AN ACT Relating to hazardous substances; amending RCW 70.105A.060 and 82.16.020; adding a new section to chapter 43.21C RCW; adding new sections to chapter 82.04 RCW; adding a new chapter to Title 82 RCW; adding a new chapter to Title 90 RCW; creating new sections; repealing RCW 70.105A.090; prescribing penalties; providing an expiration date; and declaring an emergency.

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

NEW SECTION. Sec. 1. Washington state recognizes that its most basic obligations are to protect public health and safety and to preserve the most elemental supports of life and the state's economy. Those supports include surface water, ground water, land, and air. Washington's natural resources are very delicately balanced and create the basis for the state's obligations, including protection of the people's physical health and enhancement of the state's economy.

The legislature finds and declares that the release or threat of release of hazardous substances into the environment is a real and substantial threat to the public health and welfare, the state's environment, and preservation of its economy. It further recognizes that dangers posed by these releases of hazardous substances can be minimized only by prompt identification and remedy. The legislature concludes that it is in the best interests of all segments of the state's economy and its citizens to establish a mechanism to remedy releases and threatened releases of hazardous substances into the state's environment in an expeditious and cost-effective fashion.

The magnitude of the problem nation-wide and in Washington state is exemplified by the federal superfund which will be increased as much as six times when reauthorized in the United States congress. State funds are necessary to remedy hazardous substance releases that will be identified and treated by state agencies and to provide matching funds for sites identified and partially funded by the federal government.

The legislature further recognizes that it is in the citizens' best interest to use private money to remedy releases caused by private entities and to provide incentives to begin remedial action as expediently as possible. This will protect the state's citizens from being exposed to contamination of water, land, and air that results and increases daily from releases of hazardous substances.

The legislature finds and declares that it is in the public's best interest to provide some release from liability for potentially responsible parties that voluntarily remedy hazardous waste releases. This release from liability will stimulate potentially responsible parties to come forward and provide remedies at their expense. The legislature recognizes that providing a release from liability will subject the state to burdensome future costs and therefore an adequate funding mechanism to address these costs is necessary.

It is further recognized by the legislature that the public is exposed to a substantial threat to its physical well-being from the release of hazardous substances at county and municipal landfills throughout the state. Local governments are also subjected to substantial and increasing financial liability to remedy the releases at landfill sites. It is clear that a method is needed to remedy hazardous waste releases from landfills quickly to protect the public's health and welfare and ensure that local governments are not unduly burdened with the substantial cost involved in remedying these facilities.

It is the intent of the legislature that the refuse collection tax in section 21 of this act be used exclusively to carry out response actions at solid waste sites owned and/or operated by cities and towns. It is further intended that at the time the legislature enacts a comprehensive program to address all past and present city and county owned solid waste landfills there shall be a reexamination of the efficacy of this revenue source to address such needs.

NEW SECTION. Sec. 2. Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter.

(1) "Department" means the department of ecology.

(2) "Director" means the director of the department of ecology or the director's designee.

(3) "Disposal" means the discharge, deposit, injection, dumping, spilling, leaking, or placing of any solid waste or hazardous waste into or on any land or water such that such solid waste or hazardous waste or any constituent or decomposition product thereof may enter the environment or be emitted into the air or discharged into any waters, including ground waters.

(4) "Facility" means: (a) Any building, structure, vessel, installation, equipment, pipe or pipeline (including any pipe into a sewer or publicly owned treatment works), well, pit, pond, lagoon, impoundment, ditch, landfill, storage container, motor vehicle, rolling stock, or aircraft, or (b) any site or area where a hazardous substance has been deposited, stored, disposed of, or placed, or otherwise come to be located; but does not include any consumer product in household use.

(5) "Fund" means the hazardous substance response fund created by section 15 of this act.

(6) "Hazardous substances" means all "hazardous wastes" as defined in subsection (7) of this section, and includes all materials deemed hazardous substances according to section 101(14) of the federal comprehensive environmental response, compensation, and liability act of 1980 (42 U.S.C. Sec. 9601(14)) or its reauthorization and any solid waste as defined in subsection (16) of this section or its decomposition products that present a real and substantial threat to the public health and welfare and the state's environment and includes any substance or waste, other than those identified in this subsection, that is declared by the director of the department, by rule, to present a threat to public health, welfare, or the environment if subject to uncontrolled release into the environment.

(7) "Hazardous waste" means "dangerous waste" and "extremely hazardous waste," both as defined in RCW 70.105.010, and specifically includes those wastes designated as dangerous wastes or extremely hazardous wastes pursuant to rules adopted under chapter 70.105 RCW.

(8) "Natural resources" means land, fish, wildlife, biota, air, water, ground water, drinking water supplies, and other such resources belonging to, managed by, or held in trust by the state of Washington.

(9) "Owner or operator" means (a) in the case of a vessel, any person owning, operating, or chartering by demise, such vessel, (b) in the case of an onshore facility or an offshore facility, any person owning or operating such facility, and (c) in the case of any abandoned facility, any person who owned, operated, or otherwise controlled activities at such facility. The term does not include a person who, without participating in the management of a vessel or facility, holds an indicia of ownership primarily to protect the person's security interest in the vessel or facility.

(10) "Person" means an individual, trust, firm, joint stock company, partnership, association, state, public or private or municipal corporation, commission, political subdivision of a state, interstate body, the federal government including any agency or officer thereof, and any Indian tribe or authorized tribal organization.

(11) "Release" means any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment.

(12) "Remedy" or "remedial action" means those actions consistent with a permanent remedy taken instead of or in addition to removal actions in the event of a release or threatened release of a hazardous substance into the environment, to prevent or minimize the release of hazardous substances so that they do not migrate or cause substantial danger to present or future public health, welfare, or the environment. The term includes, but is not limited to, such actions at the location of the release as storage, confinement, perimeter protection using dikes, trenches, or ditches, clay cover, neutralization, cleanup of released hazardous substances or contaminated materials, recycling or reuse, diversion, destruction, segregation of reactive wastes, dredging or excavations, repair or replacement of leaking containers, collection of leachate and runoff, onsite treatment or incineration, and any monitoring reasonably required to assure that these actions protect the public health and welfare and the environment.

(13) "Remove" or "removal" means the cleanup or removal of released hazardous substances from the environment, such actions as may be necessary in the event of the threat of a release of hazardous substances into the environment, such actions as may be necessary to monitor, assess, and evaluate the release or threat of release of hazardous substances, the disposal of removed material, or the taking of such other actions as may be necessary to prevent, minimize, or mitigate damage to the public health or welfare or to the environment which may otherwise result from a release or threat of release.

(14) "Response" or "response action" means any removal or remedial action and any investigation or design preceding such action.

(15) "Response costs" or "costs of response" means all costs incurred in performing a response action, but shall not include any departmental administrative costs that do not directly result from response actions taken with respect to a known release or threatened release.

(16) "Solid waste" means all putrescible and nonputrescible solid and semisolid wastes including, but not limited to, garbage, rubbish, ashes, industrial wastes, swill, demolition and construction wastes, abandoned vehicles or parts thereof, and discarded commodities.

(17) "State response action contractor" means any person who enters into a contract with the department with respect to any release or threatened release of a hazardous substance, a pollutant, or a contaminant from a facility and is carrying out such contract for the response action at the facility and includes a person who is retained or hired by a person under contract to the department for service relating to a response action.

NEW SECTION. Sec. 3. (1) The department may, in relation or addition to any other powers granted by law, remove releases of hazardous substances and conduct or implement remedial actions in response to the release of a hazardous substance. In the exercise of the power granted in this chapter, the department may make contracts for professional services, technical services, or construction. The department may investigate, analyze, study, sample, test, review, remove, remedy, respond to, and mitigate, releases of hazardous substances or threatened releases of hazardous substances.

(2) The department may spend state funds, subject to legislative appropriation, in carrying out its authority granted under this chapter. The department may administer and enforce the laws granting it the authority to act with reference to releases of hazardous substances. The department may apply to the federal government for funds to carry out the powers granted by this chapter and may receive and administer those funds. The department shall be the only state agency authorized to participate in and is empowered to carry out all programs of the federal comprehensive environmental response, compensation, and liability act of 1980 or its reauthorization contemplated for state administration or participation under that act. The power to participate in the programs under the federal act includes, but is not limited to, the power to agree to supply state matching funds subject to legislative appropriation for removal or remedial actions, to assure site maintenance, to assure the availability of a hazardous waste disposal facility, and to make such contracts or cooperative agreements with the federal government as may be necessary under the federal act. The department may recover state moneys spent on administration, overhead, investigation, removal, remedial action, mitigation, any other fund expenditures, and damages as authorized by section 14 of this act.

NEW SECTION. Sec. 4. (1) Before the department begins a response action, it shall undertake an investigation, the cost of which shall constitute a cost of response, to determine to the extent reasonable:

(a) The identity of each potentially responsible party; and

(b) The type, nature, and volume of the hazardous substances generated or transported by or associated with each potentially responsible party and the date of disposal.

(2) Upon conclusion of the investigation conducted by the department under subsection (1) of this section, the department shall notify the potentially responsible parties identified by the investigation of their status as potentially responsible parties and shall provide each such party with the results of the investigation. The department shall not allocate liability and cost among potentially responsible parties.

(3) The department shall act to facilitate voluntary action by parties responsible for dealing with the release or threatened release of a hazardous substance. The parties receiving notice under this section shall have forty-five days to make a proposal to the department for undertaking a voluntary response action plan. In extraordinary cases, the department may grant an extension. The plan shall include a proposed cost allocation, binding schedule for performance of elements of the plan, and may include a phased approach to investigation, removal, and remedial actions, as may be necessary to identify the scope, nature, and timing of final response actions.

(4) Notice of the proposed voluntary action plan shall be given to interested persons and the public. The notice shall include a brief analysis of the plan and a statement of how additional information may be obtained. Public review and comment shall be accepted for thirty days from the date of notice. The department shall issue its preliminary decision accepting, accepting with conditions, or rejecting the proposed plan within thirty days of the close of public comment. The preliminary decision shall set forth the reasons for the decision and any perceived deficiencies in the plan. The potentially responsible parties proposing the plan shall have thirty days after the department's preliminary decision is issued to modify the proposed plan or provide additional supporting justification for acceptance of the parties' original plan. The department shall issue its final decision within fifteen days of receipt of any modification or additional material. Such final decision shall be subject to judicial review pursuant to the provisions of section 33 of this act.

(5) The department may condition its approval of a response action on the deposit of an appropriate sum of money in a special reserve account for purposes of funding future actions that may become necessary at the site. The sum to be deposited, if any, shall reflect the permanence of the action, the remaining risk to natural resources, and other factors established by rule.

(6) Nothing in this section limits the authority of the department to undertake emergency response actions necessary to protect human health, the environment, consistent with the purposes and policies of this chapter.

NEW SECTION. Sec. 5. (1) Within fifteen days of the approval of a voluntary response action plan pursuant to section 4 of this act for any facility, any potentially responsible party or combination of parties, including any party that is an instrumentality of local, state, or federal government, may request that an arbitration proceeding be initiated to resolve disputes concerning only the items specified in subsection (2) of this section. To ensure continued performance during the conduct of any arbitration, the potentially responsible parties shall post a performance bond in an amount equal to the portion of the estimated response costs attributable to the participating potentially responsible parties as specified in the approved voluntary response action plan. The costs of such bonds shall be borne pro rata among the participating potentially responsible parties.

(2) The arbitration proceedings provided for in this section shall be for the purpose of allocating costs among potentially responsible parties that have obtained approval for a voluntary response action plan by the department or the court pursuant to section 4 of this act. The effect of such arbitration shall be final and binding and there shall be no right of appeal on allocation of response costs.

(3) Apportionment of costs shall be based upon the criteria specified in section 11 of this act as deemed applicable by the arbitrator.

(4) For the purpose of conducting the arbitration procedures specified in this section, a panel of three arbitrators shall be chosen and convened in accordance with the procedures of the American arbitration association. To the extent possible, at least two of these arbitrators shall have experience and expertise in engineering, the physical or biological sciences, health services, financial, or other relevant experience and qualification in remedial site actions.

NEW SECTION. Sec. 6. In determining whether to accept or reject the plan, the department shall consider, at a minimum, the following factors:

(1) The cost-effectiveness of the removal or remedial action in accomplishing the purposes of this chapter, as well as the future costs of operation and maintenance and any further remedial action;

(2) The current and probable future uses of the facility;

(3) The adjoining land uses and possible future land uses that may be affected by the facility or releases therefrom;

(4) The existing and potential future uses and quality of affected ground and surface waters;

(5) The risk remaining to human health or environment after implementation of the removal or remedial action;

(6) Compliance with the waste management priorities;

(7) Past experience with the remedial action technology proposed; and

(8) The allocation of costs as made by the potentially responsible parties.

NEW SECTION. Sec. 7. The following persons shall be deemed potentially responsible for all response costs consistent with this chapter incurred by the state government or any person, and for damages for injury to or destruction of any natural resources managed, owned, or held in trust by the state:

(1) The owner or operator of a facility;

(2) Any person who at the time of disposal of any hazardous substance owned or operated any facility at which the hazardous substances were disposed;

(3) Any person who by contract, agreement, or otherwise arranged for disposal or treatment, or arranged with a transporter for transport for disposal or treatment, of hazardous substances owned or possessed by such person, by any other party or entity, at any facility owned or operated by another party or entity and containing such hazardous substances; and

(4) Any person who accepts or accepted any hazardous substances for transport to disposal, treatment, or other facilities selected by such person, from which there is a release, or a threatened release which causes response costs to be incurred, of a hazardous substance.

NEW SECTION. Sec. 8. (1) There shall be no liability under this chapter for a person otherwise liable who can establish by a preponderance of the evidence that the release of a hazardous substance and damages resulting therefrom were caused solely by:

(a) An act of God;

(b) An act of war;

(c) An act or omission of a third party, including but not limited to a trespasser, other than an employee or agent or any person with a contractual relationship with the person asserting this defense to liability, if all due care is shown to have been exercised, considering the foreseeable acts or omissions of a third party by the person asserting this defense; or

(d) The release of hazardous substances and damages resulting from a federally permitted release as that term is defined in the federal comprehensive, environmental response, compensation and liability act of 1980, 42 U.S.C. Sec. 9601(10) or a state-issued national pollutant discharge elimination system permitted release, but not federally permitted releases of source, special nuclear, or byproduct material, as those terms are defined in the atomic energy act of 1954. Such federally permitted releases shall conform to the requirements of the permit. Any response based on a release that is a federally permitted release shall be pursuant to law existing before the effective date of this act.

(2) There shall be no liability under this chapter for a person otherwise liable who can establish by a preponderance of the evidence that the release of a hazardous substance and the damages resulting from the release were insignificant in comparison to both the quantity and toxicity of hazardous substances believed to have been contributed by other potentially responsible parties.

(3) Upon payment of its share of a voluntary action approved by the department pursuant to section 6 of this act, a potentially responsible party shall be liable only for its share of the costs of such plan, as determined in accordance with the procedure set forth in section 11 of this act. Such party shall not be liable for any claims for contribution by nonparticipating responsible parties concerning the action which is the subject of the approved plan.

(4) If the department requires or approves an action at a facility, and if such response is performed by potentially responsible parties with the approval of the department, such responsible parties shall have no future liability for that action at the facility where the action took place.

(5) If the department requires or approves an action at a facility involving transportation of waste off site, the responsible party undertaking such action shall be released from future liability for those hazardous pollutants or contaminants that were transported off site if the management of the waste is in compliance with RCW 70.105.150.

(6) Liability of potentially responsible parties for releases or threatened releases of hazardous substances at a public municipal solid waste disposal facility owned or operated by a city or town and used primarily for the disposal of solid wastes shall be limited to:

(a) Liability of the owner of the facility if the owner's negligent actions or negligent design caused or materially contributed to the release or threatened release of hazardous substances from such facilities; or

(b) Liability of a generator of hazardous substances disposed of at the facility when the disposal was a major identifiable contributory cause of the release or threatened release necessitating response action.

(7) A state employee or any employee of a political subdivision who is involved in a response action with respect to any release or threatened release of a hazardous substance or pollutant or contaminant from a vessel or facility is not liable under the law of the state or political subdivision, or under common law to any person for injuries, costs, damages, expenses, or other liability including claims by third parties for death, personal injury, illness, or loss of or damage to property or economic loss which results from the release or threatened release.

(8) No liability may be imposed upon any good faith purchaser for value of real property who is not otherwise potentially liable under this section without notice, constructive or actual, of any release or threatened release of a hazardous substance upon such property.

NEW SECTION. Sec. 9. (1) A potentially responsible party that does not pay its share of or otherwise implement a voluntary action approved by the department or the court is strictly liable for its share, or any unpaid or unfinished portion thereof, of the costs of such action as determined in accordance with section 11 of this act.

(2) If a voluntary response action plan is not received or approved by the department or the court, the potentially responsible parties shall be strictly liable for the response costs incurred by the state or by any other person, consistent with the policies of this chapter. Such liability shall be joint and several and there shall be a right of contribution for such costs among potentially responsible parties. The provisions of chapter 4.22 RCW apply to any contribution actions under section 11 of this act.

NEW SECTION. Sec. 10. (1) A person who is a response action contractor with respect to any release or threatened release of a hazardous substance or pollutant or contaminant from a facility shall not be liable under this chapter, under any other state or local law, or under common law to any person for injuries, costs, damages, expenses, or other liability, including but not limited to claims for indemnification or contribution and claims by third parties for death, personal injury, illness, or loss of or damage to property or economic loss, that results from such release or threatened release. This subsection shall not apply in the case of a release that is caused by conduct of the response action contractor that is negligent, grossly negligent, or that constitutes intentional misconduct.

(2) Nothing in this section affects the liability of any person under any warranty under state law.

(3) The department may agree to hold harmless and indemnify any state response action contractor meeting the requirements of this section against any liability, including the expenses of litigation or settlement, for negligence arising out of the contractor's performance in carrying out response action activities under this chapter, unless the liability was caused by conduct of the contractor that was grossly negligent or that constituted intentional misconduct.

(a) Indemnification under this subsection (3) shall apply only to state response action contractor liability that results from a release of any hazardous substance or pollutant or contaminant if the release arises out of response action activities.

(b) An indemnification agreement under this subsection (3) shall include deductibles and shall place limits on the amount of indemnification to be made available.

(4) The exemption provided under subsection (1) of this section and the authority of the department to offer indemnification under subsection (3) of this section shall not apply to any person covered by the provisions of section 7 of this act.

NEW SECTION. Sec. 11. Allocation of the costs of response among all liable parties and the fund shall initially be based on volumetric contributions; however, additional factors may also be employed in making this allocation when such additional factors are particularly relevant. Those factors include but are not limited to (1) toxicity and mobility of the identified hazardous substances, (2) the casual relationship between the hazardous substances generated or transported by or associated with each potentially responsible party, the risk posed by the release or threatened release of those hazardous substances, and the cost of response, and (3) the degree of care exercised with respect to the identified hazardous substances.

NEW SECTION. Sec. 12. (1) The legislature recognizes that the department's duty to investigate, facilitate voluntary response, and respond to releases of hazardous substances requires that the department and its inspectors and contractors obtain access to information and real property, both public and private, to determine the need for response to a release and to undertake response actions, if necessary. The legislature intends that the department may obtain information and enter upon real property without undue delay caused by procedural matters and without undue interference to private property rights.

(2) Any officer, employee, or representative designated by the department may require, upon reasonable notice, if there is a reasonable basis to believe there may be a release or threat of release of a hazardous substance, information or documents relevant to that release or threat of release from a person who has or may have information relevant to (a) the identification or nature, and volume of materials generated, treated, stored, transported to, or disposed of at a facility and the dates thereof, (b) the nature or extent of a release or threatened release of a hazardous substance at or from a facility, or (c) the identity of potentially responsible parties. In addition, upon reasonable notice, the person shall either grant to appropriate representatives access at all reasonable times to inspect documents or records relating to such matters or copy and furnish to the representatives all documents or records, at the option of the person. The department may, by subpoena, require the attendance and testimony of witnesses and the production of reports, papers, documents, answers to questions, and other information that the department deems necessary.

(3) The department, its authorized employees, agents, or contractors, in order to determine the need for response to the release or the threat of release of hazardous substances may, where there is a reasonable basis to believe there may be a release or threat of release of a hazardous substance, enter upon any real property, public or private, to conduct sampling, inspection, examination, and investigation directed at evaluating, containing, or removing the release. The department shall provide, if requested, a portion of each sample taken equal in volume or weight to the portion retained. If any analysis is made of such samples, a copy of the results of such analysis shall be furnished promptly to the owner, operator, or person in charge.

(4) If the director determines (a) on the basis of an inspection that an emergency exists that requires immediate action to protect human health or the environment, and (b) that the owner or operator is unwilling or unable to take such immediate action, the director may enter upon property, public or private, to take such response action as is necessary to abate the emergency. These response actions shall be consistent with the purposes and policies of this chapter.

(5) In the event that the potentially responsible parties fail to implement a voluntary response action pursuant to section 4 of this act, the director may determine, in accordance with the procedures set forth in this section, that action to respond to a release of hazardous substances is necessary and that entry upon real property, public or private, is necessary to execute response action. The director's determination shall be based upon inspection, study, or other data as may be available, shall be made in writing, and shall be available for public inspection and copying. The director's determination and the basis for it shall be reduced to writing and served upon the person owning, operating, or in charge of the property concerned as well as all potentially responsible parties along with a notice that response action and entry upon property shall proceed in no fewer than sixty days, and soliciting a prompt response. The director, or the director's designee, shall confer with any party responding to receipt of service of the director's determination in order to accommodate that party's legitimate concerns while obtaining prompt and necessary response action under the director's supervision.

(6) The director, with the assistance of the attorney general's office, may apply to superior court for an order authorizing entry upon real property to execute response action. The director's application shall recite that the notice and conference procedures required in this section have been carried out, describe the property concerned, describe the response action selected by the director, and include a schedule identifying the dates response actions are planned. The superior court, after a hearing, shall enter an order authorizing entry upon real property to execute response action upon finding that the director's application, with supporting materials, establishes that the director has made a reasonable attempt to accommodate any responding party's legitimate concerns.

(7) The director's determination that response action is necessary, that entry upon real property is necessary, the basis for that determination, and any response by the director to the responding party's concerns shall not be subject to review under chapter 43.21B or 34.04 RCW. No common law writ, temporary restraining order, or preliminary or permanent injunction may issue to stay or delay response action deemed necessary by the director unless the superior court finds that the complainant lacks any adequate remedy at law.

NEW SECTION. Sec. 13. (1) The owner of public or private real property upon which a release of a hazardous substance has been found by the department to have occurred or where a remedial action or removal has been conducted or approved by the department after the effective date of this act, shall place a notice in the records of real property kept by the auditor of the county in which the property is located. The notice shall identify the property, identify the owner of the property, and the person causing the notice to appear, state that a release of a hazardous substance occurred on the property, state the date the release occurred, and direct further inquiries to the department. The department shall maintain records that identify the remedial action taken and the hazardous substance or substances released for each remedial action or removal that has been conducted or approved by the department. Any person injured by the failure of a property owner to comply with this section may recover damages for that injury by filing an action in superior court for the county in which the release occurred.

(2) Where any remedial action or removal has been conducted or approved by the department with respect to any release or threatened release of a hazardous substance and the director has determined that the remedial action or removal has been completed, the director shall declare in writing that such release or threat of release has been evaluated and that any state or private removal or remedial action has been completed. The declaration shall be promptly filed with the records of real property kept by the auditor of the county in which the property is located and shall identify the property, the owner of the property, and the date the release occurred.

(3) For the purposes of this section, the term "release of hazardous substance" shall be construed to exclude (a) any sudden and accidental release that occurs incident to the transport of hazardous substances on publicly owned rights of way and that is reported to the department of ecology no more than twenty-four hours after the release occurs and that is remedied to the department of ecology's satisfaction, and (b) releases of quantities that are below the reportable quantity threshold established under the federal comprehensive environmental response compensation liability act.

NEW SECTION. Sec. 14. The department may exercise the powers enumerated in this section, in relation to or in addition to any other powers granted by law.

(1) Remove and remedy releases, or threats of releases, of hazardous substances or otherwise mitigate such releases;

(2) Undertake all training, planning, inspecting, sampling, testing, investigating, surveying, analyzing, engineering, constructing, operating, and maintaining necessary or appropriate to prepare for, obtain, and perform removal actions, remedial actions, cleanup actions, and enforcement actions involving releases or threatened releases of hazardous substances;

(3) Enforce or respond to releases or threatened releases of hazardous substances as provided in this chapter;

(4) Make contracts for professional services, technical services, or for construction; however, the department may expedite response to releases or threatened releases of hazardous substances by prequalifying contractors, as long as the prequalification is pursuant to a uniform system of rating bidders; and

(5) Apply to the federal government for funds to carry out the activities specified in this section and receive and administer those funds.

NEW SECTION. Sec. 15. (1) There is hereby created in the state treasury the hazardous substance response fund to be used solely for the purposes of this chapter.

(2) In addition to any moneys appropriated to the department by the legislature, the following amounts shall be deposited in the account:

(a) All assessments collected pursuant to sections 28 and 29 of this act;

(b) Moneys received from the federal government pursuant to the comprehensive environmental response, compensation, and liability act of 1980, P.L. 96-510 (42 U.S.C. Sec. 9601 et seq.);

(c) Moneys received from the federal government pursuant to the federal solid waste disposal act, P.L. 89-272, as amended (42 U.S.C. Sec. 6901 et seq.), or other federal laws to finance any of the activities specified in section 14 of this act;

(d) Moneys recovered or otherwise received from responsible parties for remedial action, removal, and cleanup at specific sites, and other damages, excluding funds from performance bonds and other forms of financial responsibility held in escrow pending satisfactory performance of a privately financed response action; and

(e) Any fines, penalties, or damages recovered under this chapter or any law establishing liability or other relief for damages or costs incurred by the state as a result of the release, or threatened release, of a hazardous substance.

(3) The expenditure of moneys from the fund shall be subject to the provisions of chapter 43.88 RCW.

NEW SECTION. Sec. 16. (1) Moneys in the fund shall not be made available for remedy of facilities owned or operated by a governmental entity at the time of disposal, to the extent that such entity would otherwise be liable for such costs of remedy.

(2) The department shall not duplicate the federal government in responding to releases of hazardous substances to the extent that cost of such response is subject to section 114(c) of the federal comprehensive environmental response, compensation, and liability act of 1980 P.L. 96-510 (42 U.S.C. Sec. 9614(C)) or its reauthorization.

NEW SECTION. Sec. 17. The fund shall be used for payment of the following costs:

(1) Any costs of a voluntary action allocated to potentially responsible parties that are unknown, insolvent, immune, or otherwise unavailable for payment of costs in a voluntary action plan approved by the department or the court. This shall not limit the department's authority to seek cost recovery against such parties;

(2) Any costs of approved voluntary actions allocated to a potentially responsible party to the extent that party does not participate in the voluntary action plan and does not pay its share of any such response costs as determined under sections 4 and 11 of this act;

(3) Except as provided in section 8 of this act, for costs resulting from response actions taken at public municipal solid waste facilities owned or operated by a city or town and used primarily for the disposal of solid wastes;

(4) Any response costs incurred by the department for which no liability exists under this chapter;

(5) Response costs required when no voluntary plan is approved by the department or the court.

NEW SECTION. Sec. 18. (1) A separate account shall be established in the hazardous response fund. Its purpose shall be to provide funds for the future remedial action at a site where the original site remedy has failed and the department provided a release of liability pursuant to section 8 of this act.

(2) The following moneys shall be deposited into the account:

(a) Moneys from responsible parties pursuant to section 7 of this act;

(b) Any moneys transferred from the fund for remedial action.

(3) Earnings from the funds in this account shall be deposited to this account.

(4) Expenditure of moneys from the account shall be subject to the provisions of chapter 43.88 RCW.

NEW SECTION. Sec. 19. (1) There is hereby created the municipal landfill hazardous substances response fund. Moneys from the fund shall be expended for remedying hazardous substance releases in public municipal solid waste landfills owned or operated by a town or city based on an annual priority list established by the department of ecology by rule.

(2) The level of funding necessary to carry out the purposes of this section shall be reviewed on an annual basis by the department of ecology. If the department deems that the funding level is insufficient, the department may recommend to the legislature an increase in the tax under section 21 of this act.

NEW SECTION. Sec. 20. For purposes of sections 20 through 27 of this act:

(1) "Refuse collection business" means every person who receives waste for transfer, storage, or disposal including but not limited to all collection services, public or private dumps, transfer stations, and similar operations.

(2) "Person" shall have the meaning given in RCW 82.04.030 or any later, superseding section.

(3) "Waste" means garbage, trash, rubbish, or other material discarded as worthless or not economically viable for further use. The term does not include hazardous or toxic waste nor does it include material collected primarily for recycling or salvage.

(4) "Taxpayer" means that person upon whom the refuse collection tax is imposed.

NEW SECTION. Sec. 21. There is imposed on each person within the boundary of a city or town who uses the services of a refuse collection business a refuse collection tax equal to five percent of the consideration charged for the services.

NEW SECTION. Sec. 22. The person collecting the charges made for using the refuse collection business shall collect the tax imposed in section 21 of this act. If any person charged with collecting the tax fails to bill the taxpayer for the tax or having collected the tax, fails to pay it to the department in the manner prescribed by this section, whether such failure is the result of the person's own acts or the result of acts or conditions beyond the person's control, he or she shall, nevertheless, be personally liable to the state for the amount of the tax.

NEW SECTION. Sec. 23. Taxes collected under section 22 of this act shall be held in trust until paid to the state. Taxes so received by the state shall be deposited in the municipal landfill hazardous substances response fund. Any person collecting the tax who appropriates or converts the tax collected shall be guilty of a gross misdemeanor if the money required to be collected is not available for payment on the date payment is due. If a taxpayer fails to pay the tax imposed by section 21 of this act to the person charged with collection of the tax and the person charged with collection fails to pay the tax to the department, the department may, in its discretion, proceed directly against the taxpayer for collection of the tax.

The tax shall be due from the taxpayer within twenty-five days from the date the taxpayer is billed by the person collecting the tax.

The tax shall be due from the person collecting the tax at the end of the tax period in which the tax is received from the taxpayer. If the taxpayer remits only a portion of the total amount billed for taxes, consideration, and related charges, the amount remitted shall be applied first to payment of the refuse collection tax and this tax shall have priority over all other claims to the amount remitted.

NEW SECTION. Sec. 24. The refuse collection tax shall not apply to any agency, division, or branch of the federal government or to services rendered under a contract therewith.

NEW SECTION. Sec. 25. To prevent pyramiding and multiple taxation of a single transaction, this tax shall not apply to any refuse collection business using the services of another refuse collection business for the transfer, storage, or disposal of the waste collected during the transaction.

To be eligible for this exemption, a person first must be certified by the department of revenue as a refuse collection business.

NEW SECTION. Sec. 26. Chapter 82.32 RCW applies to the tax imposed under section 21 of this act.

NEW SECTION. Sec. 27. The tax imposed in section 21 of this act is in addition to any other tax that may be imposed by law.

NEW SECTION. Sec. 28. A new section is added to chapter 82.04 RCW to read as follows:

(1) In addition to any other taxes imposed under this chapter, until 1989 there shall be imposed upon every person engaging within this state in the business of manufacturing petroleum products a tax with respect to such business equal to the value of the products manufactured multiplied by the rate of seven one-hundredths of one percent.

(2) In addition to any other taxes imposed under this chapter, until 1989 there shall be imposed upon every person engaging within this state in the business of making sales at wholesale of petroleum products a tax with respect to such business equal to the gross proceeds of sales of such business multiplied by the rate of seven one-hundredths of one percent.

(3) For the purposes of this section, "petroleum products" means any product of the industrial processing of crude oil and its fractionation products manufactured or refined or used for the generation of power except those products actually used in motor vehicles. "Petroleum products" include but are not limited to gasoline, diesel fuel, kerosene, propane, and other products of crude oil.

(4) The moneys credited under this section shall be deposited in the hazardous substances response account.

NEW SECTION. Sec. 29. A new section is added to chapter 82.04 RCW to read as follows:

There is hereby levied and there shall be collected through 1989 by the department of revenue from every person engaging within this state in business as a manufacturer and/or making sales at wholesale, an annual chemical products assessment equal to the value of products manufactured and sold at wholesale within this state, including by-products, multiplied by the rate of one one-hundredth of one percent in the case of manufacturers, and equal to the gross proceeds of the sales of the business within this state multiplied by the rate of one one-hundredth of one percent in the case of sales at wholesale.

The department shall deposit all moneys collected under this section into the hazardous substance response fund.

Sec. 30. Section 6, chapter 65, Laws of 1983 1st ex. sess. and RCW 70.105A.060 are each amended to read as follows:

(1) The department of ecology may use funds in the hazardous waste control and elimination account in the implementation of the powers vested under RCW 70.105.020, 70.105.030, 70.105.080, 70.105.100, 70.105.120, and 70.105.130, 70.105.160 and 70.105.170 and subsections ((~~(3)~~)) (2) and ((~~(4)~~)) (3) of this section ((~~as well as the administrative costs relating to the implementation of subsection (2) of this section~~)).

(2) ((The department is authorized to participate in and is empowered to carry out all programs of the federal Comprehensive Environmental Response, Compensation and Liability Act of 1980 contemplated for state participation or administration under that act.

~~(3)~~)) In relation or addition to the powers set forth in this section and any other provisions of this code, the department is empowered, with regard to the regulation, control, or removal of hazardous substances and wastes, as follows:

(a) To coordinate responses to hazardous substances accident and spill incidents;

(b) To respond to, direct, or initiate cleanup of ((~~hazardous substances,~~)) accidents and spills((~~, and hazardous waste sites~~)) of hazardous substances; and

(d) To conduct or contract for the removal of hazardous substances and wastes where there has been or is a potential for release, regardless of quantity or concentration, which could pose a threat to public health or the environment)).

((~~(4)~~)) (3) The department is empowered to participate in and carry out all programs of the federal Resource Conservation and Recovery Act, as amended, contemplated for implementation by a state under that act and may use funds in the hazardous waste control and elimination account in the implementation thereof.

((~~(5)~~)) (4) The attorney general, at the request of the department, is empowered to recover moneys expended by the department from the hazardous waste control and elimination account under authority of this section when these funds were utilized to respond to an unpermitted spill or discharge or to control the release or threatened release of hazardous substances or wastes. Recovery authorized by this section shall be from any person owning or controlling the material spilled or discharged. Actions to recover moneys may be initiated in the superior court of Thurston county or any county in which the hazardous waste site or activity is located. Moneys recovered under this section which are less than or equal to amounts actually expended in response to the particular incident in accordance with the purposes of RCW 70.105A.010(2) shall be paid into the hazardous waste control and elimination account. Any other moneys recovered under this section shall be deposited in the general fund.

NEW SECTION. Sec. 31. The attorney general may bring such actions as are necessary to effect the purposes of this chapter. Such actions include, but are not limited to, actions to recover from liable parties' fund moneys spent in conducting response actions to the extent such expenditures were consistent with the purposes and policies of this chapter, to compel access to property, and to seek such other monetary or injunctive relief as necessary.

NEW SECTION. Sec. 32. (1) The director may demand that a person who is liable for a release of a hazardous substance provide removal or remedial action of the release of a hazardous substance and that such action be taken by a given date. The director's authority to demand action under this subsection is limited to instances of a release of a hazardous substance that the director finds presents an imminent and substantial endangerment to public health, welfare, or the environment. The director's finding must be made in writing, delivered to the person liable, and accompanied by the director's demand for action. The director's finding and demand made pursuant to the authority granted in this section is not subject to appeal to or review by the pollution control hearings board established under chapter 43.21B RCW.

(2) If the department exercises its emergency response authority under this section, it may seek reimbursement of its necessary response costs associated with the response from the potentially responsible parties upon a showing by the department that:

(a) The owner or operator consented to such action or was unwilling, unable, or unavailable to take immediate action consistent with the purposes and policies of this chapter to abate such emergency; and

(b) Delaying action until a voluntary response action plan could be developed under section 4 of this act would have significantly increased the threat or damage to human health or the environment.

NEW SECTION. Sec. 33. (1) There shall be no right to judicial review of the department's decision regarding acceptance or rejection of a proposed voluntary action plan permitted under section 6 of this act except as provided in this section. Any potentially responsible parties aggrieved by the rejection of a voluntary response action plan or any person aggrieved by the acceptance of a plan by the department shall have a right to judicial review of the department's decision to reject the plan. Such review shall be sought within thirty days of plan rejection in the superior court for Thurston county and the potentially responsible parties or other appealing parties must show by clear, cogent, and convincing evidence that the rejection or acceptance was inconsistent with the purposes of this chapter and the factors set forth in section 6 of this act. Any such appeal shall be heard on the civil motion calendar and expedited to the maximum extent possible consistent with due process of law.

(2) Where the circumstances of a particular case indicate that potentially responsible parties have sought judicial review as a means of delay, if their suit is unsuccessful, the court may assess, as a penalty, any economic gain such party may have realized through such delay.

NEW SECTION. Sec. 34. (1) Any person aggrieved by the failure of a person identified in section 7 of this act to implement response action after a finding that a release of a hazardous substance presents an imminent and substantial endangerment to health or the environment may bring an action in superior court to compel a person identified in section 7 of this act to implement response action appropriate to the circumstances.

(2) Any person aggrieved by the release or threat of release of a hazardous substance may commence a civil action against any person identified in section 7 of this act who fails to comply with an approved voluntary response action plan to carry out a response action.

(3) Any action brought under this section shall be brought in Thurston county superior court.

(4) Nothing in this chapter limits any existing right of a person to bring a legal action in the courts of this state relating to the release or threatened release of hazardous substances.

NEW SECTION. Sec. 35. Nothing in this chapter shall be construed to conflict in any way with the ability of the department to act in the implementation of any requirement of the comprehensive environmental response compensation liability act nor release any responsible party from liability under that federal act.

NEW SECTION. Sec. 36. (1) The director may adopt rules necessary to administer this chapter pursuant to the administrative procedure act, chapter 34.04 RCW.

(2) The department shall adopt rules to establish the following order of priorities for dealing with the release or threatened release of hazardous substances:

(a) Voluntary action undertaken by the owner or operator without resort to use of the fund or the procedures of this chapter;

(b) Voluntary action undertaken by potentially responsible parties without resort to use of the fund or the procedures of this chapter;

(c) Voluntary action undertaken by potentially responsible parties that may require a partial contribution from the fund; and

(d) Action undertaken by the department and financed by the fund, subject to cost recovery.

(3) The department shall adopt rules establishing the requirements for the granting of indemnification to a state response action contractor. The requirements shall allow indemnification if:

(a) The liability covered by the indemnification agreement exceeded or was not covered by insurance, available at a fair and reasonable price, to the contractor at the time the response action contract was entered into;

(b) The state response action contractor made diligent efforts to obtain insurance coverage from nonfederal sources to cover such liability; and

(c) In the case of a state response action contract covering more than one facility, the response action contractor agrees to continue to make diligent efforts to secure insurance each time the contractor begins work under the contract at a new facility.

NEW SECTION. Sec. 37. A new section is added to chapter 43.21C RCW to read as follows:

The detailed statement and other procedural requirements of this chapter shall not be applicable to investigatory or remedial activities undertaken by public or private entities to respond to or prevent the release or threatened release of hazardous substances into the environment of the state.

NEW SECTION. Sec. 38. A new section is added to chapter 82.04 RCW to read as follows:

(1) From and after April 1, 1986, until and including June 30, 1986, there is levied and shall be collected from every person for the act or privilege of engaging in business activities, as a part of the tax imposed under RCW 82.04.220 through 82.04.250, inclusive, and RCW 82.04.260 through 82.04.280, inclusive, an additional tax equal to three percent multiplied by the tax payable under RCW 82.04.220 through 82.04.250, inclusive, and RCW 82.04.260 through 82.04.280, inclusive.

(2) From and after April 1, 1986, until and including June 30, 1986, there is also levied and shall be collected from every person for the act or privilege of engaging in business activities, as a part of the tax imposed under RCW 82.04.255 and 82.04.290, an additional tax equal to one percent multiplied by the tax payable under RCW 82.04.255 and 82.04.290.

(3) To facilitate collection of these additional taxes, the department of revenue is authorized to adjust the basic rates of persons to which this section applies in such manner as to reflect the amount to the nearest one-thousandth of one percent of the additional tax hereby imposed, adjusting ten-thousandths equal to or greater than five ten-thousandths to the greater thousandth.

(4) Revenue from the additional taxes imposed under this section shall be deposited in the hazardous substance response fund.

(5) This section shall expire July 1, 1986.

Sec. 39. Section 82.16.020, chapter 15, Laws of 1961 as last amended by section 10, chapter 471, Laws of 1985 and RCW 82.16.020 are each amended to read as follows:

(1) There is levied and there shall be collected from every person a tax for the act or privilege of engaging within this state in any one or more of the businesses herein mentioned. The tax shall be equal to the gross income of the business, multiplied by the rate set out after the business, as follows:

(a) Railroad, express, railroad car, sewerage collection, light and power, and telegraph businesses: Three and six-tenths percent;

(b) Gas distribution business: Three and six-tenths percent;

(d) Vessels under sixty-five feet in length, except tugboats, operating upon the waters within the state: Six-tenths of one percent;

(e) Motor transportation and tugboat businesses, and all public service businesses other than ones mentioned above: One and eight-tenths of one percent;

(f) Water distribution and refuse collection businesses: Four and seven-tenths percent.

(2) An additional tax is imposed equal to the rate specified in RCW 82.02.030 multiplied by the tax payable under subsection (1) of this section.

(3) Twenty percent of the moneys collected under subsection (1) of this section on water distribution businesses, seventy percent of the moneys collected under subsection (1) of this section on refuse collection businesses, and sixty percent of the moneys collected under subsection (1) of this section on sewerage collection businesses shall be deposited in the public works assistance account created in RCW 43.155.050.

(4) From and after April 1, 1986, until and including June 30, 1986, an additional tax is imposed equal to three percent multiplied by the tax payable under subsection (1) of this section. Revenue from the additional tax imposed under this subsection shall be deposited in the hazardous substance response fund.

NEW SECTION. Sec. 40. Section 13, chapter 65, Laws of 1983 1st ex. sess. and RCW 70.105A.090 are each repealed.

NEW SECTION. Sec. 41. Sections 2 through 19 and 31 through 36 of this act shall constitute a new chapter in Title 90 RCW. Sections 20 through 27 shall constitute a new chapter in Title 82 RCW.

NEW SECTION. Sec. 42. The department of ecology shall report to the legislature by January 1, 1989, on the effectiveness of this act including but not limited to:

(1) The effectiveness of providing releases from liability for private responsible parties.

(2) A full accounting of public and private moneys expended, on a site-by-site basis.

(3) Projected funding requirements for the following biennium and through completion of the program.

(4) Recommendations for statutory or regulatory modifications.

(5) The effectiveness in implementing section 8(6) of this act.

NEW SECTION. Sec. 43. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.

NEW SECTION. Sec. 44. This act is exempted from the rule of strict construction, and shall be liberally construed to give full effect to the objectives and purposes for which it was enacted.

NEW SECTION. Sec. 45. This act is necessary for the immediate preservation of the public peace, health, and safety, the support of the state government and its existing public institutions, and shall take effect immediately.