BP BHEAD INT S [atlas:bill]

AN ACT Relating to underground storage tanks; amending RCW 90.76.010, 90.76.020, 90.76.040, 90.76.050, 90.76.060, and 90.76.090; adding a new section to chapter 90.76 RCW; adding a new section to chapter 90.48 RCW; adding new sections to chapter 43.131 RCW; creating a new section; repealing RCW 90.76.030 and 90.76.903; and providing an expiration date.

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

NEW SECTION. Sec. 1. The legislature finds that it is in the best interest of the citizens of the state to reauthorize the state underground storage tank regulatory program so that responsibility for administering the program remains with the state rather than the federal government. The legislature recognizes that the process of wet fueling vehicles directly from tank trucks can result in the circumvention of the requirements for underground storage tanks, and that this process should require the establishment of source control best management practices similar to fixed base fueling stations. It is the intent of the legislature to enact legislation that will conform with new federal environmental protection agency mandates for underground storage tanks and that narrows the wet fueling exception to its requirements.

Sec. 2. RCW 90.76.010 and 1989 c 346 s 2 are each amended to read as follows:

Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter.

(1) "Department" means the department of ecology.

(2) "Director" means the director of the department.

(3) "Facility compliance tag" means a marker, constructed of metal, plastic, or other durable material, that clearly identifies all qualifying underground storage tanks on the particular site for which it is issued.

(4) "Federal act" means the federal resource conservation and recovery act, as amended (42 U.S.C. Sec. 6901, et seq.).

((~~(4)~~)) (5) "Federal regulations" means the underground storage tanks regulations (40 C.F.R. Secs. 280 and 281) adopted by the United States environmental protection agency under the federal act.

Except as provided in this section and any rules adopted by the department under this chapter, the definitions contained in the federal regulations apply to the terms in this chapter.

NEW SECTION. Sec. 3. A new section is added to chapter 90.76 RCW to read as follows:

The practice of fueling licensed on-road vehicles directly from tank trucks or mobile platforms, known as "wet fueling," is exempt from this chapter but is subject to section 4 of this act.

NEW SECTION. Sec. 4. A new section is added to chapter 90.48 RCW to read as follows:

(1) The department shall establish source control best management practices for wet fueling operations that occur in areas exposed to storm water, by December 31, 1998. These source control best management practices shall protect surface water, ground water, and soil to the same level as source control best management practices that apply to fixed-base fueling stations, and be applied in the same areas where these best management practices are applied to fixed-base fueling stations. The department shall study the need for additional protective measures which may be appropriate for wet fueling operations and report the findings to the appropriate legislative committees by December 31, 1998. The department may adopt rules to implement this section.

(2) For purposes of this section, "wet fueling" means the refueling of licensed, on-road vehicles from a bulk tank or mobile platform. "Wet fueling" does not include fueling of farm, construction, highway or road building, marine, logging, aviation, or other off-road vehicles.

Sec. 5. RCW 90.76.020 and 1989 c 346 s 3 are each amended to read as follows:

(1) ((~~By July 1, 1990,~~)) The department shall adopt rules establishing requirements for all underground storage tanks that are regulated under the federal act, taking into account the various classes or categories of tanks to be regulated. The rules must be consistent with and no less stringent than the federal regulations and consist of requirements for the following:

(a) New underground storage tank system design, construction, installation, and notification;

(b) Upgrading existing underground storage tank systems;

(d) Release detection;

(e) Release reporting;

(f) Out-of-service underground storage tank systems and closure; and

(g) Financial responsibility for underground storage tanks containing regulated substances.

(2) ((~~By July 1, 1990,~~)) The department shall adopt rules:

(a) Establishing physical site criteria to be used in designating local environmentally sensitive areas;

(b) Establishing procedures for local government application for this designation; and

(c) Establishing procedures for local government adoption and department approval of rules more stringent than the state-wide standards in these designated areas.

(3) ((~~By July 1, 1990,~~)) The department shall establish by rule an administrative and enforcement program that is consistent with and no less stringent than the program required under the federal regulations in the areas of:

(a) Compliance monitoring, including procedures for recordkeeping and a program for systematic inspections;

(b) Enforcement;

(d) Information sharing.

(4) ((By July 1, 1990, the department shall establish a program that provides for the tagging of underground storage tanks. Tanks are not eligible for tagging unless the owner or operator is in compliance with the requirements of this chapter and annual state and local tank fees have been remitted. The tank tagging program shall be designed to ensure that tags will be clearly identifiable to persons delivering regulated substances to underground storage tanks.

~~(5)~~)) The department shall establish a program that provides for the annual licensing of underground storage tanks. The license shall take the form of a tank endorsement on the facility's annual master business license issued by the department of licensing. A tank is not eligible for a license unless the owner or operator can demonstrate compliance with the requirements of this chapter and the annual tank fees have been remitted. The department may revoke a tank license if a facility is not in compliance with this chapter. The master business license shall be displayed by the tank owner or operator in a location clearly identifiable.

(5)(a) The department shall issue a one-time "facility compliance tag" to correspond with the December 22, 1998, underground storage tank compliance deadline for corrosion, spill, and overfill protection. Facility compliance tags may only be issued for facilities that have installed the equipment required to meet corrosion, spill, and overfill protection standards that are required by December 22, 1998, and at the time of tag issuance have demonstrated financial responsibility and paid annual tank fees. The facility shall continue to maintain compliance with corrosion, spill, and overfill protection standards, and financial responsibility, and have remitted annual tank fees to display a facility compliance tag. The facility compliance tag shall be displayed on the fire emergency shutoff device, or in the absence of such a device in close proximity to the fill pipes and clearly identifiable to persons delivering regulated substance to underground storage tanks.

(b) The department may revoke a facility compliance tag if a facility is not in compliance with the requirements needed to obtain or display the tag.

(6) The department may establish programs to certify persons who conduct inspections, testing, closure, cathodic protection, interior tank lining, corrective action, or other activities required under this chapter. Certification programs shall be designed to ensure that each certification will be effective in all jurisdictions of the state.

((~~(6)~~)) (7) When adopting rules under this chapter, the department shall consult with the state building code council to ensure coordination with the building and fire codes adopted under chapter 19.27 RCW.

Sec. 6. RCW 90.76.040 and 1989 c 346 s 5 are each amended to read as follows:

(1) A city, town, or county may apply to the department to have an area within its jurisdictional boundaries designated an environmentally sensitive area. A city, town, or county may submit a joint application with any other city, town, or county for joint administration under chapter 39.34 RCW of a single environmentally sensitive area located in both jurisdictions.

(2) A city, town, or county may adopt proposed ordinances or resolutions establishing requirements for underground storage tanks located within an environmentally sensitive area that are more stringent than the state-wide standards established under RCW 90.76.020. ((~~If application for the designation of an environmentally sensitive area is made later than five years after the date of final adoption of the rules required under this chapter,~~)) Proposed local ordinances and resolutions shall only apply to new underground storage tank installations. The local government adopting the ordinances and resolutions shall submit them to the department for approval. Disapproved ordinances and resolutions may be modified and resubmitted to the department for approval. Proposed local ordinances and resolutions become effective when approved by the department.

(3) The department shall approve or disapprove each proposed local ordinance or resolution based on the following criteria:

(a) The area to be regulated is found to be an environmentally sensitive area based on rules adopted by the department; and

(b) The proposed local regulations are reasonably consistent with previously approved local regulations for similar environmentally sensitive areas.

(4) A city, town, or county for which a proposed local ordinance or resolution establishing more stringent requirements is approved by the department may establish local tank fees that meet the requirements of RCW 90.76.090, if such fees are necessary for enhanced program administration or enforcement.

Sec. 7. RCW 90.76.050 and 1989 c 346 s 6 are each amended to read as follows:

((Regulated substances shall not be delivered to any underground storage tank in the state required to be tagged under RCW 90.76.020 unless proof of valid tagging is displayed on such tank itself or the dispensing or measuring device connected thereto or, where appropriate, in the office or kiosk of the facility where the tank is located.)) (1) Between the effective date of this section and December 22, 1998, persons delivering regulated substances to underground storage tanks shall not deliver to facilities that do not have an underground storage tank license. This subsection expires December 22, 1998.

(2) After December 22, 1998, persons delivering regulated substances to underground storage tanks shall not deliver to facilities that do not have a facility compliance tag displayed as required in RCW 90.76.020(5)(a).

(3) A supplier shall not refuse to deliver regulated substances to an underground storage tank regulated under this chapter on the basis of its potential to leak contents where the ((~~tank~~)) facility is either tagged as required in ((~~RCW 90.76.020~~)) this chapter or is in compliance with federal underground storage tank regulations and any state or local regulations then in effect. This section does not apply to a supplier who does not directly transfer a regulated substance into an underground storage tank.

Sec. 8. RCW 90.76.060 and 1989 c 346 s 7 are each amended to read as follows:

(1) If necessary to determine compliance with the requirements of this chapter, an authorized representative of the state engaged in compliance inspections, monitoring, and testing may, by request, require an owner or operator to submit relevant information or documents. The department may subpoena witnesses, documents, and other relevant information that the department deems necessary. In the case of any refusal to obey the subpoena, the superior court for any county in which the person is found, resides, or transacts business has jurisdiction to issue an order requiring the person to appear before the department and give testimony or produce documents. Any failure to obey the order of the court may be punished by the court as contempt.

(2) Any authorized representative of the state may require an owner or operator to conduct monitoring or testing.

(3) Upon reasonable notice, an authorized representative of the state may enter a premises or site subject to regulation under this chapter or in which records relevant to the operation of an underground storage tank system are kept. In the event of an emergency or in circumstances where notice would undermine the effectiveness of an inspection, notice is not required. The authorized representative may copy these records, obtain samples of regulated substances, and inspect or conduct monitoring or testing of an underground storage tank system.

(4) For purposes of this section, the term "authorized representative" or "authorized representative of the state" means an enforcement officer, employee, or representative of the department ((~~or a local government unit that has obtained enforcement authority under RCW 90.76.030~~)).

Sec. 9. RCW 90.76.090 and 1989 c 346 s 10 are each amended to read as follows:

(1) ((An annual state tank fee of sixty dollars per tank for fiscal years ending June 30, 1990, and June 30, 1991, and seventy-five dollars per tank each fiscal year thereafter, shall be paid no later than the December 31st of each fiscal year)) An annual tank fee of one hundred dollars per tank is effective from July 1, 1998, to July 1, 1999. Annually, beginning on July 1, 1999, and upon a finding by the department that a fee increase is necessary, the previous tank fee amount may be increased up to the fiscal growth factor for the next year. The fiscal growth factor is calculated by the office of financial management under RCW 43.135.025 for the upcoming biennium. The department shall use the fiscal growth factor to calculate the fee for the next year and shall publish the new fee by March 1st before the year for which the new fee is effective. The new tank fee is effective from July 1st to July 1st of every year. The tank fee shall be paid by every person who:

(a) Owns an underground storage tank located in this state; and

(b) Was required to provide notification to the department under the federal act.

This fee is not required of persons who have (i) permanently closed their tanks, and (ii) if required, have completed corrective action in accordance with the rules adopted under this chapter.

(2) The department may authorize the imposition of additional annual local tank fees in environmentally sensitive areas designated under RCW 90.76.040. Annual local tank fees may not exceed fifty percent of the annual state tank fee.

(3) State and local tank fees collected under this section shall be deposited in the account established under RCW 90.76.100.

(4) Other than the annual local tank fee authorized for environmentally sensitive areas, no local government may levy an annual tank fee on the ownership or operation of an underground storage tank.

NEW SECTION. Sec. 10. A new section is added to chapter 43.131 RCW to read as follows:

The underground storage tank program shall be terminated on July 1, 2009, as provided in section 11 of this act.

NEW SECTION. Sec. 11. A new section is added to chapter 43.131 RCW to read as follows:

The following acts or parts of acts, as now existing or hereafter amended, are each repealed, effective July 1, 2010:

(1) RCW 90.76.005 and 1989 c 346 s 1;

(2) RCW 90.76.010 and 1998 c . . . s 2 (section 2 of this act) & 1989 c 346 s 2;

(3) RCW 90.76.020 and 1998 c . . . s 5 (section 5 of this act) & 1989 c 346 s 3;

(4) RCW 90.76.040 and 1998 c . . . s 6 (section 6 of this act) & 1989 c 346 s 5;

(5) RCW 90.76.050 and 1998 c . . . s 7 (section 7 of this act) & 1989 c 346 s 6;

(6) RCW 90.76.060 and 1998 c . . . s 8 (section 8 of this act) & 1989 c 346 s 7;

(7) RCW 90.76.070 and 1989 c 346 s 8;

(8) RCW 90.76.080 and 1995 c 403 s 639 & 1989 c 346 s 9;

(9) RCW 90.76.090 and 1998 c . . . s 9 (section 9 of this act) & 1989 c 346 s 10;

(10) RCW 90.76.100 and 1991 sp.s. c 13 s 72 & 1989 c 346 s 11;

(11) RCW 90.76.110 and 1991 c 83 s 1 & 1989 c 346 s 12;

(12) RCW 90.76.120 and 1989 c 346 s 13;

(13) RCW 90.76.900 and 1989 c 346 s 15;

(14) RCW 90.76.901 and 1989 c 346 s 14; and

(15) RCW 90.76.902 and 1989 c 346 s 18.

NEW SECTION. Sec. 12. The following acts or parts of acts are each repealed:

(1) RCW 90.76.030 and 1989 c 346 s 4; and

(2) RCW 90.76.903 and 1989 c 346 s 17.

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.