2SSB 5125 -
By Senator Kohl-Welles
Strike everything after the enacting clause and insert the following:
"NEW SECTION. Sec. 1 The legislature finds that elevated levels
of arsenic and lead are present in soil in some areas of Washington,
including the Tacoma smelter plume zone. This contamination primarily
has three historical sources: Air emissions from metal smelters,
application of lead arsenate pesticides, and combustion of leaded
gasoline. Unlike contamination in most previously recognized
contaminated sites, this contamination tends to be distributed over a
wide geographic area and in a relatively thin layer near the ground
surface.
Exposure to high levels of arsenic can cause more than thirty
distinct health effects, including nervous system damage, increased
blood pressure, heart attack, stroke, and cancer of the bladder, lung,
skin, and other organs. Lead can affect many parts of the body,
causing health effects that include increased blood pressure and kidney
and brain damage. Although both children and adults can be adversely
affected by lead poisoning, it is a particular concern for young
children. Arsenic and lead are both considered persistent
contaminants, meaning that they bind strongly to soil and usually
remain in the environment without breaking down or losing their
toxicity, and thus can be a source of exposure for many decades.
Because children, particularly young children, are more vulnerable to
health effects from exposure to high levels of arsenic and lead, it is
necessary and appropriate that state and local health agencies provide
a focused program in the Tacoma smelter plume zone upon the health
risks posed at child use areas in schools, parks, and day-care
settings.
Therefore, it is the purpose of this chapter to create the safe
playground soils program in the Tacoma smelter plume zone, through
which the state and local health jurisdictions will provide technical
and financial assistance to owners of facilities having child use areas
that may contain soils with elevated levels of heavy metals, and if
necessary, to require soil testing.
The legislature further declares that the objective of the safe
playground soils program is to obtain comprehensive information on the
presence of heavy metals in child use areas in the Tacoma smelter plume
zone, and to ensure that such information is made available to, and in
some circumstances specifically provided to, parents of children
attending or using the facility and staff members working at the
facility. It is the underlying premise of the safe playground soils
program that comprehensive and high quality data and analysis, shared
with all interested persons, will facilitate timely and effective
response measures to protect the health of children in the Tacoma
smelter plume zone.
NEW SECTION. Sec. 2 The definitions in this section apply
throughout this chapter and section 12 of this act unless the context
clearly requires otherwise.
(1) "Action level" means a soil concentration of a heavy metal
expressed in milligrams of heavy metal per kilogram of soil, that the
director of the department determines by rule is at a sufficiently low
level and distributed in such a way that public health may be protected
through implementation of best management practices.
(2) "Child use areas" means outdoor areas used frequently by
children twelve years and younger in age for recreational or
educational activities, located within the following facilities,
whether publicly or privately owned: (a) Schools and preschools; (b)
child-care centers and family day-care providers; (c) parks and
sportsfields; and (d) seasonal camps.
(3) "Department" means the department of ecology.
(4) "Heavy metals" means arsenic and lead. The department may
include by rule, additional heavy metals in this definition with regard
to specific activities of the safe playground soils program where it
determines that comparable public health benefits may be achieved by
applying the same testing and response measures to address
contamination from such metals.
(5) "Parents" means parents, guardians, and custodians.
(6) "Safe playground soils program" means the program created in
section 3 of this act.
(7) "Tacoma smelter plume zone" means the area of potential heavy
metal deposition to soils from the Tacoma smelter, generally
encompassing portions of King, Pierce, Kitsap, and Thurston counties.
NEW SECTION. Sec. 3 (1) The safe playground soils program is
hereby created, applying exclusively in the Tacoma smelter plume zone
and consisting of the elements described in this chapter and section 12
of this act. The department shall by rule define the boundaries of the
Tacoma smelter plume zone upon available information no later than July
1, 2006.
(2) The department shall administer the safe playground soils
program with the assistance of the department of health and local
health jurisdictions. The objective of the program is to maximize the
reduction of health risks arising from the exposure of people,
particularly young children, to heavy metals in soils located in child
use areas within the Tacoma smelter plume zone. The department shall
implement the program through coordinated child use area testing,
reporting of test results, and developing and implementing of response
measures where action levels are exceeded. The department may, through
an interagency agreement, authorize the department of health or any
local health jurisdiction to administer any activity in the program
that is not otherwise assigned to the department of health or local
health jurisdictions by this chapter or section 12 of this act.
(3) The department may, through an interagency agreement, allocate
a portion of the funds provided in this chapter to other state agencies
to develop procedures and expertise needed to implement specific
elements of the safe playground soils program.
NEW SECTION. Sec. 4 (1) The agencies administering the grant
element of the safe playground soils program under section 5 of this
act shall use maximum efforts to notify all facilities with child use
areas within the Tacoma smelter plume zone of the program and the
availability of grants. The agencies shall encourage facility owners
to conduct soil testing within child use areas if tests have not
already been conducted.
(2) Not later than January 1, 2006, and January 1, 2008, the
department shall provide reports to the governor and appropriate
committees of the house of representatives and senate regarding the
extent of testing conducted in child use areas within the Tacoma
smelter plume zone, including tests conducted with grants and other
testing.
(3) Not later than July 1, 2009, the department and the department
of health shall jointly assess the level of testing of child use areas
within the Tacoma smelter plume zone. If the departments determine
that soil tests have been conducted at less than eighty percent of the
child use areas within the Tacoma smelter plume zone, the department of
health shall adopt a rule no later than December 31, 2010, that
requires soil tests to be conducted within the Tacoma smelter plume
zone.
NEW SECTION. Sec. 5 (1) The department shall provide grants
through the local toxics control account to local health jurisdictions
for testing soils at child use areas within the Tacoma smelter plume
zone for the presence of heavy metals.
(2) In areas within the Tacoma smelter plume zone where the local
health jurisdiction elects not to conduct soil testing at child use
areas, the department shall test soils when requested by the owners of
facilities with child use areas.
(3) The department shall actively publicize the safe playground
soils program, including the grant element, and solicit requests for
testing with the objective of obtaining test results expeditiously and
implementing best management practices where action level exceedances
are found. The department and local health jurisdictions shall act
expeditiously on requests for soil testing.
(4) For the biennium ending June 30, 2007, if total soil testing
requests and costs of administering the safe playground soils program
exceed the amounts appropriated for this purpose, the department shall
request an additional appropriation at the next session of the
legislature sufficient to satisfy these needs.
NEW SECTION. Sec. 6 (1) The results of a soil test of a child
use area within the Tacoma smelter plume zone shall be made available
upon request by the facility owner to parents of children attending or
visiting the facility and staff members working at the facility. The
facility owner shall use reasonable measures to inform parents of
children attending or visiting the facility and staff members working
at the facility of the existence of test results, including posting of
the information on the facility's web site, if the facility maintains
a web site.
(2) Where soil tests indicate that the child use area contains
soils exceeding action levels, the facility owner shall notify parents
of children attending or visiting the facility and staff members
working at the facility of the results and actions that the owner is
planning in response. The facility owner shall also provide the test
results to the department, which shall forward the information to the
local health jurisdiction. With respect to publicly or privately owned
parks, the park owner shall notify staff members and obtain guidance
from the local health jurisdiction as to the means to notify potential
users of the park facility.
(3) The owners of facilities with child use areas shall permit
parents of children attending or visiting the facility to obtain soil
samples for soil testing. Facility owners may impose reasonable
conditions on access for obtaining soil samples, and may require that
a split sample be provided to them.
NEW SECTION. Sec. 7 (1) In consultation with the department of
health, the department shall adopt best management practice guidelines
for facilities within the Tacoma smelter plume zone having elevated
levels of heavy metals in child use area soils. The guidelines shall
recommend a range of alternatives considering the concentration,
extent, and location of contamination and the nature and frequency of
child use of the area.
(2) The department may provide grants to local health jurisdictions
for technical assistance to owners of facilities with child use areas
to implement best management practices.
(3) The department may provide grants to owners of facilities with
child use areas to implement best management practices pursuant to
plans developed under section 8 of this act.
NEW SECTION. Sec. 8 (1) The owner of a facility with a child use
area within the Tacoma smelter plume zone for which soil tests indicate
the presence of heavy metals exceeding action levels shall implement
best management practices consistent with the guidelines adopted under
section 7 of this act. Within ninety days of receipt of the soil
tests, the facility owner shall inform the department in writing of the
owner's intended plan for implementing best management practices. The
plan shall also be made available to the parents of children attending
or visiting the facility and staff members working at the facility.
(2) A facility owner completing implementation of best management
practices shall inform the department in writing and may request that
the department provide a recognition of voluntary cleanup letter under
section 9 of this act. Information regarding the implementation of
best management practices shall be made available to the parents of
children attending or visiting the facility and staff members working
at the facility.
NEW SECTION. Sec. 9 The owner of a facility with a child use
area within the Tacoma smelter plume zone that implements best
management practices may request that the department issue a
recognition of voluntary cleanup letter. The department may issue the
letter where it concludes, based upon documentation submitted by the
facility and any site visits and additional analysis that the
department may choose to conduct, that the facility owner has
implemented best management practices consistent with the guidelines
adopted under section 7 of this act. The department may charge a fee
for the department's costs reasonably attributable to reviewing the
request and issuing the letter.
NEW SECTION. Sec. 10 Nothing in this chapter or section 12 of
this act is intended to limit the authority of the department or other
agencies to require actions to address soil contamination of child use
areas within the Tacoma smelter plume zone under other laws.
NEW SECTION. Sec. 11 This chapter does not apply to agricultural
lands.
NEW SECTION. Sec. 12 A new section is added to chapter 70.105D
RCW to read as follows:
(1) The department shall establish a policy regarding enforcement
of this chapter through orders to owners of facilities implementing
best management practices at child use areas within the Tacoma smelter
plume zone under chapter 70.-- RCW (sections 1 through 11 of this act).
The policy shall establish the primary objective of reducing exposure
of children to heavy metals in soils through the testing and action
steps of chapter 70.-- RCW (sections 1 through 11 of this act), rather
than the enforcement authorities of this chapter.
(2) The policy shall not apply:
(a) If the facility owner fails to complete implementation of best
management practices in a timely manner as determined by the
department;
(b) If the facility owner refuses to provide information to the
department or to provide reasonable access to the child use area by the
department for soil testing or other site inspection;
(c) To hazardous substances not included within the best management
practices plan developed under section 8 of this act, or to areas
within the facility that are not addressed in the plan; or
(d) To ground water contamination whose source is heavy metals in
the child use area.
(3) The policy in this section shall not affect the facility
owner's option to pursue and reach a settlement agreement under RCW
70.105D.040. It also shall not affect the facility owner's election to
conduct a voluntary cleanup or to request a no further action letter
from the department under the authority of this chapter.
(4) Except as expressly provided in this section, nothing in
chapter 70.-- RCW (sections 1 through 11 of this act) affects or limits
the provisions of this chapter.
(5) The definitions in section 2 of this act apply in this section.
NEW SECTION. Sec. 13 Sections 1 through 11 of this act
constitute a new chapter in Title
NEW SECTION. Sec. 14 The sum of one million dollars, or as much
thereof as may be necessary, is appropriated from the state toxics
control account to the department of ecology for the biennium ending
June 30, 2007, to carry out the purposes of this act."
2SSB 5125 -
By Senator Kohl-Welles
On page 1, line 1 of the title, after "areas;" strike the remainder of the title and insert "adding a new section to chapter 70.105D RCW; adding a new chapter to Title 70 RCW; and making an appropriation."