section 8, chapter 371, Laws of 1977 ex. sess. and RCW 80.50.100 are each amended to read as follows:

(1) The ((~~council~~)) department shall report to the governor its recommendations as to the approval or rejection of an application for certification within twelve months of receipt by the ((~~council~~)) department of such an application, or such later time as is mutually agreed by the ((~~council~~)) department and the applicant. If the ((~~council~~)) department recommends approval of an application for certification, it shall also submit a draft certification agreement with the report. The ((~~council~~)) department shall include conditions in the draft certification agreement to implement the provisions of this chapter, including, but not limited to, conditions to protect state or local governmental or community interests affected by the construction or operation of the energy facility, and conditions designed to recognize the purpose of laws or ordinances, or rules or regulations promulgated thereunder, that are preempted or superseded pursuant to RCW 80.50.110 as now or hereafter amended.

(2) Within sixty days of receipt of the ((~~council's~~)) department's report the governor shall take one of the following actions:

(a) Approve the application and execute the draft certification agreement; or

(b) Reject the application; or

The ((~~council~~)) department shall reconsider such aspects of the draft certification agreement by reviewing the existing record of the application or, as necessary, by reopening the contested case for the purposes of receiving additional evidence. Such reconsideration shall be conducted expeditiously. The ((~~council~~)) department shall resubmit the draft certification to the governor incorporating any amendments deemed necessary upon reconsideration. Within sixty days of receipt of such draft certification agreement, the governor shall either approve the application and execute the certification agreement or reject the application. The certification agreement shall be binding upon execution by the governor and the applicant.

(3) The rejection of an application for certification by the governor shall be final as to that application but shall not preclude submission of a subsequent application for the same site on the basis of changed conditions or new information.

Sec. 19. Section 12, chapter 45, Laws of 1970 ex. sess. as last amended by section 10, chapter 371, Laws of 1977 ex. sess. and RCW 80.50.120 are each amended to read as follows:

(1) Subject to the conditions set forth therein any certification shall bind the state and each of its departments, agencies, divisions, bureaus, commissions, boards, and political subdivisions((~~, whether a member of the council or not,~~)) as to the approval of the site and the construction and operation of the proposed energy facility.

(2) The certification shall authorize the person named therein to construct and operate the proposed energy facility subject only to the conditions set forth in such certification.

(3) The issuance of a certification shall be in lieu of any permit, certificate or similar document required by any department, agency, division, bureau, commission, board, or political subdivision of this state((~~, whether a member of the council or not~~)).

Sec. 20. Section 13, chapter 45, Laws of 1970 ex. sess. and RCW 80.50.130 are each amended to read as follows:

Any certification may be revoked or suspended:

(1) For any material false statement in the application or in the supplemental or additional statements of fact or studies required of the applicant when a true answer would have warranted the ((~~council's~~)) department's refusal to recommend certification in the first instance; or

(2) For failure to comply with the terms or conditions of the original certification; or

(3) For violation of the provisions of this chapter, regulations issued thereunder or order of the ((~~council~~)) department.

Sec. 21. Section 14, chapter 45, Laws of 1970 ex. sess. as last amended by section 3, chapter 64, Laws of 1981 and RCW 80.50.140 are each amended to read as follows:

(1) A final decision pursuant to RCW 80.50.100 on an application for certification shall be subject to judicial review pursuant to provisions of chapter 34.04 RCW and this section. Petitions for review of such a decision shall be filed in the Thurston county superior court. All petitions for review of a decision under RCW 80.50.100 shall be consolidated into a single proceeding before the Thurston county superior court. The Thurston county superior court shall certify the petition for review to the supreme court upon the following conditions:

(a) Review can be made on the administrative record;

(b) Fundamental and urgent interests affecting the public interest and development of energy facilities are involved which require a prompt determination;

(c) An appeal to the supreme court would likely be made regardless of the determination of the Thurston county superior court; and

(d) The record is complete for review.

The Thurston county superior court shall assign a petition for review of a decision under RCW 80.50.100 for hearing at the earliest possible date and shall expedite such petition in every way possible. If the court finds that review cannot be limited to the administrative record as set forth in subparagraph (a) of this subsection because there are alleged irregularities in the procedure before the ((~~council~~)) department not found in the record, but finds that the standards set forth in subparagraphs (b), (c), and (d) of this subsection are met, the court shall proceed to take testimony and determine such factual issues raised by the alleged irregularities and certify the petition and its determination of such factual issues to the supreme court. Upon certification, the supreme court shall assign the petition for hearing at the earliest possible date, and it shall expedite its review and decision in every way possible.

(2) Objections raised by any party in interest concerning procedural error by the ((~~council~~)) department shall be filed with the ((~~council~~)) department within sixty days of the commission of such error((~~, or within thirty days of the first public hearing or meeting of the council at which the general subject matter to which the error is related is discussed, whichever comes later,~~)) or such objection shall be deemed waived for purposes of judicial review as provided in this section.

(3) The rules and regulations adopted by the ((~~council~~)) department shall be subject to judicial review pursuant to the provisions of chapter 34.04 RCW.

Sec. 22. Section 15, chapter 45, Laws of 1970 ex. sess. as last amended by section 1, chapter 41, Laws of 1979 and by section 2, chapter 254, Laws of 1979 ex. sess. and RCW 80.50.150 are each reenacted and amended to read as follows:

(1) The courts are authorized to grant such restraining orders, and such temporary and permanent injunctive relief as is necessary to secure compliance with this chapter and/or with a site certification agreement issued pursuant to this chapter or a National Pollutant Discharge Elimination System (hereafter in this section, NPDES) permit issued by the ((~~council~~)) department pursuant to chapter 90.48 RCW or any permit issued pursuant to RCW 80.50.040(14). The court may assess civil penalties in an amount not less than one thousand dollars per day nor more than twenty-five thousand dollars per day for each day of construction or operation in material violation of this chapter, or in material violation of any site certification agreement issued pursuant to this chapter, or in violation of any NPDES permit issued by the ((~~council~~)) department pursuant to chapter 90.48 RCW, or in violation of any permit issued pursuant to RCW 80.50.040(14). The court may charge the expenses of an enforcement action relating to a site certification agreement under this section, including, but not limited to, expenses incurred for legal services and expert testimony, against any person found to be in material violation of the provisions of such certification: PROVIDED, That the expenses of a person found not to be in material violation of the provisions of such certification, including, but not limited to, expenses incurred for legal services and expert testimony, may be charged against the person or persons bringing an enforcement action or other action under this section.

(2) Wilful violation of any provision of this chapter shall be a gross misdemeanor.

(3) Wilful or criminally negligent, as defined in RCW 9A.08.010(d), violation of any provision of an NPDES permit issued by the ((~~council~~)) department pursuant to chapter 90.48 RCW or any permit issued by the ((~~council~~)) department pursuant to RCW 80.50.040(14) or any emission standards promulgated by the ((~~council~~)) department in order to implement the Federal Clean Air Act and the state implementation plan with respect to energy facilities under the jurisdiction provisions of this chapter shall be deemed a crime, and upon conviction thereof shall be punished by a fine of up to twenty-five thousand dollars per day and costs of prosecution. Any violation of this subsection shall be a gross misdemeanor.

(4) Any person knowingly making any false statement, representation, or certification in any document in any NPDES form, notice, or report required by an NPDES permit or in any form, notice, or report required for or by any permit issued pursuant to RCW ((~~80.50.090(14)~~)) 80.50.040(14) shall be deemed guilty of a crime, and upon conviction thereof shall be punished by a fine of up to ten thousand dollars and costs of prosecution.

(5) Every person who violates the provisions of certificates and permits issued or administered by the ((~~council~~)) department shall incur, in addition to any other penalty as provided by law, a penalty in an amount of up to five thousand dollars a day for every such violation. Each and every such violation shall be a separate and distinct offense, and in case of a continuing violation, every day's continuance shall be and be deemed to be a separate and distinct violation. Every act of commission or omission which procures, aids, or abets in the violation shall be considered a violation under the provisions of this section and subject to the penalty provided in this section. The penalty provided in this section shall be imposed by a notice in writing, either by certified mail with return receipt requested or by personal service, to the person incurring the same from the ((~~council~~)) department describing such violation with reasonable particularity. The ((~~council~~)) department may, upon written application therefor received within fifteen days after notice imposing any penalty is received by the person incurring the penalty, and when deemed in the best interest to carry out the purposes of this chapter, remit or mitigate any penalty provided in this section upon such terms as the ((~~council~~)) department shall deem proper, and shall have authority to ascertain the facts upon all such applications in such manner and under such regulations as it may deem proper. Any person incurring any penalty under this section may appeal the same to the ((~~council~~)) department. Such appeals shall be filed within thirty days of receipt of notice imposing any penalty unless an application for remission or mitigation is made to the ((~~council~~)) department. When an application for remission or mitigation is made, such appeals shall be filed within thirty days of receipt of notice from the ((~~council~~)) department setting forth the disposition of the application. Any penalty imposed under this section shall become due and payable thirty days after receipt of a notice imposing the same unless application for remission or mitigation is made or an appeal is filed. When an application for remission or mitigation is made, any penalty incurred hereunder shall become due and payable thirty days after receipt of notice setting forth the disposition of the application unless an appeal is filed from such disposition. Whenever an appeal of any penalty incurred hereunder is filed, the penalty shall become due and payable only upon completion of all review proceedings and the issuance of a final order confirming the penalty in whole or in part. If the amount of any penalty is not paid to the ((~~council~~)) department within thirty days after it becomes due and payable, the attorney general, upon the request of the ((~~council~~)) department, shall bring an action in the name of the state of Washington in the superior court of Thurston county or of any county in which such violator may do business, to recover such penalty. In all such actions the procedure and rules of evidence shall be the same as an ordinary civil action except as otherwise provided in this chapter. All penalties recovered under this section shall be paid into the state treasury and credited to the general fund.

(6) Civil proceedings to enforce this chapter may be brought by the attorney general or the prosecuting attorney of any county affected by the violation on his own motion or at the request of the ((~~council~~)) department. Criminal proceedings to enforce this chapter may be brought by the prosecuting attorney of any county affected by the violation on his own motion or at the request of the ((~~council~~)) department.

(7) The remedies and penalties in this section, both civil and criminal, shall be cumulative and shall be in addition to any other penalties and remedies available at law, or in equity, to any person.

Sec. 23. Section 16, chapter 45, Laws of 1970 ex. sess. and RCW 80.50.160 are each amended to read as follows:

The ((~~council~~)) department shall make available for public inspection and copying during regular office hours at the expense of any person requesting copies, any information filed or submitted pursuant to this chapter.

Sec. 24. Section 2, chapter 110, Laws of 1974 ex. sess. as last amended by section 205, chapter 3, Laws of 1983 and RCW 80.50.175 are each amended to read as follows:

(1) In addition to all other powers conferred on the ((~~council~~)) department under this chapter, the ((~~council~~)) department shall have the powers set forth in this section.

(2) The ((~~council~~)) department, upon request of any potential applicant, is authorized, as provided in this section, to conduct a preliminary study of any potential site prior to receipt of an application for site certification. A fee of ten thousand dollars for each potential site, to be applied toward the cost of any study agreed upon pursuant to subsection (3) of this section, shall accompany the request and shall be a condition precedent to any action on the request by the ((~~council~~)) department.

(3) After receiving a request to study a potential site, the ((~~council~~)) department shall commission its own independent consultant to study matters relative to the potential site. The study shall include, but need not be limited to, the preparation and analysis of environmental impact information for the proposed potential site and any other matter the ((~~council~~)) department and the potential applicant deem essential to an adequate appraisal of the potential site. In conducting the study, the ((~~council~~)) department is authorized to cooperate and work jointly with the county or counties in which the potential site is located, any federal, state, or local governmental agency that might be requested to comment upon the potential site, and any municipal or public corporation having an interest in the matter. The full cost of the study shall be paid by the potential applicant: PROVIDED, That such costs exceeding a total of ten thousand dollars shall be payable subject to the potential applicant giving prior approval to such excess amount.

(4) Any study prepared by the ((~~council~~)) department pursuant to subsection (3) of this section may be used in place of the "detailed statement" required by RCW 43.21C.030(2)(c) by any branch of government except the ((~~council created pursuant to chapter 80.50 RCW~~)) department.

(5) All payments required of the potential applicant under this section are to be made to the state treasurer, who in turn shall pay the consultant as instructed by the ((~~council~~)) department. All such funds shall be subject to state auditing procedures. Any unexpended portions thereof shall be returned to the potential applicant.

(6) Nothing in this section shall change the requirements for an application for site certification or the requirement of payment of a fee as provided in RCW 80.50.071, or change the time for disposition of an application for certification as provided in RCW 80.50.100.

(7) Nothing in this section shall be construed as preventing a city or county from requiring any information it deems appropriate to make a decision approving a particular location.

Sec. 25. Section 14, chapter 371, Laws of 1977 ex. sess. and RCW 80.50.180 are each amended to read as follows:

Except for actions of the ((~~council~~)) department under chapter 80.50 RCW, all proposals for legislation and other actions of any branch of government of this state, including state agencies, municipal and public corporations, and counties, to the extent the legislation or other action involved approves, authorizes, permits, or establishes procedures solely for approving, authorizing or permitting, the location, financing or construction of any energy facility subject to certification under chapter 80.50 RCW, shall be exempt from the "detailed statement" required by RCW 43.21C.030. Nothing in this section shall be construed as exempting any action of the ((~~council~~)) department from any provision of chapter 43.21C RCW.

Sec. 26. Section 15, chapter 371, Laws of 1977 ex. sess. and RCW 80.50.190 are each amended to read as follows:

The state general fund shall be credited with all receipts from applicants paid to the state pursuant to chapter 80.50 RCW. Such funds shall be used only by the ((~~council~~)) department for the purposes set forth in chapter 80.50 RCW. All expenditures shall be authorized by law.

Sec. 27. Section 5, chapter 155, Laws of 1973 as amended by section 41, chapter 108, Laws of 1975-'76 2nd ex. sess. and RCW 90.48.262 are each amended to read as follows:

(1) The powers established under RCW 90.48.260 shall be implemented by the department through the adoption of rules in every appropriate situation. The permit program authorized under RCW 90.48.260(1) shall constitute a continuation of the established permit program of RCW 90.48.160 and other applicable sections within chapter 90.48 RCW. The appropriate modifications as authorized in this 1973 amendatory act are designed to avoid duplication and other wasteful practices and to insure that the state permit program contains all required elements of and is compatible with the requirements of any national permit system.

(2) Permits for energy facilities subject to chapter 80.50 RCW shall be issued by the ((~~energy facility site evaluation council~~)) department of ecology: PROVIDED, That such permits shall become effective only if the governor approves an application for certification and executes a certification agreement pursuant to said chapter. The ((~~council~~)) department shall have all powers necessary to establish and administer a point source discharge permit program pertaining to such plants, consistent with applicable receiving water quality standards established by the department, and to qualify for full participation in any national waste discharge or pollution discharge elimination permit system. ((The council and the department shall each adopt, by rules, procedures which will provide maximum coordination and avoid duplication between the two agencies with respect to permits in carrying out the requirements of this act including, but not limited to, monitoring and enforcement of certification agreements, and in qualifying for full participation in any such national system.))

NEW SECTION. Sec. 28. RCW 80.50.800 is decodified.

NEW SECTION. Sec. 29. Section 3, chapter 45, Laws of 1970 ex. sess., section 46, chapter 171, Laws of 1974 ex. sess., section 31, chapter 108, Laws of 1975-'76 2nd ex. sess., section 3, chapter 371, Laws of 1977 ex. sess., section 372, chapter 7, Laws of 1984, section 18, chapter 125, Laws of 1984 and RCW 80.50.030 are each repealed.