S-1374

AN ACT Relating to sludge; amending RCW 4.22.070 and 70.95.255; adding a new section to chapter 4.16 RCW; adding a new section to chapter 9A.48 RCW; adding a new section to chapter 90.48 RCW; adding a new section to chapter 43.21C RCW; adding a new chapter to Title 70 RCW; creating a new section; and prescribing penalties.

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

NEW SECTION. Sec. 1. The definitions set forth in this section apply throughout this chapter.

(1) "Person" means an individual, firm, association, copartnership, political subdivision, government agency, municipality, industry, public or private corporation, or any other entity.

(2) "Sludge" means a semisolid substance consisting of settled sewage solids combined with varying amounts of water and dissolved materials that is generated from a municipal wastewater treatment plant.

(3) "Damages," in addition to its ordinary meaning, includes, but is not limited to, decreases in property value, harm to wildlife and fisheries resources, sickness from noxious odors, loss of esthetic value and beauty, toxicity to land and water, and emotional distress.

NEW SECTION. Sec. 2. A person who discharges, deposits, sprays, or otherwise places sludge on land or vegetation, or who contracts with another to perform such services, is strictly liable for all economic and noneconomic damages caused to another person by the activity.

Liability is imposed under this section regardless of whether the person who engaged in the discharge, deposit, spraying, or placing of the sludge was negligent or otherwise complied with all applicable federal or state laws or rules. The liability of each defendant is joint and several.

NEW SECTION. Sec. 3. A new section is added to chapter 4.16 RCW to read as follows:

(1) All claims or causes of action brought by a person for recovery of damages based on the discharge, deposit, spraying, or otherwise placing of sludge on land or vegetation must be commenced within twenty years of the act alleged to have caused the injury or condition, or three years from the time the injured person discovered or reasonably should have discovered that the injury or condition was caused by the act, whichever period expires later.

(2) The injured person need not establish which act in a series of acts caused the injury complained of, but may compute the date of discovery from the date of discovery of the last act by the same person who discharged, deposited, sprayed, or otherwise placed the sludge that allegedly caused the injury.

(3) The knowledge of a custodial parent or guardian shall not be imputed to a person under the age of eighteen years.

Sec. 4. RCW 4.22.070 and 1986 c 305 s 401 are each amended to read as follows:

(1) In all actions involving fault of more than one entity, the trier of fact shall determine the percentage of the total fault which is attributable to every entity which caused the claimant's damages, including the claimant or person suffering personal injury or incurring property damage, defendants, third-party defendants, entities released by the claimant, entities immune from liability to the claimant and entities with any other individual defense against the claimant. Judgment shall be entered against each defendant except those who have been released by the claimant or are immune from liability to the claimant or have prevailed on any other individual defense against the claimant in an amount which represents that party's proportionate share of the claimant's total damages. The liability of each defendant shall be several only and shall not be joint except:

(a) A party shall be responsible for the fault of another person or for payment of the proportionate share of another party where both were acting in concert or when a person was acting as an agent or servant of the party.

(b) If the trier of fact determines that the claimant or party suffering bodily injury or incurring property damages was not at fault, the defendants against whom judgment is entered shall be jointly and severally liable for the sum of their proportionate shares of the claimants total damages.

(2) If a defendant is jointly and severally liable under one of the exceptions listed in subsections (1)(a) or (1)(b) of this section, such defendant's rights to contribution against another jointly and severally liable defendant, and the effect of settlement by either such defendant, shall be determined under RCW 4.22.040, 4.22.050, and 4.22.060.

(3)(a) Nothing in this section affects any cause of action relating to hazardous wastes or substances or solid waste disposal sites.

(b) Nothing in this section shall affect a cause of action arising from the tortious interference with contracts or business relations.

(c) Nothing in this section shall affect any cause of action arising from the manufacture or marketing of a fungible product in a generic form which contains no clearly identifiable shape, color, or marking.

(d) Nothing in this section affects a cause of action relating to the discharge, deposit, or spraying of sludge under section 2 of this act.

NEW SECTION. Sec. 5. A new section is added to chapter 9A.48 RCW to read as follows:

(1) A person is guilty of unlawful sludge dispersal if he or she:

(a) Discharges, deposits, sprays, or otherwise places sludge on land or vegetation without a valid permit, or in violation of the permit, issued by the department of ecology under section 7 of this act;

(b) Conceals or falsifies information or records that sludge has been discharged, deposited, sprayed, or placed on land or vegetation in violation of (a) of this subsection;

(c) Obtains, or allows another person to obtain, a permit from the department of ecology to discharge, deposit, spray, or place sludge on land or vegetation by concealing or falsifying information or records that the dispersal of sludge will result in damages to another person.

(2) The definitions of section 1 of this act apply to this section.

(3) Unlawful sludge dispersal is a class C felony.

Sec. 6. RCW 70.95.255 and 1986 c 297 s 1 are each amended to read as follows:

After January 1, 1988, the department of ecology may prohibit disposal of municipal sewage sludge or septic tank sludge (septage) in landfills for final disposal, except on a temporary, emergency basis, if the jurisdictional health department determines that a potentially unhealthful circumstance exists. Beneficial uses of sludge in landfill reclamation ((is)) and land application are acceptable utilization and not considered disposal.

The department of ecology shall adopt rules that provide exemptions from this section on a case-by-case basis. Exemptions shall be based on the economic infeasibility of using or disposing of the sludge material other than in a landfill.

The department of ecology, after consulting with representatives from cities, counties, special purpose districts, and operators of septic tank pump-out services, shall adopt rules for the environmentally safe use of municipal sewage sludge and septage in this state.

The department of ecology, after consulting with representatives from the pulp and paper industry and the food processing industry, may adopt rules for the environmentally safe use of appropriate industrial sludges, such as pulp and paper sludges or food processing wastes, used to improve the texture or nutrient content of soils.

The department of ecology, in conjunction with the department of social and health services and the department of agriculture, shall adopt rules establishing labeling and notification requirements for sludge material sold commercially or given away to the public. The department shall specify mandatory wording for labels and notification to warn the public against improper use of the material.

NEW SECTION. Sec. 7. A new section is added to chapter 90.48 RCW to read as follows:

(1) The department of ecology, in conjunction with the department of health, shall establish a permit system for land application of sludge material to improve the texture or nutrient content of soils. All permits shall meet state surface and ground water quality standards adopted under this chapter and state solid waste management rules under chapter 70.95 RCW.

(2) No person may discharge, deposit, spray, or otherwise place sludge on land or vegetation, or contract with another to perform such services, without a permit.

NEW SECTION. Sec. 8. A new section is added to chapter 43.21C RCW to read as follows:

Before making a land application of sludge, a permittee shall prepare and file with the county health jurisdiction where the activity is scheduled a site-specific environmental impact statement. Failure to prepare and file an environmental impact statement on sludge is negligence per se.

NEW SECTION. Sec. 9. The department of ecology shall conduct or contract for a five-year study of the epidemiological effects of discharging, depositing, spraying, or otherwise placing sludge on land and vegetation. The study shall be conducted with the assistance of the department of social and health services, which shall provide technical and research services as required.

The department of ecology shall submit an interim report by September 1, 1994, and a final report by September 1, 1995, to the governor, the president of the senate, the speaker of the house of representatives, and the chairs of appropriate standing committees of the legislature. The reports shall contain the findings and recommendations of the study, together with any proposed legislation for improvements in the regulation of the land application of sludge.

NEW SECTION. Sec. 10. Sections 1 and 2 of this act shall constitute a new chapter in Title 70 RCW.