BP BHEAD INT H [atlas:bill]

AN ACT Relating to unlawful rural garbage disposal; amending RCW 70.93.030 and 70.93.060; adding a new section to chapter 70.93 RCW; and prescribing penalties.

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

Sec. 1. RCW 70.93.030 and 1998 c 257 s 3 are each amended to read as follows:

As used in this chapter unless the context indicates otherwise:

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

(2) "Director" means the director of the department of ecology;

(3) "Disposable package or container" means all packages or containers defined as such by rules and regulations adopted by the department of ecology;

(4) "Hazardous substance" has the same meaning as the term is defined in either RCW 70.95C.020, or RCW 70.105.010, or both;

(5) "Litter" means all waste material including but not limited to disposable packages or containers thrown or deposited as herein prohibited and solid waste that is illegally dumped, but not including the wastes of the primary processes of mining, logging, sawmilling, farming, or manufacturing;

((~~(5)~~)) (6) "Litter bag" means a bag, sack, or other container made of any material which is large enough to serve as a receptacle for litter inside the vehicle or watercraft of any person. It is not necessarily limited to the state approved litter bag but must be similar in size and capacity;

((~~(6)~~)) (7) "Litter receptacle" means those containers adopted by the department of ecology and which may be standardized as to size, shape, capacity, and color and which shall bear the state anti-litter symbol, as well as any other receptacles suitable for the depositing of litter;

((~~(7)~~)) (8) "Person" means any political subdivision, government agency, municipality, industry, public or private corporation, copartnership, association, firm, individual, or other entity whatsoever;

((~~(8)~~)) (9) "Recycling" means transforming or remanufacturing waste materials into a finished product for use other than landfill disposal or incineration;

((~~(9)~~)) (10) "Recycling center" means a central collection point for recyclable materials;

((~~(10)~~)) (11) "Vehicle" includes every device capable of being moved upon a public highway and in, upon, or by which any persons or property is or may be transported or drawn upon a public highway, excepting devices moved by human or animal power or used exclusively upon stationary rails or tracks;

((~~(11)~~)) (12) "Waste reduction" means reducing the amount or toxicity of waste generated or reusing materials;

((~~(12)~~)) (13) "Watercraft" means any boat, ship, vessel, barge, or other floating craft;

((~~(13)~~)) (14) "Public place" means any area that is used or held out for use by the public whether owned or operated by public or private interests.

Sec. 2. RCW 70.93.060 and 1997 c 159 s 1 are each amended to read as follows:

(1) No person shall throw, drop, deposit, discard, or otherwise dispose of litter upon any public property in the state or upon private property in this state not owned by him or her or in the waters of this state whether from a vehicle or otherwise including but not limited to any public highway, public park, beach, campground, forest land, recreational area, trailer park, highway, road, street, or alley except:

(a) When the property is designated by the state or its agencies or political subdivisions for the disposal of garbage and refuse, and the person is authorized to use such property for that purpose;

(b) Into a litter receptacle in a manner that will prevent litter from being carried away or deposited by the elements upon any part of said private or public property or waters.

(2)(a) Except as provided in subsection (4) of this section, it is a class 3 civil infraction as provided in RCW 7.80.120 for a person to litter in an amount less than or equal to one cubic foot.

(b) It is a class 1 civil infraction as provided in RCW 7.80.120 for a person to litter in an amount greater than one cubic foot in an incorporated area of a county. Unless suspended or modified by a court, the person shall also pay a litter cleanup fee of twenty-five dollars per cubic foot of litter. The court may, in addition to or in lieu of part or all of the cleanup fee, order the person to pick up and remove litter from the property, with prior permission of the legal owner or, in the case of public property, of the agency managing the property.

(c) It is a misdemeanor for a person to litter in an amount greater than one cubic foot in an unincorporated area of a county. The person shall also pay a litter cleanup restitution payment equal to twice the actual cost of cleanup, or fifty dollars per cubic foot of litter, whichever is greater. The court shall distribute one-half of the restitution payment to the landowner and one-half of the restitution payment to the law enforcement agency investigating the incident. The court may, in addition to or in lieu of part or all of the cleanup restitution payment, order the person to pick up and remove litter from the property, with prior permission of the legal owner or, in the case of public property, of the agency managing the property.

(d) Except as otherwise provided by law, it is a gross misdemeanor for a person to litter, in any amount, a hazardous substance in an unincorporated area of a county. The person shall also pay a litter cleanup restitution payment equal to twice the actual costs of cleanup or one hundred dollars per cubic foot of litter, whichever is greater. The court shall distribute one-half of the restitution payment to the landowner and one-half of the restitution payment to the law enforcement agency investigating the incident.

(3) If the violation occurs in a state park, the court shall, in addition to any other penalties assessed, order the person to perform twenty-four hours of community service in the state park where the violation occurred if the state park has stated an intent to participate as provided in RCW ((~~43.51.048(2)~~)) 79A.05.050.

(4) It is a class 1 civil infraction as provided in RCW 7.80.120 for a person to discard, in violation of this section, a cigarette, cigar, or other tobacco product that is capable of starting a fire.

NEW SECTION. Sec. 3. A new section is added to chapter 70.93 RCW to read as follows:

(1) A peace officer specified under RCW 9A.04.110 may seize without warrant vehicles, gear, appliances, or any other items or articles they have probable cause to believe have been used in violation of RCW 70.93.060(2) (c) or (d). However, a peace officer may not seize any item or article, other than for evidence, if under the circumstances it is reasonable to conclude that the violation was inadvertent. The property seized is subject to forfeiture to the enforcement agency that seized the property under this section regardless of ownership. Property seized may be recovered by its owner by depositing into court a cash bond equal to the value of the seized property but not more than twenty‑five thousand dollars. Such cash bond is subject to forfeiture in lieu of the property. Forfeiture of property seized under this section is a civil forfeiture against property intended to be a remedial civil sanction.

(2) In the event of a seizure of property under this section, jurisdiction to begin the forfeiture proceedings shall commence upon seizure. Within fifteen days following the seizure, the seizing authority shall serve a written notice of intent to forfeit property on the owner of the property seized and on any person having any known right or interest in the property seized. Notice may be served by any method authorized by law or court rule, including service by certified mail with return receipt requested. Service by mail is deemed complete upon mailing within the fifteen‑day period following the seizure.

(3) Persons claiming a right of ownership or right to possession of property are entitled to a hearing to contest forfeiture. Such a claim shall specify the claim of ownership or possession and shall be made in writing and served on the director within forty‑five days of the seizure. If the seizing authority has complied with notice requirements and there is no claim made within forty-five days, then the property shall be forfeited to the agency that seized the property.

(4) If any person timely serves the administrative head of the enforcement agency that seized the property with a claim to property, the person shall be afforded an opportunity to be heard as to the person's claim or right. The hearing shall be before the administrator or the administrator's designee, or before an administrative law judge appointed under chapter 34.12 RCW, except that a person asserting a claim or right may remove the matter to a court of competent jurisdiction if the aggregate value of the property seized is more than five thousand dollars.

(5) The hearing to contest forfeiture and any subsequent appeal shall be as provided for in Title 34 RCW. The seizing authority has the burden to demonstrate that it had reason to believe the property was held with intent to violate or was used in violation of RCW 70.93.060(2) (c) or (d). The person contesting forfeiture has the burden of production and proof by a preponderance of evidence that the person owns or has a right to possess the property and:

(a) That the property was not held with intent to violate or used in violation of RCW 70.93.060(2) (c) or (d); or

(b) If the property is a vehicle, that the illegal use or planned illegal use of the vehicle occurred without the owner's knowledge or consent, and that the owner acted reasonably to prevent illegal uses of the vehicle.

(6) A forfeiture of a conveyance encumbered by a perfected security interest is subject to the interest of the secured party if the secured party neither had knowledge of nor consented to the act or omission. No security interest in seized property may be perfected after seizure.

(7) If seized property is forfeited under this section the enforcement agency may retain it for official use unless the property is required to be destroyed, or upon application by any law enforcement agency of the state, release such property to the agency for the use of enforcing the criminal law, or sell such property, and retain the net proceeds and use the proceeds to expand and improve the enforcement agency's litter control activity. Money retained under this section may not be used to supplant preexisting funding sources.

NEW SECTION. Sec. 4. 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.