S-4054               _______________________________________________

 

                                                   SENATE BILL NO. 5030

                        _______________________________________________

 

State of Washington                              49th Legislature                              1986 Regular Session

 

By Senator Newhouse

 

 

Read first time 1/24/86 and referred to Committee on Parks & Ecology.

 

 


AN ACT Relating to underground storage of hazardous substances; adding a new chapter to Title 70 RCW; and prescribing penalties.

 

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

 

          NEW SECTION.  Sec. 1.     Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter.

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

          (2) "Facility" means any one, or combination of, underground storage tanks used by a single business entity at a single location or site.

          (3) "Federal act" means the comprehensive environmental response, compensation and liability act of 1980 (42 U.S.C. 9601 et seq.) as amended by the federal superfund amendments of 1986 (P.L.!sc ,1 .......... ).

          (4) "Operator" means any person in control of, or having responsibility for, the daily operation of an underground storage tank.

          (5) "Owner" means the owner of an underground storage tank used for the storage, use, or dispensing of regulated hazardous substances, but does not include any person who, without participating in the management of an underground storage tank or facility, holds indicia of ownership primarily to protect a security interest in the tank.

          (6) "Person" means an individual, trust, firm, joint stock company, or corporation, including a government corporation, partnership, or association.  The term "person" includes any city, county, district, the state and federal government or any department or agency thereof, and any Indian tribe or authorized tribal organization.

          (7) "Regulated hazardous substance" means:

          (a) "Hazardous substances" as defined in section 101(14) of the federal act and RCW 70.102.010(5);

          (b) "Petroleum" as defined in the federal act;

          (c) Any substance or material that is classified by the national fire protection association, NFPA, as a flammable liquid, a class II combustible liquid, or a class III combustible liquid;

          (d) Hazardous materials, as defined in RCW 70.136.020; and

          (e) Dangerous waste and extremely hazardous waste, as defined in RCW 70.105.010.

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

          (9) "Storage" or "store" means the containment of regulated hazardous substances, whether on a temporary basis or for a period of years.  The terms "storage" or "store" do not include the use of hazardous materials in an industrial process where hazardous materials are present in quantities and for a period of time reasonably necessary for that process.

          (10) "Tank" means a stationary device designed to contain an accumulation of hazardous substances that is constructed primarily of earthen materials (e.g., wood, concrete, steel, or plastic) that provide structural support.

          (11) "Underground storage tank" means any one or combination of tanks that is used for the storage of regulated hazardous substances and the volume of which is ten percent or more beneath the surface of the ground.  The term "underground storage tank" does not include any of the following:  Structures such as sumps, separators, storm drains, catch basins, oil field gathering lines, refinery pipelines, evaporation ponds, well cellars, lined and unlined pits, and lagoons.

 

          NEW SECTION.  Sec. 2.     (1) The legislature declares, as a matter of public policy, that the department shall act to expedite a regulatory program concerning underground storage tanks in the state consistent, to the maximum extent possible, with the requirements of the federal resource conservation and recovery act ( .......... !sc ,1Sec. 9001 et seq.) as amended by the federal act.

          (2) The legislature intends, as a matter of public policy, that the state, through the implementation of a regulatory program concerning underground storage tanks, secure access to funds available in the leaking underground storage trust fund created under part II of Title V of the federal act.

          (3) The department shall:

          (a) On or before September 1, 1986, conduct two separate inventories of all underground storage tanks containing regulated hazardous substances in the state, and those underground storage tanks from which there is a known release of a regulated hazardous substance.  In making the inventories, the department shall compile a separate listing of tanks containing petroleum, and those containing all other regulated hazardous substances, including a listing of tanks from which there is a known release of a regulated hazardous substance.

          (b) On or before November 8, 1986, submit the inventories compiled pursuant to (a) of this subsection to the United States environmental protection agency pursuant to Sec. 9002 of the resource conversation and recovery act.

          (c) Adopt regulations necessary to facilitate assumption of primary enforcement authority pursuant to Sec. 9004 of the resource conservation and recovery act including regulations proposing procedures for the exercise of those authorities granted the administrator of the United States environmental protection agency pursuant to section 205(c)(1) through (6) of the federal act.

          (d) Apply for maximum grants available pursuant to section 205(c)(7) of the federal act.

          (e) Provide information to the comptroller general of the United States concerning its mandate of section 205(e) of the federal act and addressing specifically the availability of pollution liability insurance, leak insurance, and contamination insurance for owners and operators of petroleum storage and distribution facilities within the state.

 

          NEW SECTION.  Sec. 3.     To facilitate the implementation of a program to address the requirements of this chapter, and in order to raise funds to cover related administrative costs, the department shall adopt an underground storage tank permit and inventory program.

 

          NEW SECTION.  Sec. 4.     (1) Except as provided in subsection (3) of this section, no person shall own or operate an underground storage tank unless a permit has been issued to the owner.  The department shall adopt rules for implementation of this chapter.

          (2) The department shall prepare a form that provides for the acceptance of the obligations of a transferred permit by any person who is to assume the ownership of an underground storage tank from the previous owner.  The person assuming ownership shall complete the form accepting the obligations of a permit and submit the completed form to the department within thirty days after the ownership of the underground storage tank is to be transferred.  Upon receiving the completed form, the department shall review and modify, or terminate, the transfer of a permit, pursuant to this section.

          (3) Any person assuming ownership of an underground storage tank used for the storage of regulated hazardous substances for which a valid permit has been issued shall have thirty days after the date of assumption of ownership to apply for a permit pursuant to section 6(1) of this act or, if accepting a transferred permit, shall submit to the department the completed form accepting the obligations of the transferred permit, as specified in section 6(2) of this act.  During the period from the date of application until the permit is issued or refused, the person shall not be held to be in violation of this chapter.

          (4) When, in its judgment, it is appropriate to do so, the department may issue a single permit to a person or a facility.

 

          NEW SECTION.  Sec. 5.     A permit issued by the department pursuant to this section shall be effective for five years.  An application to renew the permit shall be filed on January 1 of the renewal year.

          The department shall not issue or renew an underground storage tank permit if the local agency inspects the tank and determines that the tank does not comply with this chapter.

 

          NEW SECTION.  Sec. 6.     (1) An application for an underground storage tank permit, or for renewal of the permit, shall be made by the owner on a standardized hazardous substance storage permit form prepared and provided by the department.  The application shall be accompanied by the appropriate fee, as specified in sections 13 and 15 of this act.  The department shall store the application information on a computer for the purpose of managing and appropriately cross-referencing and indexing application data.  Until the application permit form is issued by the department, owners of existing tanks shall comply with this chapter by submitting to the department the information set forth in section 7 of this act.

          (2) Permit applications for existing tanks shall be filed with the department within thirty days from the issuance of the form and applicable rules by the department.  Civil liability for failure to file the form by the effective date of the permit form requirement specified in section 17(1) of this act shall not arise until six months after the issuance of the form and rules issued by the department.  An owner of a new tank must file an application prior to commencing operations.  Upon filing, the department will process the application and either grant or deny the permit.  An owner shall be civilly liable if a tank is operated after denial of a permit, as specified in section 17(2) of this act.  During the period from the date of application until the permit is issued or refused, no applicant shall be held to be in violation of this section.

 

          NEW SECTION.  Sec. 7.     The permit application form shall include, but not be limited to, requests for the following information:

          (1) The name and address of the person, firm, or corporation that owns the underground storage tank or tanks and, if different, the name and address of the person who operates the underground storage tank or tanks;

          (2) The address of the facility in which the underground storage tank or tanks are located;

          (3) The name of the person making the application;

          (4) A description of the underground storage tank or tanks, the name of the manufacturer, and the age of the tank or tanks, if available;

          (5) A list of all the regulated hazardous substances stored in each underground storage tank and the capacity of each tank;

          (6) A description of any method used to determine if the underground storage tank leaks;

          (7) The name and twenty-four hour phone number of a contact person in the event of an emergency involving the facility;

          (8) The name of the supervisor of the division, section, or office that operates the tank if the owner or operator of the underground storage tank is a public agency; and

          (9) A statement that demonstrates compliance with the financial responsibility requirements of section 8 of this act.

 

          NEW SECTION.  Sec. 8.     (1) An owner and operator of an underground storage tank shall demonstrate financial responsibility for corrective action in the event of an accidental occurrence.  The required financial responsibility may be demonstrated in one of three ways:

          (a) An insurance policy amended by a hazardous waste facility liability endorsement or evidenced by a certificate of liability insurance;

          (b) Meeting a financial test; or

          (c) A combination of the financial test and the insurance demonstration.

          (2) An owner or operator meets the financial test if the owner or operator satisfies the following criteria:

          (a) The owner or operator shall have net working capital and tangible net worth each at least six times the amount of liability coverage to be demonstrated by the financial test, tangible net worth of at least ten million dollars, and assets in the United States amounting to either:

          (i) At least ninety percent of the owner's or operator's total assets; or

          (ii) At least six times the amount of liability coverage to be demonstrated by the financial test.

          (b) The owner or operator shall have:

          (i) A current rating for the most recent bond issuance of AAA, AA, A, or BBB, as issued by Standard and Poor's, or Aaa, As, A, or Baas as issued by Moody's;

          (ii) Tangible net worth of at least ten million dollars; and

          (iii) Tangible net worth at least six times the amount of liability coverage to be demonstrated by the financial test.

          (3) An owner shall demonstrate financial responsibility to take corrective actions for any leak due to lack of integrity of the tank and piping system of up to five hundred thousand dollars per occurrence.

          (4) An operator shall demonstrate financial responsibility to take corrective actions for any leak due to negligent tank management by the operator of up to five hundred dollars per occurrence.

 

          NEW SECTION.  Sec. 9.     An owner or operator shall continue to demonstrate financial responsibility as required by section 8 of this act until notification of closure of the facility is received by the department.  Proper notification includes certification by the owner or operator and by an independent registered professional engineer that the facility has been closed in accordance with the specifications in the approved closure plan.

 

          NEW SECTION.  Sec. 10.    If an owner or operator can demonstrate to the department that the levels of financial responsibility required by section 8 (1) and (2) of this act are not consistent with the degree and duration of risk associated with storage in the underground tank or tanks, the owner or operator may obtain a variance.  The request for a variance shall be submitted as part of the permit application form, and, if granted, will result in an adjusted level of required liability coverage, based on the department's assessment of the degree and duration of risk associated with the ownership or operation of the facility or facilities.

 

          NEW SECTION.  Sec. 11.    As a condition of any permit to operate an underground storage tank, the permittee shall report to the department, annually on January 1, any changes in the usage of any underground storage tanks, including the storage of new regulated hazardous substances, changes in leak detection procedure, and unauthorized release occurrences.

 

          NEW SECTION.  Sec. 12.    If a permittee stores in an underground storage tank or tanks a hazardous substance that is not listed in the application, the permittee shall apply for a new or amended permit within thirty days after commencing the storage of that hazardous substance.

 

          NEW SECTION.  Sec. 13.    A fee shall be paid to the department by each owner who submits an application for a permit to operate an underground storage tank or to renew or amend a permit.  The department shall establish the amount of the fees at a level sufficient to pay the necessary and reasonable costs incurred in administering this chapter, including, but not limited to, inventory, permitting, and inspection responsibilities.  The department may provide for the waiver of fees when a public agency makes an application for a permit to operate or an application to renew a permit.

 

          NEW SECTION.  Sec. 14.    The department shall review the permit whenever there has been an unauthorized release or when it determines that the underground storage tank is unsafe.  In determining whether to modify or terminate the permit, the department shall consider the age of the tank, the methods of leak detection, the feasibility of any required repairs, the concentration of the regulated hazardous substances stored in the tank, the severity of potential unauthorized releases, and the suitability of any other long-term preventive measures that would meet the requirements of this chapter.

 

          NEW SECTION.  Sec. 15.    A permit to operate an underground storage tank shall be obtained from the department by each operator.  The permit fee will be based on the relative short-term and long-term hazards posed by regulated hazardous substances stored in the underground storage tank.  The permit to operate fee must be paid within thirty days of the issuance of a fee schedule by the department.  Civil liability for failure to pay the permit to operate fee within thirty days of the issuance of a fee schedule by the department shall not arise until six months after the issuance of the fee schedule.  Commencing with 1987, each operator shall pay the permit to operate fee annually on January 1.

          For purposes of determining the permit fee, the department shall prepare and adopt a list of regulated hazardous substances, categorizing them according to the relative degree of hazard.  There shall be five categories:  Category 1 shall represent the least degree of hazard and category 5 shall represent the greatest degree of hazard.  The permit to operate fee shall be assessed as follows:

          (1) Category 1 $ .......... /tank;

          (2) Category 2 $ .......... /tank;

          (3) Category 3 $ .......... /tank;

          (4) Category 4 $ .......... /tank;

          (5) Category 5 $ .......... /tank.

          The fee shall deposited in the underground storage tank fund hereby created in the general fund.  The money in this account is available, upon appropriation by the legislature, to the department for the purposes of implementing this chapter.

 

          NEW SECTION.  Sec. 16.    The permit to operate application shall be accompanied by an inventory statement including all of the following information:

          (1) The name and address of the person or firm operating the tank;

          (2) The name and address of the person or firm owning the tank;

          (3) The address and location of the tank;

          (4) The name and twenty-four hour phone number of a contact person in the event of an emergency involving the tank;

          (5) If known, a description of the tank, including type of construction, name of manufacturer, and tank age, if available;

          (6) A list of all of the regulated hazardous substances stored in each tank and the capacity of the tank; and

          (7) A description of any method used to determine if the tank leaks.

 

          NEW SECTION.  Sec. 17.    (1) Any owner of an existing tank who fails to submit a permit form, and any operator of an existing tank who fails to submit a permit to operate application and inventory form, within six months of the effective dates of the respective implementing rules issued by the department, shall be civilly liable in an amount of not less than five hundred dollars and not more than five thousand dollars per day for each day of violation.  Any owner who brings into use an underground storage tank after the initial notification period specified in section 6(2) of this act shall apply for a permit within thirty days of the existence of the tank, subject to the limitations set forth in section 19 of this act.

          (2) Any owner or operator who operates a tank after denial of a permit to own or to operate a tank shall be civilly liable in an amount of no less than five hundred dollars and not more than five thousand dollars per day for each day of violation.

          (3) Any person who knowingly submits false information on the permit application or inventory forms shall be civilly liable in an amount of not less than two thousand dollars and not more than twenty thousand dollars per day for each day the false information goes uncorrected.

 

          NEW SECTION.  Sec. 18.    The department shall, not later than eighteen months after the effective date of this act, promulgate release detection, prevention, and correction rules applicable to all owners and operators of underground storage tanks.  The rules promulgated pursuant to this section shall include, but need not be limited to, the following requirements:

          (1) Maintenance of a leak detection system, an inventory control system, or a comparable method designed to identify unauthorized releases of regulated hazardous substances;

          (2) Maintenance of records of any leak detection system, inventory control system, or comparable system;

          (3) Corrective action in response to unauthorized releases;

          (4) Reporting of unauthorized releases and corrective action taken; and

          (5) Closure of tanks in a manner that will prevent future releases of regulated hazardous substances.

 

          NEW SECTION.  Sec. 19.    Until the effective date of the standards promulgated pursuant to section 18 of this act, and after one hundred eighty days after the effective date of this act, no person may install an underground storage tank for the purpose of storing regulated hazardous substances unless:

          (1) The tank will prevent releases due to corrosion or structural failure for the operational life of the tank; and

          (2) The material used in the construction or lining of the tank is compatible with the substance to be stored.

 

          NEW SECTION.  Sec. 20.    Owners and operators who do not comply with the release detection, prevention, and correction rules, within six months after the effective date of rules issued by the department pursuant to section 18 of this act, shall be liable for a civil penalty of not less than five hundred dollars or more than five thousand dollars per day.

 

          NEW SECTION.  Sec. 21.    Sections 1 through 20 of this act shall constitute a new chapter in Title 70 RCW.