BP BHEAD INT S [atlas:bill]

AN ACT Relating to environmental settlements and penalties; amending RCW 43.21B.300, 43.08.250, 90.48.400, and 75.20.106; adding new sections to chapter 43.21A RCW; and creating new sections.

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

NEW SECTION. Sec. 1. A new section is added to chapter 43.21A RCW to read as follows:

FINDINGS AND PURPOSE. The legislature finds that environmental pollution incidents and other violations of state environmental laws result in fines and penalties which are presently used for a variety of purposes unrelated to restoring the damage caused by the pollution or otherwise benefiting the air, water, and other natural resources enjoyed by Washington citizens. The legislature further finds that settlements of enforcement actions relating to environmental violations are often reached without adequate involvement of the communities in which the violations occurred and without adequate consideration of community recommendations on expending settlement funds.

Therefore, the purpose of chapter . . ., Laws of 1998 (this act) is to dedicate environmental fines and penalties to the restoration and improvement of Washington's environmental quality, and to ensure that communities in which environmental violations occur have a greater voice in determining the expenditure of ensuing settlement funds.

NEW SECTION. Sec. 2. ENVIRONMENTAL RESTORATION AND IMPROVEMENT ACCOUNT CREATED. (1) The environmental restoration and improvement account is created in the state treasury. All receipts, fines, penalties, and damages recovered under RCW 43.21B.300, 90.48.140, 70.94.430, 90.56.300, 70.105.085, 70.95.240, 70.95.560, 75.20.106, and 70.107.070 must be deposited in the account. The treasurer shall require the depositing entity to identify the water resource inventory area, as those areas are delineated by the department of ecology in chapter 173-500 WAC, where the violation occurred. In the case of moneys recovered for violation of air quality laws under chapter 70.94 RCW, the depositing entity shall identify the county where the violation occurred. Where the violation caused environmental damage in more than one water resource inventory area, or in more than one county in the case of an air quality violation, the depositing entity may allocate a portion to each county or to each area in reasonable proportion to the damage occurring in each county or area. The treasurer shall maintain records of total moneys in the account identified by county and by water resource inventory area.

(2) Moneys in the account may be spent only after appropriation.

(3) Moneys in the account may be expended by the department of ecology consistent with the limitations and procedures of this section for the restoration and enhancement of the state's environmental and natural resources, for improving the capacity of local governments to protect and restore the environmental resources within their jurisdiction, and for public education and involvement in activities directly related to environmental protection, restoration, and enhancement.

(4) The object of each expenditure from the account must be identified by water resource inventory area, and by county in the case of expenditure of moneys recovered for air quality violations. Total expenditures in the fiscal biennium, identified for each water resource inventory area, and for each county damaged by air quality violations, must not exceed the total projected deposits to the account in the same biennium, identified for each area and county.

(5) In developing a proposed expenditure from the account, the department shall seek recommendations from the governing bodies of the cities and counties in the general vicinity where the funds will be expended and of counties and cities that will be benefited by the expenditure. The department shall also seek recommendations from community and civic organizations with members residing in those cities and counties.

(6) The treasurer, the depositing entity, and the department may act at their sole discretion under this section, and the actions of any one of them under this section are not reviewable in a judicial proceeding.

Sec. 3. RCW 43.21B.300 and 1993 c 387 s 23 are each amended to read as follows:

(1) Any civil penalty provided in RCW 18.104.155, 70.94.431, 70.105.080, 70.107.050, 88.46.090, 90.03.600, 90.48.144, 90.56.310, and 90.56.330 shall be imposed by a notice in writing, either by certified mail with return receipt requested or by personal service, to the person incurring the penalty from the department, the administrator of the *office of marine safety, or the local air authority, describing the violation with reasonable particularity. Within fifteen days after the notice is received, the person incurring the penalty may apply in writing to the department, the administrator, or the authority for the remission or mitigation of the penalty. Upon receipt of the application, the department, the administrator, or authority may remit or mitigate the penalty upon whatever terms the department, the administrator, or the authority in its discretion deems proper. The department or the authority may ascertain the facts regarding all such applications in such reasonable manner and under such rules as it may deem proper and shall remit or mitigate the penalty only upon a demonstration of extraordinary circumstances such as the presence of information or factors not considered in setting the original penalty.

(2) Any penalty imposed under this section may be appealed to the pollution control hearings board in accordance with this chapter if the appeal is filed with the hearings board and served on the department, the administrator, or authority thirty days after receipt by the person penalized of the notice imposing the penalty or thirty days after receipt of the notice of disposition of the application for relief from penalty.

(3) A penalty shall become due and payable on the later of:

(a) Thirty days after receipt of the notice imposing the penalty;

(b) Thirty days after receipt of the notice of disposition on application for relief from penalty, if such an application is made; or

(4) If the amount of any penalty is not paid to the department or the administrator within thirty days after it becomes due and payable, the attorney general, upon request of the department or the administrator, shall bring an action in the name of the state of Washington in the superior court of Thurston county, or of any county in which the violator does business, to recover the penalty. If the amount of the penalty is not paid to the authority within thirty days after it becomes due and payable, the authority may bring an action to recover the penalty in the superior court of the county of the authority's main office or of any county in which the violator does business. In these actions, the procedures and rules of evidence shall be the same as in an ordinary civil action.

(5) All penalties recovered shall be paid into the state treasury and credited to the ((~~general fund~~)) environmental restoration and improvement account created in section 2 of this act except those penalties imposed pursuant to RCW 18.104.155, which shall be credited to the reclamation account as provided in RCW 18.104.155(7), RCW 70.94.431, the disposition of which shall be governed by that provision, RCW 70.105.080, which shall be credited to the hazardous waste control and elimination account, created by RCW 70.105.180, and RCW 90.56.330, which shall be credited to the coastal protection fund created by RCW 90.48.390.

Sec. 4. RCW 43.08.250 and 1997 c 149 s 910 are each amended to read as follows:

(1) Except as provided in subsection (2) of this section, the money received by the state treasurer from fees, fines, forfeitures, penalties, reimbursements or assessments by any court organized under Title 3 or 35 RCW, or chapter 2.08 RCW, shall be deposited in the public safety and education account which is hereby created in the state treasury. The legislature shall appropriate the funds in the account to promote traffic safety education, highway safety, criminal justice training, crime victims' compensation, judicial education, the judicial information system, civil representation of indigent persons, winter recreation parking, and state game programs. During the fiscal biennium ending June 30, 1999, the legislature may appropriate moneys from the public safety and education account for purposes of appellate indigent defense, the criminal litigation unit of the attorney general's office, the treatment alternatives to street crimes program, crime victims advocacy programs, justice information network telecommunication planning, sexual assault treatment, operations of the office of administrator for the courts, security in the common schools, criminal justice data collection, and Washington state patrol criminal justice activities.

(2) The state treasurer shall deposit in the environmental restoration and improvement account created in section 2 of this act all money received from fines and penalties imposed under RCW 90.48.140, 70.94.430, 90.56.300, 70.105.085, 70.95.240, 90.95.560, and 70.107.070.

Sec. 5. RCW 90.48.400 and 1994 c 264 s 93 are each amended to read as follows:

(1) Moneys in the coastal protection fund shall be disbursed for the following purposes and no others:

(a) Environmental restoration and enhancement projects intended to restore or enhance environmental, recreational, archaeological, or aesthetic resources for the benefit of Washington's citizens;

(b) Investigations of the long-term effects of oil spills; and

(2) The director may allocate a portion of the fund to be devoted to research and development in the causes, effects, and removal of pollution caused by the discharge of oil or other hazardous substances.

(3) A steering committee consisting of representatives of the departments of ecology, fish and wildlife, and natural resources, and the parks and recreation commission shall authorize the expenditure of the moneys collected under RCW 90.48.366 through 90.48.368, after consulting impacted local agencies, recognized community and civic organizations with members residing in the area of the damaged resources, and local and tribal governments.

(4) For proposed expenditures from the coastal protection fund not governed by subsection (3) of this section to be made for environmental restoration and enhancement, the director shall consult with local and tribal governments in the vicinity and with community and civic organizations with members residing in that vicinity.

(5) Agencies may not be reimbursed from the coastal protection fund for the salaries and benefits of permanent employees for routine operational support. Agencies may only be reimbursed under this section if money for reconnaissance and damage assessment activities is unavailable from other sources.

Sec. 6. RCW 75.20.106 and 1993 sp.s. c 2 s 35 are each amended to read as follows:

The department may levy civil penalties of up to one hundred dollars per day for violation of any provisions of RCW 75.20.100 or 75.20.103. The penalty provided shall be imposed by notice in writing, either by certified mail or personal service to the person incurring the penalty, from the director or the director's designee describing the violation. Any person incurring any penalty under this chapter may appeal the same under chapter 34.05 RCW to the director. Appeals shall be filed within thirty days of receipt of notice imposing any penalty. The penalty imposed shall become due and payable thirty days after receipt of a notice imposing the penalty unless an appeal is filed. Whenever an appeal of any penalty incurred under this chapter is filed, the penalty shall become due and payable only upon completion of all review proceedings and the issuance of a final order confirming the penalty in whole or in part.

If the amount of any penalty is not paid within thirty days after it becomes due and payable the attorney general, upon the request of the director shall bring an action in the name of the state of Washington in the superior court of Thurston county or of any county in which such violator may do business, to recover such penalty. In all such actions the procedure and rules of evidence shall be the same as an ordinary civil action. All penalties recovered under this section shall be paid into the ((~~state's general fund~~)) environmental restoration and improvement account created in section 2 of this act.

NEW SECTION. Sec. 7. A new section is added to chapter 43.21A RCW to read as follows:

SETTLEMENTS OF ENVIRONMENTAL ACTIONS. This section applies to legal actions arising from alleged violation of environmental quality laws, under chapter 70.94, 70.95, 70.105, 70.107, 75.20, 90.03, 90.44, 90.48, and 90.58 RCW, in which a settlement proposed by or presented to the attorney general requires commitments by other parties in lieu of fines, penalties, or damages. The attorney general may agree to a settlement if:

(a) The department provides public notice of the proposed settlement and an opportunity for public comment;

(b) The department obtains the recommendations of the governing bodies of the cities and counties in the vicinity of the alleged violation; and

(c) The department finds, after public comment and consultation, that the commitments in the proposed settlement are directly related to the protection and restoration of the environmental resources in the vicinity of the alleged violation.

(2) Nothing in this section precludes an action for liability based upon any other claim or statute not expressly precluded by the terms of the settlement.

(3) Nothing in this section limits, modifies, or affects in any way the authority of the attorney general to settle any action in an administrative or judicial proceeding, except where the specific provisions of this section are applicable.

NEW SECTION. Sec. 8. CAPTIONS. Captions used in this act are not any part of the law.

NEW SECTION. Sec. 9. SEVERABILITY. 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.