BILL REQ. #:  S-3581.2 

Read first time 01/16/12.   Referred to Committee on Environment.

     AN ACT Relating to accelerating cleanup of hazardous waste sites; amending RCW 70.105D.010, 70.105D.020, and 70.105D.040; reenacting and amending RCW 70.105D.070; adding new sections to chapter 70.105D RCW; and creating new sections.

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

NEW SECTION.  Sec. 1   The legislature finds that the cleanup and reuse of former commercial, industrial, and other sites contaminated with hazardous substances has both economic and public health benefits for the communities hosting these sites. Public investment in the cleanup of hazardous waste sites has multiple benefits, with some estimates indicating that for every state dollar invested toward cleanup, there is generated six dollars in local tax revenue, seven dollars in payroll revenue, and thirty-two dollars in business revenue. The legislature further finds that these "brownfield" cleanups should not be conducted in isolation from the community's plans for future economic and social uses of the property, and that integrating the cleanup with future site uses provides a greater opportunity to bring substantial private resources into the cleanup.
     Therefore, it is the intent of this act to authorize a greater emphasis in the allocation of state resources toward the cleanup and reuse of brownfield properties, to provide more flexible funding and oversight authority for local governments guiding clean-up efforts in brownfield areas, and to modify the state's cleanup program in ways that will accelerate cleanups throughout the state, thus providing both near-term job benefits in the clean-up work as well as ongoing economic benefits through reuse of the cleaned up properties.

Sec. 2   RCW 70.105D.010 and 2002 c 288 s 1 are each amended to read as follows:
     (1) Each person has a fundamental and inalienable right to a healthful environment, and each person has a responsibility to preserve and enhance that right. The beneficial stewardship of the land, air, and waters of the state is a solemn obligation of the present generation for the benefit of future generations.
     (2) A healthful environment is now threatened by the irresponsible use and disposal of hazardous substances. There are hundreds of hazardous waste sites in this state, and more will be created if current waste practices continue. Hazardous waste sites threaten the state's water resources, including those used for public drinking water. Many of our municipal landfills are current or potential hazardous waste sites and present serious threats to human health and environment. The costs of eliminating these threats in many cases are beyond the financial means of our local governments and ratepayers. The ((main)) overriding purpose of chapter 2, Laws of 1989 is to raise sufficient funds to clean up all hazardous waste sites and to prevent the creation of future hazards due to improper disposal of toxic wastes into the state's land and waters.
     (3) Many farmers and small business owners who have followed the law with respect to their uses of pesticides and other chemicals nonetheless may face devastating economic consequences because their uses have contaminated the environment or the water supplies of their neighbors. With a source of funds, the state may assist these farmers and business owners, as well as those persons who sustain damages, such as the loss of their drinking water supplies, as a result of the contamination.
     (4) It is in the public's interest to efficiently use our finite land base, to integrate our land use planning policies with our clean-up policies, and to clean up and reuse contaminated industrial and other brownfield properties in order to minimize ((industrial)) development pressures on undeveloped land and to make clean land available for ((future)) economic, environmental, and social ((use)) reuses.
     (5) Because it is often difficult or impossible to allocate responsibility among persons liable for hazardous waste sites and because it is essential that sites be cleaned up well and expeditiously, each responsible person should be liable jointly and severally.
     (6) Because releases of hazardous substances can adversely affect the health and welfare of the public, the environment, and property values, it is in the public interest that affected communities be notified of where releases of hazardous substances have occurred and what is being done to clean them up.

Sec. 3   RCW 70.105D.020 and 2007 c 104 s 18 are each amended to read as follows:
     The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.
     (1) "Agreed order" means an order issued by the department under this chapter with which the potentially liable person or prospective purchaser receiving the order agrees to comply. An agreed order may be used to require or approve any cleanup or other remedial actions but it is not a settlement under RCW 70.105D.040(4) and shall not contain a covenant not to sue, or provide protection from claims for contribution, or provide eligibility for public funding of remedial actions under RCW 70.105D.070(2)(d)(xi).
     (2) "Department" means the department of ecology.
     (3) "Director" means the director of ecology or the director's designee.
     (4) "Environmental covenant" has the same meaning as defined in RCW 64.70.020.
     (5) "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.
     (6) "Federal cleanup law" means the federal comprehensive environmental response, compensation, and liability act of 1980, 42 U.S.C. Sec. 9601 et seq., as amended by Public Law 99-499.
     (7)(a) "Fiduciary" means a person acting for the benefit of another party as a bona fide trustee; executor; administrator; custodian; guardian of estates or guardian ad litem; receiver; conservator; committee of estates of incapacitated persons; trustee in bankruptcy; trustee, under an indenture agreement, trust agreement, lease, or similar financing agreement, for debt securities, certificates of interest or certificates of participation in debt securities, or other forms of indebtedness as to which the trustee is not, in the capacity of trustee, the lender. Except as provided in subsection (17)(b)(iii) of this section, the liability of a fiduciary under this chapter shall not exceed the assets held in the fiduciary capacity.
     (b) "Fiduciary" does not mean:
     (i) A person acting as a fiduciary with respect to a trust or other fiduciary estate that was organized for the primary purpose of, or is engaged in, actively carrying on a trade or business for profit, unless the trust or other fiduciary estate was created as part of, or to facilitate, one or more estate plans or because of the incapacity of a natural person;
     (ii) A person who acquires ownership or control of a facility with the objective purpose of avoiding liability of the person or any other person. It is prima facie evidence that the fiduciary acquired ownership or control of the facility to avoid liability if the facility is the only substantial asset in the fiduciary estate at the time the facility became subject to the fiduciary estate;
     (iii) A person who acts in a capacity other than that of a fiduciary or in a beneficiary capacity and in that capacity directly or indirectly benefits from a trust or fiduciary relationship;
     (iv) A person who is a beneficiary and fiduciary with respect to the same fiduciary estate, and who while acting as a fiduciary receives benefits that exceed customary or reasonable compensation, and incidental benefits permitted under applicable law;
     (v) A person who is a fiduciary and receives benefits that substantially exceed customary or reasonable compensation, and incidental benefits permitted under applicable law; or
     (vi) A person who acts in the capacity of trustee of state or federal lands or resources.
     (8) "Fiduciary capacity" means the capacity of a person holding title to a facility, or otherwise having control of an interest in the facility pursuant to the exercise of the responsibilities of the person as a fiduciary.
     (9) "Foreclosure and its equivalents" means purchase at a foreclosure sale, acquisition, or assignment of title in lieu of foreclosure, termination of a lease, or other repossession, acquisition of a right to title or possession, an agreement in satisfaction of the obligation, or any other comparable formal or informal manner, whether pursuant to law or under warranties, covenants, conditions, representations, or promises from the borrower, by which the holder acquires title to or possession of a facility securing a loan or other obligation.
     (10) "Hazardous substance" means:
     (a) Any dangerous or extremely hazardous waste as defined in RCW 70.105.010 (((5) and (6))) (1) and (7), or any dangerous or extremely dangerous waste designated by rule pursuant to chapter 70.105 RCW;
     (b) Any hazardous substance as defined in RCW 70.105.010(((14))) (10) or any hazardous substance as defined by rule pursuant to chapter 70.105 RCW;
     (c) Any substance that, on March 1, 1989, is a hazardous substance under section 101(14) of the federal cleanup law, 42 U.S.C. Sec. 9601(14);
     (d) Petroleum or petroleum products; and
     (e) Any substance or category of substances, including solid waste decomposition products, determined by the director by rule to present a threat to human health or the environment if released into the environment.
     The term hazardous substance does not include any of the following when contained in an underground storage tank from which there is not a release: Crude oil or any fraction thereof or petroleum, if the tank is in compliance with all applicable federal, state, and local law.
     (11) "Holder" means a person who holds indicia of ownership primarily to protect a security interest. A holder includes the initial holder such as the loan originator, any subsequent holder such as a successor-in-interest or subsequent purchaser of the security interest on the secondary market, a guarantor of an obligation, surety, or any other person who holds indicia of ownership primarily to protect a security interest, or a receiver, court-appointed trustee, or other person who acts on behalf or for the benefit of a holder. A holder can be a public or privately owned financial institution, receiver, conservator, loan guarantor, or other similar persons that loan money or guarantee repayment of a loan. Holders typically are banks or savings and loan institutions but may also include others such as insurance companies, pension funds, or private individuals that engage in loaning of money or credit.
     (12) "Independent remedial actions" means remedial actions conducted without department oversight or approval, and not under an order, agreed order, or consent decree.
     (13) "Indicia of ownership" means evidence of a security interest, evidence of an interest in a security interest, or evidence of an interest in a facility securing a loan or other obligation, including any legal or equitable title to a facility acquired incident to foreclosure and its equivalents. Evidence of such interests includes, mortgages, deeds of trust, sellers interest in a real estate contract, liens, surety bonds, and guarantees of obligations, title held pursuant to a lease financing transaction in which the lessor does not select initially the leased facility, or legal or equitable title obtained pursuant to foreclosure and their equivalents. Evidence of such interests also includes assignments, pledges, or other rights to or other forms of encumbrance against the facility that are held primarily to protect a security interest.
     (14) "Industrial properties" means properties that are or have been characterized by, or are to be committed to, traditional industrial uses such as processing or manufacturing of materials, marine terminal and transportation areas and facilities, fabrication, assembly, treatment, or distribution of manufactured products, or storage of bulk materials, that are either:
     (a) Zoned for industrial use by a city or county conducting land use planning under chapter 36.70A RCW; or
     (b) For counties not planning under chapter 36.70A RCW and the cities within them, zoned for industrial use and adjacent to properties currently used or designated for industrial purposes.
     (15) "Institutional controls" means measures undertaken to limit or prohibit activities that may interfere with the integrity of a remedial action or result in exposure to or migration of hazardous substances at a site. "Institutional controls" include environmental covenants.
     (16) "Operating a facility primarily to protect a security interest" occurs when all of the following are met: (a) Operating the facility where the borrower has defaulted on the loan or otherwise breached the security agreement; (b) operating the facility to preserve the value of the facility as an ongoing business; (c) the operation is being done in anticipation of a sale, transfer, or assignment of the facility; and (d) the operation is being done primarily to protect a security interest. Operating a facility for longer than one year prior to foreclosure or its equivalents shall be presumed to be operating the facility for other than to protect a security interest.
     (17) "Owner or operator" means:
     (a) Any person with any ownership interest in the facility or who exercises any control over the facility; or
     (b) In the case of an abandoned facility, any person who had owned, or operated, or exercised control over the facility any time before its abandonment;
     The term does not include:
     (i) An agency of the state or unit of local government which acquired ownership or control through a drug forfeiture action under RCW 69.50.505, or involuntarily through bankruptcy, tax delinquency, abandonment, or other 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;
     (ii) A person who, without participating in the management of a facility, holds indicia of ownership primarily to protect the person's security interest in the facility. Holders after foreclosure and its equivalent and holders who engage in any of the activities identified in subsection (18)(e) through (g) of this section shall not lose this exemption provided the holder complies with all of the following:
     (A) The holder properly maintains the environmental compliance measures already in place at the facility;
     (B) The holder complies with the reporting requirements in the rules adopted under this chapter;
     (C) The holder complies with any order issued to the holder by the department to abate an imminent or substantial endangerment;
     (D) The holder allows the department or potentially liable persons under an order, agreed order, or settlement agreement under this chapter access to the facility to conduct remedial actions and does not impede the conduct of such remedial actions;
     (E) Any remedial actions conducted by the holder are in compliance with any preexisting requirements identified by the department, or, if the department has not identified such requirements for the facility, the remedial actions are conducted consistent with the rules adopted under this chapter; and
     (F) The holder does not exacerbate an existing release. The exemption in this subsection (17)(b)(ii) does not apply to holders who cause or contribute to a new release or threatened release or who are otherwise liable under RCW 70.105D.040(1) (b), (c), (d), and (e); provided, however, that a holder shall not lose this exemption if it establishes that any such new release has been remediated according to the requirements of this chapter and that any hazardous substances remaining at the facility after remediation of the new release are divisible from such new release;
     (iii) A fiduciary in his, her, or its personal or individual capacity. This exemption does not preclude a claim against the assets of the estate or trust administered by the fiduciary or against a nonemployee agent or independent contractor retained by a fiduciary. This exemption also does not apply to the extent that a person is liable under this chapter independently of the person's ownership as a fiduciary or for actions taken in a fiduciary capacity which cause or contribute to a new release or exacerbate an existing release of hazardous substances. This exemption applies provided that, to the extent of the fiduciary's powers granted by law or by the applicable governing instrument granting fiduciary powers, the fiduciary complies with all of the following:
     (A) The fiduciary properly maintains the environmental compliance measures already in place at the facility;
     (B) The fiduciary complies with the reporting requirements in the rules adopted under this chapter;
     (C) The fiduciary complies with any order issued to the fiduciary by the department to abate an imminent or substantial endangerment;
     (D) The fiduciary allows the department or potentially liable persons under an order, agreed order, or settlement agreement under this chapter access to the facility to conduct remedial actions and does not impede the conduct of such remedial actions;
     (E) Any remedial actions conducted by the fiduciary are in compliance with any preexisting requirements identified by the department, or, if the department has not identified such requirements for the facility, the remedial actions are conducted consistent with the rules adopted under this chapter; and
     (F) The fiduciary does not exacerbate an existing release.
     The exemption in this subsection (17)(b)(iii) does not apply to fiduciaries who cause or contribute to a new release or threatened release or who are otherwise liable under RCW 70.105D.040(1) (b), (c), (d), and (e); provided however, that a fiduciary shall not lose this exemption if it establishes that any such new release has been remediated according to the requirements of this chapter and that any hazardous substances remaining at the facility after remediation of the new release are divisible from such new release. The exemption in this subsection (17)(b)(iii) also does not apply where the fiduciary's powers to comply with this subsection (17)(b)(iii) are limited by a governing instrument created with the objective purpose of avoiding liability under this chapter or of avoiding compliance with this chapter; or
     (iv) Any person who has any ownership interest in, operates, or exercises control over real property where a hazardous substance has come to be located solely as a result of migration of the hazardous substance to the real property through the groundwater from a source off the property, if:
     (A) The person can demonstrate that the hazardous substance has not been used, placed, managed, or otherwise handled on the property in a manner likely to cause or contribute to a release of the hazardous substance that has migrated onto the property;
     (B) The person has not caused or contributed to the release of the hazardous substance;
     (C) The person does not engage in activities that damage or interfere with the operation of remedial actions installed on the person's property or engage in activities that result in exposure of humans or the environment to the contaminated groundwater that has migrated onto the property;
     (D) If requested, the person allows the department, potentially liable persons who are subject to an order, agreed order, or consent decree, and the authorized employees, agents, or contractors of each, access to the property to conduct remedial actions required by the department. The person may attempt to negotiate an access agreement before allowing access; and
     (E) Legal withdrawal of groundwater does not disqualify a person from the exemption in this subsection (17)(b)(iv).
     (18) "Participation in management" means exercising decision-making control over the borrower's operation of the facility, environmental compliance, or assuming or manifesting responsibility for the overall management of the enterprise encompassing the day-to-day decision making of the enterprise.
     The term does not include any of the following: (a) A holder with the mere capacity or ability to influence, or the unexercised right to control facility operations; (b) a holder who conducts or requires a borrower to conduct an environmental audit or an environmental site assessment at the facility for which indicia of ownership is held; (c) a holder who requires a borrower to come into compliance with any applicable laws or regulations at the facility for which indicia of ownership is held; (d) a holder who requires a borrower to conduct remedial actions including setting minimum requirements, but does not otherwise control or manage the borrower's remedial actions or the scope of the borrower's remedial actions except to prepare a facility for sale, transfer, or assignment; (e) a holder who engages in workout or policing activities primarily to protect the holder's security interest in the facility; (f) a holder who prepares a facility for sale, transfer, or assignment or requires a borrower to prepare a facility for sale, transfer, or assignment; (g) a holder who operates a facility primarily to protect a security interest, or requires a borrower to continue to operate, a facility primarily to protect a security interest; and (h) a prospective holder who, as a condition of becoming a holder, requires an owner or operator to conduct an environmental audit, conduct an environmental site assessment, come into compliance with any applicable laws or regulations, or conduct remedial actions prior to holding a security interest is not participating in the management of the facility.
     (19) "Person" means an individual, firm, corporation, association, partnership, consortium, joint venture, commercial entity, state government agency, unit of local government, federal government agency, or Indian tribe.
     (20) "Policing activities" means actions the holder takes to ensure that the borrower complies with the terms of the loan or security interest or actions the holder takes or requires the borrower to take to maintain the value of the security. Policing activities include: Requiring the borrower to conduct remedial actions at the facility during the term of the security interest; requiring the borrower to comply or come into compliance with applicable federal, state, and local environmental and other laws, regulations, and permits during the term of the security interest; securing or exercising authority to monitor or inspect the facility including on-site inspections, or to monitor or inspect the borrower's business or financial condition during the term of the security interest; or taking other actions necessary to adequately police the loan or security interest such as requiring a borrower to comply with any warranties, covenants, conditions, representations, or promises from the borrower.
     (21) "Potentially liable person" means any person whom the department finds, based on credible evidence, to be liable under RCW 70.105D.040. The department shall give notice to any such person and allow an opportunity for comment before making the finding, unless an emergency requires otherwise.
     (22) "Prepare a facility for sale, transfer, or assignment" means to secure access to the facility; perform routine maintenance on the facility; remove inventory, equipment, or structures; properly maintain environmental compliance measures already in place at the facility; conduct remedial actions to clean up releases at the facility; or to perform other similar activities intended to preserve the value of the facility where the borrower has defaulted on the loan or otherwise breached the security agreement or after foreclosure and its equivalents and in anticipation of a pending sale, transfer, or assignment, primarily to protect the holder's security interest in the facility. A holder can prepare a facility for sale, transfer, or assignment for up to one year prior to foreclosure and its equivalents and still stay within the security interest exemption in subsection (17)(b)(ii) of this section.
     (23) "Primarily to protect a security interest" means the indicia of ownership is held primarily for the purpose of securing payment or performance of an obligation. The term does not include indicia of ownership held primarily for investment purposes nor indicia of ownership held primarily for purposes other than as protection for a security interest. A holder may have other, secondary reasons, for maintaining indicia of ownership, but the primary reason must be for protection of a security interest. Holding indicia of ownership after foreclosure or its equivalents for longer than five years shall be considered to be holding the indicia of ownership for purposes other than primarily to protect a security interest. For facilities that have been acquired through foreclosure or its equivalents prior to July 23, 1995, this five-year period shall begin as of July 23, 1995.
     (24) "Public notice" means, at a minimum, adequate notice mailed to all persons who have made timely request of the department and to persons residing in the potentially affected vicinity of the proposed action; mailed to appropriate news media; published in the newspaper of largest circulation in the city or county of the proposed action; and opportunity for interested persons to comment.
     (25) "Release" means any intentional or unintentional entry of any hazardous substance into the environment, including but not limited to the abandonment or disposal of containers of hazardous substances.
     (26) "Remedy" or "remedial action" means any action or expenditure consistent with the purposes of this chapter to identify, eliminate, or minimize any threat or potential threat posed by hazardous substances to human health or the environment including any investigative and monitoring activities with respect to any release or threatened release of a hazardous substance and any health assessments or health effects studies conducted in order to determine the risk or potential risk to human health.
     (27) "Security interest" means an interest in a facility created or established for the purpose of securing a loan or other obligation. Security interests include deeds of trusts, sellers interest in a real estate contract, liens, legal, or equitable title to a facility acquired incident to foreclosure and its equivalents, and title pursuant to lease financing transactions. Security interests may also arise from transactions such as sale and leasebacks, conditional sales, installment sales, trust receipt transactions, certain assignments, factoring agreements, accounts receivable financing arrangements, easements, and consignments, if the transaction creates or establishes an interest in a facility for the purpose of securing a loan or other obligation.
     (28) "Workout activities" means those actions by which a holder, at any time prior to foreclosure and its equivalents, seeks to prevent, cure, or mitigate a default by the borrower or obligor; or to preserve, or prevent the diminution of, the value of the security. Workout activities include: Restructuring or renegotiating the terms of the security interest; requiring payment of additional rent or interest; exercising forbearance; requiring or exercising rights pursuant to an assignment of accounts or other amounts owed to an obligor; requiring or exercising rights pursuant to an escrow agreement pertaining to amounts owed to an obligor; providing specific or general financial or other advice, suggestions, counseling, or guidance; and exercising any right or remedy the holder is entitled to by law or under any warranties, covenants, conditions, representations, or promises from the borrower.
     (29) "Areawide groundwater contamination" means groundwater contamination on multiple adjacent properties with different ownerships consisting of hazardous substances from multiple sources that have resulted in commingled plumes of contaminated groundwater that are not practicable to address separately.
     (30) "Brownfield" means previously developed and currently abandoned or underutilized real property where environmental, economic, and community reuse objectives are hindered by actual or suspected release of a hazardous substance.
     (31) "Brownfield renewal area" means an area of brownfield properties designated pursuant to section 6 of this act.
     (32) "Local government" means any city, county, special purpose district, or other municipal corporation, including brownfield renewal authorities created pursuant to section 7 of this act.

NEW SECTION.  Sec. 4   A new section is added to chapter 70.105D RCW to read as follows:
     (1) In fulfilling the objectives of this chapter, the department shall allocate staffing and financial assistance in a manner that considers both the reduction of human and environmental hazards and the land reuse potential and planning for the sites or areas to be cleaned up.
     (2) The department may provide financial assistance to local governments for the purpose of planning for the adaptive reuse of properties following remediation, and for integrating the remedial actions of brownfield properties or areas into land use, capital facilities, economic development, and other local government plans applicable to the property or area.

NEW SECTION.  Sec. 5   A new section is added to chapter 70.105D RCW to read as follows:
     (1) The department is authorized to disburse funds to a local government conducting a remedial action on a monthly or other periodic basis pursuant to a remedial action schedule established in the grant agreement.
     (2) The department may extend a remedial action grant to a local government prior to acquisition of the site or obtaining necessary access to conduct remedial actions, provided that the grant agreement is conditioned upon compliance with a schedule to acquire the property or to obtain such access.

NEW SECTION.  Sec. 6   A new section is added to chapter 70.105D RCW to read as follows:
     (1) The department is authorized to establish trust funds for the provision of state funding to assist with remedial actions within designated brownfield renewal areas. A trust fund may only be created when the legislature, through a biennial or supplemental budget appropriation, provides funding for a specific trust fund.
     (2) The department or a third party selected by the department shall act as the trustee of the fund. A trustee may not be a potentially liable person or have any financial interest with respect to any property within the brownfield renewal area.
     (3) The local government or governments designating the brownfield renewal area pursuant to section 7 of this act must be the beneficiaries of the trust.
     (4) Funds may not be disbursed from the trust until the local government or governments have entered an agreement with the state establishing a plan for the remediation and reuse of properties within the brownfield renewal area. All expenditures from the trust fund must be for the purpose of the cleanup and reuse of properties within the brownfield renewal area, and must meet the eligibility requirements for the use by local governments under RCW 70.105D.070.

NEW SECTION.  Sec. 7   A new section is added to chapter 70.105D RCW to read as follows:
     (1) A city or county may designate an area within its jurisdiction as a brownfield renewal area upon adoption of a resolution finding that the area contains one or more brownfield properties or sites and that the cleanup of these properties or sites should be integrated with planning for the future uses of the properties or sites and with comprehensive land use plans for the entire area. The resolution must include:
     (a) A determination that the future uses of the properties within the area are consistent with applicable land use plans and are included within an integrated plan for remedial action and future site uses;
     (b) Where the proposed site uses require urban level infrastructure, the area is served by a public water system and sewage collection and treatment system and lies within the incorporated area of a city or town or within an urban growth area designated under RCW 36.70A.110; and
     (c) A commitment to finance the infrastructure or other public improvements needed to implement the renewal plan.
     (2) A port district may designate a brownfield renewal area pursuant to this section when either: (a) The port owns in fee all of the properties within the area; or (b) the port owns in fee at least fifty percent of the property in the area designated and the governing body of the city and county in which the area lies approves by resolution of the designation. To designate a brownfield renewal area, the port district must adopt a resolution that includes the determinations and commitments required under subsection (1) of this section.
     (3) The department shall place a priority upon the extension of integrated planning grants pursuant to section 4 of this act to assist in planning for and implementing cleanups within brownfield renewal areas.
     (4) The employees and contractors of the local government may access at any reasonable time a property within the brownfield renewal area for the purpose of investigating or assessing the existence and extent of releases of hazardous substances on the property, including inspecting, sampling, and testing. The local government may order any potentially liable person to carry out such an investigation or to conduct a site assessment of the existence and extent of the release.
     (5) The department and the attorney general shall place a priority upon allocating staff necessary to respond to and finalize a prospective purchaser consent decree with a local government proposing a plan for the cleanup and redevelopment of one or more properties within a brownfield renewal area. The local government must submit a proposed clean-up schedule and funding plan. The procedures and standards under RCW 70.105D.040 regarding entry of a consent decree also apply to resolve the local government's liability regarding releases of hazardous substances on the property.
     (6) For the purposes of this section, a "local government" includes a city, county, port district, or brownfield renewal authority.

NEW SECTION.  Sec. 8   A new section is added to chapter 70.105D RCW to read as follows:
     (1) A city, county, or port district may establish by resolution a brownfield renewal authority for the purpose of guiding and implementing the cleanup and reuse of properties within a designated brownfield renewal area. Any combination of cities, counties, and port districts may establish a brownfield renewal authority through an interlocal agreement under chapter 39.34 RCW, and the brownfield renewal authority may exercise those powers as are authorized under chapter 39.34 RCW and under this chapter.
     (2) A brownfield renewal authority must be governed by a board of directors selected as determined by the resolution or interlocal agreement establishing the authority.
     (3) A brownfield renewal authority must be a separate legal entity and be deemed a municipal corporation. It has the power to: Sue and be sued; receive, account for, and disburse funds; employ personnel; and acquire or dispose of any interest in real or personal property within or outside a brownfield renewal area in the furtherance of the authority purposes. A brownfield renewal authority has the power to contract indebtedness and to issue and sell general obligation bonds pursuant to and in the manner provided for general county bonds in chapters 36.67 and 39.46 RCW and other applicable statutes, and to issue revenue bonds pursuant to and in the manner provided for revenue bonds in chapter 36.67 RCW and other applicable statutes.

NEW SECTION.  Sec. 9   A new section is added to chapter 70.105D RCW to read as follows:
     (1) The department shall establish performance measures and allocation of staff resources to increase the number of independent remedial actions and interim independent remedial actions receiving review by the department.
     (2) Beginning July 1, 2012, the department shall allocate staff resources needed to increase the number of independent remedial actions receiving review or technical assistance to three hundred sites or a lesser number if fewer sites seek review.
     (3) By November 1, 2012, the department shall submit to the governor and the appropriate fiscal and policy committees in the senate and house of representatives a recommendation for appropriations necessary to accomplish the increased review of independent remedial actions required by this section.

Sec. 10   RCW 70.105D.040 and 1997 c 406 s 4 are each amended to read as follows:
     (1) Except as provided in subsection (3) of this section, the following persons are liable with respect to a facility:
     (a) The owner or operator of the facility;
     (b) Any person who owned or operated the facility at the time of disposal or release of the hazardous substances;
     (c) Any person who owned or possessed a hazardous substance and who by contract, agreement, or otherwise arranged for disposal or treatment of the hazardous substance at the facility, or arranged with a transporter for transport for disposal or treatment of the hazardous substances at the facility, or otherwise generated hazardous wastes disposed of or treated at the facility;
     (d) Any person (i) who accepts or accepted any hazardous substance for transport to a disposal, treatment, or other facility selected by such person from which there is a release or a threatened release for which remedial action is required, unless such facility, at the time of disposal or treatment, could legally receive such substance; or (ii) who accepts a hazardous substance for transport to such a facility and has reasonable grounds to believe that such facility is not operated in accordance with chapter 70.105 RCW; and
     (e) Any person who both sells a hazardous substance and is responsible for written instructions for its use if (i) the substance is used according to the instructions and (ii) the use constitutes a release for which remedial action is required at the facility.
     (2) Each person who is liable under this section is strictly liable, jointly and severally, for all remedial action costs and for all natural resource damages resulting from the releases or threatened releases of hazardous substances. The attorney general, at the request of the department, is empowered to recover all costs and damages from persons liable therefor.
     (3) The following persons are not liable under this section:
     (a) Any 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:
     (i) An act of God;
     (ii) An act of war; or
     (iii) An act or omission of a third party (including but not limited to a trespasser) other than (A) an employee or agent of the person asserting the defense, or (B) 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 the utmost care with respect to the hazardous substance, the foreseeable acts or omissions of the third party, and the foreseeable consequences of those acts or omissions;
     (b) Any person who is an owner, past owner, or purchaser of a facility and who can establish by a preponderance of the evidence that at the time the facility was acquired by the person, the person had no knowledge or reason to know that any hazardous substance, the release or threatened release of which has resulted in or contributed to the need for the remedial action, was released or disposed of on, in, or at the facility. This subsection (b) is limited as follows:
     (i) To establish that a person had no reason to know, the person 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 (b) shall take into account any specialized knowledge or experience on the part of the person, 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;
     (ii) The defense contained in this subsection (b) is not available to any person who had actual knowledge of the release or threatened release of a hazardous substance when the person owned the real property and who subsequently transferred ownership of the property without first disclosing such knowledge to the transferee;
     (iii) The defense contained in this subsection (b) is not available to any person who, by any act or omission, caused or contributed to the release or threatened release of a hazardous substance at the facility;
     (c) Any natural person who uses a hazardous substance lawfully and without negligence for any personal or domestic purpose in or near a dwelling or accessory structure when that person is: (i) A resident of the dwelling; (ii) a person who, without compensation, assists the resident in the use of the substance; or (iii) a person who is employed by the resident, but who is not an independent contractor;
     (d) Any person who, for the purpose of growing food crops, applies pesticides or fertilizers without negligence and in accordance with all applicable laws and regulations.
     (4) There may be no settlement by the state with any person potentially liable under this chapter except in accordance with this section.
     (a) The attorney general may agree to a settlement with any potentially liable person only if the department finds, after public notice and any required hearing, that the proposed settlement would lead to a more expeditious cleanup of hazardous substances in compliance with clean-up standards under RCW 70.105D.030(2)(e) and with any remedial orders issued by the department. Whenever practicable and in the public interest, the attorney general may expedite such a settlement with persons whose contribution is insignificant in amount and toxicity. A hearing shall be required only if at least ten persons request one or if the department determines a hearing is necessary.
     (b) A settlement agreement under this section shall be entered as a consent decree issued by a court of competent jurisdiction.
     (c) A settlement agreement may contain a covenant not to sue only of a scope commensurate with the settlement agreement in favor of any person with whom the attorney general has settled under this section. Any covenant not to sue shall contain a reopener clause which requires the court to amend the covenant not to sue if factors not known at the time of entry of the settlement agreement are discovered and present a previously unknown threat to human health or the environment.
     (d) A party who has resolved its liability to the state under this section shall not be liable for claims for contribution regarding matters addressed in the settlement. The settlement does not discharge any of the other liable parties but it reduces the total potential liability of the others to the state by the amount of the settlement.
     (e) If the state has entered into a consent decree with an owner or operator under this section, the state shall not enforce this chapter against any owner or operator who is a successor in interest to the settling party unless under the terms of the consent decree the state could enforce against the settling party, if:
     (i) The successor owner or operator is liable with respect to the facility solely due to that person's ownership interest or operator status acquired as a successor in interest to the owner or operator with whom the state has entered into a consent decree; and
     (ii) The stay of enforcement under this subsection does not apply if the consent decree was based on circumstances unique to the settling party that do not exist with regard to the successor in interest, such as financial hardship. For consent decrees entered into before July 27, 1997, at the request of a settling party or a potential successor owner or operator, the attorney general shall issue a written opinion on whether a consent decree contains such unique circumstances. For all other consent decrees, such unique circumstances shall be specified in the consent decree.
     (f) Any person who is not subject to enforcement by the state under (e) of this subsection is not liable for claims for contribution regarding matters addressed in the settlement.
     (5)(a) In addition to the settlement authority provided under subsection (4) of this section, the attorney general may agree to a settlement with a ((person not currently liable for remedial action at a facility who proposes to purchase, redevelop, or reuse the facility)) prospective purchaser, provided that:
     (i) The settlement will yield substantial new resources ((to facilitate)) for cleanup and without these resources the cleanup is not likely to be accomplished;
     (ii) The settlement will expedite remedial action consistent with the rules adopted under this chapter; and
     (iii) Based on available information, the department determines that the redevelopment or reuse of the facility is not likely to contribute to the existing release or threatened release, interfere with remedial actions that may be needed at the site, or increase health risks to persons at or in the vicinity of the site.
     (b) The legislature recognizes that the state does not have adequate resources to participate in all property transactions involving contaminated property. The primary purpose of this subsection (5) is to promote the cleanup and reuse of ((vacant or abandoned commercial or industrial contaminated)) brownfield property. The attorney general and the department may give priority to settlements that will provide a substantial public benefit, including, but not limited to:
     (i) The reuse of ((a vacant or abandoned manufacturing or industrial facility, or)) brownfield property;
     (ii) The development of a facility by a governmental entity to address an important public purpose;
     (iii) The cleanup and reuse of a property would provide public access to an area not otherwise accessible to the public, provide for new or improved public recreational opportunities, preserve a historic property listed pursuant to chapter 84.26 RCW, or otherwise create new publicly accessible facilities.
     (c) A settlement entered under this subsection is governed by the procedures and include the liability protections and limitations provided in subsection (4) of this section.
     (6) As an alternative to a settlement under subsection (5) of this section, the department may issue an agreed order to a prospective purchaser of a property within a designated brownfield renewal area. The order is subject to the limitations of an agreed order included in RCW 70.105D.020, but stays enforcement by the state regarding remedial action as long as the prospective purchaser complies with the requirements of the order. The department shall place a priority upon processing requests for an agreed order under this subsection when the prospective purchaser is a city, county, port district, or brownfield renewal authority.
     (7) Nothing in this chapter affects or modifies in any way any person's right to seek or obtain relief under other statutes or under common law, including but not limited to damages for injury or loss resulting from a release or threatened release of a hazardous substance. No settlement by the department or remedial action ordered by a court or the department affects any person's right to obtain a remedy under common law or other statutes.

Sec. 11   RCW 70.105D.070 and 2011 1st sp.s. c 50 s 964 are each reenacted and amended to read as follows:
     (1) The state toxics control account and the local toxics control account are hereby created in the state treasury.
     (2) The following moneys shall be deposited into the state toxics control account: (a) Those revenues which are raised by the tax imposed under RCW 82.21.030 and which are attributable to that portion of the rate equal to thirty-three one-hundredths of one percent; (b) the costs of remedial actions recovered under this chapter or chapter 70.105A RCW; (c) penalties collected or recovered under this chapter; and (d) any other money appropriated or transferred to the account by the legislature. Moneys in the account may be used only to carry out the purposes of this chapter, including but not limited to the following activities:
     (i) The state's responsibility for hazardous waste planning, management, regulation, enforcement, technical assistance, and public education required under chapter 70.105 RCW;
     (ii) The state's responsibility for solid waste planning, management, regulation, enforcement, technical assistance, and public education required under chapter 70.95 RCW;
     (iii) The hazardous waste cleanup program required under this chapter;
     (iv) State matching funds required under the federal cleanup law;
     (v) Financial assistance for local programs in accordance with chapters 70.95, 70.95C, 70.95I, and 70.105 RCW;
     (vi) State government programs for the safe reduction, recycling, or disposal of hazardous wastes from households, small businesses, and agriculture;
     (vii) Hazardous materials emergency response training;
     (viii) Water and environmental health protection and monitoring programs;
     (ix) Programs authorized under chapter 70.146 RCW;
     (x) A public participation program, including regional citizen advisory committees;
     (xi) Public funding to assist potentially liable persons to pay for the costs of remedial action in compliance with clean-up standards under RCW 70.105D.030(2)(e) but only when:
     (A) The amount and terms of such funding are established under a settlement agreement under RCW 70.105D.040(4) and when the director has found that the funding will achieve both (((A))) (I) a substantially more expeditious or enhanced cleanup than would otherwise occur, and (((B))) (II) the prevention or mitigation of unfair economic hardship; or
     (B) The clean-up area is within a designated brownfield renewal area, the public funding will provide for substantial new economic development that would not otherwise occur, and the public funding will provide one or more of the following public benefits commensurate with the scope of funding:
     (I) Provide public access to an area not otherwise accessible to the public;
     (II) Provide for new or improved public recreational activities;
     (III) Provide for restoration of habitat that would otherwise not occur; or
     (IV) Preserve a historic property listed pursuant to chapter 84.26 RCW;
     (xii) Development and demonstration of alternative management technologies designed to carry out the hazardous waste management priorities of RCW 70.105.150;
     (xiii) During the 2009-2011 and 2011-2013 fiscal biennia, shoreline update technical assistance;
     (xiv) During the 2009-2011 fiscal biennium, multijurisdictional permitting teams; and
     (xv) During the 2011-2013 fiscal biennium, actions for reducing public exposure to toxic air pollution.
     (3) The following moneys shall be deposited into the local toxics control account: Those revenues which are raised by the tax imposed under RCW 82.21.030 and which are attributable to that portion of the rate equal to thirty-seven one-hundredths of one percent.
     (a) Moneys deposited in the local toxics control account shall be used by the department for grants or loans to local governments for the following purposes in descending order of priority:
     (i) Remedial actions, including funding provided to local governments under section 4 of this act;
     (ii) Hazardous waste plans and programs under chapter 70.105 RCW;
     (iii) Solid waste plans and programs under chapters 70.95, 70.95C, 70.95I, and 70.105 RCW;
     (iv) Funds for a program to assist in the assessment and cleanup of sites of methamphetamine production, but not to be used for the initial containment of such sites, consistent with the responsibilities and intent of RCW 69.50.511; and
     (v) Cleanup and disposal of hazardous substances from abandoned or derelict vessels, defined for the purposes of this section as vessels that have little or no value and either have no identified owner or have an identified owner lacking financial resources to clean up and dispose of the vessel, that pose a threat to human health or the environment.
     (b) Funds for plans and programs shall be allocated consistent with the priorities and matching requirements established in chapters 70.105, 70.95C, 70.95I, and 70.95 RCW, except that any applicant that is a Puget Sound partner, as defined in RCW 90.71.010, along with any project that is referenced in the action agenda developed by the Puget Sound partnership under RCW 90.71.310, shall, except as conditioned by RCW 70.105D.120, receive priority for any available funding for any grant or funding programs or sources that use a competitive bidding process. During the 2007-2009 fiscal biennium, moneys in the account may also be used for grants to local governments to retrofit public sector diesel equipment and for storm water planning and implementation activities.
     (c) To expedite cleanups throughout the state, the department shall partner with local communities and liable ((parties for cleanups. The department is authorized to use)) persons conducting remedial actions, using the following additional strategies in order to facilitate economic development and ensure a healthful environment for future generations:
     (i) The director may alter ((grant-matching)) grant or loan matching requirements to create incentives for local governments to expedite cleanups when one of the following conditions exists:
     (A) Funding would prevent or mitigate unfair economic hardship imposed by the clean-up liability;
     (B) Funding would create new substantial economic development, public recreational, or habitat restoration opportunities that would not otherwise occur; or
     (C) Funding would create an opportunity for acquisition and redevelopment of ((vacant, orphaned, or)) abandoned property under RCW 70.105D.040(5) that would not otherwise occur;
     (ii) ((The use of outside contracts to conduct necessary studies)) To provide integrated planning grants or loans to local governments to fund studies necessary to facilitate renewal of brownfields including but not limited to environmental site assessments, remedial investigations, health assessments, remedial action feasibility studies, site planning, community involvement, land use and regulatory analyses, building and infrastructure assessments, economic and fiscal analyses, and general environmental analyses pursuant to chapter 43.21C RCW;
     (iii) The purchase of remedial action cost-cap insurance, when necessary to expedite multiparty clean-up efforts;
     (iv) Provide grants or loans to local governments for remedial actions related to areawide groundwater contamination. The local government need not be a potentially liable person under this chapter, or be required to seek reimbursement of funds from potentially liable persons, to be eligible to receive funds under this subsection (3)(c)(iv).
     (d) When there are insufficient funds to fill all the requests for funding under (c) of this subsection, designated brownfield renewal areas must receive priority for distribution of available funds.
     (e) To facilitate and expedite cleanups using funds from the local toxics control account, during the 2009-2011 fiscal biennium the director may establish grant-funded accounts to hold and disperse local toxics control account funds and funds from local governments to be used for remedial actions.
     (4) Except for unanticipated receipts under RCW 43.79.260 through 43.79.282, moneys in the state and local toxics control accounts may be spent only after appropriation by statute.
     (5) Except during the 2009-2011 fiscal biennium, one percent of the moneys deposited into the state and local toxics control accounts shall be allocated only for public participation grants to persons who may be adversely affected by a release or threatened release of a hazardous substance and to not-for-profit public interest organizations. The primary purpose of these grants is to facilitate the participation by persons and organizations in the investigation and remedying of releases or threatened releases of hazardous substances and to implement the state's solid and hazardous waste management priorities. No grant may exceed sixty thousand dollars. Grants may be renewed annually. Moneys appropriated for public participation from either account which are not expended at the close of any biennium shall revert to the state toxics control account.
     (6) No moneys deposited into either the state or local toxics control account may be used for solid waste incinerator feasibility studies, construction, maintenance, or operation, or, after January 1, 2010, for projects designed to address the restoration of Puget Sound, funded in a competitive grant process, that are in conflict with the action agenda developed by the Puget Sound partnership under RCW 90.71.310.
     (7) The department shall adopt rules for grant or loan issuance and performance. To accelerate both remedial action and economic recovery, the department may expedite the necessary adoption of rules to implement this act using the expedited procedures in RCW 34.05.353. The department shall initiate the award of financial assistance by July 1, 2012, and to ensure that the adoption of rules will not delay the awards, the department may administer the award of financial assistance through interpretive guidance pending the adoption of rules not later than January 1, 2013.
     (8) During the 2007-2009 and 2009-2011 fiscal biennia, the legislature may transfer from the local toxics control account to either the state general fund or the oil spill prevention account, or both such amounts as reflect excess fund balance in the account.
     (9) During the 2009-2011 fiscal biennium, the local toxics control account may also be used for a standby rescue tug at Neah Bay, local government shoreline update grants, private and public sector diesel equipment retrofit, and oil spill prevention, preparedness, and response activities.
     (10) During the 2009-2011 fiscal biennium, the legislature may transfer from the state toxics control account to the state general fund such amounts as reflect the excess fund balance in the account.
     (11) During the 2011-2013 fiscal biennium, the local toxics control account may also be used for local government shoreline update grants and actions for reducing public exposure to toxic air pollution.

NEW SECTION.  Sec. 12   (1) By December 20, 2012, the department shall report to the fiscal and hazardous waste cleanup committees in the senate and house of representatives on additional legislative and administrative actions that would accelerate the pace of cleanup and reuse of brownfield properties. The report may be combined with the report required by RCW 70.105D.030(4). The report must include but is not limited to an analysis and recommendations on:
     (a) Alternatives for state licensing or other recognition of site remediation professionals that design and oversee remediation action work on behalf of potentially liable parties. The objective is to streamline state oversight while ensuring that remedial action meets all applicable state and federal standards;
     (b) Methods to provide greater liability protections for persons completing independent remedial actions that meet all applicable state and federal clean-up standards; and
     (c) Clarifying the standards applicable for liability protection for innocent purchasers, and streamlining the procedures and standards for prospective purchasers to receive liability protection.
     (2) The definitions in RCW 70.105D.020 apply throughout this section.

NEW SECTION.  Sec. 13   If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.