AN ACT Relating to
facilitating growth management planning and decisions, integration with related
environmental laws, and improving procedures for cleanup of hazardous waste
sites; amending RCW 36.70A.270, 36.70A.290, 36.70A.030, 58.17.330, 35A.63.170,
35.63.130, 36.70.970, 70.105D.020, 70.105D.030, 70.105D.050, 70.105D.060,
34.12.020, 34.05.514, and 82.02.050; adding new sections to chapter 36.70A RCW;
adding a new section to chapter 70.105D RCW; adding a new section to chapter
70.94 RCW; adding a new section to chapter 70.95 RCW; adding a new section to
chapter 70.105 RCW; adding a new section to chapter 75.20 RCW; adding a new
section to chapter 90.48 RCW; adding a new section to chapter 90.58 RCW; adding
a new section to chapter 43.21C RCW; and providing an effective date.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF
WASHINGTON:
Sec. 1. RCW 36.70A.270 and 1991
sp.s. c 32 s 7 are each amended to read as follows:
Each growth planning
hearings board shall be governed by the following rules on conduct and
procedure:
(1) Any board member
may be removed for inefficiency, malfeasance, and misfeasance in office, under
specific written charges filed by the governor. The governor shall transmit
such written charges to the member accused and the chief justice of the supreme
court. The chief justice shall thereupon designate a tribunal composed of
three judges of the superior court to hear and adjudicate the charges. Removal
of any member of a board by the tribunal shall disqualify such member for
reappointment.
(2) Each board member
shall receive reimbursement for travel expenses incurred in the discharge of
his or her duties in accordance with RCW 43.03.050 and 43.03.060. If it is
determined that the review boards shall operate on a full-time basis, each
member shall receive an annual salary to be determined by the governor pursuant
to RCW 43.03.040. If it is determined that a review board shall operate on a
part-time basis, each member shall receive compensation pursuant to RCW
43.03.250, provided such amount shall not exceed the amount that would be set
if they were a full-time board member. The principal office of each board
shall be located by the governor within the jurisdictional boundaries of each
board. The boards shall operate on either a part-time or full-time basis, as
determined by the governor.
(3) Each board member
shall not: (a) Be a candidate for or hold any other public office or trust;
(b) engage in any occupation or business interfering with or inconsistent with
his or her duty as a board member; and (c) for a period of one year after the
termination of his or her board membership, act in a representative capacity
before the board on any matter.
(4) A majority of each
board shall constitute a quorum for making orders or decisions, adopting rules
necessary for the conduct of its powers and duties, or transacting other official
business, and may act even though one position of the board is vacant. One or
more members may hold hearings and take testimony to be reported for action by
the board when authorized by rule or order of the board. The board shall
perform all the powers and duties specified in this chapter or as otherwise
provided by law.
(5) The board
may ((also)) appoint ((as its authorized agents)) one or more
hearing examiners to assist the board in ((the performance of)) its
hearing function ((pursuant to the authority contained in the administrative
procedure act, chapter 34.05 RCW)), to make conclusions of law and
findings of fact and, if requested by the board, to make recommendations to the
board for decisions in cases before the board. Such hearing examiners must
have demonstrated knowledge of land use planning and law. The boards shall
specify in their joint rules of practice and procedure, as required by
subsection (7) of this section, the procedure and criteria to be employed for
designating hearing examiners as a presiding officer. Hearing examiners
selected by a board shall meet the requirements of subsection (3) of this
section. The findings and conclusions of the hearing examiner shall
not become final until they have been formally approved by the board. ((Such
hearing examiners must have demonstrated knowledge of land use planning and
law. The board shall perform all the powers and duties specified in this
chapter or as otherwise provided by law.
(5))) This authorization to use hearing examiners
does not waive the requirement of RCW 36.70A.300 that final orders be issued
within one hundred eighty days of board receipt of a petition.
(6) Each board
shall make findings of fact and prepare a written decision in each case decided
by it, and such findings and decision shall be effective upon being signed by
two or more members of the board and upon being filed at the board's principal
office, and shall be open for public inspection at all reasonable times.
(((6))) (7)
All proceedings before the board ((or)), any of its members,
or a hearing examiner appointed by the board shall be conducted in
accordance with such administrative rules of practice and procedure as the
boards jointly prescribe. All three boards shall jointly meet to develop and
adopt joint rules of practice and procedure, including rules regarding
expeditious and summary disposition of appeals. The boards shall publish such
rules and arrange for the reasonable distribution of the rules. The
administrative procedure act, chapter 34.05 RCW, shall govern the
administrative rules of practice and procedure adopted by the boards.
(((7))) (8)
A board member or hearing examiner is subject to disqualification for bias,
prejudice, interest, or any other cause for which a judge is disqualified. The
joint rules of practice of the boards shall establish procedures by which a
party to a hearing conducted before the board may file with the board a motion
to disqualify, with supporting affidavit, against a board member or hearing
examiner assigned to preside at the hearing.
(9) The members
of the boards shall meet jointly on at least an annual basis with the objective
of sharing information that promotes the goals and purposes of this chapter.
Sec. 2. RCW 36.70A.290 and 1991
sp.s. c 32 s 10 are each amended to read as follows:
(1) All requests for
review to a growth planning hearings board shall be initiated by filing a
petition that includes a detailed statement of issues presented for resolution
by the board.
(2) All petitions
relating to whether or not an adopted comprehensive plan, development
regulation, or permanent amendment thereto, is in compliance with the goals and
requirements of this chapter or chapter 43.21C RCW must be filed within
sixty days after publication by the legislative bodies of the county or city.
The date of publication for a city shall be the date the city publishes the
ordinance, or summary of the ordinance, adopting the comprehensive plan or
development regulations, or amendment thereto, as is required to be published.
Promptly after adoption, a county shall publish a notice that it has adopted
the comprehensive plan or development regulations, or amendment thereto. The
date of publication for a county shall be the date the county publishes the
notice that it has adopted the comprehensive plan or development regulations,
or amendment thereto.
(3) Unless the board
dismisses the petition as frivolous or finds that the person filing the
petition lacks standing, the board shall, within ten days of receipt of the
petition, set a time for hearing the matter.
(4) The board shall
base its decision on the record developed by the city, county, or the state and
supplemented with additional evidence if the board determines that such
additional evidence would be necessary or of substantial assistance to the
board in reaching its decision.
(5) The board, shall
consolidate, when appropriate, all petitions involving the review of the same
comprehensive plan or the same development regulation or regulations.
NEW SECTION. Sec.
3. A new section is added to
chapter 36.70A RCW to read as follows:
Development
regulations adopted pursuant to RCW 36.70A.040 shall establish time periods for
local government actions on specific development permit applications and
provide timely and predictable procedures to determine whether a completed
development permit application meets the requirements of those development
regulations. Such development regulations shall specify the contents of a
completed development permit application necessary for the application of such
time periods and procedures.
NEW SECTION. Sec.
4. A new section is added to
chapter 36.70A RCW to read as follows:
Each city and county
planning pursuant to RCW 36.70A.040 shall, within twenty working days of
receiving a development permit application as defined in RCW 36.70A.030(7),
mail or provide in person a written notice to the applicant, stating either:
That the application is complete; or that the application is incomplete and
what is necessary to make the application complete. To the extent known by the
city or county, the notice shall identify other agencies of local, state, or
federal governments that may have jurisdiction over some aspect of the
application.
Sec. 5. RCW 36.70A.030 and 1990
1st ex.s. c 17 s 3 are each amended to read as follows:
Unless the context
clearly requires otherwise, the definitions in this section apply throughout
this chapter.
(1) "Adopt a
comprehensive land use plan" means to enact a new comprehensive land use
plan or to update an existing comprehensive land use plan.
(2) "Agricultural
land" means land primarily devoted to the commercial production of
horticultural, viticultural, floricultural, dairy, apiary, vegetable, or animal
products or of berries, grain, hay, straw, turf, seed, Christmas trees not
subject to the excise tax imposed by RCW 84.33.100 through 84.33.140, or
livestock, and that has long-term commercial significance for agricultural
production.
(3) "City"
means any city or town, including a code city.
(4)
"Comprehensive land use plan," "comprehensive plan," or
"plan" means a generalized coordinated land use policy statement of
the governing body of a county or city that is adopted pursuant to this
chapter.
(5) "Critical
areas" include the following areas and ecosystems: (a) Wetlands; (b)
areas with a critical recharging effect on aquifers used for potable water; (c)
fish and wildlife habitat conservation areas; (d) frequently flooded areas; and
(e) geologically hazardous areas.
(6)
"Department" means the department of community, trade, and
economic development.
(7) For purposes of
sections 3 and 4 of this act, "development permit application" means
any application for a development proposal for a use that could be permitted
under a plan adopted pursuant to this chapter and is consistent with the
underlying land use and zoning, including but not limited to building permits,
subdivisions, binding site plans, planned unit developments, conditional uses
or other applications pertaining to land uses, but shall not include rezones,
proposed amendments to comprehensive plans or the adoption or amendment of
development regulations.
(8)
"Development regulations" means any controls placed on development or
land use activities by a county or city, including, but not limited to, zoning
ordinances, official controls, planned unit development ordinances, subdivision
ordinances, and binding site plan ordinances.
(((8))) (9)
"Forest land" means land primarily useful for growing trees,
including Christmas trees subject to the excise tax imposed under RCW 84.33.100
through 84.33.140, for commercial purposes, and that has long-term commercial
significance for growing trees commercially.
(((9))) (10)
"Geologically hazardous areas" means areas that because of their
susceptibility to erosion, sliding, earthquake, or other geological events, are
not suited to the siting of commercial, residential, or industrial development
consistent with public health or safety concerns.
(((10))) (11)
"Long-term commercial significance" includes the growing capacity,
productivity, and soil composition of the land for long-term commercial
production, in consideration with the land's proximity to population areas, and
the possibility of more intense uses of the land.
(((11))) (12)
"Minerals" include gravel, sand, and valuable metallic substances.
(((12))) (13)
"Public facilities" include streets, roads, highways, sidewalks,
street and road lighting systems, traffic signals, domestic water systems,
storm and sanitary sewer systems, parks and recreational facilities, and
schools.
(((13))) (14)
"Public services" include fire protection and suppression, law
enforcement, public health, education, recreation, environmental protection,
and other governmental services.
(((14))) (15)
"Urban growth" refers to growth that makes intensive use of land for
the location of buildings, structures, and impermeable surfaces to such a
degree as to be incompatible with the primary use of such land for the
production of food, other agricultural products, or fiber, or the extraction of
mineral resources. When allowed to spread over wide areas, urban growth
typically requires urban governmental services. "Characterized by urban
growth" refers to land having urban growth located on it, or to land
located in relationship to an area with urban growth on it as to be appropriate
for urban growth.
(((15))) (16)
"Urban growth areas" means those areas designated by a county pursuant
to RCW 36.70A.110.
(((16))) (17)
"Urban governmental services" include those governmental services
historically and typically delivered by cities, and include storm and sanitary
sewer systems, domestic water systems, street cleaning services, fire and
police protection services, public transit services, and other public utilities
associated with urban areas and normally not associated with nonurban areas.
(((17))) (18)
"Wetland" or "wetlands" means areas that are inundated or
saturated by surface water or ground water at a frequency and duration
sufficient to support, and that under normal circumstances do support, a
prevalence of vegetation typically adapted for life in saturated soil
conditions. Wetlands generally include swamps, marshes, bogs, and similar
areas. Wetlands do not include those artificial wetlands intentionally created
from nonwetland sites, including, but not limited to, irrigation and drainage
ditches, grass-lined swales, canals, detention facilities, wastewater treatment
facilities, farm ponds, and landscape amenities. However, wetlands may include
those artificial wetlands intentionally created from nonwetland areas created
to mitigate conversion of wetlands, if permitted by the county or city.
Sec. 6. RCW 58.17.330 and 1977
ex.s. c 213 s 4 are each amended to read as follows:
(1) As an
alternative to those provisions of this chapter requiring a planning commission
to hear and issue recommendations for plat approval, the county or city
legislative body may adopt a hearing examiner system and shall specify by
ordinance the legal effect of the decisions made by the examiner. Except as
provided in subsection (2) of this section, the legal effect of such
decisions shall include one of the following:
(((1))) (a)
The decision may be given the effect of a recommendation to the legislative
body;
(((2))) (b)
The decision may be given the effect of an administrative decision appealable
within a specified time limit to the legislative body.
The legislative authority
shall prescribe procedures to be followed by a hearing examiner.
(2) The legislative
body shall specify the legal effect of a hearing examiner's procedural
determination under the state environmental policy act, as defined in RCW
43.21C.075(3)(a). It may have the effect under subsection (1) (a) or (b) of
this section, or may be given the effect of a final decision of the legislative
body.
(3) Each final
decision of a hearing examiner shall be in writing and shall include findings
and conclusions, based on the record, to support the decision. Each final
decision of a hearing examiner, unless a longer period is mutually agreed to by
the applicant and the hearing examiner, shall be rendered within ten working
days following conclusion of all testimony and hearings.
Sec. 7. RCW 35A.63.170 and 1977
ex.s. c 213 s 2 are each amended to read as follows:
(1) As an
alternative to those provisions of this chapter relating to powers or duties of
the planning commission to hear and report on any proposal to amend a zoning
ordinance, the legislative body of a city may adopt a hearing examiner system
under which a hearing examiner or hearing examiners may hear and decide
applications for amending the zoning ordinance when the amendment which is
applied for is not of general applicability. In addition, the legislative body
may vest in a hearing examiner the power to hear and decide applications for
conditional uses, variances or any other class of applications for or
pertaining to land uses which the legislative body believes should be reviewed
and decided by a hearing examiner. The legislative body shall prescribe
procedures to be followed by a hearing examiner. If the legislative authority
vests in a hearing examiner the authority to hear and decide variances, then
the provisions of RCW 35A.63.110 shall not apply to the city.
Each city legislative
body electing to use a hearing examiner pursuant to this section shall by
ordinance specify the legal effect of the decisions made by the examiner. Except
as provided in subsection (2) of this section, the legal effect of such
decisions may vary for the different classes of applications decided by the
examiner but shall include one of the following:
(((1))) (a)
The decision may be given the effect of a recommendation to the legislative
body;
(((2))) (b)
The decision may be given the effect of an administrative decision appealable
within a specified time limit to the legislative body.
(2) The legislative
body shall specify the legal effect of a hearing examiner's procedural
determination under the state environmental policy act, as defined in RCW
43.21C.075(3)(a). It may have the effect under subsection (1) (a) or (b) of
this section, or may be given the effect of a final decision of the legislative
body.
(3) Each final
decision of a hearing examiner shall be in writing and shall include findings
and conclusions, based on the record, to support the decision. Such findings
and conclusions shall also set forth the manner in which the decision would
carry out and conform to the city's comprehensive plan and the city's
development regulations. Each final decision of a hearing examiner, unless a
longer period is mutually agreed to in writing by the applicant and the hearing
examiner, shall be rendered within ten working days following conclusion of all
testimony and hearings.
Sec. 8. RCW 35.63.130 and 1977
ex.s. c 213 s 1 are each amended to read as follows:
(1) As an
alternative to those provisions of this chapter relating to powers or duties of
the planning commission to hear and report on any proposal to amend a zoning
ordinance, the legislative body of a city or county may adopt a hearing
examiner system under which a hearing examiner or hearing examiners may hear
and decide applications for amending the zoning ordinance when the amendment
which is applied for is not of general applicability. In addition, the
legislative body may vest in a hearing examiner the power to hear and decide
applications for conditional uses, variances, or any other class of
applications for or pertaining to land uses which the legislative body believes
should be reviewed and decided by a hearing examiner. The legislative body
shall prescribe procedures to be followed by the hearing examiner.
Each city or county
legislative body electing to use a hearing examiner pursuant to this section
shall by ordinance specify the legal effect of the decisions made by the
examiner. Except as provided in subsection (2) of this section, the
legal effect of such decisions may vary for the different classes of
applications decided by the examiner but shall include one of the following:
(((1))) (a)
The decision may be given the effect of a recommendation to the legislative
body;
(((2))) (b)
The decision may be given the effect of an administrative decision appealable
within a specified time limit to the legislative body.
(2) The legislative
body may specify the legal effect of a hearing examiner's procedural
determination under the state environmental policy act, as defined in RCW
43.21C.075(3)(a). It may have the effect under subsection (1) (a) or (b) of
this section, or may be given the effect of a final decision of the legislative
body.
(3) Each final
decision of a hearing examiner shall be in writing and shall include findings
and conclusions, based on the record, to support the decision. Such findings
and conclusions shall also set forth the manner in which the decision would
carry out and conform to the city's or county's comprehensive plan and the
city's or county's development regulations. Each final decision of a hearing
examiner, unless a longer period is mutually agreed to in writing by the
applicant and the hearing examiner, shall be rendered within ten working days
following conclusion of all testimony and hearings.
Sec. 9. RCW 36.70.970 and 1977
ex.s. c 213 s 3 are each amended to read as follows:
(1) As an
alternative to those provisions of this chapter relating to powers or duties of
the planning commission to hear and issue recommendations on applications for
plat approval and applications for amendments to the zoning ordinance, the
county legislative authority may adopt a hearing examiner system under which a
hearing examiner or hearing examiners may hear and issue decisions on proposals
for plat approval and for amendments to the zoning ordinance when the amendment
which is applied for is not of general applicability. In addition, the
legislative authority may vest in a hearing examiner the power to hear and
decide conditional use applications, variance applications, applications for
shoreline permits or any other class of applications for or pertaining to land
uses. The legislative authority shall prescribe procedures to be followed by a
hearing examiner.
Any county which vests
in a hearing examiner the authority to hear and decide conditional uses and
variances shall not be required to have a zoning adjuster or board of
adjustment.
Each county
legislative authority electing to use a hearing examiner pursuant to this section
shall by ordinance specify the legal effect of the decisions made by the
examiner. Except as provided in subsection (2) of this section , such
legal effect may vary for the different classes of applications decided by the
examiner but shall include one of the following:
(((1))) (a)
The decision may be given the effect of a recommendation to the legislative
authority;
(((2))) (b)
The decision may be given the effect of an administrative decision appealable
within a specified time limit to the legislative authority.
(2) The legislative
authority may specify the legal effect of a hearing examiner's procedural
determination under the state environmental policy act, as defined in RCW
43.21C.075(3)(a). It may have the effect under subsection (1) (a) or (b) of
this section, or may be given the effect of a final decision of the legislative
authority.
(3) Each final
decision of a hearing examiner shall be in writing and shall include findings
and conclusions, based on the record, to support the decision. Such findings
and conclusions shall also set forth the manner in which the decision would
carry out and conform to the county's comprehensive plan and the county's
development regulations. Each final decision of a hearing examiner, unless a
longer period is mutually agreed to in writing by the applicant and the hearing
examiner, shall be rendered within ten working days following conclusion of all
testimony and hearings.
Sec. 10. RCW 70.105D.020 and 1989
c 2 s 2 are each amended to read as follows:
(1) "Agreed
order" means an order issued by the department under this chapter with
which the potentially liable person 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.
(((2))) (3)
"Director" means the director of ecology or the director's designee.
(((3))) (4)
"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.
(((4))) (5)
"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.
(((5))) (6)
"Hazardous substance" means:
(a) Any dangerous or
extremely hazardous waste as defined in RCW 70.105.010 (5) and (6), 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) 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.
(((6))) (7)
"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
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 facility, holds indicia of
ownership primarily to protect the person's security interest in the facility.
(((7))) (8)
"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.
(((8))) (9)
"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.
(((9))) (10)
"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.
(((10))) (11)
"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.
(((11))) (12)
"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.
Sec. 11. RCW 70.105D.030 and 1989
c 2 s 3 are each amended to read as follows:
(1) The department may
exercise the following powers in addition to any other powers granted by law:
(a) Investigate,
provide for investigating, or require potentially liable persons to investigate
any releases or threatened releases of hazardous substances, including but not
limited to inspecting, sampling, or testing to determine the nature or extent
of any release or threatened release. If there is a reasonable basis to
believe that a release or threatened release of a hazardous substance may
exist, the department's authorized employees, agents, or contractors may enter
upon any property and conduct investigations. The department shall give
reasonable notice before entering property unless an emergency prevents such
notice. The department may by subpoena require the attendance or testimony of
witnesses and the production of documents or other information that the
department deems necessary;
(b) Conduct, provide
for conducting, or require potentially liable persons to conduct remedial
actions (including investigations under (a) of this subsection) to remedy
releases or threatened releases of hazardous substances. In carrying out such
powers, the department's authorized employees, agents, or contractors may enter
upon property. The department shall give reasonable notice before entering
property unless an emergency prevents such notice. In conducting, providing
for, or requiring remedial action, the department shall give preference to
permanent solutions to the maximum extent practicable and shall provide for or
require adequate monitoring to ensure the effectiveness of the remedial action;
(c) Indemnify
contractors retained by the department for carrying out investigations and
remedial actions, but not for any contractor's reckless or wilful misconduct;
(d) Carry out all
state programs authorized under the federal cleanup law and the federal
resource, conservation, and recovery act, 42 U.S.C. Sec. 6901 et seq., as
amended;
(e) Classify
substances as hazardous substances for purposes of RCW 70.105D.020(5) and
classify substances and products as hazardous substances for purposes of RCW
82.21.020(1); and
(f) Take any other
actions necessary to carry out the provisions of this chapter, including the
power to adopt rules under chapter 34.05 RCW.
(2) The department
shall immediately implement all provisions of this chapter to the maximum
extent practicable, including investigative and remedial actions where
appropriate. The department, within nine months after March 1, 1989, shall
adopt, and thereafter enforce, rules under chapter 34.05 RCW to:
(a) Provide for public
participation, including at least (i) the establishment of regional citizen's
advisory committees, (ii) public notice of the development of investigative
plans or remedial plans for releases or threatened releases, and (iii)
concurrent public notice of all compliance orders, agreed orders, enforcement
orders, or notices of violation;
(b) Establish a hazard
ranking system for hazardous waste sites;
(c) Establish
reasonable deadlines not to exceed ninety days for initiating an investigation
of a hazardous waste site after the department receives information that the
site may pose a threat to human health or the environment and other reasonable
deadlines for remedying releases or threatened releases at the site; and
(d) Publish and
periodically update minimum cleanup standards for remedial actions at least as
stringent as the cleanup standards under section 121 of the federal cleanup
law, 42 U.S.C. Sec. 9621, and at least as stringent as all applicable state and
federal laws, including health-based standards under state and federal law.
(3) Before November
1st of each even-numbered year, the department shall develop, with public
notice and hearing, and submit to the ways and means and appropriate standing
environmental committees of the senate and house of representatives a ranked
list of projects and expenditures recommended for appropriation from both the
state and local toxics control accounts. The department shall also provide the
legislature and the public each year with an accounting of the department's
activities supported by appropriations from the state toxics control account,
including a list of known hazardous waste sites and their hazard rankings,
actions taken and planned at each site, how the department is meeting its top
two management priorities under RCW 70.105.150, and all funds expended under
this chapter.
(4) The department
shall establish a scientific advisory board to render advice to the department
with respect to the hazard ranking system, cleanup standards, remedial actions,
deadlines for remedial actions, monitoring, the classification of substances as
hazardous substances for purposes of RCW 70.105D.020(5) and the classification
of substances or products as hazardous substances for purposes of RCW
82.21.020(1). The board shall consist of five independent members to serve staggered
three-year terms. No members may be employees of the department. Members
shall be reimbursed for travel expenses as provided in RCW 43.03.050 and
43.03.060.
(5) The department
shall establish a program to identify potential hazardous waste sites and to
encourage persons to provide information about hazardous waste sites.
Sec. 12. RCW 70.105D.050 and 1989
c 2 s 5 are each amended to read as follows:
(1) With respect to
any release, or threatened release, for which the department does not conduct
or contract for conducting remedial action and for which the department
believes remedial action is in the public interest, the director shall issue
orders or agreed orders requiring potentially liable persons to provide
the remedial action. Any liable person who refuses, without sufficient cause,
to comply with an order or agreed order of the director is liable in an
action brought by the attorney general for:
(a) Up to three times
the amount of any costs incurred by the state as a result of the party's
refusal to comply; and
(b) A civil penalty of
up to twenty-five thousand dollars for each day the party refuses to comply.
The treble damages and
civil penalty under this subsection apply to all recovery actions filed on or after
March 1, 1989.
(2) Any person who
incurs costs complying with an order issued under subsection (1) of this
section may petition the department for reimbursement of those costs. If the
department refuses to grant reimbursement, the person may within thirty days
thereafter file suit and recover costs by proving that he or she was not a
liable person under RCW 70.105D.040 and that the costs incurred were
reasonable.
(3) The attorney
general shall seek, by filing an action if necessary, to recover the amounts
spent by the department for investigative and remedial actions and orders, and
agreed orders, including amounts spent prior to March 1, 1989.
(4) The attorney
general may bring an action to secure such relief as is necessary to protect
human health and the environment under this chapter.
(5)(a) Any person may
commence a civil action to compel the department to perform any
nondiscretionary duty under this chapter. At least thirty days before
commencing the action, the person must give notice of intent to sue, unless a
substantial endangerment exists. The court may award attorneys' fees and other
costs to the prevailing party in the action.
(b) Civil actions
under this section and RCW 70.105D.060 may be brought in the superior court of
Thurston county or of the county in which the release or threatened release
exists.
Sec. 13. RCW 70.105D.060 and 1989
c 2 s 6 are each amended to read as follows:
The department's
investigative and remedial decisions under RCW 70.105D.030 and 70.105D.050 and
its decisions regarding liable persons under RCW 70.105D.020(8) and 70.105D.040
shall be reviewable exclusively in superior court and only at the following
times: (1) In a cost recovery suit under RCW 70.105D.050(3); (2) in a suit by
the department to enforce an order or an agreed order, or seek a civil
penalty under this chapter; (3) in a suit for reimbursement under RCW
70.105D.050(2); (4) in a suit by the department to compel investigative or
remedial action; and (5) in a citizen's suit under RCW 70.105D.050(5). The
court shall uphold the department's actions unless they were arbitrary and
capricious.
NEW SECTION. Sec.
14. A new section is added to
chapter 70.105D RCW to read as follows:
(1) A person
conducting a remedial action at a facility under a consent decree, order, or
agreed order, and the department when it conducts a remedial action, are exempt
from the procedural requirements of chapters 70.94, 70.95, 70.105, 75.20,
90.48, and 90.58 RCW, and the procedural requirements of any laws requiring or
authorizing local government permits or approvals for the remedial action. The
department shall ensure compliance with the substantive provisions of chapters
70.94, 70.95, 70.105, 75.20, 90.48, and 90.58 RCW, and the substantive
provisions of any laws requiring or authorizing local government permits of
approvals. The department shall establish procedures for ensuring that such
remedial actions comply with the substantive requirements adopted pursuant to
such laws, and shall consult with the state agencies and local governments
charged with implementing these laws. The procedures shall provide an
opportunity for comment by the public and by the state agencies and local
governments that would otherwise implement the laws referenced in this
section. Nothing in this section is intended to prohibit implementing agencies
from charging a fee to the person conducting the remedial action to defray the
costs of services rendered relating to the substantive requirements for the
remedial action.
(2) An exemption in
this section or in sections 15, 16, 17, 18, 19, and 20 of this act shall not
apply if the department determines that the exemption would result in loss of
approval from a federal agency necessary for the state to administer any
federal law, including the federal resource conservation and recovery act, the
federal clean water act, the federal clean air act, and the federal coastal
zone management act. Such a determination by the department shall not affect
the applicability of the exemptions to other statutes specified in this
section.
NEW SECTION. Sec.
15. A new section is added to
chapter 70.94 RCW to read as follows:
The procedural
requirements of this chapter shall not apply to any person conducting a
remedial action at a facility pursuant to a consent decree, order, or agreed
order issued pursuant to chapter 70.105D RCW, or to the department of ecology
when it conducts a remedial action under chapter 70.105D RCW. The department
of ecology shall ensure compliance with the substantive requirements of this
chapter through the consent decree, order, or agreed order issued pursuant to
chapter 70.105D RCW, or during the department-conducted remedial action, through
the procedures developed by the department pursuant to section 14 of this act.
NEW SECTION. Sec.
16. A new section is added to
chapter 70.95 RCW to read as follows:
The procedural
requirements of this chapter shall not apply to any person conducting a
remedial action at a facility pursuant to a consent decree, order, or agreed
order issued pursuant to chapter 70.105D RCW, or to the department of ecology
when it conducts a remedial action under chapter 70.105D RCW. The department
of ecology shall ensure compliance with the substantive requirements of this
chapter through the consent decree, order, or agreed order issued pursuant to
chapter 70.105D RCW, or during the department-conducted remedial action,
through the procedures developed by the department pursuant to section 14 of
this act.
NEW SECTION. Sec.
17. A new section is added to
chapter 70.105 RCW to read as follows:
The procedural
requirements of this chapter shall not apply to any person conducting a
remedial action at a facility pursuant to a consent decree, order, or agreed
order issued pursuant to chapter 70.105D RCW, or to the department of ecology
when it conducts a remedial action under chapter 70.105D RCW. The department
of ecology shall ensure compliance with the substantive requirements of this
chapter through the consent decree, order, or agreed order issued pursuant to
chapter 70.105D RCW, or during the department-conducted remedial action,
through the procedures developed by the department pursuant to section 14 of
this act.
NEW SECTION. Sec.
18. A new section is added to
chapter 75.20 RCW to read as follows:
The procedural
requirements of this chapter shall not apply to any person conducting a
remedial action at a facility pursuant to a consent decree, order, or agreed
order issued pursuant to chapter 70.105D RCW, or to the department of ecology
when it conducts a remedial action under chapter 70.105D RCW. The department
of ecology shall ensure compliance with the substantive requirements of this
chapter through the consent decree, order, or agreed order issued pursuant to
chapter 70.105D RCW, or during the department-conducted remedial action,
through the procedures developed by the department pursuant to section 14 of
this act.
NEW SECTION. Sec.
19. A new section is added to
chapter 90.48 RCW to read as follows:
The procedural
requirements of this chapter shall not apply to any person conducting a
remedial action at a facility pursuant to a consent decree, order, or agreed
order issued pursuant to chapter 70.105D RCW, or to the department of ecology
when it conducts a remedial action under chapter 70.105D RCW. The department
of ecology shall ensure compliance with the substantive requirements of this
chapter through the consent decree, order, or agreed order issued pursuant to
chapter 70.105D RCW, or during the department-conducted remedial action,
through the procedures developed by the department pursuant to section 14 of
this act.
NEW SECTION. Sec.
20. A new section is added to
chapter 90.58 RCW to read as follows:
The procedural
requirements of this chapter shall not apply to any person conducting a
remedial action at a facility pursuant to a consent decree, order, or agreed
order issued pursuant to chapter 70.105D RCW, or to the department of ecology
when it conducts a remedial action under chapter 70.105D RCW. The department
of ecology shall ensure compliance with the substantive requirements of this
chapter through the consent decree, order, or agreed order issued pursuant to
chapter 70.105D RCW, or during the department-conducted remedial action,
through the procedures developed by the department pursuant to section 14 of this
act.
NEW SECTION. Sec.
21. A new section is added to
chapter 43.21C RCW to read as follows:
In conducting a
remedial action at a facility pursuant to a consent decree, order, or agreed
order issued pursuant to chapter 70.105D RCW, or if conducted by the department
of ecology, the department of ecology to the maximum extent practicable shall
integrate the procedural requirements and documents of this chapter with the
procedures and documents under chapter 70.105D RCW. Such integration shall at
a minimum include the public participation procedures of chapter 70.105D RCW
and the public notice and review requirements of this chapter.
Sec. 22. RCW 34.12.020 and 1993 c
281 s 16 are each amended to read as follows:
Unless the context
clearly requires otherwise, the definitions in this section apply throughout
this chapter.
(1) "Office"
means the office of administrative hearings.
(2) "Administrative
law judge" means any person appointed by the chief administrative law
judge to conduct or preside over hearings as provided in this chapter.
(3)
"Hearing" means an adjudicative proceeding within the meaning of RCW
34.05.010(1) conducted by a state agency under RCW 34.05.413 through 34.05.476.
(4) "State
agency" means any state board, commission, department, or officer
authorized by law to make rules or to conduct adjudicative proceedings, except
those in the legislative or judicial branches, the growth planning hearings
boards, the pollution control hearings board, the shorelines hearings
board, the forest practices appeals board, the environmental hearings office,
the board of industrial insurance appeals, the Washington personnel resources
board, the public employment relations commission, the personnel appeals board,
and the board of tax appeals.
Sec. 23. RCW 34.05.514 and 1988 c
288 s 502 are each amended to read as follows:
(1) Except as provided
in subsection (2) of this section and RCW ((34.05.538)) 36.70A.300(3),
proceedings for review under this chapter shall be instituted by filing a
petition in the superior court, at the petitioner's option, for (a) Thurston
county, (b) the county of the petitioner's residence or principal place of
business, or (c) in any county where the property owned by the petitioner and
affected by the contested decision is located.
(2) For proceedings
involving institutions of higher education, the petition shall be filed either
in the county in which the principal office of the institution involved is
located or in the county of a branch campus if the action involves such branch.
Sec. 24. RCW 82.02.050 and 1993
sp.s. c 6 s 6 are each amended to read as follows:
(1) It is the intent
of the legislature:
(a) To ensure that
adequate facilities are available to serve new growth and development;
(b) To promote orderly
growth and development by establishing standards by which counties, cities, and
towns may require, by ordinance, that new growth and development pay a
proportionate share of the cost of new facilities needed to serve new growth
and development; and
(c) To ensure that
impact fees are imposed through established procedures and criteria so that
specific developments do not pay arbitrary fees or duplicative fees for the
same impact.
(2) Counties, cities,
and towns that are required or choose to plan under RCW 36.70A.040 are
authorized to impose impact fees on development activity as part of the
financing for public facilities, provided that the financing for system
improvements to serve new development must provide for a balance between impact
fees and other sources of public funds and cannot rely solely on impact fees.
(3) The impact fees:
(a) Shall only be
imposed for system improvements that are reasonably related to the new
development;
(b) Shall not exceed a
proportionate share of the costs of system improvements that are reasonably
related to the new development; and
(c) Shall be used for
system improvements that will reasonably benefit the new development.
(4) Impact fees may be
collected and spent only for the public facilities defined in RCW 82.02.090
which are addressed by a capital facilities plan element of a comprehensive
land use plan adopted pursuant to the provisions of RCW 36.70A.070 or the
provisions for comprehensive plan adoption contained in chapter 36.70, 35.63,
or 35A.63 RCW. After the date a county, city, or town is required to adopt its
((comprehensive plan and)) development regulations under chapter 36.70A
RCW, continued authorization to collect and expend impact fees shall be
contingent on the county, city, or town adopting or revising a comprehensive
plan in compliance with RCW 36.70A.070, and on the capital facilities plan
identifying:
(a) Deficiencies in
public facilities serving existing development and the means by which existing
deficiencies will be eliminated within a reasonable period of time;
(b) Additional demands
placed on existing public facilities by new development; and
(c) Additional public
facility improvements required to serve new development.
If the capital
facilities plan of the county, city, or town is complete other than for the
inclusion of those elements which are the responsibility of a special district,
the county, city, or town may impose impact fees to address those public
facility needs for which the county, city, or town is responsible.
NEW SECTION. Sec.
25. Section 5 of this act
shall take effect July 1, 1994.
NEW
SECTION. Sec. 26. 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.
