AN ACT Relating to the environment; amending RCW 70.105A.010, 70.105A.020, 36.58.100, 36.58.110, 36.58.120, 36.58.140, 82.18.020, and 82.18.040; adding a new section to chapter 43.21C RCW; adding new sections to chapter 70.105A RCW; adding a new chapter to Title 82 RCW; adding new sections to chapter 43.131 RCW; adding a new section to chapter 70.94 RCW; adding new sections to chapter 70.105 RCW; adding a new section to chapter 90.03 RCW; adding a new section to chapter 90.44 RCW; adding a new section to chapter 90.48 RCW; adding a new section to chapter 90.58 RCW; creating new sections; repealing RCW 70.105A.030, 70.105A.040, 70.105A.050, 70.105A.060, 70.105A.070, 70.105A.080, 70.105A.090, 70.105A.900, and 70.105A.905; prescribing penalties; making appropriations; providing an effective date; and declaring an emergency.

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

Sec. 1. Section 1, chapter 65, Laws of 1983 1st ex. sess. and RCW 70.105A.010 are each amended to read as follows:

PURPOSE. (1) It is the policy of the state of Washington to protect the public health and welfare of all its citizens against the dangers arising from the generation, transport, treatment, storage, and disposal of hazardous wastes and from releases or threatened releases of hazardous substances. In order to reach that policy objective, it is not only necessary to provide state government with broad powers of regulation, control, and removal of these hazardous wastes and substances, including the power to fashion and effectuate remedial directives, but it is imperative that adequate funds are also provided to carry out these powers in a vigorous manner. In the implementation of the provisions of this chapter, the state shall, when appropriate, cooperate with and support federal agencies in their implementation of counterpart federal hazardous waste and substances programs, while pursuing independent state actions whenever it appears they will provide more efficient ((or)) and effective alternative programs to achieve the policies and purposes of this chapter.

(2) The purposes of this chapter are, among others: (a) To supplement the powers already vested in the department of ecology relating to hazardous wastes and to releases or threatened releases of substances which are hazardous to the environment or public health, (b) to provide moneys necessary for the full, sufficient, and efficient implementation of the hazardous waste and substances regulation control and removal program of the state, (c) to encourage reduction of hazardous wastes through recycling and improvement of manufacturing processes, (d) to provide for the cleanup and restoration of those sites within the state at which improper disposal of hazardous waste has occurred, resulting in the potential for deleterious impacts on the health and welfare of the citizens of the state, as well as on the state's natural, environmental, and biological systems, (e) to provide for funding to study, plan, and undertake the rehabilitation, removal, and cleanup of hazardous waste deposited improperly at sites located within the state, ((~~and~~)) (f) to provide funds for matching purposes for participation in the federal Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended by Public Law 99-499, (g) to establish a mechanism to remedy releases and threatened releases of hazardous substances into the state's environment in an expeditious fashion which encourages voluntary and prompt cleanups, and (h) to provide flexibility to the department and potentially responsible parties in devising voluntary response action plans so that the public health and the environment are protected.

Sec. 2. Section 2, chapter 65, Laws of 1983 1st ex. sess. and RCW 70.105A.020 are each amended to read as follows:

DEFINITIONS. As used in this chapter, the following terms have the meanings indicated unless the context clearly requires otherwise.

(1) "Dangerous waste" shall have the same definition as set forth in RCW 70.105.010(5) and shall specifically include those wastes designated as dangerous by rules adopted pursuant to chapter 70.105 RCW;

(2) "Department" means the department of ecology;

(3) "Director" means the director of ecology or the director's designee;

(4) "Disposal" means the discharge, deposit, injection, release, dumping, spilling, leaking, placing, or allowing to seep any hazardous substance into or on any land or water;

((~~(3)~~)) (5) "Extremely hazardous waste" shall have the same definition as set forth in RCW 70.105.010(6) and shall specifically include those wastes designated as extremely hazardous by rules adopted pursuant to chapter 70.105 RCW;

(6) "Facility" means (a) any building, structure, 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, vessel or aircraft, or (b) any site or area where a hazardous substance, other than a consumer product in consumer use, has been deposited, stored, disposed of, or placed, or otherwise come to be located;

(7) "Generate" means any act or process which produces hazardous waste or first causes a hazardous waste to become subject to regulation;

((~~(4)~~)) (8) "Hazardous waste" means and includes all dangerous and extremely hazardous wastes;

(((5) "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;

(6) "Identified site" means the same or geographically contiguous property, which may be divided by a public or private right of way, provided that access between the properties occurs at an intersection and crosses, as opposed to goes along, the right of way. Noncontiguous properties owned by the same person but connected by a right of way will be considered a single identified site if the person controls the right of way and can prevent public access;

(7) "Fee" means the annual hazardous waste control and elimination assessment fee imposed under RCW 70.105A.030 and the fee for treatment, storage, and disposal facilities imposed under RCW 70.105A.040;

(8) "Annual gross income" of a business means the value proceeding or accruing during a calendar year by reason of the transaction of the business or service engaged in and includes gross proceeds of sales, compensation for the rendition of services, gains realized from trading in stocks, bonds, or other evidences of indebtedness, interest, discount, rents, royalties, fees, commissions, dividends, and other emoluments however designated, all without any deduction on account of the cost of tangible property sold, the cost of materials used, labor costs, interest, discount, delivery costs, taxes, or any other expense whatsoever paid or accrued and without any deduction on account of losses; and

~~(9) "Generate" means any act or process which produces hazardous waste or first causes a hazardous waste to become subject to regulation.~~))

(9) "Hazardous substances" means:

(a) Hazardous wastes;

(b) 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)) as amended by Public Law 99-499;

(c) Solid waste or its decomposition products that present a real and substantial threat to the public health or welfare or the environment;

(d) Any other substance or category of substances determined by the director by rule, to present a threat to the public health or welfare or the environment if released into the environment; or

(e) Substances containing both radioactive and hazardous wastes.

!ixThe term "hazardous substances" does not include petroleum, including crude oil or any fraction thereof which is not otherwise specifically listed or designated as a hazardous substance under federal law.

(10) "Local government" means a city, town, or county;

(11) "Local toxics control project" means a project of a local government to provide a response action or a project of a fiscally distressed local government to plan, design, and construct a solid waste facility in compliance with chapter 70.95 RCW;

(12) "Natural resources" means land, water, air, fish, wildlife, or other such resources belonging to, managed by, within the jurisdiction of, or held in trust by the state, a subdivision of the state, municipal corporation, foreign government, or other public entity;

(13) "Owner or operator" means:

(a) In the case of a vessel, any person owning, operating, or chartering such vessel;

(b) Any person with any ownership interest in the facility or who exercises any control over the facility;

(d) The term does not include:

(i) An agency of the state or unit of local government which acquired ownership or control involuntarily through bankruptcy, tax delinquency, abandonment, or circumstances in which the government involuntarily acquires title. This exclusion does not apply to an agency of the state or unit of local government which has caused or contributed to the release or threatened release of a hazardous substance from the facility; or

(ii) A person who, without participating in the management of a vessel or facility, holds indicia of ownership primarily to protect the person's security interest in the vessel or facility;

(14) "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;

(15) "Release" means any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, disposing or allowing to seep into the environment, including the abandonment or discarding of barrels, containers, or other closed receptacles containing any hazardous substance, pollutant or contaminant but excludes (a) any release which results in exposure to persons solely within a workplace, with respect to a claim which such persons may assert against the employer of such persons, (b) the normal application of fertilizer, and (c) the application of pesticide products when applied as registered under the federal insecticide, fungicide, and rodenticide act;

(16) "Remedy" or "remedial action" means those actions consistent with 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 to cause substantial danger to present or future public health or welfare or the environment. The term also includes off-site transport to and off-site storage, treatment, destruction, or secure disposition of hazardous substances and associated contaminated material at a hazardous waste disposal facility or such actions at the location of the release or threatened 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, on-site treatment or incineration, provision of alternative water supplies, and any monitoring reasonably required to assure that such actions protect the public health and welfare and the environment. The term includes the acquisition of property necessary to effect the action and the costs of permanent relocation of residents and businesses and community facilities where the director determines that, alone or in combination with other measures, such relocation is more cost-effective than and environmentally preferable to the transportation, storage, treatment, destruction, or secure disposition offsite of hazardous substances, or may otherwise be necessary to protect the public health or welfare.

(17) "Remove" or "removal" means:

(a) The cleanup or removal of a hazardous substance which has been released into the environment;

(b) Such actions as may be necessary in the event of the threat of a release of hazardous substances into the environment;

(c) Such actions as may be necessary to monitor, assess, and evaluate the release or threat of release of hazardous substances;

(d) The disposal of removed material; or

(e) 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 of hazardous substance to the environment;

(18) "Reportable quantity" means that amount of a hazardous substance to be reported under this chapter as set by rule by the department;

(19) "Respond" or "response action" means remove, removal, remedy, or remedial action;

(20) "Response costs" or "costs of response" means all costs incurred in performing a response action, including the costs of indemnifying response action contractors, all other costs and interest attributable to the response action, and, where the response or response action is undertaken by the department, costs of departmental investigation, design, or feasibility study preceding such removal or action and any enforcement activities related thereto;

(21) "Response action contract" means any written contract or agreement entered into by a response action contractor to provide services relating to a response action with the department, or any responsible party carrying out a response action plan under section 8 of this 1987 act or complying with a regulatory order under section 14 of this 1987 act;

(22) "Response action contractor" means (a) any person who enters into a response action contract with respect to any release or threatened release of a hazardous substance, pollutant, or contaminant with a responsible party or the state to provide services relating to the response action, or (b) any person who is retained or hired by a person described in (a) of this subsection, or who enters into a contract with such person, to provide any services relating to a response action;

(23) "Threatened release" means the presence of hazardous substance such that a release is imminent unless a response action is taken.

NEW SECTION. Sec. 3. DEPARTMENT'S POWERS AND DUTIES. (1) Insofar as such exercise is consistent with this chapter, the department may exercise the following powers in addition to any other powers granted by law:

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

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

(d) Make contracts for professional services, technical services, or for construction. However, the director 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;

(e) Carry out all programs of the federal comprehensive environmental response, compensation, and liability act of 1980 as amended by Public Law 99-499. 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 response actions, to assure site maintenance, to assure the availability of hazardous waste facilities, and to make such contracts or cooperative agreements with the federal government as may be necessary under the federal act;

(f) Participate in and carry out all programs of the federal resource conservation and recovery act, 42 U.S.C. Sec. 9601 et seq., as amended as of the effective date of this section, which are contemplated for state participation, implementation, or administration under that act;

(g) Investigate, respond to, and direct or initiate cleanup of spills or other releases of petroleum or petroleum products and recover reasonable costs incurred by the department from persons responsible for such releases; or

(h) Take other actions necessary to carry out the provisions of this chapter.

(2) The department shall: (a) To the greatest extent possible, when the director determines that federal funding would facilitate appropriate response action, apply to the federal government for funds to carry out the powers granted by this chapter and may receive and administer those funds, and (b) make best efforts to recover state moneys spent on response action, including administration, overhead, investigation, removal, remedial action, mitigation, any other account expenditures, and damages.

(3) The department may adopt rules, under chapter 34.04 RCW, to carry out the provisions of this chapter.

NEW SECTION. Sec. 4. SCHEDULES. (1) The director shall maintain a list of all potential hazardous waste sites in the state at which the department has undertaken preliminary assessments, site inspections, other site studies, or response actions, or at which the department has knowledge of response action by potentially responsible parties.

(2) By September 30 of each year until 1998, the director shall submit a report to the appropriate standing committees of the legislature on hazardous waste cleanup activity in the state during the previous fiscal year. The report shall include at least the following:

(a) The sites where preliminary assessments or site inspections were undertaken or completed;

(b) The sites where studies related to potential response actions were undertaken or completed;

(c) The sites where response actions were undertaken or completed either by potentially responsible parties or by the department;

(d) The sites where the department has initiated enforcement actions, and the results of such enforcement actions; and

(e) An accounting of the toxics control account.

NEW SECTION. Sec. 5. RESPONSIBLE PARTIES‑-STANDARD OF LIABILITY. (1) Except as provided in subsection (4) of this section, the following persons are parties responsible for releases or threatened releases of hazardous substances at a facility: (a) The owner or operator of a facility, (b) any person who at the time of disposal of any hazardous substance owned or operated any facility at which the hazardous substances were disposed, (c) any person who (i) owned or possessed hazardous substances and (ii) by contract, agreement, or otherwise arranged for disposal or treatment, or arranged with a transporter for transport for disposal or treatment of the hazardous substances, or otherwise generated hazardous wastes disposed of or treated at the facility, (d) any person who (i) accepts or accepted any hazardous substances for transport to a disposal, treatment, or other facility selected by such person from which there is a release or a threatened release of a hazardous substance, unless such disposal or treatment facility, at the time of disposal or treatment, could legally receive such wastes, or (ii) so accepts such substances for transport where such transporter has reasonable grounds to believe that such facility is not operated in accordance with chapter 70.105 RCW, and (e) any person who sells or has sold a hazardous substance and is responsible for written instructions for the use of the substance if (i) the substance is or was used in accordance with such instructions, and (ii) the use causes or caused the release of a hazardous substance which in turn causes or caused a substantial threat to public health or the environment.

(2) Except as otherwise provided in sections 8 and 17 of this act, and notwithstanding any other provision or rule of law, any person who is responsible for a release or threatened release of a hazardous substance from a facility is strictly liable, jointly and severally, for the following costs and damages which result from the release or threatened release or to which the release or threatened release contributes:

(a) All response costs incurred by the state, a political subdivision of the state or the United States, including such costs incurred prior to the effective date of this section;

(b) All response costs incurred by any person but only insofar as such costs are incurred in conformance with this chapter; and

(c) All damages for any injury to, destruction of, or loss of natural resources, including the reasonable costs of assessing such injury, destruction, or loss.

(3) There shall be no liability under this section imposed on a person who can establish that the release or threatened release of a hazardous substance for which the person would be otherwise responsible was caused solely by:

(a) An act of God;

(b) An act of war; or

(c) An act or omission of a third party (including but not limited to a trespasser) other than (i) an employee or agent of the person asserting the defense, or (ii) any person whose act or omission occurs in connection with a contractual relationship, existing directly or indirectly, with the person asserting this defense to liability. This defense only applies where the person asserting the defense has exercised due care with respect to the hazardous substance and took reasonable precautions against the foreseeable acts or omissions of the third party and the foreseeable consequences of those acts or omissions.

(4) The following persons shall not be responsible parties: Any person who is an owner, past owner, or purchaser of a facility who can establish by a preponderance of the evidence that at the time the facility was acquired such person had no knowledge or reason to know that any hazardous substance which is the subject of the release or threatened release was disposed of on, in, or at the facility.

(5) No person (including the United States or any state or Indian tribe) may recover under the authority of this section for any response costs or damages resulting from the application of a pesticide product registered under the federal insecticide, fungicide, and rodenticide act. Nothing in this subsection shall affect or modify in any way the obligations or liability of any person under any other provision of state or federal law, including common law, for damages, injury, or loss resulting from a release of any hazardous substance or for removal or remedial action or the costs of removal or remedial action of such hazardous substance.

(6)(a) To establish that a person had no reason to know, as provided in subsection (4) of this section, the defendant must have undertaken, at the time of acquisition, all appropriate inquiry into the previous ownership and uses of the property, consistent with good commercial or customary practice in an effort to minimize liability. Any court interpreting this subsection shall take into account any specialized knowledge or experience on the part of the defendant, the relationship of the purchase price to the value of the property if uncontaminated, commonly known or reasonably ascertainable information about the property, the obviousness of the presence or likely presence of contamination at the property, and the ability to detect such contamination by appropriate inspection.

(b) Nothing in this subsection shall diminish the liability of any previous owner or operator of such facility who would otherwise be liable under this chapter. If the defendant obtained actual knowledge of the release or threatened release of a hazardous substance at such facility when the defendant owned the real property, and then subsequently transferred ownership of the property to another person without disclosing such knowledge, such defendant shall be treated as liable and no defense shall be available to such defendant under subsection (3)(c) of this section.

(c) Nothing in this subsection shall affect the liability under this chapter of a defendant who by any act or omission, caused or contributed to the release or threatened release of a hazardous substance which is the subject of the action relating to the facility.

(7) Except as provided in section 8 of this act, there shall be a right to contribution among potentially responsible parties for response costs incurred pursuant to this chapter.

(8)(a) Whenever in the public interest as determined by the director, the director shall as promptly as possible reach a final settlement with a potentially responsible party if such settlement involves only a minor portion of the response costs at the facility concerned and, in the judgment of the director, either:

(i) Both the amount of the hazardous substances and the toxic or other hazardous effects of the substances contributed by that party to the facility are minimal in comparison to other hazardous substances at the facility; or

(ii) The potentially responsible party: (A) Is the owner of the real property on or in which the facility is located; (B) did not conduct or permit the generation, transportation, storage, treatment, or disposal of any hazardous substance at the facility; and (C) did not contribute to the release or threatened release of a hazardous substance at the facility through any action or omission. This subparagraph (ii) does not apply if the potentially responsible party purchased the real property with actual or constructive knowledge that the property was used for the generation, transportation, storage, treatment, or disposal of any hazardous substance.

(b) The director may provide a covenant not to sue of a scope commensurate with the activities, if any, addressed in the settlement agreement to any party who has entered into a settlement under this subsection unless such a covenant would be inconsistent with the public interest as determined by the director. For purposes of this subsection only, a covenant not to sue means a promise by the state that with respect to the activities, if any, addressed in the settlement agreement the state will not initiate any future administrative or judicial action to force the responsible party to clean up, pay the expenses for cleaning up, conduct any investigations, or pay the expenses for any investigations or response costs.

(c) A settlement under this subsection shall be entered as a consent decree issued by a court of competent jurisdiction or embodied in a consent order of the department.

(d) A party who has resolved its liability to the state under this subsection shall not be liable for claims for contribution regarding matters addressed in the settlement. Such settlement does not discharge any of the other potentially responsible parties but it reduces the total potential liability of the others to the state by the amount of the settlement.

NEW SECTION. Sec. 6. INVESTIGATIONS. (1) If there is a reasonable basis to believe there may be a release or threatened release of a hazardous substance, any officer, employee, or representative designated by the director may require, upon reasonable notice, information or documents relevant to that release or threatened release from a person who has or may have information relevant to (a) the identification, 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, (c) the identity of potentially responsible parties, or (d) information relating to the ability of a person to pay for or perform a response action. 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. In case of a refusal to obey a subpoena issued pursuant to this subsection, and served upon any person, the superior court for any district in which such person is found, resides, or transacts business shall, upon application by the department and after notice to such person, have jurisdiction to issue an order requiring such person to appear and give testimony before the department, or to appear and produce documents before the department, or both, and any failure to obey such order of the court may be punished by such court as contempt.

(2) Where there is a reasonable basis to believe there may be a release or threatened release of a hazardous substance, the department, its authorized employees, agents, or contractors, or the employees, agents, or contractors of a responsible party acting under an approved response action plan in order to determine the need for response to the release or the threat of release of hazardous substances may, upon reasonable notice, enter upon any real property, public or private, to conduct sampling, inspection, examination, and investigation directed at evaluating the release or threatened release. In conducting the listed activities, the department or other person gaining access under this section shall take all feasible precautions to avoid disrupting the ongoing operation on the site. The department or other person gaining access under this section shall provide to the owner, or operator, or person in charge of the facility, 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 as well as to representatives of the public and other interested persons.

NEW SECTION. Sec. 7. PRIORITIES/NOTICE OF RESPONSIBILITY. (1) In implementing this chapter the director shall be guided by the following priorities in descending order, but the director may use funds appropriated from the state toxics control account to respond to releases deemed by the director to pose the more significant risks to public health or the environment:

(a) Voluntary action undertaken by potentially responsible parties without resort to use of the state toxics control account with or without the procedures of this chapter;

(b) Voluntary action undertaken by potentially responsible parties but with some public funding from the state toxics control account; and

(2) Before the department begins a removal or remedial action, it shall:

(a) Investigate the site or require an investigation pursuant to section 6 of this act to determine to the extent possible:

(i) The identity of each potentially responsible party;

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

(b) Notify interested persons, the public, and the identified potentially responsible parties with the results of the investigation and allow access to the information gathered by the department; and

(c) Provide notified or responsible parties the opportunity to prepare and implement a response action plan pursuant to section 8 of this act.

(3) This section shall not apply if the department acts pursuant to section 10(2) of this act.

NEW SECTION. Sec. 8. RESPONSE ACTION PLANS. (1) Any person or persons receiving notice under section 7 of this act may submit to the department a response action plan for response action at a facility where there has been a release or threatened release of hazardous substances.

(2) Such person or persons receiving notice under section 7 of this act shall have sixty days to propose to the department a response action plan and, upon written application, the director may grant extensions of up to sixty days. Such a plan must include a proposed budget for the response action, a binding schedule for completing the elements of the plan, and a commitment to complete all elements of the plan. Monitoring provisions shall also be provided unless the responsible parties provide clear and convincing evidence that monitoring provisions are not necessary. The plan may be part of a phased approach to investigation, removal, and remedial action. A request for a covenant not to sue pursuant to section 9 of this act of a scope commensurate with the proposed response action may accompany any plan involving remedial action.

(3) As part of the proposed response action plan, the persons submitting the plan may propose specific cleanup levels for each hazardous substance or area to which the plan responds.

(4) The department shall issue a preliminary decision accepting, accepting with conditions, or rejecting the proposed plan. 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 thereafter have an opportunity to modify the proposed plan or provide additional supporting justification for acceptance of the parties' original plan. The department shall thereafter issue its final decision including its response to any submittal of any modifications or additional material. The department shall adopt rules providing for reasonable time periods under this subsection.

(5) The department shall give notice of the proposed response action plan, cleanup levels proposed by the persons submitting the plan and the cleanup levels proposed by the department, and the results of the department's investigation to interested persons and the public. The notice shall include a brief analysis of the plan, the results of the investigation, and a statement of how additional information may be obtained. Public comment shall be accepted for a minimum of forty-five days from the date of notice.

(6) In each response action plan, the department shall set and incorporate the cleanup levels and such levels shall include:

(a) With respect to each hazardous substance, a cleanup level which at a minimum meets the substantive requirements of all applicable state and federal laws, regulations, rules, and criteria established for the purposes of this section;

(b) With respect to hazardous substances for which no applicable state or federal law, regulation, rule, or criteria established for the purposes of this section exists, the department shall set the cleanup level on a case-by-case basis in order to prevent potential harm to the public health and the environment. In making this determination the department may refer to state and federal laws, regulations, rules, and criteria relevant and appropriate to this determination;

(c) With respect to each hazardous substance, where persons submitting a plan demonstrate to the department by clear and convincing evidence that an alternative to cleanup levels established under (a) of this subsection would assure protection of human health and the environment, then the department may allow a deviation from those cleanup levels.

(7) In assessing or approving response actions, the department shall select those actions that will attain a degree of cleanup which is protective of human health and the environment, is cost-effective, and that utilizes permanent solutions to the maximum extent possible. In determining whether to approve, approve with conditions, or reject the plan, the director shall, at a minimum, consider and issue findings on the following factors:

(a) The extent to which the plan would meet the cleanup levels required in subsection (6) of this section;

(b) Whether the plan or alternatives to the plan would provide optimum protection of human health and the environment;

(d) The reliability of the proposed response action technology;

(e) The impact of the response actions on the quality of air, groundwater, and surface waters, including existing and potential future uses;

(f) The extent to which the plan includes adequate provisions for monitoring the effectiveness of the response action, both before and after certification of completion;

(g) The impact of the response actions on existing and potential land uses of the site and adjoining lands;

(h) The extent to which the proponents of the plan will fund the response action;

(i) The proponents' record of compliance with implementing past response action plans; and

(j) The extent to which use of federal funds would facilitate or hinder appropriate response action.

(8) The director may approve a response action plan containing an agreement which requires the department to provide a specified amount of money to help defray the costs of implementing the plan. This provision of state funds may be provided only in circumstances where the director finds it would expedite or enhance cleanup operations or achieve greater fairness with respect to the payment of response costs. The director shall adopt rules providing criteria and priorities governing public funding of response costs under this subsection. The amount of public funding in an agreement under this section is to be determined solely by the director and under no circumstances may the amount be increased through court review or arbitration.

(9) If new information is revealed while implementing an approved response action plan, the responsible parties and the department may amend the plan. If such new information reveals a significant quantity of a hazardous substance or condition not previously identified in the approved plan as being present at the site, in an area of the site other than that described in the approved plan, or in quantities significantly greater than as described in the approved plan, then the plan shall be amended. The department shall adopt rules providing a method for amending approved plans. These rules shall provide an amendment process similar to the process specified in subsections (5) through (10) of this section. The issuance of a covenant not to sue pursuant to section 9 of this act shall not bar amendments to response action plans under this subsection.

(10) Any accepted response action plan shall be implemented by consent order of the department or by consent decree issued by a court of competent jurisdiction.

(11) If the director rejects the plan or if any responsible party fails to submit a response action plan after being notified of its potential responsibility, the responsible party or parties shall be liable for the reasonable and necessary costs of response incurred by the department.

(12) Any responsible party who without sufficient cause wilfully violates an order issued pursuant to section 14 of this act or fails to comply with any element of the plan shall be liable for up to three times the reasonable and necessary costs of response incurred by the department as a result of such failure or violation.

(13) A responsible party who has not participated in implementing the provisions of a response action plan, including any amendments to the plan, shall have no right to seek or obtain contribution for payment of response costs against any responsible party participating in implementing the plan and any future amendments to the plan. For purposes of this subsection only, a party shall be considered to be a participating party upon issuance of the consent order or decree provided for in subsection (10) of this section. Issuance of a consent order or decree provided for in subsection (10) of this section is a bar to entry of any judgment for contribution in favor of a nonparticipating party against a participating party.

(14) A participant in the plan may seek recovery of its costs that are above its proportionate share of costs from any responsible party not participating in the plan. If such nonparticipating responsible party (a) received a notice of responsibility under section 7(2)(a) of this act or had actual notice of the development of the plan, (b) had reason to believe it was a responsible party, and (c) is a nonpublic entity, it may be liable to the participants in the plan for up to three times such nonparticipant's proportionate costs.

(15) (a) Any potentially responsible party or combination of parties, who is or are parties to a response action plan, including any potentially responsible party as defined under section 5 of this act that is an instrumentality of local, state, or federal government, may initiate an arbitration proceeding to resolve disputes concerning only issues specified in (b) of this subsection, by giving all responsible parties participating in the plan notice of the intent to arbitrate.

(b) The arbitration proceedings provided in this section shall be solely for the purpose of allocating the payment of response costs among potentially responsible parties that have obtained approval for a response action plan. The effect of such arbitration shall be final and binding on the parties to the arbitration and there shall be no right of appeal on allocation of response costs.

(c) For purposes of this subsection only, the allocation of costs of response among the participating parties shall be based on factors including but not limited to: Volume, toxicity, mobility, strength of evidence, ability to pay, causation, degree of care, litigative risks, public interest considerations, precedential value, and inequities and aggravating factors.

(d) The provisions of this subsection (15) are optional and are not intended to prevent any other method of resolving disputes on issues subject to arbitration under this subsection.

(e) For the purpose of conducting the arbitration procedure specified in this subsection, a panel of three arbitrators may be chosen and convened in accordance with the procedures of the American arbitration association. To the extent possible, at least two of those arbitrators shall have experience and expertise in engineering, the physical or biological sciences, health services, financial matters, or other relevant experience and qualification on response actions.

NEW SECTION. Sec. 9. COVENANT NOT TO SUE. (1) When requested by a responsible party who has agreed to participate in implementing a response action plan, the director shall provide a covenant not to sue with respect to any remedial action which is required by the plan and which will accomplish any of the following:

(a) Treatment of hazardous substances so as to destroy, eliminate, or permanently immobilize the hazardous constituents of such substances so that the substances, or any byproduct of the treatment or destruction process, no longer present any foreseeable future significant risk to public health or welfare or the environment; or

(b) When such destruction, elimination, or permanent immobilization is not practicable, the transportation of the hazardous substances off site to an approved hazardous waste disposal facility meeting the requirements of the federal resource conservation and recovery act, 42 U.S.C. Sec. 6924 and 6925, as amended as of the effective date of this section, and, if the substances are disposed of in this state, the rules of the department adopted pursuant to chapter 70.105 RCW for permanent disposal facilities; or

(2) (a) When requested by a responsible party who has agreed to participate in implementing a response action plan, the director shall provide a covenant not to sue with respect to any remedial action if the cleanup levels have been established under section 8(6) (b) of this act, and if the covenant not to sue is determined by the director to be in the public interest.

(b) In making the determination of public interest the director shall consider the following factors:

(i) Whether the benefits from the expedition of the voluntary response action caused by the issuance of a covenant not to sue would exceed the potential future risk to the public health and finances caused by such issuance;

(ii) The nature of the risks that might remain at the facility;

(iii) The extent to which the response action plan is based on attainment of performance standards based on objective criteria for releases of substances to, or the presence of substances in, land, air, or water;

(iv) Whether the account or other sources of funding would be available for any additional remedial actions that might eventually be necessary at the facility;

(v) Whether the monitoring and maintenance required at the site, if any, will protect human health and the environment; and

(vi) The extent to which the technology used in the response action is demonstrated to be effective.

(3) When requested by a responsible party who has agreed to participate in implementing a response action plan, the director shall provide a covenant not to sue with respect to any remedial action taken if the cleanup level or levels have been established under section 8(6)(c) of this act and if:

(a) The director has determined that issuing the covenant is in the public interest as defined in subsection (2)(b) of this section;

(b) Compliance with the otherwise applicable standards is technically impracticable from an engineering perspective; and

(4) A "covenant not to sue" means a promise by the state made with respect to a particular hazardous substance or a particular area, the cleaning up of which has been the purpose of a previously approved remedial action undertaken by the responsible party at the direction of the department and with the approval of the department. In issuing the covenant, the state promises that, with respect to that substance or area, it will not initiate any future administrative or judicial action to force the responsible party to clean up, pay the expenses for cleaning up, conduct any investigations or pay the expenses for any investigations or response costs. A covenant shall be commensurate with and strictly limited to the scope of the previously approved remedial action, meaning that (a) if the remedial action was for cleaning up a particular hazardous substance, then the covenant does not extend to other hazardous substances, and (b) if the remedial action was for cleaning up a particular area, then the covenant does not extend to other areas. A covenant may be issued with respect to all remedial actions taken under a completed response action plan or may be issued for one or more particular remedial actions taken under a completed response action plan. When a covenant is issued for a particular area and not for particular hazardous substances within that area, the department shall take special care to assure that both the planned remedial action and its implementation conform to this chapter. As used in this subsection, the term "particular area" means a precisely described three-dimensional area.

(5) The issuance of a covenant not to sue does not affect the power of the state to take whatever actions are necessary, other than those expressly barred by the covenant, to protect members of the public from a health hazard, including, but not limited to, actions to prevent entrance upon the property, to prevent the use of the property for any purpose which exposes anyone to a health hazard, or to enter upon the property and take measures to clean up the hazardous substance. Nor does the issuance of a covenant affect any power of the state to institute or respond to any tort action or any other judicial or administrative action, so long as the state's action or response is not expressly barred by the covenant. With respect to any action filed against the state, a covenant does not bar the state from filing a cross-claim, counterclaim, or third party action against any person who may be liable or from seeking contribution from such person, so long as the damages or relief sought by the state in filing the cross- claim, counterclaim, or third party action is not expressly barred by the covenant.

(6) The director shall issue the covenant not to sue at the time of approval of a response action plan pursuant to section 8 of this act. Any covenant not to sue issued by the director shall be conditioned upon compliance with the approved response action plan and issuance of a certificate of completion pursuant to section 11 of this act. A covenant shall cease to be conditional and shall become effective on the date of certification of completion.

(7) After July 1, 1992, a covenant not to sue shall not be granted if the balance in the toxics reserve account is below ten million dollars.

(8) The decision to grant or deny a covenant under this section shall be reviewable under section 12 of this act.

(9) A person receiving a covenant not to sue under this chapter shall not be relieved of any liability owed to persons, other than the state of Washington, under any federal, state, or local law, including the common law.

(10) Issuance of a covenant not to sue to a responsible party shall not relieve or decrease any other party's liability to the state.

NEW SECTION. Sec. 10. DEPARTMENT'S POWERS TO INITIATE RESPONSE ACTIONS. (1) If a responsible party fails to initiate a response action plan or fails to comply with an approved response action plan, the director shall take appropriate steps to assure that the necessary response actions are undertaken, and, if necessary, proceed with an action to recover the costs of response action from the responsible party or parties.

(2) If the director determines that: (a) An emergency exists that requires immediate action to protect human health or the environment, and (b) the owner or operator is unwilling or unable to take such immediate action, the department, its authorized employees, agents, or contractors, or the employees, agents, or contractors of a responsible party acting under departmental approval may without court order enter upon property, public or private, to take such response action as is necessary to abate the emergency.

(3) If the potentially responsible parties fail to implement a response action plan that has been approved pursuant to section 8 of this act, the director may determine, in accordance with the procedures set forth in this section, that action to respond to a release or threatened release of hazardous substances is necessary and that entry upon real property, public or private, is necessary to execute response action. Such entry may be made by the department, its authorized employees, agents, or contractors, or the employees, agents, or contractors of a responsible party acting under an approved response action plan. 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 department shall supply the person owning, operating, or in charge of the property concerned, as well as all potentially responsible parties with: (a) A written document detailing the director's determination and the basis for the determination, (b) a notice that response action and entry upon property shall proceed in no fewer than sixty days, and (c) a request for a prompt response. The director 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.

(4) The department, 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 department's application shall: (a) State that the notice procedures required in this section have been carried out, (b) describe the property concerned, (c) describe the response action selected by the director, and (d) include a schedule identifying the dates response actions are planned. If, after a hearing, the superior court finds that the department's application and supporting materials establish that the department has made a reasonable attempt to accommodate any responding party's legitimate concerns, the superior court shall enter an order authorizing entry upon real property to execute response action.

(5) The following are not subject to review under chapter 43.21B or 34.04 RCW: (a) The director's determination that response action is necessary, that entry upon real property is necessary, or the basis for such decision; and (b) any response by the director to the responsible party's concerns.

(6) 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.

(7) Prior to conducting a response action, the department shall:

(a) Prepare a proposed scope of work based on any investigation or study conducted by or for the department, the responsible parties, or others;

(b) Provide the identified responsible parties with notice of the proposed response action and an opportunity to comment on the scope of work proposed and provide similar notice and opportunity to comment to members of the public that request notice. Unidentified responsible parties and other members of the public shall also be notified by publication consistent with chapter 65.16 RCW; and

(c) Prepare a final scope of work based on the comments received and any other study or investigation conducted by or for the department.

The proposed and final scope of work, and the basis for them as well as all comments received by the department shall constitute the record of decision of the department. No record of decision need be developed when an emergency exists and the department undertakes a response action to protect the public health or the environment.

(8) Where the department has developed a record of decision for a response action and the department has conducted the response action in accordance with such record, in any action brought to recover costs, the scope of work of the department shall be presumed reasonable and necessary unless demonstrated to be arbitrary and capricious.

(9) The attorney general, at the request of the director, may recover from any responsible party moneys expended by the department on response actions, including response actions undertaken prior to the effective date of this section. This shall include any damages caused by responsible parties and any other costs allowed to be recovered by this chapter. Such actions may be commenced in the superior court of Thurston county, in the superior court of the county where the facility is located, or other court of competent jurisdiction. The amounts recoverable shall include interest from the date costs were first incurred for any response action taken.

NEW SECTION. Sec. 11. CERTIFICATION OF COMPLETION OF REMEDIAL ACTIONS. (1) Upon completion of an approved response action plan, the persons submitting the plan may apply for a certificate of completion from the department. The department shall provide notice of an application for certification of completion to interested persons and the public. The notice shall include a brief analysis of the application and indicate where additional information may be obtained. Public comment shall be accepted for a minimum of forty-five days from the date of the notice.

(2) The director shall grant or deny an application for certification of completion within ninety days of the application. If the director finds that all the provisions of the response action plan have been fully implemented, the director shall approve an application for certification of completion.

NEW SECTION. Sec. 12. REVIEW OF DECISIONS. (1) Within fifteen days of the director's disapproval or conditional acceptance of a response action plan pursuant to section 8 of this act, or at any time after approval of the plan, any potentially responsible party or combination of parties, which may be subject to the plan, may initiate an arbitration proceeding to resolve disputes concerning the plan or proposed plan by giving the department and all parties participating in the plan notice of the intent to arbitrate. Within fifteen days after denial of certification of completion of remedial action under section 11 of this act, any party who applied for certification may initiate an arbitration proceeding to resolve disputes concerning the certification of completion of the remedial action by giving the department and all parties participating in the plan notice of the intent to arbitrate. Decisions of the department regarding the amount or denial of public funding and regarding covenants not to sue are not subject to arbitration.

(2) A person with interests not otherwise represented at an arbitration proceeding may request to intervene in the proceeding for the purpose of presenting information to the arbitration panel. The arbitration panel shall grant intervenor status if it finds that additional information from such persons would be useful and relevant in reaching a decision. An intervenor shall have full rights to participate in the proceeding but shall not have the right to select an arbitrator.

(3) The department shall notify persons who commented on either the response action plan, the certification of completion, or the decision on a covenant not to sue when an arbitration has been initiated.

(4) An arbitration panel of three shall be chosen. One panel member shall be selected by the department, one by the potentially responsible party or parties, and the third by the first two members selected. To the extent possible, at least two arbitrators shall have experience and expertise in response action techniques and the financial and environmental consequences of implementation of response action plans. If within fifteen days after the date on which notice of intent to arbitrate is given, the department or any party is unable to agree on the method of selecting the panel members or on the rules for the operations of the panel, the department or any party may petition the superior court of Thurston county to promulgate rules to govern the selection of the panel members and the operations of the panel. If the court considers it appropriate, it may apply the procedures of the American arbitration association.

(5) The arbitrators shall: (a) Establish a time schedule for expedient resolution of the dispute, (b) allow for the presentation of both written and oral testimony and discovery procedures to supplement the agency's administrative record, and (c) issue findings of fact and conclusions as part of the panel decision. Proceedings may be informal, and the parties need not adhere to the rules of evidence for superior court. The panel's decisions shall be based on findings and conclusions and shall be by majority vote. The decision of the department shall be upheld unless the party challenging such decision, or the intervenor, demonstrates by clear and convincing evidence that the decision of the department was incorrect or otherwise inconsistent with the provisions of this chapter. Costs, including reasonable expert and attorney's fees, of the arbitration shall be assessed by the arbitrators against each party or intervenor with potential liability under this chapter, in an amount reflecting the degree to which each party failed to prevail in its position in the decision of the arbitrators.

(6) If a responsible party or the department appeals the arbitration decision to the court and fails to improve its position, the court shall assess costs and attorney's fees of the defending parties against the party that appeals.

(7) For purposes of subsections (1) through (6) of this section "party" means the department or a responsible party initiating arbitration in accordance with subsection (1) of this section.

(8) There shall be no right to judicial review of the department's or arbitration panel's decision regarding approval, conditional approval, or rejection of a proposed response action plan or its completion; the certification of completion of a remedial action; or the grant or denial of a covenant not to sue except as provided in this section.

(9) Any person aggrieved: (a) By the acceptance, conditional acceptance, or rejection of a voluntary response action plan under section 8 of this act; (b) by the grant or denial of an application for certification of completion under section 11 of this act; or (c) by the grant, denial, or limitation of a covenant under section 9 of this act shall have a right to judicial review of the department's decision. Review shall be sought within sixty days of the final action of the department in the superior court for Thurston county. The appealing parties shall show by clear and convincing evidence that the rejection or acceptance of the plan or application for certification of completion or granting, denying, or limiting the covenant was incorrect or otherwise inconsistent with the purposes of this chapter. If a request for arbitration is made pursuant to subsection (1) of this section, direct appeals pursuant to this subsection shall be stayed pending resolution of the arbitration and court review on matters arbitrated shall then be limited to a review of the record of arbitration. Any appeal of an arbitration decision issued under this chapter shall be of the record of the arbitration decision only and there shall be no right to a trial de novo. The arbitration panel's decision shall be upheld unless the court finds it to be clearly erroneous. Appeals shall be heard on the civil motion calendar and expedited to the maximum extent possible consistent with due process of law.

(10) Where the circumstances of a particular case indicate that a party to an unsuccessful suit has sought judicial review as a means of delay, the court may assess, as a penalty, any economic gain such party may have realized through such delay.

NEW SECTION. Sec. 13. NOTIFICATION/RETENTION OF RECORDS. (1) Any person (a) in charge of a vessel from which a reportable quantity of hazardous substance is released into or upon the waters of this state or adjoining shorelines; or (b) in charge of a vessel from which a reportable quantity of hazardous substance is released which may affect natural resources belonging to, pertaining to, or under the exclusive management authority of the state; or (c) in charge of a facility from which a reportable quantity of hazardous substance is released who fails to notify immediately the department as soon as he or she has knowledge of such release, or who knowingly submits a false or misleading notice shall, upon conviction, be fined not more than twenty-five thousand dollars, or imprisoned for not more than three years, or not more than five years in the case of a second or subsequent conviction, or both. Notification received pursuant to this section, or information obtained by the notification, shall not be used against any such person in any criminal case, except a prosecution for perjury or for giving a false statement.

(2) Beginning with the effective date of this section, for fifty years thereafter, or for fifty years after the date of establishment of a record, whichever is later, or at any such earlier time if a waiver is obtained from the department, it shall be unlawful for any person knowingly to destroy, mutilate, erase, dispose of, conceal, or otherwise render unavailable, unreadable, or falsify any records of the type which the department may by rule identify as necessary. Any person who violates this subsection shall, upon conviction, be fined not more than twenty-five thousand dollars or imprisoned not more than three years, or five years in the case of a second or subsequent conviction, or both. If a business entity ceases operation before this period has expired other than by transfer of business operations to another entity, its obligations and the obligations of any of its employees under this subsection shall be terminated upon providing the department notice of ceasing operations and access to its records for one hundred twenty days prior to their destruction or disposal, unless the department agrees to a lesser period.

NEW SECTION. Sec. 14. ENFORCEMENT. (1) Whenever, in the opinion of the director (a) a person is responsible for a release or threatened release of a hazardous substance; (b) that person has been notified of its potential responsibility pursuant to section 7 of this act; and (c) that person has not submitted or implemented a response action plan pursuant to section 8 of this act, the director may seek injunctive or other judicial relief or issue such order or directive as it deems appropriate under the circumstances, and serve the order on that person personally or by registered mail. Such an order is not appealable pursuant to chapter 43.21B RCW.

(2) Whenever the director determines an emergency exists that requires immediate action to protect human health or the environment, the director may (a) issue such order or directive as appropriate under the circumstances, without first giving notice or otherwise allowing response action as set forth in subsection (1) of this section; or (b) request the attorney general to secure such relief as may be necessary to abate such danger or threat, and the superior court of the district in which the threat occurs shall have jurisdiction to grant such relief as the public interest and the equities of the case may require.

NEW SECTION. Sec. 15. CIVIL PENALTIES. (1) Any person who violates any provision of an approved response action plan, or who fails to submit a proposed response action plan pursuant to section 8 of this act may be subject to a civil penalty of up to ten thousand dollars per day for each day of 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 a separate offense. Every act of commission or omission which procures, aids, or abets in the violation shall be subject to such a penalty. The penalty shall be imposed and appealed pursuant to RCW 90.48.144.

(2) In determining the amount of any penalty assessed pursuant to this section, the director shall take into account the nature, circumstances, extent, and gravity of the violation or violations and, with respect to the violator, any prior history of such violations, the degree of culpability, economic benefit or savings, if any, resulting from the violation, and such other matters as justice may require.

(3) Any person against whom a civil penalty is assessed under this section may obtain review thereof before the pollution control hearings board by filing a notice of appeal within thirty days from the date of such order, and by simultaneously sending a copy of such notice by certified mail to the director.

(4) If any person fails to pay an assessment of a civil penalty after it has become a final and unappealable order, the director may request the attorney general to institute a civil action in Thurston County superior court or other appropriate court to collect the penalty, and such court shall have jurisdiction to hear and decide any such action.

NEW SECTION. Sec. 16. THIRD PARTY ACTIONS. (1) Any person aggrieved by an action or inactions of a potentially responsible party which may result in a release of a hazardous substance that presents an imminent and substantial endangerment to health or the environment may bring an action in superior court to compel the potentially responsible party to comply with the provisions of this chapter. Before any action may be brought, the person aggrieved shall mail by certified mail a notice of intent to sue to the director of the department, who shall be allowed thirty days to negotiate or mediate a resolution to the dispute before any action may be filed.

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

(3) No action may be commenced under this section where:

(a) The department is diligently prosecuting a judicial action or pursuing administrative action under this chapter to force a potentially responsible party to respond to the release or threatened release of hazardous substances under this chapter; or

(b) The department is diligently pursuing response action against the release of the hazardous substances.

(4) Any person aggrieved who prevails in an action brought under this section shall be entitled to reasonable attorneys' fees and costs.

(5) Nothing in this chapter affects or impairs any right under any other statute or under the common law to bring a legal action relating to the release or threatened release of hazardous substances.

NEW SECTION. Sec. 17. RESPONSE ACTION CONTRACTOR LIABILITY. (1) A person who is a response action contractor, or a person employed by any public body who provides services relating to response action, and who is working within the scope of the person's employment with respect to any release or threatened release of a hazardous substance, 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 or threatened 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, or the liability of an employer who is a response action contractor to any employee of such employer under any provision of law.

(3) The director may agree to hold harmless and indemnify any 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. Indemnification under this subsection shall apply only to response action contractor liability that results from a release or threatened release of any hazardous substance, pollutant, or contaminant if the release arises out of response action activities. An indemnification agreement under this subsection 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 director to offer indemnification under subsection (3) of this section shall not apply to any person covered by the provisions of section 5(1) of this act.

(5) A person retained or hired by a potentially responsible party shall be eligible for consideration for indemnification under subsection (3) of this section only if the director specifically approves the response action being implemented.

NEW SECTION. Sec. 18. STATE LIENS. (1) Any liability to the state under this chapter shall constitute a debt to the state. Any such debt shall constitute a lien, in favor of the state, on all real property and rights to such property which belongs to persons liable under this chapter and is subject to, or effected by, a removal or response action.

(2) The lien imposed by this section shall arise at the earlier of the following:

(a) The time costs are first incurred by the state with respect to a response action under this chapter; or

(b) The time that the person referred to in subsection (1) of this section is provided notice under section 7 of this act of potential responsibility.

(3) A statement of claim, describing the property subject to the lien, shall be filed in the appropriate office as designated by state law. Such lien shall continue until the liability for the costs have been satisfied. Any lien filed pursuant to this section shall be subject to the rights of any purchaser, holder of a security interest, or judgment lien creditor whose interest is perfected in accordance with law before notice of the state lien is filed.

NEW SECTION. Sec. 19. PROPERTY TRANSFER. (1) The owner of public or private nonresidential real property upon which a release of a hazardous substance as defined in subsection (4) of this section has been found by the department to have occurred 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: (a) Identify the property; (b) identify the owner of the property, and the person causing the notice to appear; (c) state that a release of a hazardous substance occurred on the property; (d) state the date the release occurred; and (e) direct further inquiries to the department. The department shall maintain records that identify the response action taken and the hazardous substance or substances released for each response action that has been conducted or approved by the department. Any person with an interest in the property, 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 response action 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 response action has been completed in accordance with section 11 of this act, the director shall declare in writing that the response 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. The declaration shall also be provided to interested persons and the public.

(3) The owner of real property, whether public or private, transferring any right, title, or interest in the property shall provide, before recording the documents effecting the transfer, a written statement to the person's transferee describing any release of a hazardous substance as defined in subsection (4) of this section which the owner knows to have occurred for the prior twenty years on the property being transferred. Unless otherwise agreed by seller and purchaser, any purchaser injured by the failure of any owner of real property to provide the statement referred to in this subsection, or injured by the failure of an owner of real property to provide the statement referred to in this subsection before recording the documents effecting the transfer, is entitled to recover damages for that injury by filing an action in superior court for the county where the release occurred.

(4) The department shall determine by rule, consistent with the purposes of this chapter, which releases shall be subject to the reporting and notification requirements under subsections (1) and (3) of this section. This rule shall limit required reporting under this section to those releases that are of a magnitude that would cause a long-term adverse threat to the environment.

NEW SECTION. Sec. 20. FRAUD. If a potentially responsible party commits fraud on the department or another potentially responsible party in a proposed response action plan, in a request for a covenant not to sue, or in an application for a certificate of completion, then any limitation on liability or covenant not to sue otherwise provided is void, and the injured person may recover treble the actual damages sustained.

NEW SECTION. Sec. 21. ASSISTANCE FOR PUBLIC PARTICIPATION. (1) If one hundred or more persons who may be adversely affected by the failure to undertake an adequate response action plan petition the department for assistance, the department may grant moneys from the account established by section 30 of this act necessary to facilitate participation of a representative of those petitioning in the activities under this chapter.

(2) Grants may be made available to facilitate public participation in activities authorized by sections 8, 9, and 11 of this act.

(3) Grants may be made available to facilitate public participation in other activities under this chapter if, in the discretion of the department, such participation will expedite compliance with the purposes of this chapter.

(4) Grants shall not exceed fifty thousand dollars for any one site.

(5) The department shall implement this section in a manner that furthers public participation in the activities authorized by this chapter.

NEW SECTION. Sec. 22. A new section is added to chapter 43.21C RCW to read as follows:

SEPA EXEMPTION. The detailed statement and other procedural requirements of this chapter shall not be applicable to investigatory or response activities undertaken by the state or authorized or ordered by the state under chapter 70.105A RCW.

NEW SECTION. Sec. 23. EXEMPTION FROM PERMITS. Any person acting under an approved response action plan or the department undertaking a response action shall be exempt from the procedural and substantive requirements of state and local laws which would otherwise be applicable to such response action, including those requirements imposed by chapters 70.94, 70.105, 90.03, 90.44, 90.48, and 90.58 RCW.

NEW SECTION. Sec. 24. A new section is added to chapter 70.94 RCW to read as follows:

EXEMPTION FROM PERMITS. Any person acting under an approved response action plan or the department undertaking a response action under chapter 70.105A RCW shall be exempt from the procedural and substantive requirements of this chapter.

NEW SECTION. Sec. 25. A new section is added to chapter 70.105 RCW to read as follows:

NEW SECTION. Sec. 26. A new section is added to chapter 90.03 RCW to read as follows:

NEW SECTION. Sec. 27. A new section is added to chapter 90.44 RCW to read as follows:

NEW SECTION. Sec. 28. A new section is added to chapter 90.48 RCW to read as follows:

NEW SECTION. Sec. 29. A new section is added to chapter 90.58 RCW to read as follows:

NEW SECTION. Sec. 30. STATE TOXICS CONTROL ACCOUNT. (1) The state toxics control account is hereby created in the state treasury. Money in the account may only be used in a manner consistent with this chapter. Money deposited in the account shall be administered by the department and shall be subject to legislative appropriation. Money placed in the account shall include: (a) Tax receipts as provided in section 46 of this act; (b) the hazardous waste fees under section 54 of this act; (c) costs of cleanup actions undertaken after the effective date of this section and recovered under this chapter or any other authority which allows such recovery; (d) penalties collected or recovered pursuant to this chapter; and (e) any other money appropriated to the account by the legislature. All earnings from investment of balances in the state toxics control account, except as provided in RCW 43.84.090, shall be credited to the account.

(2) Costs of cleanup actions undertaken prior to the effective date of this section and recovered under this chapter shall be deposited in the general fund. (3) Money in the account may be used for the following activities: Public funding of response costs as provided in section 8(8) of this act; implementation of the hazardous and solid waste regulatory program under chapters 70.105 and 70.95 RCW and the hazardous waste cleanup program under this chapter; grants as provided in section 21 of this act; and water and health protection.

NEW SECTION. Sec. 31. TOXICS CONTROL RESERVE ACCOUNT. (1) The toxics control reserve account is hereby created in the state treasury. Money in the account shall be used solely for actions including cleanup or removing and remedying releases or threats of releases of hazardous substances by the state at sites for which a covenant not to sue has been entered into by the state. Money deposited in the account shall be administered by the department and shall be subject to legislative appropriation. All earnings from investment of balances in the toxics control reserve account, except as provided in RCW 43.84.090, shall be credited to the account.

(2) Beginning on July 1, 1988, and on July 1 of each year thereafter, the treasurer shall transfer three million dollars from the state toxics control account to the toxics control reserve account. This subsection applies only if on the July 1 date the tax rate under section 42 of this act is at thirty one-hundredths of one percent and the balance in the reserve account is less than twenty million dollars.

NEW SECTION. Sec. 32. TOXICS CONTROL RESPONSE ACCOUNT. The toxics control response account is hereby created in the state treasury to be used exclusively to fund response actions for nonparticipant and orphan shares, the latter of which include shares of persons who are bankrupt, insolvent, or otherwise unavailable for payment. The state treasurer shall deposit into the toxics control response account from the state toxics control account for the biennium ending June 30, 1989, the sum of twenty-one million two hundred seventy-eight thousand dollars. Any funds remaining at the end of each fiscal biennium in this account shall be deposited in the toxics control reserve account.

NEW SECTION. Sec. 33. LOCAL TOXICS CONTROL ACCOUNT. (1) The local toxics control account is hereby created in the state treasury.

(2) All tax receipts deposited in this account under section 52 of this act shall be placed by the state treasurer in a bond reimbursement subaccount and used only to reimburse the general fund for all costs of bond redemption, including principal and interest, with respect to bonds the proceeds of which have been placed in the bond proceeds subaccount as provided in subsection (3) of this section.

(3) All proceeds of bond sales deposited in the account shall be placed by the state treasurer in a bond proceeds subaccount, and subject to appropriation by the legislature, shall be used for the following purposes: To pay for the appropriation provided in section 34(2) of this act; solid waste planning, management, regulation and enforcement; technical assistance to local governments on solid waste management practices; financial assistance for local toxics control projects; and health protection.

NEW SECTION. Sec. 34. APPROPRIATION TO THE DEPARTMENT OF ECOLOGY. (1) There is hereby appropriated from the state toxics control account to the department of ecology eleven million one hundred thousand dollars, or so much thereof as may be necessary, for the biennium ending June 30, 1989, to be allocated for the following purposes:

(a) Not to exceed five hundred thousand dollars for agricultural waste management programs.

(b) Not to exceed eight million six hundred thousand dollars for the ongoing implementation of the hazardous waste regulatory program authorized by chapter 70.105 RCW including, but not limited to, activities to permit and inspect hazardous waste facilities and to provide technical assistance to local governments in accordance with RCW 70.105.170 and 70.105.255; and local planning grants as provided in RCW 70.105.220 and 70.105.235.

(2) There is hereby appropriated from the local toxics control account to the department of ecology an amount not to exceed one hundred twenty-four million four hundred eleven thousand dollars, or so much thereof as may be necessary, for the biennium ending June 30, 1989, to be allocated for the following purposes:

(a) Not to exceed two million three hundred eleven thousand dollars for the ongoing implementation of the hazardous waste regulatory program authorized by chapter 70.105 RCW including, but not limited to, activities to permit and inspect hazardous waste facilities and to provide technical assistance to local governments in accordance with RCW 70.105.170 and 70.105.255; and local planning grants as provided in RCW 70.105.220 and 70.105.235.

(b) Not to exceed two million one hundred thousand dollars for the solid waste management activities including, but not limited to: State and local solid waste enforcement; the development and dissemination of technical assistance information for local governments regarding proper management and disposal of solid waste in accordance with RCW 70.95.100 and 70.95.263(2); and local planning grants as provided in RCW 70.95.130.

(c) Not to exceed one hundred twenty million dollars for grants and loans pursuant to section 36 of this act and the administrative costs of the bond issues.

(d) This subsection (2) is only effective to the extent that the proceeds from bond sales are deposited into the local toxics control account and can be used to pay for the appropriation.

(3) There is hereby appropriated from the state toxics control response account to the department of ecology, for the biennium ending June 30, 1989, an amount not to exceed twenty-one million two hundred seventy-eight thousand dollars, to be used exclusively for the purposes specified for the state toxics control response account under section 32 of this act.

NEW SECTION. Sec. 35. APPROPRIATION TO THE DEPARTMENTS OF REVENUE, COMMUNITY DEVELOPMENT, AND SOCIAL AND HEALTH SERVICES. (1) There is hereby appropriated from the state toxics control account to the department of revenue an amount not to exceed one hundred six thousand dollars, or so much thereof as may be necessary, for the biennium ending June 30, 1989, to administer the collection of revenues from the taxes imposed in sections 42 and 43 of this act.

(2) There is hereby appropriated from the state toxics control account to the department of community development an amount not to exceed eight hundred twenty-one thousand dollars, or so much thereof as may be necessary, for the biennium ending June 30, 1989, for fire training.

(3) There is hereby appropriated from the state toxics control account to the department of social and health services an amount not to exceed one million five hundred eighteen thousand dollars, or so much thereof as may be necessary, for the biennium ending June 30, 1989, to be allocated for the following purposes:

(a) Not to exceed two hundred sixty-six thousand dollars to test public drinking water supplies for organic chemicals.

(b) Not to exceed six hundred sixty-eight thousand dollars to monitor drinking water supplies potentially affected by hazardous waste releases.

(c) Not to exceed five hundred eighty-four thousand dollars for health risk assessments, health monitoring activities, and health information services for communities surrounding a hazardous waste site.

NEW SECTION. Sec. 36. FINANCING LOCAL TOXICS CONTROL PROJECTS. In order to finance local toxics control projects and other local programs required by chapters 70.95 and 70.105 RCW, the department shall:

(1) Make grants or combinations of grants or low- interest loans to local governments from the local toxics control account or such other subaccounts for the purpose of assisting local governments to finance local toxics control projects and development of plans and/or programs as required by RCW 70.95.100, 70.95.130, 70.105.220, and 70.105.235. The department may charge such rates of interest on its loans to reimburse the account for administrative charges to carry out the grant purposes of this chapter. The department shall develop criteria based on the financial ability of the local government to determine the grants and/or combination grant and loan amounts. At least seventy-five percent of any bond proceeds deposited in the local toxics control account shall be disbursed as grants to local governments. Money received from local governments in repayment of loans made under this section shall be paid into the local toxics control account.

(2) Create such subaccounts in the local toxics control account as the department deems necessary to carry out the purposes of this chapter.

(3) Provide a method for the allocation of financial assistance.

NEW SECTION. Sec. 37. APPLICATION FOR FINANCIAL ASSISTANCE FOR LOCAL TOXICS CONTROL PROJECTS. To apply for financial assistance to initiate a response action the local government must have been notified by the department as a responsible party under section 7 of this act.

NEW SECTION. Sec. 38. CONDITIONS FOR FINANCIAL ASSISTANCE. As a condition to any financial assistance under section 36 of this act for a local toxics program, the department may require that a county or city will develop programs to:

(1) Increase reduction of solid waste;

(2) Achieve the recycling of solid wastes;

(3) Encourage waste reduction and recycling of moderate risk wastes, including education programs; and

(4) Implement collection programs for moderate risk waste.

The programs shall be incorporated into either an approved solid waste management plan in accordance with RCW 70.95.090 or an approved local hazardous waste management plan in accordance with RCW 70.105.220.

NEW SECTION. Sec. 39. PRIORITY PROCESS FOR LOCAL TOXICS CONTROL PROJECTS. (1) The department shall develop a priority process for grants or loans to help finance local government projects for implementing response action plans. The department shall consider at least the following factors in assigning a priority to a project:

(a) Whether the project is critical in nature and would affect the health and safety of a great number of citizens;

(b) The cost of the project compared to the amount of funds available; and

(2) The department shall not sign contracts or otherwise financially obligate funds from the local toxics control account for local toxics control projects and local government response action plans before the legislature has appropriated funds for a specific list of such projects. The legislature may remove projects from the list recommended by the department. The legislature shall not change the order of the priorities recommended for funding by the department.

NEW SECTION. Sec. 40. INTENT. It is the intent of this chapter to levy a tax on all defined substances sold, used, consumed, handled, or distributed within this state. It is the further intent of this chapter to impose the tax only once for each defined substance, but nothing in this chapter exempts any person taxable under any other law.

NEW SECTION. Sec. 41. DEFINITIONS. Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter.

(1) "Distributor" means (a) any person engaged in the business of selling defined substances in this state who brings, or causes to be brought, into this state from without the state any defined substance for sale, (b) any person who makes, manufactures, or fabricates defined substances in this state for sale in this state, and (c) any person engaged in the business of selling defined substances without this state who ships or transports defined substances to persons in this state.

(2) "Defined substance" means:

(a) 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)) as amended by Public Law 99-499;

(b) Petroleum products; and

(c) Any other substance or category of substances determined by rule of the department of ecology to present a threat to the public health or welfare or the environment if released into the environment.

(3) "Petroleum product" means every product derived from the refining of crude oil, including but not limited to, plant condensate, lubricating oil, gasoline, aviation fuel, kerosene, diesel motor fuel, benzol, fuel oil, residual oil, liquefied or liquefiable gases such as butane, ethane, and propane, and every other product derived from the refining of crude oil. "Petroleum product" does not include natural gas, asphalt, or petroleum coke.

(4) "Previously taxed defined substance" means:

(a) A defined substance in respect to which tax has been paid under this chapter and which has not been remanufactured or reprocessed in any manner (other than mere repackaging) since the tax was paid. If a defined substance in respect to which a tax has been paid under this chapter becomes an ingredient or component of another substance and the new substance is not a defined substance, no additional tax under this chapter shall be paid on the new substance; or

(b) A petroleum product which has been refined from another petroleum product in respect to which a tax has been paid under this chapter. If a petroleum product has as an ingredient or component part a nonpetroleum product defined substance in respect to which tax has been paid under this chapter, the manufacturing, refining or processing of said petroleum product shall not cause additional tax liability under this chapter, on said defined substance or said petroleum product.

(5) "Use," "used," "using," or "put to use" shall have their ordinary meaning and shall mean the first act within this state by which the taxpayer takes or assumes dominion or control over a defined substance, and shall include activities such as storage, withdrawal from storage, or any other act within this state of combining defined substances with other ingredients or components to produce a new product, regardless of whether the defined substance will be consumed or resold in the course of business.

(6) "Wholesale value" means the established price for which a manufacturer sells a defined substance to a distributor. If a defined substance is acquired by lease or by gift or is extracted, produced, or manufactured by the person using the substance or is sold under conditions wherein the purchase price does not represent the true wholesale value thereof, the wholesale value of the defined substance shall be determined as nearly as possible according to the wholesale selling price at the place of use of similar substances of like quality and character, in accordance with rules of the department.

(7) Except as otherwise specified in this chapter, the definitions in chapters 82.04, 82.08, and 82.12 RCW apply to this chapter.

NEW SECTION. Sec. 42. SALES TAX IMPOSED. (1) A tax is imposed upon each sale, handling, or distribution of a defined substance in this state by a distributor at the rate specified in subsection (3) of this section multiplied by the wholesale value of the defined substance. The tax shall be imposed at the time the distributor (a) brings, or causes to be brought, into this state from without the state defined substances for sale, (b) makes, manufactures, or fabricates defined substances in this state for sale in this state, or (c) ships or transports defined substances to retailers in this state, to be sold by those retailers.

(2) The tax imposed in this section does not apply to successive sales, handlings, or distributions of previously taxed defined substances.

(3)(a) The rate of tax under this section shall be thirty one-hundredths of one percent, except as provided otherwise under this section.

(b) If on the last day of any calendar quarter the balance in the toxics reserve account exceeds twenty million dollars, the rate under this section shall be twenty-four one-hundredths of one percent effective for taxable events occurring after the last day of the next calendar quarter. This reduced rate shall continue to be effective unless it is changed under (c) of this subsection.

(c) If, subsequent to a rate reduction under (b) of this subsection, on the last day of any calendar quarter the balance in the toxics reserve account is less than ten million dollars, then the rate under this section shall be thirty one-hundredths of one percent effective for taxable events occurring after the last day of the next calendar quarter.

(d) Subsection (2)(b) of this section shall expire and cease to be of any force or effect on the first day in which the rate is increased under subsection (2)(c) of this section.

NEW SECTION. Sec. 43. USE TAX IMPOSED. (1) A tax is imposed upon each use of a defined substance at the rate provided in section 42 of this act multiplied by the wholesale value of the defined substance.

(2) The tax imposed in this section does not apply to the use of previously taxed defined substances.

NEW SECTION. Sec. 44. RECORDS. Every distributor shall keep complete and accurate records of defined substances held, purchased, sold, manufactured, brought in, or caused to be brought in from without the state. The records shall contain information required by the department, which may include but is not limited to the seller's name and address, the buyer's name and address, the date of sale, and all prices and discounts. All books, records, and other papers and documents required under this section shall be preserved for a period of at least five years after the date of the entries appearing in the records. The requirements of this section are in addition to the requirements of RCW 82.32.070.

NEW SECTION. Sec. 45. CREDITS FOR TAXES. Credit for taxes paid under this chapter shall be made, in accordance with rules of the department, for:

(1) Defined substances which are delivered outside this state by the seller or the seller's agents;

(2) Defined substances which are returned to the person who paid the tax on that defined substance under this chapter;

(3) Petroleum products which are exported for use outside this state as fuel, including fuel carried from this state in the fuel tank of any airplane, ship, truck, or other vehicle; and

(4) Defined substances consisting of alumina or which are destroyed by a distributor in a manner approved by the department of ecology.

NEW SECTION. Sec. 46. ADMINISTRATIVE PROVISIONS. Chapter 82.32 RCW applies to the taxes imposed in this chapter. Revenues from the taxes imposed in this chapter shall be deposited in the state toxics control account created in section 30 of this act.

Sec. 47. Section 1, chapter 175, Laws of 1982 and RCW 36.58.100 are each amended to read as follows:

SOLID WASTE DISPOSAL DISTRICT‑-AUTHORIZED‑-BOUNDARIES‑-POWERS‑-GOVERNING BODY. (1) The legislative authority of any county ((~~other than a class AA county~~)), or the council of any city or town, is authorized to establish ((~~one or more~~)) a solid waste disposal district((s)) within the county, city, or town for the purpose of providing and funding solid waste disposal services and solid waste disposal sites, as provided in this section. ((No solid waste disposal district may include any area within the corporate limits of a city or town unless the city or town governing body adopts a resolution approving inclusion of the area within its limits. The county legislative authority may modify the boundaries of the solid waste disposal district by the same procedure used to establish the district.)) A solid waste disposal district may be created to fund a disposal site or sites located within the district or to assist in funding, pursuant to interlocal agreement under chapter 39.34 RCW, a disposal site or sites operated by another establishing authority. Each solid waste disposal district shall develop and implement a comprehensive plan for funding all solid waste disposal sites within the district, entering into interlocal agreements under chapter 39.34 RCW when appropriate.

(2) A solid waste disposal district created by a county legislative authority shall include only that part of the county, whether incorporated or unincorporated, which is served by the solid waste disposal site or sites which will be funded by the district, except that any area within a city or town shall be excluded if the legislative authority of the city or town elects to finance the city or town's funding obligations through any of the following or combination of the following: Adjustment of rates, sale of bonds, or allocation of other revenues.

(3) A city or town council may create a solid waste disposal district to fund a solid waste disposal site or sites which serve the city or town. If such site or sites also serve any other incorporated areas or any unincorporated areas, the legislative authorities for those areas, upon request of the city or town, shall either create a solid waste disposal district pursuant to subsection (1) of this section or finance their funding obligations through any of the following or combination of the following: Adjustment of rates, sale of bonds, or allocation of other revenues.

(4) If a city or town is included in a solid waste disposal district, the district must include the entire city or town.

(5) A solid waste disposal district may be dissolved by the ((~~county legislative~~)) establishing authority after holding a hearing as provided in RCW 36.58.110.

(6) As used in RCW 36.58.100 through 36.58.150 the term ((~~"county" includes all counties other than class AA counties~~)) "establishing authority" means a legislative authority or council authorized to establish a solid waste disposal district under this section.

(7) A solid waste disposal district is a quasi-municipal corporation, an independent taxing "authority" within the meaning of Article VII, section 1 of the state Constitution, and a "taxing district" within the meaning of Article VII, section 2 of the state Constitution.

(8) A solid waste disposal district shall constitute a body corporate and shall possess all the usual powers of a corporation for public purposes as well as all other powers that may now or hereafter be specifically conferred by statute: PROVIDED, That a solid waste disposal district shall not have the power of eminent domain.

(9) The ((~~county legislative~~)) establishing authority shall be the governing body of a solid waste disposal district. The electors of a solid waste disposal district shall be all registered voters residing within the district.

Sec. 48. Section 2, chapter 175, Laws of 1982 and RCW 36.58.110 are each amended to read as follows:

SOLID WASTE DISPOSAL DISTRICT‑-ESTABLISHMENT, MODIFICATION, OR DISSOLUTION‑-HEARING‑-NOTICE. ((~~A county legislative~~)) An establishing authority proposing to establish a solid waste disposal district or to modify or dissolve an existing solid waste disposal district shall conduct a hearing at the time and place specified in a notice published at least once not less than ten days prior to the hearing in a newspaper of general circulation within the proposed solid waste disposal district. This notice shall be in addition to any other notice required by law to be published. Additional notice of such hearing may be given by mail, posting within the proposed solid waste disposal district, or in any manner local authorities deem necessary to notify affected persons. All hearings shall be public and the ((~~county legislative~~)) establishing authority shall hear objections from any person affected by the formation, modification, or dissolution of the solid waste disposal district and make such changes ((~~in the boundaries of the district or any other modifications that the county legislative~~)) as the establishing authority deems necessary.

Sec. 49. Section 3, chapter 175, Laws of 1982 and RCW 36.58.120 are each amended to read as follows:

SOLID WASTE DISPOSAL DISTRICT‑-ESTABLISHMENT‑-ORDINANCE. No solid waste disposal district shall be established ((~~within a county~~)) unless the ((~~county legislative~~)) establishing authority determines, following a hearing held pursuant to RCW 36.58.110, that it is in the public interest to form the district and the ((~~county legislative~~)) establishing authority adopts an ordinance creating the solid waste disposal district and establishing its boundaries.

Sec. 50. Section 5, chapter 175, Laws of 1982 and RCW 36.58.140 are each amended to read as follows:

SOLID WASTE DISPOSAL DISTRICT‑-EXCISE TAX‑-LIEN FOR DELINQUENT TAXES AND PENALTIES. A solid waste disposal district may levy and collect an excise tax on the privilege of living in or operating a business in a solid waste disposal taxing district sufficient to fund its solid waste disposal activities((~~: PROVIDED, That any property which is producing commercial garbage shall be exempt if the owner is providing regular collection and disposal~~)) including, but not limited to, costs for solid waste disposal operations, capital costs, and monitoring costs. Any excise tax imposed under this section must be: (1) Imposed on all businesses and residences in the district, including but not limited to publicly and privately owned utilities; and (2) the amount of the tax collected from each business and residence shall be the same.

Any revenues received under this section may be pledged for retirement of revenue bonds issued under RCW 36.58.150.

The excise tax shall be billed and collected by the establishing authority at times and in the manner fixed and determined by the ((~~solid waste disposal district~~)) establishing authority. Penalties for failure to pay the tax on time may be provided for. A solid waste disposal district shall have a lien for delinquent taxes and penalties, plus an interest rate equal to the interest rate for delinquent property taxes. The lien shall be attached to each parcel of property in the district that is occupied by the person so taxed and shall be superior to all other liens and encumbrances except liens for property taxes.

The solid waste disposal district shall periodically certify the delinquencies to the county treasurer at which time the lien shall be attached. The lien shall be foreclosed in the same manner as the foreclosure of real property taxes.

Sec. 51. Section 7, chapter 282, Laws of 1986 and RCW 82.18.020 are each amended to read as follows:

TAX IMPOSED. There is imposed on each person using the services of a refuse collection business a refuse collection tax equal to ((~~three and six-tenths~~)) nine and two-tenths percent of the consideration charged for the services.

Sec. 52. Section 9, chapter 282, Laws of 1986 and RCW 82.18.040 are each amended to read as follows:

COLLECTION OF TAX‑-PAYMENT TO STATE. Taxes collected under this chapter shall be held in trust until paid to the state. Taxes so received by the state shall be deposited as follows: (1) Taxes received as a result of a rate equal to three and six-tenths percent shall be deposited in the public works assistance account created in RCW 43.155.050; and (2) the remainder of the taxes received shall be deposited in the local toxics control account created in section 33 of this 1987 act. 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 this chapter 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.

The legislature on behalf of the state pledges to maintain and continue the tax rate increase provided by section 51 of this 1987 act and to place the tax revenues resulting therefrom in the local toxics control account for purposes of fully reimbursing the general fund for bond redemption costs, both principal and interest.

NEW SECTION. Sec. 53. HAZARDOUS WASTE NOTIFICATION. A new section is added to chapter 70.105 RCW to read as follows:

Any person who generates, transports, offers for transport, or transfers hazardous waste or who operates a hazardous waste transfer, storage, treatment, or disposal facility shall provide the department with notice of the person's intent to do so and shall obtain an environmental protection agency/state identification number. The department may adopt rules providing exemptions to this section consistent with the purposes of this chapter and chapter 70.105A RCW.

NEW SECTION. Sec. 54. HAZARDOUS WASTE FEE. A new section is added to chapter 70.105 RCW to read as follows:

(1) Every hazardous waste notifier shall pay to the department a hazardous waste fee to be calculated pursuant to subsection (2) of this section.

(2) The fee shall include the following:

(a) Twenty-five dollars for notification and request for an environmental protection agency/state identification number;

(b) Twenty-five dollars for cancellation of an environmental protection agency/state identification number;

(c) Fifty dollars per year for processing the annual report required by the department, provided, however, that no such fee shall be due in years when the annual report reports no wastes;

(d) An annual inspection charge in an amount to be set by the department pursuant to subsection (3) of this section; and

(e) A permit charge in an amount to be set by the department pursuant to subsection (4) of this section.

(3) The department shall set the inspection charge by rule as follows:

(a) The department shall collect inspection fees from individual notifiers. The fee charged to any notifier shall not exceed the maximum allowed in (e) of this subsection.

(b) The fee schedule pursuant to (e) of this subsection shall be based on the size, complexity, and type of facility or transporter to be inspected as set forth in (c) and (d) of this subsection;

(i) Under five tons equals "small";

(ii) Five to ten tons equals "medium"; and

(iii) Over ten tons equals "large".

(d) In determining the complexity of the facility, the following categories, excluding those substances which are to be or have been recycled, and excluding contaminated soils and substances from spills, improper disposal, or other activities (as distinct from process), shall be used. For the purposes of this section, "waste stream" shall mean a hazardous waste which is different from any other hazardous waste produced or handled by a notifier at the notifier's site. Two hazardous wastes are different if they do not share the same waste identification number.

(i) "Simple" facilities are those which produce or manage less than four waste streams.

(ii) "Moderate" facilities are those which produce or manage between four and seven waste streams.

(iii) "Complex" facilities are those which produce or manage more than seven waste streams.

(e) Annual fees assessed upon a notifier shall not exceed:

(i) For large, complex land disposal facilities, sixteen thousand dollars;

(ii) For small simple land disposal facilities, six thousand six hundred dollars;

(iii) For large complex treatment facilities, nine thousand two hundred dollars;

(iv) For small simple treatment facilities, one thousand nine hundred dollars;

(v) For large complex storage facilities, seven thousand three hundred dollars;

(vi) For small simple storage facilities, one thousand five hundred dollars;

(vii) For large complex transporters or generation facilities, four thousand seven hundred dollars;

(viii) For small simple transporters or generation facilities, four hundred dollars;

(ix) For medium simple transporters or generation facilities, fifteen hundred dollars;

(x) For facilities of medium size or moderate complexity, the department shall establish by rule a maximum annual fee between four hundred and sixteen thousand dollars, relative to and consistent with the limits in these subparagraphs (i) through (ix).

(4) The department shall set a permit charge for each notifier seeking a permit under this chapter as follows:

(a) The charge shall be based on actual costs of permitting, as determined by a cost accounting system which accurately accumulates such data for each permit applicant, including overhead attributable to such costs of permitting.

(b) For each notifier seeking a permit, the department shall estimate the costs of the permit. Beginning January 31, 1988, each notifer seeking a permit shall pay one-fifth of that cost estimate. One-fifth shall be paid by January 31 of each subsequent calendar year except when governed by (c) of this subsection.

(c) At the time the drafting of a permit is completed, the department shall inform the notifier of the actual cost of the permit, as determined from an accurate cost accounting system. If that amount, prorated over the five years, exceeds the amount paid up to that time by the notifier, the department shall bill the notifier for the difference. If the amount owed is not paid within thirty days, the department may deny the permit. The amount collected for each of the remaining of the five years shall be adjusted accordingly. If the actual cost is less than the amount paid by the notifier, the department shall refund the difference at the time the permit is issued and the amount collected for each of the remaining of the five years shall be adjusted accordingly. If the application process if ended without issuance of a permit, the department shall refund any overpayment, and bill for any underpayment, within thirty days of when the process is ended.

NEW SECTION. Sec. 55. A new section is added to chapter 70.105 RCW to read as follows:

(1) The fees required by section 54 of this act, when due and payable, shall bear interest at the rate of nine percent per annum for each month (or portion thereof) that the fee is not paid.

(2) The department of ecology may levy civil penalties in the amount of up to five hundred dollars for each day fees and interest due and owing under section 54 of this act are unpaid. The procedures relating to levying and collection of penalties set forth in RCW 90.48.144 shall be applied to penalties levied under this section. Moneys collected under this subsection shall be placed in the hazardous waste control and elimination account.

(3) The attorney general is authorized to initiate such actions in the courts as are necessary and appropriate to insure compliance with the provisions of this chapter.

NEW SECTION. Sec. 56. A new section is added to chapter 43.131 RCW to read as follows:

(1) The authority under chapter 70.105A RCW except for that under sections 31, 33, and 36 through 39 of this act shall terminate on June 30, 1997, as provided under section 57 of this act.

(2) The authority under chapter 82.__ RCW (sections 40 through 46 of this act) shall terminate on June 30, 1997, as provided under section 57 of this act.

NEW SECTION. Sec. 57. A new section is added to chapter 43.131 RCW to read as follows:

(1) Chapter 70.105A, with the exception of sections 31, 33, and 36 through 39 of this act shall expire June 30, 1997.

(2) Chapter 82.__ RCW (sections 40 through 46 of this act) shall expire June 30, 1998.

NEW SECTION. Sec. 58. SEVERABILITY. If any provision of this act or chapter 70.105A RCW 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. 59. LIBERAL CONSTRUCTION. This act and chapter 70.105A RCW are exempt from the rule of strict construction and shall be liberally construed to give full effect to the purposes for which they were enacted.

NEW SECTION. Sec. 60. CODIFICATION. (1) Sections 3 through 21, 23, 30 through 33, and 36 through 39 of this act shall be added to chapter 70.105A RCW.

(2) Sections 40 through 46 of this act shall constitute a new chapter in Title 82 RCW.

NEW SECTION. Sec. 61. SECTION CAPTIONS. Section captions as used in this act constitute no part of the law.

NEW SECTION. Sec. 62. REPEALERS. The following acts or parts of acts are each repealed:

(1) Section 3, chapter 65, Laws of 1983 1st ex. sess., section 129, chapter 7, Laws of 1985 and RCW 70.105A.030;

(2) Section 4, chapter 65, Laws of 1983 1st ex. sess. and RCW 70.105A.040;

(3) Section 5, chapter 65, Laws of 1983 1st ex. sess. and RCW 70.105A.050;

(4) Section 6, chapter 65, Laws of 1983 1st ex. sess. and RCW 70.105A.060;

(5) Section 7, chapter 65, Laws of 1983 1st ex. sess. and RCW 70.105A.070;

(6) Section 8, chapter 65, Laws of 1983 1st ex. sess. and RCW 70.105A.080;

(7) Section 13, chapter 65, Laws of 1983 1st ex. sess. and RCW 70.105A.090;

(8) Section 9, chapter 65, Laws of 1983 1st ex. sess. and RCW 70.105A.900; and

(9) Section 15, chapter 65, Laws of 1983 1st ex. sess. and RCW 70.105A.905.

NEW SECTION. Sec. 63. (1) The state treasurer shall transfer to the state toxics control account the balance of all funds in the hazardous waste control and elimination account which remain in this account immediately prior to the effective date of this section. Any person who, by the effective date of this section, has not paid the fees and other amounts due under those sections of chapter 70.105A RCW which are repealed by section 62 of this act shall continue to be obligated to pay such fees and amounts. All payments received after the effective date of this section shall be deposited into the state toxics control account. The provisions of those RCW sections which are repealed in section 62 of this act shall continue to apply to those fees and amounts which are due on the effective date of this section.

(2) The repeal of RCW 70.105A.030 shall be applied retroactively as of January 1, 1987, so that no person, as defined in RCW 70.105A.020, will have to pay any fee for 1987, collectible in 1988.

NEW SECTION. Sec. 64. EFFECTIVE DATE. 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 July 1, 1987.