BILL REQ. #:  H-3650.6 

READ FIRST TIME 02/05/14.   

     AN ACT Relating to involving communities in environmental decision making; amending RCW 34.05.272; adding a new chapter to Title 70 RCW; creating new sections; and providing an effective date.

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

NEW SECTION.  Sec. 1   (1) The legislature finds that every individual in the state has a fundamental right to a healthful environment, and a right to the pursuit of commonplace activities such as breathing, drinking, eating, working, and recreating without risking their health as a result of environmental degradation. There are vulnerable communities throughout the state that bear a disproportionate burden of pollution problems. Residents of these communities face higher rates of cancer and other life-threatening public health problems. All residents of the state, regardless of race, color, culture, national origin, or income level, have a right to participate meaningfully and receive fair treatment during the implementation and enforcement of environmental laws, rules, and policies. The improvement of environmental law and policy decision-making processes helps state agencies meet their responsibility to comply with 42 U.S.C. Sec. 2000(d). These important objectives and responsibilities are satisfied by the passage of this act.
     (2) Pursuant to the policy declared in this section, and consistent with federal executive order 12898, state agencies shall, to the extent practical, make achieving environmental justice part of their mission by identifying and addressing, as appropriate, the disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in Washington state.

NEW SECTION.  Sec. 2   The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.
     (1) "Authority" has the same meaning as defined in RCW 70.94.030.
     (2) "Department" means the department of ecology.
     (3) "Highly impacted community" means a community that the department of health has determined is likely to bear a disproportionate burden of public health risks from environmental pollution.
     (4) "Person" has the same meaning as defined in RCW 90.48.020.
     (5) "Supplemental environmental project" means an environmentally beneficial project that a person agrees to undertake in settlement of an enforcement action, but which the person is not otherwise obligated to perform.

NEW SECTION.  Sec. 3   (1) Within available funds and consistent with section 13 of this act, the department of health must identify and maintain a list of highly impacted communities in this state.
     (2) In identifying highly impacted communities, the department of health shall consider, at minimum, including areas that have any of the following characteristics:
     (a) Unemployment rates more than twenty percent above the state average;
     (b) Median household income that is less than seventy-five percent of the state median household income;
     (c) Disproportionate public health challenges, as demonstrated by environmental, scientific, or public health data; or
     (d) A significant percentage of community residents who are minorities, foreign born, or who lack proficiency in the English language.
     (3) In identifying whether a community is a highly impacted community under this section, the department of health may rely on existing environmental, economic, scientific, or public health data.
     (4)(a) All data, documents, and other records used in the identification of highly impacted communities are subject to release pursuant to the procedures established under RCW 42.56.070.
     (b) The department of health must identify the sources of information that it reviewed and relied upon in identifying highly impacted communities as required by RCW 34.05.272.

NEW SECTION.  Sec. 4   (1) This section and section 5 of this act apply to the settlement of an enforcement action based upon a violation of a permit issued under chapter 70.94, 70.105, or 90.48 RCW or a violation of an order under RCW 70.105D.050. In conjunction with the settlement of an enforcement action, the department, authority, or attorney general may offer and enter into an agreement with a person whose activity negatively affects public health in a highly impacted community to contribute in-kind services or otherwise fund a supplemental environmental project under the following circumstances:
     (a) A supplemental environmental project may include projects to protect human health, prevent pollution, reduce pollution, protect or restore natural or man-made environments, assessments or audits of environmental quality or pollution prevention, efforts to promote environmental compliance, or emergency preparedness efforts.
     (b) A supplemental environmental project authorized by the department must:
     (i)(A) Take place within the same highly impacted community in which the violation occurred; or
     (B) Primarily benefit the highly impacted community in which the violation occurred;
     (ii)(A) Be designed to reduce the likelihood that similar violations will occur in the future;
     (B) Reduce the adverse impact to public health or the environment to which the violation at issue contributes within the highly impacted community; or
     (C) Reduce the overall risk to public health or the environment potentially affected by the violation at issue;
     (iii) Be of a scope and type defined in the signed settlement agreement between the department and the person in violation of a permit issued under chapter 70.94, 70.105, or 90.48 RCW or an order under RCW 70.105D.050; and
     (iv) Include deadlines and quantifiable performance metrics for the achievement of intermediate deliverables or objectives towards the completion of the supplemental environmental project.
     (2) If the department, attorney general, or authority enters an agreement for a person to perform or fund a supplemental environmental project in conjunction with the settlement of an enforcement action related to the violation of a permit issued under chapter 70.94, 70.105, or 90.48 RCW, the department, attorney general, or authority shall also recover a monetary penalty in accordance with RCW 70.94.430, 70.94.431, 70.105.080, 70.105.085, or 70.105.090 or chapter 90.48 RCW.
     (3) In determining the monetary amount to be recovered in the settlement, in addition to the current factors considered in determining the amounts of a penalty under RCW 70.94.430, 70.94.431, 70.105.080, 70.105.085, or 70.105.090 or chapter 90.48 RCW, the department, attorney general, or authority shall consider:
     (a) The cost to the person of the supplemental environmental project; and
     (b) The environmental or public health benefits anticipated to accrue from the supplemental environmental project.
     (4) Nothing in this section affects the authority of the department, attorney general, or authority to enter into a supplemental environmental project agreement in the settlement of enforcement actions under existing statutory authorities.

NEW SECTION.  Sec. 5   To the maximum extent practicable, the department, attorney general, or authority shall seek the input of the highly impacted community in the development of a proposed supplemental environmental project pursuant to section 4 of this act. After the department, attorney general, or authority has decided to consider the inclusion of a supplemental environmental project in conjunction with the settlement of an enforcement action, the department, attorney general, or authority shall, to the maximum extent practicable, seek to provide information to the highly impacted community regarding:
     (1) The proposed supplemental environmental project; and
     (2) The process the department, attorney general, or authority plans to follow in making a final determination regarding the details of the supplemental environmental project.

Sec. 6   RCW 34.05.272 and 2013 c 69 s 2 are each amended to read as follows:
     (1) This section applies only to the water quality and shorelands and environmental assistance programs within the department of ecology, except as provided in subsection (3)(b) of this section.
     (2) Before taking a significant agency action, the department of ecology or the department of health as provided in subsection (3)(b) of this section must identify the sources of information reviewed and relied upon by the agency in the course of preparing to take significant agency action. Peer-reviewed literature, if applicable, must be identified, as well as any scientific literature or other sources of information used. The department of ecology shall make available on the agency's web site the index of records required under RCW 42.56.070(6) that are relied upon, or invoked, in support of a proposal for significant agency action.
     (3) For the purposes of this section, "significant agency action" means an act of the department of ecology that:
     (a) Results in the development of a significant legislative rule as defined in RCW 34.05.328; ((or))
     (b) Results in the identification of a highly impacted community by the department of health pursuant to section 3 of this act; or
     (c) Results in the development of technical guidance, technical assessments, or technical documents that are used to directly support implementation of a state rule or state statute.
     (4) This section is not intended to affect agency action regarding individual permitting, compliance and enforcement decisions, or guidance provided by an agency to a local government on a case-by-case basis.

NEW SECTION.  Sec. 7   (1)(a) Nothing in this chapter provides a cause of action for a party to challenge a decision by the department to enter into an agreement that results in the performance of a supplemental environmental project.
     (b) Nothing in this chapter provides a cause of action for a party to challenge a decision by the department not to enter into an agreement that results in the performance of a supplemental environmental project.
     (c) Nothing in this chapter provides a cause of action for a party to challenge the contents of a supplemental environmental project agreement.
     (2) Under no circumstances may the department compel a party to fund a supplemental environmental project, unless the party has voluntarily agreed to do so in the settlement of an enforcement action.

NEW SECTION.  Sec. 8   Nothing in sections 1 through 5 of this act creates a new cause of action, or eliminates or restricts any cause of action, with respect to the liability of a party to a claimant, including but not limited to the liability of a party associated with hazardous wastes or substances.

NEW SECTION.  Sec. 9   The department may adopt rules as necessary to implement this chapter.

NEW SECTION.  Sec. 10   The department of ecology must report to appropriate committees of the legislature on the processes that it and the department of health currently use to engage potentially affected communities under existing environmental and public health laws including, but not limited to, chapters 36.70A, 43.21C, 70.94, 70.95, 70.105, 70.105D, 90.48, and 90.58 RCW. This report must include an analysis of existing requirements to solicit public input or otherwise engage communities during permitting and other decision-making processes. This report must also include an analysis of the extent to which environmental laws already require mitigation projects that benefit affected communities.

NEW SECTION.  Sec. 11   Sections 1 through 5, 9, and 13 of this act constitute a new chapter in Title 70 RCW.

NEW SECTION.  Sec. 12   Sections 1 through 5, 9, and 13 of this act take effect January 1, 2016, unless the department of ecology does not submit a report to the legislature pursuant to section 10 of this act.

NEW SECTION.  Sec. 13   The responsibility of the department and the department of health to fulfill the requirements of this chapter is contingent upon specific funding for the purposes of this act, referencing this act by bill or chapter number. If such funding is not provided by July 1, 2020, in the omnibus appropriations act, the department must bring request legislation to repeal this act.