BILL REQ. #:  S-1165.4 

READ FIRST TIME 02/17/05.   

     AN ACT Relating to regulation and cleanup of sites with mixed radioactive and hazardous wastes to provide clarification for interpretation of the cleanup priority act consistent with intent and policy of the cleanup priority act as passed by the voters in November 2004; amending RCW 70.105E.030 and 70.105E.090; adding new sections to chapter 70.105E RCW; creating a new section; and declaring an emergency.

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

NEW SECTION.  Sec. 1   The people of Washington state adopted the cleanup priority act as Initiative 297 in November 2004. The legislature finds that the intent of Initiative 297 is clearly stated in the intent and policy sections of the cleanup priority act as passed by the voters. The cleanup priority act makes the cleanup of contamination the top priority at sites with hazardous or mixed waste contamination. Consistent with that priority, the legislature finds that adding more wastes to sites with mixed radioactive and hazardous wastes where there have been releases into the environment detracts from cleanup, and from the work needed to bring wastes into compliance. The cleanup priority act should be interpreted by the courts consistent with the clear intent of the voters, and the findings and clarifications in this act.
     The legislature further finds that nothing in the cleanup priority act is intended to, or has the effect of, preventing the movement of waste from one facility or unit within a site to another as part of an approved cleanup order, agreement, or plan, or pursuant to permits. Given claims made by the federal government in challenging the cleanup priority act, the legislature finds that, the intent of the voters being clear, it is desirable to clarify that the language of the cleanup priority act should be interpreted consistent with voter intent. Because the term facility is used in different ways in different statutes, rules, and regulations, the legislature finds that it is desirable to clarify that the cleanup priority act does not prevent the movement or transfer of waste within a site to accomplish cleanup of the site. The legislature finds that the cleanup priority act does not increase the universe of substances that are subject to regulation by the state as hazardous or mixed wastes. The legislature finds that the cleanup priority act does not regulate radioactive materials, medical isotopes, other radioactive substances, or facilities exclusively regulated by the United States pursuant to the federal atomic energy act 42 U.S.C. Sec. 2011 et seq.
     The legislature further finds that this chapter is not intended, nor may it be interpreted, to adversely affect the transportation, manufacturing, storage, or use of any hazardous substance or radioactive materials necessary for medical research, medical treatment, or manufacturing or industrial processes.
     The legislature further finds that the cleanup priority act does not regulate the materials or facilities used in the processing of radioactive substances, including those with nonradioactive components, to produce radioactive isotopes for beneficial use, such as calibrations, research, and medical use. In accordance with this finding, the cleanup priority act is not intended to, and shall not be interpreted to, regulate those radioactive or otherwise hazardous materials that may be imported to Washington state, or generated within the state, to be processed for the production of beneficial products, such as medical isotopes. Disposal of the radioactive, hazardous, or mixed wastes resulting from such processing activities is governed by other statutes and not regulated by the cleanup priority act.
     The legislature further finds that congress has clearly granted the state the authority to adopt and enforce the cleanup priority act and this act, under the federal facilities compliance act and federal resource recovery and conservation act, 42 U.S.C. Sec. 6901 et seq. The cleanup priority act is intended to be consistent with limitations of the federal superfund law, the comprehensive environmental response, compensation and liability act, 42 U.S.C. Sec. 9601 et seq., relating to the inappropriateness of adding more waste to sites with spreading contamination and where hazardous wastes create risks of additional release to the environment due to noncompliance with applicable standards.
     Court challenges have raised possible interpretations of the cleanup priority act that the legislature finds are not consistent with the clear intent. It is in the interest of the state to clarify as quickly as possible that the cleanup priority act does not impact any business operation, or federal or private facility, that was not intended to be impacted by the cleanup priority act. Consistent with the intent of the voters, the legislature finds that the universe of regulated hazardous or dangerous wastes was not expanded by the passage of the cleanup priority act. Because court action has prevented the normal role of the department of ecology from issuing defining or interpretive rules, the legislature finds that adoption of the amendments to the cleanup priority act will ensure that the intent of the cleanup priority act is understood and clarified for the courts as well as for businesses or cleanup operations without delay.

Sec. 2   RCW 70.105E.030 and 2005 c 1 s 3 (Initiative Measure No. 297) are each amended to read as follows:
     The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.
     (1) "Dangerous waste" has the same meaning as the term is defined in RCW 70.105.010.
     (2) "Department" means the department of ecology.
     (3) "Dispose" or "disposal" have the same meanings as the terms are defined in RCW 70.105.010.
     (4) "Facility" has the same meaning as the term is defined in RCW 70.105.010.
     (5) "Hanford" means the geographic area comprising the Hanford nuclear reservation, owned and operated by the United States department of energy, or any successor federal agency.
     (6) "Hazardous substance" has the same meaning as the term is defined in RCW 70.105D.020.
     (7) "Hazardous waste" means and includes all dangerous and extremely hazardous waste, as those terms are defined in RCW 70.105.010.
     (8) "Local government" means a city, town, or county.
     (9)(a) "Mixed waste" or "mixed radioactive and hazardous waste" means:
     (i) Any ((hazardous substance or)) dangerous or extremely hazardous waste that contains both a nonradioactive hazardous component and a radioactive component((, including)); or
     (ii) Any ((such)) hazardous substances, as defined by RCW 70.105D.020 that contain both a nonradioactive and radioactive hazardous component, that (A) have been released to the environment, or (B) are discarded solid wastes found by the department to pose a threat of future release, in a manner that may expose persons or the environment to ((either the nonradioactive or radioactive hazardous substances)) the release.
     (b) Materials, useful products, or substances, including medical isotopes and materials used to produce medical or industrial isotopes, that are not otherwise regulated as hazardous or mixed waste under chapter 70.105 RCW or the federal hazardous waste law (RCRA 42 U.S.C. Sec. 6901, et seq.) are not hazardous, dangerous, or mixed waste under this chapter. Mixed wastes or mixed waste facility does not include radioactive materials or facilities regulated exclusively by the federal government under the federal atomic energy act, 42 U.S.C. Sec. 2011 et seq.
     (10) "Mixed waste surcharge" means an additional charge for the purposes of local government and public participation in decisions relating to mixed waste facilities((:)) to be added to the service charge assessed under RCW 70.105.280 against those facilities that store, treat, incinerate, or dispose of mixed wastes((;)), or against facilities at which mixed wastes have been released((,)) or which are undergoing closure pursuant to chapter 70.105 RCW or remedial action pursuant to chapter 70.105D RCW.
     (11) "Person" has the same meaning as the term is defined in RCW 70.105D.020.
     (12) "Release" has the same meaning as the term is defined in RCW 70.105D.020.
     (13) "Remedy or remedial action" have the same meanings as the terms are defined in RCW 70.105D.020.
     (14) "Site" means the contiguous geographic area under the same ownership, lease, or operation where a facility is located, or where there has been a release of hazardous substances. In the event of a release of hazardous substances, "site" includes any area, or body of surface or ground water, where a hazardous substance has been deposited, stored, disposed of, placed, migrated to, or otherwise come to be located.
     (15) Unless otherwise defined, or the context indicates otherwise, terms not defined in this section have the same meaning as defined in chapter 70.105 RCW, when used in this chapter.

NEW SECTION.  Sec. 3   A new section is added to chapter 70.105E RCW to read as follows:
     (1) Nothing in this chapter prohibits mixed wastes generated on-site as part of a remedial or corrective action from being transferred to, stored, treated, recycled, or disposed of at a facility or unit within the site subject to applicable permits, plans, agreements, consent orders, or conditions of an approved remedy or corrective action under the federal superfund law, 42 U.S.C. Sec. 9601 et seq., chapter 70.105D RCW, chapter 70.105 RCW, or the federal resource conservation and recovery act, 42 U.S.C. Sec. 6921 et seq.
     (2) New land disposal facilities may be permitted by the department to accomplish the closure, remediation, or cleanup of facilities or units at a site subject to RCW 70.105E.040(6), if there are releases or suspected releases of hazardous substances at the site that are not investigated and being controlled under chapter 70.105 RCW, chapter 70.105D RCW, CERCLA 42 U.S.C. Sec. 9601 et seq., or RCRA 42 U.S.C. Sec. 6921 et seq. New facilities permitted under this subsection may only have a disposal capacity that is necessary to accomplish the closure, remediation, or cleanup at that site.
     (3) This chapter does not regulate radioactive materials or substances, or the safety of facilities storing or processing such radioactive materials, where such radioactive materials or facilities are regulated exclusively by the federal government pursuant to the federal atomic energy act, 42 U.S.C. Sec. 2011 et seq., absent explicit delegation by congress to the state of such authority.

NEW SECTION.  Sec. 4   A new section is added to chapter 70.105E RCW to read as follows:
     The voters passed this chapter intending to prevent the addition of more hazardous or mixed wastes to mixed wastes sites with releases of hazardous substances that are impacting the environment or pose a risk to public health. The department must implement this policy using its authority under the hazardous waste management act, chapter 70.105 RCW, the model toxics control act, chapter 70.105D RCW, and the state environmental policy act, chapter 43.21C RCW. The department shall adopt rules necessary to carry out the intent of this chapter.

Sec. 5   RCW 70.105E.090 and 2005 c 1 s 9 (Initiative Measure No. 297) are each amended to read as follows:
     (1) At any site or facility at which there has been a release of mixed wastes, permits issued under chapter 70.105 RCW for mixed waste facilities shall provide for the operation and funding of a broadly representative advisory board. The board shall be composed of representatives chosen by: Potentially affected tribes; regional and statewide citizen groups with an established record of concern regarding human health or the environment impacted or potentially impacted by releases from the site; local groups concerned with health and resource impacts; local governments; and the state of Oregon if that state may be, or has been, impacted by the release or threatened release of waste. Such permits shall specify that the advisory board be continued with adequate funding, provided by the owner or operator of the site, to perform its chartered functions until final closure or certification of the completion of remedial or corrective action.
     (2) The department shall request the advisory board created or maintained at a facility pursuant to this section to advise it on procedural and substantive matters necessary for informed public comment. The department shall formally consider and respond to any comments from the advisory board regarding exposure scenarios prior to issuing any decision on a remedial, corrective, or closure action.
     (3) The department shall base planning for its own oversight and permitting functions utilizing an assumption that mixed waste facility service charges established pursuant to RCW 70.105.280 should not be less than one percent of the first two hundred million dollars of the estimated annual site clean-up budget for the coming year, and one-half of one percent of the estimated annual site clean-up budget above that level. If the department determines that a lower or higher level of service charges is necessary to support its oversight and public involvement functions, then it shall seek comment from any advisory committee established for the site, and from the public, regarding the appropriate level of support.
     (4)(a) Due to the complexity of issues involving mixed waste storage, treatment and disposal facilities, at such facilities, the department shall make available annual local government and public participation grants for both: (i) Assistance in public review of mixed waste permit, closure, and clean-up decisions; and, (ii) review of, and public comment on, site budgets, compliance costs and funding priorities. Public participation grants pursuant to this section shall be provided as determined by the criteria adopted by the department pursuant to RCW 70.105D.070(5). Local government grants pursuant to this section shall be made available to either a local government or a coalition of local governments. Grants under this section may be renewed annually at a level two times that permitted under RCW 70.105D.070(5), and shall not be subject to annual appropriation by the legislature.
     (b) Local government and public participation grants established under this chapter shall be funded through the state toxics control account, by charging an applicant or permit holder a mixed waste surcharge added to the service charge established by RCW 70.105.280. This surcharge shall be collected and administered consistent with the procedures and requirements established in this section and RCW 70.105.280 to ensure adequate public and local government involvement. This mixed waste surcharge shall be no less than fifteen one-hundredths of one percent of the first two hundred million dollars of annual site budget for all related clean-up activities, of which five one-hundredths of one percent shall be available for grants to local government. The mixed waste surcharge for public and local government participation grants shall be five one-hundredths of one percent of the portion of any estimated annual site clean-up budget exceeding two hundred million dollars. Any unused mixed waste surcharges assessed under this section shall remain in the state toxics control account established pursuant to chapter 70.105D RCW, and shall be utilized to reduce the mixed waste surcharge assessed the owner or operator of the facility in future years.
     (5) For federal facilities with releases of mixed wastes or hazardous substances owned or operated (([by])) by a federal agency, such as Hanford, the annual site clean-up budget shall be determined by the department, for purposes of this section, based upon the ((greater of the congressional budget request or)) appropriations of the federal government for activities at the site related to cleanup or waste management. ((If the appropriation amount for a fiscal year exceeds the congressional budget request, the department shall adjust the assessment of the mixed waste surcharge within thirty days of final enactment of the appropriation.))

NEW SECTION.  Sec. 6   This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect immediately.