BP BHEAD INT S [atlas:bill]

AN ACT Relating to environmental settlements and penalties; amending RCW 43.21B.300 and 43.08.250; 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. FINDINGS AND PURPOSE. The legislature finds that water pollution incidents result in fines and penalties that are presently used for a variety of purposes unrelated to restoring the damage caused by the pollution or otherwise benefiting the water and other natural resources enjoyed by Washington citizens. The legislature further finds that often the settlement of enforcement actions relating to environmental violations does not adequately involve the communities in which the violations occurred and allow for the recommendations of those communities on expending funds under consideration in the settlement.

Therefore the purpose of this act is to dedicate water pollution fines and penalties to the restoration and improvement of Washington's environmental quality and to ensure a greater voice in the expenditure of settlement funds by communities in which the environmental violation occurred.

NEW SECTION. Sec. 2. A new section is added to chapter 43.21A RCW to read as follows:

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 90.48.140 and 90.48.144 must be deposited in the account. The treasurer shall require the depositing entity to identify the city or county where the violation occurred. Where the violation caused environmental damage in more than one city or county, the depositing entity may allocate a portion to each such city or county in reasonable proportion to the damage occurring in each city or county. The treasurer shall maintain records of total moneys in the account identified by city and county.

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

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

(4) The object of each expenditure from the account shall be identified by city or county. The total expenditures identified for each city or county in the fiscal biennium shall not exceed the total deposits projected to be deposited to the account during such biennium that are identified for that city or 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 which the funds will be expended or that will be benefited by the expenditure. The department shall also seek recommendations from community and civic organizations with members residing in that vicinity.

(6) The actions of the treasurer, depositing entity, and department under this section shall be committed to their sole discretion and shall not be 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 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; and RCW 90.48.144, which shall be credited to the environmental restoration and improvement account created in section 2 of this act.

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 money received by the state treasurer from fines and penalties imposed under RCW 90.48.140 shall be deposited in the environmental restoration and improvement account created in section 2 of this act.

NEW SECTION. Sec. 5. A new section is added to chapter 43.21A RCW to read as follows:

SETTLEMENTS OF ENVIRONMENTAL ACTIONS. (1) This section shall be applicable when the attorney general proposes to settle an action arising from an alleged violation of any provision of water quality laws under chapter 90.48 RCW, in which the proposed settlement requires commitments by other parties in lieu of the imposition of a penalty or fine or the recovery of damages. The attorney general may agree to such a settlement if:

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

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

(c) The department finds, following such 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) This section shall not be construed to preclude an action for liability based upon any other claim or statute not expressly precluded by the terms of the settlement.

(3) This section shall not be construed to limit, modify, or affect 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. 6. CAPTIONS NOT LAW. Captions used in this act are not any part of the law.

NEW SECTION. Sec. 7. 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.