BILL REQ. #:  S-0232.1 

Read first time 01/12/11.   Referred to Committee on Environment, Water & Energy.

     AN ACT Relating to public notice of proposed settlements of environmental and public health enforcement actions; amending RCW 15.58.340, 70.94.211, 70.94.332, 70.95.315, 70.95J.050, 70.105.095, 70.118.130, 70.118B.050, 70.118B.060, 70.119.130, 70.119A.040, 76.09.140, 77.55.291, 88.46.070, 90.03.605, 90.14.200, 90.46.270, 90.48.037, 90.56.270, 90.58.230, 90.76.070, and 90.76.080; adding a new section to chapter 70.95 RCW; adding a new chapter to Title 70 RCW; and creating a new section.

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

NEW SECTION.  Sec. 1   The legislature finds that when the department of ecology enforces the model toxics control act, chapter 70.105D RCW, and negotiates a proposed settlement requiring a potentially liable person to clean up a hazardous waste site, it must provide the public with notice of and an opportunity to comment upon the proposed settlement. As noted in RCW 70.105D.010, this requirement serves the public interest because releases of hazardous substances can adversely affect public health and welfare, the environment, and property values. The legislature finds that the public interest is served by requiring public notice of proposed settlements in actions to enforce other environmental and public health laws and permits, which often address pollution and other hazards having significant public impact.

NEW SECTION.  Sec. 2   The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.
     (1) "Enforcing agency or officer" means any state agency, local government, or local government official authorized to bring an action to enforce an environmental law or public health law or permit.
     (2) "Environmental law or public health law or permit" means the following laws, any rules adopted under these laws, and any conditions imposed in or concerning permits issued pursuant to these laws:
     (a) Chapter 15.58 RCW, the Washington pesticide control act;
     (b) Chapter 70.94 RCW, the Washington clean air act;
     (c) Chapter 70.95 RCW, regarding solid waste management;
     (d) Chapter 70.95J RCW, regarding municipal sewage sludge;
     (e) Chapter 70.105 RCW, the hazardous waste management act;
     (f) Chapters 70.118 and 70.118B RCW, regarding on-site sewage disposal;
     (g) Chapters 70.119 and 70.119A RCW, regarding public water systems;
     (h) Chapter 76.09 RCW, the forest practices act;
     (i) Chapter 77.55 RCW, regarding hydraulic permits;
     (j) Chapter 88.46 RCW, regarding vessel oil spill prevention and response;
     (k) Chapters 90.03, 90.14, 90.22, and 90.44 RCW, regarding surface and groundwater permits, change certificates, minimum water flows and levels, and water rights abandonment and relinquishment actions;
     (l) Chapter 90.46 RCW, regarding reclaimed water use;
     (m) Chapter 90.48 RCW, regarding water pollution control;
     (n) Chapter 90.56 RCW, regarding oil and hazardous substance spill prevention and response; and
     (o) Chapter 90.76 RCW, regarding underground storage tanks.
     (3) "Public notice" means:
     (a) Posting of the text of a proposed settlement on the enforcing agency or officer's internet web site;
     (b) Providing adequate notice of a proposed settlement to persons who have made timely request of the enforcing agency or officer, persons residing in the potentially affected vicinity of a proposed settlement, and appropriate news media;
     (c) Publishing adequate notice of a proposed settlement in the newspaper of largest circulation in the city, county, or region affected by the proposed settlement; and
     (d) An opportunity for public comment.
     (4) "Settlement" means an agreement issued by the enforcing agency or officer or a consent decree issued by a court of competent jurisdiction partially or entirely resolving liability of a person alleged to have violated an environmental law.

NEW SECTION.  Sec. 3   (1) In any civil enforcement action involving an alleged violation or threatened violation of an environmental law or public health law or permit, the enforcing agency or officer must provide public notice of a proposed settlement at least thirty days before it may approve the proposed settlement. In a judicial enforcement action, the enforcing agency or officer must file a proposed settlement with the court at least thirty days before it may be approved by the court.
     (2) The enforcing agency or officer must:
     (a) Receive and consider any written comments regarding a proposed settlement; and
     (b) In a judicial enforcement action, file with the court any written comments the enforcing agency or officer has received regarding a proposed settlement.
     (3) The enforcing agency or officer shall hold a public hearing regarding a proposed settlement if:
     (a) At least ten persons request a public hearing; or
     (b) The enforcing agency or officer determines that the proposed settlement significantly affects the environment or public health.
     (4) The enforcing agency or officer may withdraw or withhold consent to a proposed settlement if public comment discloses facts or considerations indicating that the proposed settlement is inappropriate.
     (5) The enforcing agency or officer may permit an exception to public notice requirements specified in this chapter in a specific case due to:
     (a) Insignificant effect of the proposed settlement upon the environment or public health; or
     (b) Extraordinary circumstances.

Sec. 4   RCW 15.58.340 and 1989 c 380 s 28 are each amended to read as follows:
     (1) The director may bring an action to enjoin the violation or threatened violation of any provision of this chapter or any rule made pursuant to this chapter in a court of competent jurisdiction of the county in which such violation occurs or is about to occur.
     (2) The director must comply with chapter 70.--- RCW (the new chapter created in section 27 of this act) with respect to any proposed settlement of the action.

Sec. 5   RCW 70.94.211 and 1991 c 199 s 309 are each amended to read as follows:
     (1) At least thirty days prior to the commencement of any formal enforcement action under RCW 70.94.430 or 70.94.431 a local air authority shall cause written notice to be served upon the alleged violator or violators. The notice shall specify the provision of this chapter or the rule or regulation alleged to be violated, and the facts alleged to constitute a violation thereof, and may include an order directing that necessary corrective action be taken within a reasonable time. In lieu of an order, the board or the control officer may require that the alleged violator or violators appear before the board for a hearing. Every notice of violation shall offer to the alleged violator an opportunity to meet with the local air authority prior to the commencement of enforcement action.
     (2) The local air authority must comply with chapter 70.--- RCW (the new chapter created in section 27 of this act) with respect to any proposed settlement of the enforcement action.

Sec. 6   RCW 70.94.332 and 1991 c 199 s 711 are each amended to read as follows:
     (1) At least thirty days prior to the commencement of any formal enforcement action under RCW 70.94.430 and 70.94.431, the department of ecology shall cause written notice to be served upon the alleged violator or violators. The notice shall specify the provision of this chapter or the rule or regulation alleged to be violated, and the facts alleged to constitute a violation thereof, and may include an order that necessary corrective action be taken within a reasonable time. In lieu of an order, the department may require that the alleged violator or violators appear before it for the purpose of providing the department information pertaining to the violation or the charges complained of. Every notice of violation shall offer to the alleged violator an opportunity to meet with the department prior to the commencement of enforcement action.
     (2) The department must comply with chapter 70.--- RCW (the new chapter created in section 27 of this act) with respect to any proposed settlement of the enforcement action.

NEW SECTION.  Sec. 7   A new section is added to chapter 70.95 RCW to read as follows:
     Local governments enforcing this chapter must comply with chapter 70.--- RCW (the new chapter created in section 27 of this act) with respect to any proposed settlement of an enforcement action.

Sec. 8   RCW 70.95.315 and 2009 c 178 s 5 are each amended to read as follows:
     (1) The department may assess a civil penalty in an amount not to exceed one thousand dollars per day per violation to any person exempt from solid waste permitting in accordance with RCW 70.95.300, 70.95.305, 70.95.306, or 70.95.330 who fails to comply with the terms and conditions of the exemption. Each such violation shall be a separate and distinct offense, and in the case of a continuing violation, each day's continuance shall be a separate and distinct violation. The penalty provided in this section shall be imposed pursuant to RCW 43.21B.300.
     (2) If a person violates a provision of any of the sections referenced in subsection (1) of this section, the department may issue an appropriate order to ensure compliance with the conditions of the exemption. The order may be appealed pursuant to RCW 43.21B.310.
     (3) The department must comply with chapter 70.--- RCW (the new chapter created in section 27 of this act) with respect to any proposed settlement of the enforcement action.

Sec. 9   RCW 70.95J.050 and 1992 c 174 s 7 are each amended to read as follows:
     The department, with the assistance of the attorney general, may bring an action at law or in equity, including an action for injunctive relief, to enforce this chapter or a permit issued or rule adopted by the department pursuant to this chapter. The department must comply with chapter 70.--- RCW (the new chapter created in section 27 of this act) with respect to any proposed settlement of the enforcement action.

Sec. 10   RCW 70.105.095 and 1987 c 109 s 16 are each amended to read as follows:
     (1) Whenever on the basis on any information the department determines that a person has violated or is about to violate any provision of this chapter, the department may issue an order requiring compliance either immediately or within a specified period of time. The order shall be delivered by registered mail or personally to the person against whom the order is directed.
     (2) Any person who fails to take corrective action as specified in a compliance order shall be liable for a civil penalty of not more than ten thousand dollars for each day of continued noncompliance. In addition, the department may suspend or revoke any permits and/or certificates issued under the provisions of this chapter to a person who fails to comply with an order directed against him or her.
     (3) Any order may be appealed pursuant to RCW 43.21B.310.
     (4) The department must comply with chapter 70.--- RCW (the new chapter created in section 27 of this act) with respect to any proposed settlement of an enforcement action.

Sec. 11   RCW 70.118.130 and 2007 c 343 s 9 are each amended to read as follows:
     (1) A local health officer who is responsible for administering and enforcing regulations regarding on-site sewage disposal systems is authorized to issue civil penalties for violations of those regulations under the same limitations and requirements imposed on the department under RCW 70.118B.050, except that the amount of a penalty shall not exceed one thousand dollars per day for every violation, and judgments shall be entered in the name of the local health jurisdiction and penalties shall be placed into the general fund or funds of the entity or entities operating the local health jurisdiction.
     (2) The officer must comply with chapter 70.--- RCW (the new chapter created in section 27 of this act) with respect to any proposed settlement of an enforcement action.

Sec. 12   RCW 70.118B.050 and 2007 c 343 s 6 are each amended to read as follows:
     (1) A person who violates a law or rule regulating large on-site sewage systems administered by the department is subject to a penalty of not more than ten thousand dollars per day for every violation. Every violation is a separate and distinct offense. In case of a continuing violation, each day's continuing violation is a separate and distinct violation. The penalty assessed must reflect the significance of the violation and the previous record of compliance on the part of the person responsible for compliance with large on-site sewage system requirements.
     (2) Every person who, through an act of commission or omission, procures, aids, or abets a violation is considered to have violated the provisions of this section and is subject to the penalty provided in this section.
     (3) The penalty provided for in this section must be imposed by a notice in writing to the person against whom the civil penalty is assessed and must describe the violation. The notice must be personally served in the manner of service of a summons in a civil action or in a manner that shows proof of receipt. A penalty imposed by this section is due twenty-eight days after receipt of notice unless application for an adjudicative proceeding is filed as provided in subsection (4) of this section.
     (4) Within twenty-eight days after notice is received, the person incurring the penalty may file an application for an adjudicative proceeding and may pursue subsequent review as provided in chapter 34.05 RCW and applicable rules.
     (5) A penalty imposed by a final administrative order is due upon service of the final administrative order. A person who fails to pay a penalty assessed by a final administrative order within thirty days of service of the final administrative order shall pay, in addition to the amount of the penalty, interest at the rate of one percent of the unpaid balance of the assessed penalty for each month or part of a month that the penalty remains unpaid, commencing with the month in which the notice of penalty was served, and reasonable attorneys' fees as are incurred if civil enforcement of the final administrative order is required to collect the penalty.
     (6) A person who institutes proceedings for judicial review of a final administrative order assessing a civil penalty under this chapter shall place the full amount of the penalty in an interest-bearing account in the registry of the reviewing court. At the conclusion of the proceeding the court shall, as appropriate, enter a judgment on behalf of the department and order that the judgment be satisfied to the extent possible from moneys paid into the registry of the court or shall enter a judgment in favor of the person appealing the penalty assessment and order return of the moneys paid into the registry of the court together with accrued interest to the person appealing. The judgment may award reasonable attorneys' fees for the cost of the attorney general's office in representing the department.
     (7) If no appeal is taken from a final administrative order assessing a civil penalty under this chapter, the department may file a certified copy of the final administrative order with the clerk of the superior court in which the large on-site sewage system is located or in Thurston county, and the clerk shall enter judgment in the name of the department and in the amount of the penalty assessed in the final administrative order.
     (8) A judgment entered under subsection (6) or (7) of this section has the same force and effect as, and is subject to all of the provisions of law relating to, a judgment in a civil action, and may be enforced in the same manner as any other judgment of the court in which it is entered.
     (9) The department must comply with chapter 70.--- RCW (the new chapter created in section 27 of this act) with any respect to any proposed settlement of an enforcement action.
     (10) The large on-site sewage systems account is created in the custody of the state treasurer. All receipts from penalties imposed under this section shall be deposited into the account. Expenditures from the account shall be used by the department to provide training and technical assistance to large on-site sewage system owners and operators. Only the secretary or the secretary's designee may authorize expenditures from the account. The account is subject to allotment procedures under chapter 43.88 RCW, but an appropriation is not required for expenditures.

Sec. 13   RCW 70.118B.060 and 2007 c 343 s 7 are each amended to read as follows:
     (1) Notwithstanding the existence or use of any other remedy, the department may bring an action to enjoin a violation or threatened violation of this chapter or rules adopted under this chapter.
     (2) The department may bring the action in the superior court of the county in which the large on-site sewage system is located or in the superior court of Thurston county.
     (3) The department must comply with chapter 70.--- RCW (the new chapter created in section 27 of this act) with respect to any proposed settlement of an enforcement action.

Sec. 14   RCW 70.119.130 and 2009 c 221 s 6 are each amended to read as follows:
     (1) Any person, including any operator or any firm, association, corporation, municipal corporation, or other governmental subdivision or agency who, after thirty days' written notice, operates a public water system which is not in compliance with RCW 70.119.030(1), shall be guilty of a misdemeanor. Each month of such operation out of compliance with RCW 70.119.030(1) shall constitute a separate offense. Upon conviction, violators shall be fined an amount not exceeding one hundred dollars for each offense.
     (2) It shall be the duty of the prosecuting attorney or the attorney general, as appropriate, to secure injunctions of continuing violations of any provisions of this chapter or the rules and regulations adopted under this chapter. The prosecuting attorney or the attorney general must comply with chapter 70.--- RCW (the new chapter created in section 27 of this act) with respect to any proposed settlement of an enforcement action.

Sec. 15   RCW 70.119A.040 and 1995 c 376 s 8 are each amended to read as follows:
     (1)(a) In addition to or as an alternative to any other penalty or action allowed by law, a person who violates a law or rule regulating public water systems and administered by the department of health is subject to a penalty of not more than five thousand dollars per day for every such violation, or, in the case of a violation that has been determined to be a public health emergency, a penalty of not more than ten thousand dollars per day for every such violation. Every such violation shall be a separate and distinct offense. The amount of fine shall reflect the health significance of the violation and the previous record of compliance on the part of the public water supplier. In case of continuing violation, every day's continuance shall be a separate and distinct violation.
     (b) In addition, a person who constructs, modifies, or expands a public water system or who commences the construction, modification, or expansion of a public water system without first obtaining the required departmental approval is subject to penalties of not more than five thousand dollars per service connection, or, in the case of a system serving a transient population, a penalty of not more than four hundred dollars per person based on the highest average daily population the system serves or is anticipated to serve may be imposed. The total penalty that may be imposed pursuant to this subsection (1)(b) is five hundred thousand dollars. For the purpose of computing the penalty under this subsection, a service connection shall include any new service connection actually constructed, any anticipated service connection the system has been designed to serve, and, in the case of a system modification not involving expansions, each existing service connection that benefits or would benefit from the modification.
     (c) Every person who, through an act of commission or omission, procures, aids, or abets a violation is considered to have violated the provisions of this section and is subject to the penalty provided in this section.
     (2) The penalty provided for in this section shall be imposed by a notice in writing to the person against whom the civil penalty is assessed and shall describe the violation. The notice shall be personally served in the manner of service of a summons in a civil action or in a manner that shows proof of receipt. A penalty imposed by this section is due twenty-eight days after receipt of notice unless application for an adjudicative proceeding is filed as provided in subsection (3) of this section.
     (3) Within twenty-eight days after notice is received, the person incurring the penalty may file an application for an adjudicative proceeding and may pursue subsequent review as provided in chapter 34.05 RCW and applicable rules of the department or board of health.
     (4) A penalty imposed by a final administrative order is due upon service of the final administrative order. A person who fails to pay a penalty assessed by a final administrative order within thirty days of service of the final administrative order shall pay, in addition to the amount of the penalty, interest at the rate of one percent of the unpaid balance of the assessed penalty for each month or part of a month that the penalty remains unpaid, commencing with the month in which the notice of penalty was served and such reasonable attorney's fees as are incurred in securing the final administrative order.
     (5) A person who institutes proceedings for judicial review of a final administrative order assessing a civil penalty under this chapter shall place the full amount of the penalty in an interest bearing account in the registry of the reviewing court. At the conclusion of the proceeding the court shall, as appropriate, enter a judgment on behalf of the department and order that the judgment be satisfied to the extent possible from moneys paid into the registry of the court or shall enter a judgment in favor of the person appealing the penalty assessment and order return of the moneys paid into the registry of the court together with accrued interest to the person appealing. The judgment may award reasonable attorney's fees for the cost of the attorney general's office in representing the department.
     (6) If no appeal is taken from a final administrative order assessing a civil penalty under this chapter, the department may file a certified copy of the final administrative order with the clerk of the superior court in which the public water system is located or in Thurston county, and the clerk shall enter judgment in the name of the department and in the amount of the penalty assessed in the final administrative order.
     (7) A judgment entered under subsection (5) or (6) of this section shall have the same force and effect as, and is subject to all of the provisions of law relating to, a judgment in a civil action, and may be enforced in the same manner as any other judgment of the court in which it is entered.
     (8) The department must comply with chapter 70.--- RCW (the new chapter created in section 27 of this act) with respect to any proposed settlement of an enforcement action.
     (9) All penalties imposed under this section shall be payable to the state treasury and credited to the safe drinking water account, and shall be used by the department to provide training and technical assistance to system owners and operators.
     (((9))) (10) Except in cases of public health emergencies, the department may not impose monetary penalties under this section unless a prior effort has been made to resolve the violation informally.

Sec. 16   RCW 76.09.140 and 2000 c 11 s 6 are each amended to read as follows:
     (1) The department of natural resources may take any necessary action to enforce any final order or final decision, and may disapprove any forest practices application or notification submitted by any person who has failed to comply with a final order or final decision or has failed to pay any civil penalties as provided in RCW 76.09.170, for up to one year from the issuance of a notice of intent to disapprove notifications and applications under this section or until the violator pays all outstanding civil penalties and complies with all validly issued and outstanding notices to comply and stop work orders, whichever is longer. For purposes of chapter 482, Laws of 1993, the terms "final order" and "final decision" shall mean the same as set forth in RCW 76.09.080, 76.09.090, and 76.09.110. The department shall provide written notice of its intent to disapprove an application or notification under this subsection. The department shall forward copies of its notice of intent to disapprove to any affected landowner. The disapproval period shall run from thirty days following the date of actual notice or when all administrative and judicial appellate processes, if any, have been exhausted. Any person provided the notice may seek review from the appeals board by filing a request for review within thirty days of the date of the notice of intent. While the notice of intent to disapprove is in effect, the violator may not serve as a person in charge of, be employed by, manage, or otherwise participate to any degree in forest practices.
     (2) On request of the department, the attorney general may take action necessary to enforce this chapter, including, but not limited to: Seeking penalties, interest, costs, and attorneys' fees; enforcing final orders or decisions; and seeking civil injunctions, show cause orders, or contempt orders.
     (3) A county may bring injunctive, declaratory, or other actions for enforcement for forest practice activities within its jurisdiction in the superior court as provided by law against the department, the forest landowner, timber owner or operator to enforce the forest practices rules or any final order of the department, or the appeals board. No civil or criminal penalties shall be imposed for past actions or omissions if such actions or omissions were conducted pursuant to an approval or directive of the department. Injunctions, declaratory actions, or other actions for enforcement under this subsection may not be commenced unless the department fails to take appropriate action after ten days written notice to the department by the county of a violation of the forest practices rules or final orders of the department or the appeals board.
     (4) The department or county must comply with chapter 70.--- RCW (the new chapter created in section 27 of this act) with respect to any proposed settlement of an enforcement action.
     (5)(a) The department may require financial assurance prior to the conduct of any further forest practices from an operator or landowner who within the preceding three-year period has:
     (i) Operated without an approved forest practices application, other than an unintentional operation in connection with an approved application outside the approved boundary of such an application;
     (ii) Continued to operate in breach of, or failed to comply with, the terms of an effective stop work order or notice to comply; or
     (iii) Failed to pay any civil or criminal penalty.
     (b) The department may deny any application for failure to submit financial assurances as required.

Sec. 17   RCW 77.55.291 and 2010 c 210 s 31 are each amended to read as follows:
     (1) The department may levy civil penalties of up to one hundred dollars per day for violation of any provisions of RCW 77.55.021. 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.
     (2)(a) Except as provided in (b) of this subsection, any person incurring any penalty under this chapter may appeal the same under chapter 34.05 RCW to the board. Appeals shall be filed within thirty days from the date of receipt of the penalty in accordance with RCW 43.21B.230.
     (b) Issuance of a civil penalty may be informally appealed to the department within thirty days from the date of receipt of the penalty. Requests for informal appeal must be filed in the form and manner prescribed by the department by rule. A civil penalty that has been informally appealed to the department is appealable to the board within thirty days from the date of receipt of the department's decision on the informal appeal.
     (3) 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.
     (4) 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.
     (5) The department must comply with chapter 70.--- RCW (the new chapter created in section 27 of this act) with respect to any proposed settlement of an enforcement action.

Sec. 18   RCW 88.46.070 and 2000 c 69 s 7 are each amended to read as follows:
     (1) The provisions of prevention plans and contingency plans approved by the department pursuant to this chapter shall be legally binding on those persons submitting them to the department and on their successors, assigns, agents, and employees. The superior court shall have jurisdiction to restrain a violation of, compel specific performance of, or otherwise to enforce such plans upon application by the department. The department may issue an order pursuant to chapter 34.05 RCW requiring compliance with a contingency plan or a prevention plan and may impose administrative penalties for failure to comply with a plan. The department must comply with chapter 70.--- RCW (the new chapter created in section 27 of this act) with respect to any proposed settlement of an enforcement action.
     (2) If the director believes a person has violated or is violating or creates a substantial potential to violate the provisions of this chapter, the director shall notify the person of the director's determination by registered mail. The determination shall not constitute an order or directive under RCW 43.21B.310. Within thirty days from the receipt of notice of the determination, the person shall file with the director a full report stating what steps have been and are being taken to comply with the determination of the director. The director shall issue an order or directive, as the director deems appropriate under the circumstances, and shall notify the person by registered mail.
     (3) If the director believes immediate action is necessary to accomplish the purposes of this chapter, the director may issue an order or directive, as appropriate under the circumstances, without first issuing a notice or determination pursuant to subsection (2) of this section. An order or directive issued pursuant to this subsection shall be served by registered mail or personally upon any person to whom it is directed.

Sec. 19   RCW 90.03.605 and 2002 c 329 s 2 are each amended to read as follows:
     (1) The department shall, through a network of water masters appointed under this chapter, stream patrollers appointed under chapter 90.08 RCW, and other assigned compliance staff to the extent such a network is funded, achieve compliance with the water laws and rules of the state of Washington in the following sequence:
     (a) The department shall prepare and distribute technical and educational information to the general public to assist the public in complying with the requirements of their water rights and applicable water laws;
     (b) When the department determines that a violation has occurred or is about to occur, it shall first attempt to achieve voluntary compliance. As part of this first response, the department shall offer information and technical assistance to the person in writing identifying one or more means to accomplish the person's purposes within the framework of the law; and
     (c) If education and technical assistance do not achieve compliance the department shall issue a notice of violation, a formal administrative order under RCW 43.27A.190, or assess penalties under RCW 90.03.600 unless the noncompliance is corrected expeditiously or the department determines no impairment or harm. The department must comply with chapter 70.--- RCW (the new chapter created in section 27 of this act) with respect to any proposed settlement of an enforcement action.
     (2) Nothing in the section is intended to prevent the department of ecology from taking immediate action to cause a violation to be ceased immediately if in the opinion of the department the nature of the violation is causing harm to other water rights or to public resources.
     (3) The department of ecology shall to the extent practicable station its compliance personnel within the watershed communities they serve. To the extent practicable, compliance personnel shall be distributed evenly among the regions of the state.

Sec. 20   RCW 90.14.200 and 1989 c 175 s 180 are each amended to read as follows:
     (1) All matters relating to the implementation and enforcement of this chapter by the department of ecology shall be carried out in accordance with chapter 34.05 RCW, the Administrative Procedure Act, except where the provisions of this chapter expressly conflict with chapter 34.05 RCW. Proceedings held pursuant to RCW 90.14.130 are adjudicative proceedings within the meaning of chapter 34.05 RCW. Final decisions of the department of ecology in these proceedings are subject to review in accordance with chapter 43.21B RCW.
     (2) RCW 90.14.130 provides nonexclusive procedures for determining a relinquishment of water rights under RCW 90.14.160, 90.14.170, and 90.14.180. RCW 90.14.160, 90.14.170, and 90.14.180 may be applied in, among other proceedings, general adjudication proceedings initiated under RCW 90.03.110 or 90.44.220: PROVIDED, That nothing herein shall apply to litigation involving determinations of the department of ecology under RCW 90.03.290 relating to the impairment of existing rights.
     (3) The department must comply with chapter 70.--- RCW (the new chapter created in section 27 of this act) with respect to any proposed settlement of an enforcement action.

Sec. 21   RCW 90.46.270 and 2009 c 456 s 14 are each amended to read as follows:
     (1) Except as provided in RCW 43.05.060 through 43.05.080, 43.05.100, 43.05.110, and 43.05.150, any person who:
     (a) Generates any reclaimed water for a use regulated under this chapter and distributes or uses that water without a permit;
     (b) Violates the terms or conditions of a permit issued under this chapter; or
     (c) Violates rules or orders adopted or issued pursuant to this chapter,
shall incur, in addition to any other penalty as provided by law, a penalty in an amount of up to ten thousand dollars per day for every violation. Each violation shall be a separate and distinct offense, and in case of a continuing violation, every day's continuance shall be a separate and distinct violation. Every act of commission or omission which procures, aids, or abets in the violation shall be considered a violation under the provisions of this section and subject to the penalty herein provided for. The penalty amount shall be set in consideration of the previous history of the violator and the severity of the violation's impact on public health, the environment, or both, in addition to other relevant factors. The lead agency must comply with chapter 70.--- RCW (the new chapter created in section 27 of this act) with respect to any proposed settlement of an enforcement action.
     (2) A penalty imposed by a final administrative order is due upon service of the final administrative order. A person who fails to pay a penalty assessed by a final administrative order within thirty days of service of the final administrative order shall pay, in addition to the amount of the penalty, interest at the rate of one percent of the unpaid balance of the assessed penalty for each month or part of a month that the penalty remains unpaid, commencing within the month in which the notice of penalty was served, and reasonable attorneys' fees as are incurred if civil enforcement of the final administrative order is required to collect penalty.
     (3) A person who institutes proceedings for judicial review of a final administrative order assessing a civil penalty under this chapter shall place the full amount of the penalty in an interest bearing account in the registry of the reviewing court. At the conclusion of the proceeding the court shall, as appropriate, enter a judgment on behalf of the lead agency and order that the judgment be satisfied to the extent possible from moneys paid into the registry of the court or shall enter a judgment in favor of the person appealing the penalty assessment and order return of the moneys paid into the registry of the court together with accrued interest to the person appealing. The judgment may award reasonable attorneys' fees for the cost of the attorney general's office in representing the lead agency.
     (4) If no appeal is taken from a final administrative order assessing a civil penalty under this chapter, the lead agency may file a certified copy of the final administrative order with the clerk of the superior court in which the person resides, or in Thurston county, and the clerk shall enter judgment in the name of the lead agency and in the amount of the penalty assessed in the final administrative order.
     (5) When the penalty ((herein)) provided for in this section is imposed by the department of ecology, it shall be imposed pursuant to the procedures set forth in RCW 43.21B.300. All penalties imposed by the department of ecology pursuant to RCW 43.21B.300 shall be deposited into the state treasury and credited to the general fund.
     (6) When the penalty is imposed by the department of health, it shall be imposed pursuant to the procedures set forth in RCW 43.70.095. All receipts from penalties shall be deposited into the health reclaimed water account. The department of health shall use revenue derived from penalties only to provide training and technical assistance to reclaimed water system owners and operators.

Sec. 22   RCW 90.48.037 and 1991 c 200 s 1102 are each amended to read as follows:
     (1) The department, with the assistance of the attorney general, is authorized to bring any appropriate action at law or in equity, including action for injunctive relief, in the name of the people of the state of Washington as may be necessary to carry out the provisions of this chapter or chapter 90.56 RCW.
     (2) The department must comply with chapter 70.--- RCW (the new chapter created in section 27 of this act) with respect to any proposed settlement of an enforcement action.

Sec. 23   RCW 90.56.270 and 1991 c 200 s 206 are each amended to read as follows:
     (1) The provisions of contingency plans approved by the department under RCW 90.56.210 and prevention plans approved by the department pursuant to RCW 90.56.200 shall be legally binding on those persons submitting them to the department and on their successors, assigns, agents, and employees. The superior court shall have jurisdiction to restrain a violation of, compel specific performance of, or otherwise to enforce such plans upon application by the department. The department may issue an order pursuant to chapter 34.05 RCW requiring compliance with a contingency plan or a prevention plan and may impose administrative penalties under RCW 43.21B.300 for failure to comply with a plan. An order under this section is not subject to review by the pollution control hearings board as provided in RCW 43.21B.110. The department must comply with chapter 70.--- RCW (the new chapter created in section 27 of this act) with respect to any proposed settlement of an enforcement action.
     (2)(a) Any person responsible or potentially responsible for a discharge, all of the agents and employees of that person, the operators of all vessels docked at an onshore or offshore facility that is a source of a discharge, and all state and local agencies shall carry out response and cleanup operations in accordance with applicable contingency plans, unless directed otherwise by the director or the coast guard. Except as provided in (b) of this subsection, the responsible party, potentially responsible parties, their agents and employees, the operators of all vessels docked at an onshore or offshore facility that is the source of the discharge, and all state and local agencies shall carry out whatever direction is given by the director in connection with the response, containment, and cleanup of the spill, if the directions are not in direct conflict with the directions of the coast guard.
     (b) If a responsible party or potentially responsible party reasonably, and in good faith, believes that the directions or orders given by the director pursuant to (a) of this subsection will substantially endanger the public safety or the environment, the party may refuse to act in compliance with the orders or directions of the director. The responsible party or potentially responsible party shall state, at the time of the refusal, the reasons why the party refuses to follow the orders or directions of the director. The responsible party or potentially responsible party shall give the director written notice of the reasons for the refusal within forty-eight hours of refusing to follow the orders or directions of the director. In any civil or criminal proceeding commenced pursuant to this section, the burden of proof shall be on the responsible party or potentially responsible party to demonstrate, by clear and convincing evidence, why the refusal to follow the orders or directions of the director was justified under the circumstances.

Sec. 24   RCW 90.58.230 and 1971 ex.s. c 286 s 23 are each amended to read as follows:
     (1) Any person subject to the regulatory program of this chapter who violates any provision of this chapter or permit issued pursuant thereto shall be liable for all damage to public or private property arising from such violation, including the cost of restoring the affected area to its condition prior to violation. The attorney general or local government attorney shall bring suit for damages under this section on behalf of the state or local governments. Private persons shall have the right to bring suit for damages under this section on their own behalf and on the behalf of all persons similarly situated. If liability has been established for the cost of restoring an area affected by a violation the court shall make provision to ((assure)) ensure that restoration will be accomplished within a reasonable time at the expense of the violator. In addition to such relief, including money damages, the court in its discretion may award ((attorney's)) attorneys' fees and costs of the suit to the prevailing party.
     (2) The attorney general or local government attorney must comply with chapter 70.--- RCW (the new chapter created in section 27 of this act) with respect to any proposed settlement of an enforcement action.

Sec. 25   RCW 90.76.070 and 2007 c 147 s 5 are each amended to read as follows:
     (1) The director may seek appropriate injunctive or other judicial relief by filing an action in Thurston county superior court or issue such order as the director deems appropriate to:
     (((1))) (a) Enjoin any threatened or continuing violation of this chapter or rules adopted under this chapter;
     (((2))) (b) Restrain immediately and effectively a person from engaging in unauthorized activity that results in a violation of any requirement of this chapter or rules adopted under this chapter and is endangering or causing damage to public health or the environment;
     (((3))) (c) Require compliance with requests for information, access, testing, or monitoring under RCW 90.76.060; or
     (((4))) (d) Assess and recover civil penalties authorized under RCW 90.76.080.
     (2) The director must comply with chapter 70.--- RCW (the new chapter created in section 27 of this act) with respect to any proposed settlement of an enforcement action.

Sec. 26   RCW 90.76.080 and 2007 c 147 s 6 are each amended to read as follows:
     (1) A person who fails to notify the department pursuant to tank notification requirements or who submits false information is subject to a civil penalty not to exceed five thousand dollars per violation.
     (2) A person who violates this chapter or rules adopted under this chapter is subject to a civil penalty not to exceed five thousand dollars for each tank per day of violation.
     (3) A person incurring a penalty under this chapter or rules adopted under this chapter may apply to the department in writing for the remission or mitigation of the penalty as set out in RCW 43.21B.300. A person also may appeal a penalty directly to the pollution control hearings board in accordance with RCW 43.21B.300.
     (4) The department must comply with chapter 70.--- RCW (the new chapter created in section 27 of this act) with respect to any proposed settlement of an enforcement action.

NEW SECTION.  Sec. 27   Sections 2 and 3 of this act constitute a new chapter in Title 70 RCW.

NEW SECTION.  Sec. 28   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.