BILL REQ. #: S-1745.2
| State of Washington | 62nd Legislature | 2011 Regular Session |
READ FIRST TIME 02/21/11.
AN ACT Relating to consolidating natural resources agencies and programs; amending RCW 43.17.010, 43.17.020, 42.17A.705, 43.03.028, 79.64.020, 79.64.100, 77.04.020, 77.04.055, 77.08.010, 79A.05.010, 79A.05.070, 79A.25.005, 79A.25.010, 79A.25.110, 79A.25.150, 77.85.110, 70.148.005, 70.148.010, 70.148.020, 70.148.025, 70.148.030, 70.148.035, 70.148.040, 70.148.050, 70.148.060, 70.148.070, 70.148.080, 70.148.090, 70.148.130, 70.148.140, 70.148.150, 70.148.160, 70.148.170, 70.149.010, 70.149.030, 70.149.040, 70.149.050, 70.149.060, 70.149.090, 70.149.120, 90.46.005, 90.46.010, 90.46.015, 90.46.030, 90.46.050, 90.46.090, 90.46.120, 90.46.150, 90.46.160, 90.46.200, 90.46.210, 90.46.220, 90.46.230, 90.46.240, 90.46.250, 90.46.260, 90.46.270, 43.200.015, 43.200.080, 43.200.170, 43.200.180, 43.200.190, 43.200.200, 43.200.230, 70.98.030, 70.98.085, 70.98.095, 70.98.098, and 70.98.130; adding a new section to chapter 41.06 RCW; adding a new section to chapter 41.80 RCW; adding a new section to chapter 77.04 RCW; adding a new section to chapter 43.30 RCW; adding a new section to chapter 79A.05 RCW; adding new sections to chapter 79A.25 RCW; adding a new section to chapter 77.85 RCW; adding a new section to chapter 70.148 RCW; adding a new section to chapter 90.46 RCW; adding a new section to chapter 43.97 RCW; adding a new section to chapter 70.98 RCW; adding a new section to chapter 43.200 RCW; adding a new chapter to Title 43 RCW; creating new sections; repealing RCW 77.04.013, 77.04.080, 77.15.005, 43.300.010, 43.300.040, 43.300.050, 90.46.020, 90.46.072, 90.46.110, and 43.200.210; providing effective dates; providing expiration dates; and declaring an emergency.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
NEW SECTION. Sec. 101 Through this act, the legislature intends
to consolidate state natural resource agencies and programs in order
to: Increase the effectiveness and efficiency of state government by
reducing overlap across natural resource agencies and programs; capture
savings from these efficiencies, which are estimated at up to ten
million dollars per year beginning July 1, 2012; and maximize the
state's ability to preserve and manage recreation and its natural
resources by utilizing savings from the efficiencies achieved through
consolidation.
NEW SECTION. Sec. 102 The definitions in this section apply
throughout this chapter unless the context clearly requires otherwise.
(1) "Department" means the department of fish, wildlife, and
recreation.
(2) "Secretary" means the secretary of the department of fish,
wildlife, and recreation.
NEW SECTION. Sec. 103 (1) The department of fish, wildlife, and
recreation is created as an executive branch agency. The department is
vested with all powers and duties transferred to it under this act and
such other powers and duties as may be authorized by law.
(2) Any powers, duties, and functions assigned to the department of
fish and wildlife, the state parks and recreation commission, and the
recreation and conservation office are transferred to the department of
fish, wildlife, and recreation.
(3) The primary duties of the department are to:
(a) Preserve, protect, and perpetuate the fish and wildlife
resources for the benefit of the state's citizens;
(b) Wisely manage the state's parks and trail systems, promote
outdoor recreation education and safety, and protect the state's
cultural, historical, and natural sites; and
(c) Serve as a good steward of public funds that perpetuate healthy
ecosystems and open spaces, restore habitat important to our fish and
wildlife, and support outdoor recreation and recreational places and
facilities.
(4) The department must be structured organizationally to maintain
at least two distinct areas of focus: One for fish and wildlife
management; and one for parks and recreation management.
NEW SECTION. Sec. 104 (1) The executive head of the department
is the secretary. The secretary must be appointed by, and serve at the
pleasure of, the governor. The governor must select the secretary from
a list of five candidates accepted by the governor that has been
submitted jointly by the fish and wildlife commission and the state
parks and recreation commission. The appointment of the secretary is
subject to confirmation by the senate.
(2) The secretary shall be paid a salary fixed by the governor in
accordance with RCW 43.03.040. If a vacancy occurs in the position of
secretary while the senate is not in session, the governor shall make
a temporary appointment until the next meeting of the senate at which
time the governor shall present to that body the governor's nomination
for the position.
(3) The secretary may employ staff members, who are exempt from the
state civil service law, chapter 41.06 RCW, and any additional staff
members as are necessary to administer this act, and such other duties
as may be authorized by law. The secretary may delegate any power or
duty vested in the secretary by this act or other law, including
authority to make final decisions and enter final orders in hearings
conducted under chapter 34.05 RCW.
(4) The secretary may create those administrative structures as the
secretary considers appropriate, except as otherwise specified by law.
The secretary may employ personnel as necessary for the general
administration of the department. This employment must be in
accordance with the state civil service law, chapter 41.06 RCW, and the
state collective bargaining law, chapter 41.80 RCW, except as otherwise
provided.
NEW SECTION. Sec. 105 The secretary shall:
(1) Supervise the administrative operations of the department; and
(2) Exercise all the powers and perform all the duties provided to
the secretary by law.
NEW SECTION. Sec. 106 It is the intent of the legislature that
the fish and wildlife commission and the state parks and recreation
commission retain policy and rule-making authority upon their transfer
to the department of fish, wildlife, and recreation.
NEW SECTION. Sec. 107 (1) On the effective date of this section,
the director of the department of fish and wildlife, the commissioner
of public lands, the director of the state parks and recreation
commission, and the director of the recreation and conservation office
must each designate a representative to serve on the natural resources
consolidation transition team.
(2) The transition team must, with the assistance of the natural
resources agencies, plan for and facilitate the effective and efficient
consolidation of the applicable natural resources agencies and programs
into the department of fish, wildlife, and recreation. Specifically,
the transition team must develop the following work products:
(a) A natural resources consolidation transition team report, to be
submitted to the office of financial management and the legislature by
August 1, 2011. This report must, at a minimum:
(i) Detail all legislative and fiscal changes recommended for the
effective and efficient implementation of natural resources agency
consolidation. The transition team must consider the scope of the
duties appropriately exercised by the secretary of the department of
fish, wildlife, and recreation in supervising the administrative
operations of the consolidated department, and include any recommended
legislative changes in its report. Recommended legislative changes
must be submitted in the form of draft legislation; and
(ii) Identify expected costs and savings associated with the
consolidation;
(b) A supplemental budget request, if necessary, for consideration
during the 2012 legislative session. This request must encompass any
necessary budgetary and legislative changes for all natural resources
agencies affected by this act, and be submitted to the office of
financial management by September 1, 2011; and
(c) A second natural resources consolidation transition team
report, to be submitted to the secretary of the department of fish,
wildlife, and recreation and the legislature by July 1, 2012. This
report must, at a minimum, detail all additional legislative and fiscal
changes recommended for the effective and efficient implementation of
natural resources agency consolidation and identify expected costs and
savings associated with the consolidation.
(3)(a) The transition team may: Invite, at its discretion, other
appropriate persons to participate on the transition team; and consult,
as necessary, with the department of personnel, office of financial
management, or other agency with relevant expertise.
(b) The transition team must provide opportunities for input from:
Representatives of potentially affected bargaining units; and
appropriate stakeholders.
NEW SECTION. Sec. 108 A new section is added to chapter 41.06
RCW to read as follows:
In addition to the exemptions under RCW 41.06.070, the provisions
of this chapter do not apply in the department of fish, wildlife, and
recreation to the secretary, the secretary's confidential secretary,
assistant secretaries, and any other exempt staff members provided for
in section 104 of this act.
Sec. 109 RCW 43.17.010 and 2009 c 565 s 25 are each amended to
read as follows:
There shall be departments of the state government which shall be
known as (1) the department of social and health services, (2) the
department of ecology, (3) the department of labor and industries, (4)
the department of agriculture, (5) the department of fish ((and)),
wildlife, and recreation, (6) the department of transportation, (7) the
department of licensing, (8) the department of general administration,
(9) the department of commerce, (10) the department of veterans
affairs, (11) the department of revenue, (12) the department of
retirement systems, (13) the department of corrections, (14) the
department of health, (15) the department of financial institutions,
(16) the department of archaeology and historic preservation, (17) the
department of early learning, and (18) the Puget Sound partnership,
which shall be charged with the execution, enforcement, and
administration of such laws, and invested with such powers and required
to perform such duties, as the legislature may provide.
Sec. 110 RCW 43.17.020 and 2009 c 565 s 26 are each amended to
read as follows:
There shall be a chief executive officer of each department to be
known as: (1) The secretary of social and health services, (2) the
director of ecology, (3) the director of labor and industries, (4) the
director of agriculture, (5) the ((director)) secretary of fish
((and)), wildlife, and recreation, (6) the secretary of transportation,
(7) the director of licensing, (8) the director of general
administration, (9) the director of commerce, (10) the director of
veterans affairs, (11) the director of revenue, (12) the director of
retirement systems, (13) the secretary of corrections, (14) the
secretary of health, (15) the director of financial institutions, (16)
the director of the department of archaeology and historic
preservation, (17) the director of early learning, and (18) the
executive director of the Puget Sound partnership.
Such officers((, except the director of fish and wildlife,)) shall
be appointed by the governor, with the consent of the senate, and hold
office at the pleasure of the governor. ((The director of fish and
wildlife shall be appointed by the fish and wildlife commission as
prescribed by RCW 77.04.055.))
Sec. 111 RCW 42.17A.705 and 2010 c 204 s 902 are each amended to
read as follows:
For the purposes of RCW 42.17A.700, "executive state officer"
includes:
(1) The chief administrative law judge, the director of
agriculture, the director of the department of services for the blind,
the director of the state system of community and technical colleges,
the director of commerce, the secretary of corrections, the director of
early learning, the director of ecology, the commissioner of employment
security, the chair of the energy facility site evaluation council, the
secretary of the state finance committee, the director of financial
management, the ((director)) secretary of the department of fish
((and)), wildlife, and recreation, ((the executive secretary of the
forest practices appeals board,)) the director of the gambling
commission, the director of general administration, the secretary of
health, the administrator of the Washington state health care
authority, the executive secretary of the health care facilities
authority, the executive secretary of the higher education facilities
authority, the executive secretary of the horse racing commission, the
executive secretary of the human rights commission, the executive
secretary of the indeterminate sentence review board, the director of
the department of information services, the executive director of the
state investment board, the director of labor and industries, the
director of licensing, the director of the lottery commission, the
director of the office of minority and women's business enterprises,
((the director of parks and recreation,)) the director of personnel,
the executive director of the public disclosure commission, the
executive director of the Puget Sound partnership, ((the director of
the recreation and conservation office,)) the director of retirement
systems, the director of revenue, the secretary of social and health
services, the chief of the Washington state patrol, the executive
secretary of the board of tax appeals, the secretary of transportation,
the secretary of the utilities and transportation commission, the
director of veterans affairs, the president of each of the regional and
state universities and the president of The Evergreen State College,
and each district and each campus president of each state community
college;
(2) Each professional staff member of the office of the governor;
(3) Each professional staff member of the legislature; and
(4) Central Washington University board of trustees, the boards of
trustees of each community college and each technical college, each
member of the state board for community and technical colleges, state
convention and trade center board of directors, Eastern Washington
University board of trustees, Washington economic development finance
authority, Washington energy northwest executive board, The Evergreen
State College board of trustees, executive ethics board, fish and
wildlife commission, ((forest practices appeals board,)) forest
practices board, gambling commission, Washington health care facilities
authority, higher education coordinating board, higher education
facilities authority, horse racing commission, state housing finance
commission, human rights commission, indeterminate sentence review
board, board of industrial insurance appeals, information services
board, state investment board, commission on judicial conduct,
legislative ethics board, life sciences discovery fund authority board
of trustees, liquor control board, lottery commission, Pacific
Northwest electric power and conservation planning council, parks and
recreation commission, Washington personnel resources board, board of
pilotage commissioners, pollution control hearings board, public
disclosure commission, public employees' benefits board, recreation and
conservation funding board, salmon recovery funding board, shorelines
hearings board, board of tax appeals, transportation commission,
University of Washington board of regents, utilities and transportation
commission, Washington State University board of regents, and Western
Washington University board of trustees.
Sec. 112 RCW 43.03.028 and 2010 1st sp.s. c 7 s 2 are each
amended to read as follows:
(1) The department of personnel shall study the duties and salaries
of the directors of the several departments and the members of the
several boards and commissions of state government, who are subject to
appointment by the governor or whose salaries are fixed by the
governor, and of the chief executive officers of the following agencies
of state government:
The arts commission; the human rights commission; the board of
accountancy; the board of pharmacy; the eastern Washington historical
society; the Washington state historical society; ((the recreation and
conservation office;)) the criminal justice training commission; the
department of personnel; the state library; the traffic safety
commission; the horse racing commission; the advisory council on
vocational education; the public disclosure commission; the state
conservation commission; the commission on Hispanic affairs; the
commission on Asian Pacific American affairs; the state board for
volunteer firefighters and reserve officers; the transportation
improvement board; the public employment relations commission; ((the
forest practices appeals board;)) and the energy facilities site
evaluation council.
(2) The department of personnel shall report to the governor or the
chairperson of the appropriate salary fixing authority at least once in
each fiscal biennium on such date as the governor may designate, but
not later than seventy-five days prior to the convening of each regular
session of the legislature during an odd-numbered year, its
recommendations for the salaries to be fixed for each position.
NEW SECTION. Sec. 113 The law enforcement program and employees
of the department of natural resources are transferred to the
department of fish, wildlife, and recreation. The department of fish,
wildlife, and recreation and the department of natural resources shall
enter into an interagency agreement before July 1, 2012, to enforce
laws and rules on state trust lands. This agreement must include, but
is not limited to, the level of law enforcement services provided on
state trust lands and the level of funding to cover the cost of
increased enforcement. The services provided on state trust lands may
not be less than that provided by department of natural resources' law
enforcement staff as of the effective date of this section.
Sec. 114 RCW 79.64.020 and 2008 c 328 s 6004 are each amended to
read as follows:
A resource management cost account in the state treasury is created
to be used solely for the purpose of defraying the costs and expenses
necessarily incurred by the department in managing and administering
state lands and aquatic lands and the making and administering of
leases, sales, contracts, licenses, permits, easements, and rights-of-way as authorized under the provisions of this title. The account may
also be used to defray the costs and expenses necessarily incurred by
the department of fish, wildlife, and recreation in the enforcement of
laws and rules on state trust lands. Appropriations from the resource
management cost account to the department shall be expended for no
other purposes. Funds in the resource management cost account may be
appropriated or transferred by the legislature for the benefit of all
of the trusts from which the funds were derived. For the 2007-2009
biennium, moneys in the account may be used for the purposes identified
in section 3044, chapter 328, Laws of 2008.
Sec. 115 RCW 79.64.100 and 2003 c 334 s 219 are each amended to
read as follows:
There is created a forest development account in the state
treasury. The state treasurer shall keep an account of all sums
deposited therein and expended or withdrawn therefrom. Any sums placed
in the forest development account shall be pledged for the purpose of
paying interest and principal on the bonds issued by the department
under RCW 79.22.080 and 79.22.090 and the provisions of this chapter,
and for the purchase of land for growing timber. Any bonds issued
shall constitute a first and prior claim and lien against the account
for the payment of principal and interest. No sums for the above
purposes shall be withdrawn or paid out of the account except upon
approval of the department.
Appropriations may be made by the legislature from the forest
development account to the department for the purpose of carrying on
the activities of the department on state forest lands, lands managed
on a sustained yield basis as provided for in RCW 79.10.320, and for
reimbursement of expenditures that have been made or may be made from
the resource management cost account in the management of state forest
lands. The account may also be used to defray the costs and expenses
necessarily incurred by the department of fish, wildlife, and
recreation in the enforcement of laws and rules on state trust lands.
NEW SECTION. Sec. 116 A new section is added to chapter 41.80
RCW to read as follows:
(1) By April 1, 2012, the commission shall review the existing
collective bargaining units within the department of fish and wildlife,
the state parks and recreation commission, the recreation and
conservation office, and the portions of the existing collective
bargaining units within the department of natural resources that
represent the law enforcement program to determine if these units would
be appropriate units within the department of fish, wildlife, and
recreation. In determining appropriateness of bargaining units, the
commission shall utilize and apply the organizational restructure
detail created by the natural resources consolidation transition team
created in section 107 of this act.
(2) If the commission determines that an existing collective
bargaining unit is appropriate pursuant to RCW 41.80.070, the exclusive
bargaining representative certified to represent the bargaining unit
prior to July 1, 2012, shall continue as the exclusive bargaining
representative without the necessity of an election and will be so
certified by the commission.
(3) If the commission determines that existing collective
bargaining units are not appropriate, the commission may modify those
units and order an election pursuant to RCW 41.80.080. Certified
exclusive bargaining representatives will not be required to
demonstrate a showing of interest to be included on the ballot.
(4) The commission may require an election pursuant to RCW
41.80.080 if similarly situated employees are represented by more than
one employee organization. Certified exclusive bargaining
representatives will not be required to demonstrate a showing of
interest to be included on the ballot.
(5) Certification under this section will not preclude any
subsequent actions allowable under this chapter.
NEW SECTION. Sec. 117 Sections 102 through 105 of this act
constitute a new chapter in Title
NEW SECTION. Sec. 118 Section 111 of this act takes effect
January 1, 2012.
NEW SECTION. Sec. 119 (1) The code reviser shall note wherever
the director or department of fish and wildlife is used or referred to
in statute that the name of the department has changed.
(2) The code reviser shall prepare legislation for the 2012 regular
legislative session that changes all statutory references to the
director or department of fish and wildlife to the secretary or
department of fish, wildlife, and recreation.
NEW SECTION. Sec. 120 (1) The code reviser shall note wherever
the director or recreation and conservation office is used or referred
to in statute that the name of the department has changed.
(2) The code reviser shall prepare legislation for the 2012 regular
legislative session that changes all statutory references to the
director or recreation and conservation office to the secretary or
department of fish, wildlife, and recreation.
NEW SECTION. Sec. 121 (1) The code reviser shall note wherever
the director of the state parks and recreation commission is used or
referred to in statute that the name of the director has changed.
(2) The code reviser shall prepare legislation for the 2012 regular
legislative session that changes all statutory references to the
director of the state parks and recreation commission to the secretary
of the department of fish, wildlife, and recreation.
Sec. 122 RCW 77.04.020 and 2000 c 107 s 202 are each amended to
read as follows:
((The department consists of the state fish and wildlife commission
and the director.)) The commission may delegate to the ((director))
secretary any of the powers and duties vested in the commission.
Sec. 123 RCW 77.04.055 and 2000 c 107 s 204 are each amended to
read as follows:
(1) In establishing policies to preserve, protect, and perpetuate
wildlife, fish, and wildlife and fish habitat, the commission shall
meet annually with the governor to:
(a) Review and prescribe basic goals and objectives related to
those policies; and
(b) Review the performance of the department in implementing fish
and wildlife policies.
The commission shall maximize fishing, hunting, and outdoor
recreational opportunities compatible with healthy and diverse fish and
wildlife populations.
(2) The commission shall establish hunting, trapping, and fishing
seasons and prescribe the time, place, manner, and methods that may be
used to harvest or enjoy game fish and wildlife.
(3) The commission shall establish provisions regulating food fish
and shellfish as provided in RCW 77.12.047.
(4) The commission shall have final approval authority for tribal,
interstate, international, and any other department agreements relating
to fish and wildlife.
(5) The commission shall adopt rules to implement the state's fish
and wildlife laws.
(6) ((The commission shall have final approval authority for the
department's budget proposals.)) The commission shall select its own staff ((
(7)and shall appoint
the director of the department. The director and commission staff
shall)) which serves at the pleasure of the commission.
Sec. 124 RCW 77.08.010 and 2009 c 333 s 12 are each amended to
read as follows:
The definitions in this section apply throughout this title or
rules adopted under this title unless the context clearly requires
otherwise.
(1) "Angling gear" means a line attached to a rod and reel capable
of being held in hand while landing the fish or a hand-held line
operated without rod or reel.
(2) "Aquatic invasive species" means any invasive, prohibited,
regulated, unregulated, or unlisted aquatic animal or plant species as
defined under subsections (3), (28), (40), (44), (58), and (59) of this
section, aquatic noxious weeds as defined under RCW 17.26.020(5)(c),
and aquatic nuisance species as defined under RCW 77.60.130(1).
(3) "Aquatic plant species" means an emergent, submersed, partially
submersed, free-floating, or floating-leaving plant species that grows
in or near a body of water or wetland.
(4) "Bag limit" means the maximum number of game animals, game
birds, or game fish which may be taken, caught, killed, or possessed by
a person, as specified by rule of the commission for a particular
period of time, or as to size, sex, or species.
(5) "Closed area" means a place where the hunting of some or all
species of wild animals or wild birds is prohibited.
(6) "Closed season" means all times, manners of taking, and places
or waters other than those established by rule of the commission as an
open season. "Closed season" also means all hunting, fishing, taking,
or possession of game animals, game birds, game fish, food fish, or
shellfish that do not conform to the special restrictions or physical
descriptions established by rule of the commission as an open season or
that have not otherwise been deemed legal to hunt, fish, take, harvest,
or possess by rule of the commission as an open season.
(7) "Closed waters" means all or part of a lake, river, stream, or
other body of water, where fishing or harvesting is prohibited.
(8) "Commercial" means related to or connected with buying,
selling, or bartering.
(9) "Commission" means the state fish and wildlife commission
within the department of fish, wildlife, and recreation.
(10) "Concurrent waters of the Columbia river" means those waters
of the Columbia river that coincide with the Washington-Oregon state
boundary.
(11) "Contraband" means any property that is unlawful to produce or
possess.
(12) "Deleterious exotic wildlife" means species of the animal
kingdom not native to Washington and designated as dangerous to the
environment or wildlife of the state.
(13) "Department" means the department of fish ((and)), wildlife,
and recreation.
(14) "Director" means the ((director)) secretary of the department
of fish ((and)), wildlife, and recreation.
(15) "Endangered species" means wildlife designated by the
commission as seriously threatened with extinction.
(16) "Ex officio fish and wildlife officer" means a commissioned
officer of a municipal, county, state, or federal agency having as its
primary function the enforcement of criminal laws in general, while the
officer is in the appropriate jurisdiction. The term "ex officio fish
and wildlife officer" includes special agents of the national marine
fisheries service, state parks commissioned officers, United States
fish and wildlife special agents, ((department of natural resources
enforcement officers,)) and United States forest service officers,
while the agents and officers are within their respective
jurisdictions.
(17) "Fish" includes all species classified as game fish or food
fish by statute or rule, as well as all fin fish not currently
classified as food fish or game fish if such species exist in state
waters. The term "fish" includes all stages of development and the
bodily parts of fish species.
(18) "Fish and wildlife officer" means a person appointed and
commissioned by the director, with authority to enforce this title and
rules adopted pursuant to this title, and other statutes as prescribed
by the legislature. Fish and wildlife officer includes a person
commissioned before June 11, 1998, as a wildlife agent or a fisheries
patrol officer. Fish and wildlife officer includes a person
commissioned before July 1, 2012, as a department of natural resources
enforcement officer.
(19) "Fish broker" means a person whose business it is to bring a
seller of fish and shellfish and a purchaser of those fish and
shellfish together.
(20) "Fishery" means the taking of one or more particular species
of fish or shellfish with particular gear in a particular geographical
area.
(21) "Freshwater" means all waters not defined as saltwater
including, but not limited to, rivers upstream of the river mouth,
lakes, ponds, and reservoirs.
(22) "Fur-bearing animals" means game animals that shall not be
trapped except as authorized by the commission.
(23) "Game animals" means wild animals that shall not be hunted
except as authorized by the commission.
(24) "Game birds" means wild birds that shall not be hunted except
as authorized by the commission.
(25) "Game farm" means property on which wildlife is held or raised
for commercial purposes, trade, or gift. The term "game farm" does not
include publicly owned facilities.
(26) "Game reserve" means a closed area where hunting for all wild
animals and wild birds is prohibited.
(27) "Illegal items" means those items unlawful to be possessed.
(28) "Invasive species" means a plant species or a nonnative animal
species that either:
(a) Causes or may cause displacement of, or otherwise threatens,
native species in their natural communities;
(b) Threatens or may threaten natural resources or their use in the
state;
(c) Causes or may cause economic damage to commercial or
recreational activities that are dependent upon state waters; or
(d) Threatens or harms human health.
(29) "License year" means the period of time for which a
recreational license is valid. The license year begins April 1st, and
ends March 31st.
(30) "Limited-entry license" means a license subject to a license
limitation program established in chapter 77.70 RCW.
(31) "Money" means all currency, script, personal checks, money
orders, or other negotiable instruments.
(32) "Nonresident" means a person who has not fulfilled the
qualifications of a resident.
(33) "Offshore waters" means marine waters of the Pacific Ocean
outside the territorial boundaries of the state, including the marine
waters of other states and countries.
(34) "Open season" means those times, manners of taking, and places
or waters established by rule of the commission for the lawful hunting,
fishing, taking, or possession of game animals, game birds, game fish,
food fish, or shellfish that conform to the special restrictions or
physical descriptions established by rule of the commission or that
have otherwise been deemed legal to hunt, fish, take, harvest, or
possess by rule of the commission. "Open season" includes the first
and last days of the established time.
(35) "Owner" means the person in whom is vested the ownership
dominion, or title of the property.
(36) "Person" means and includes an individual; a corporation; a
public or private entity or organization; a local, state, or federal
agency; all business organizations, including corporations and
partnerships; or a group of two or more individuals acting with a
common purpose whether acting in an individual, representative, or
official capacity.
(37) "Personal property" or "property" includes both corporeal and
incorporeal personal property and includes, among other property,
contraband and money.
(38) "Personal use" means for the private use of the individual
taking the fish or shellfish and not for sale or barter.
(39) "Predatory birds" means wild birds that may be hunted
throughout the year as authorized by the commission.
(40) "Prohibited aquatic animal species" means an invasive species
of the animal kingdom that has been classified as a prohibited aquatic
animal species by the commission.
(41) "Protected wildlife" means wildlife designated by the
commission that shall not be hunted or fished.
(42) "Raffle" means an activity in which tickets bearing an
individual number are sold for not more than twenty-five dollars each
and in which a permit or permits are awarded to hunt or for access to
hunt big game animals or wild turkeys on the basis of a drawing from
the tickets by the person or persons conducting the raffle.
(43) "Recreational and commercial watercraft" includes the boat, as
well as equipment used to transport the boat, and any auxiliary
equipment such as attached or detached outboard motors.
(44) "Regulated aquatic animal species" means a potentially
invasive species of the animal kingdom that has been classified as a
regulated aquatic animal species by the commission.
(45) "Resident" means:
(a) A person who has maintained a permanent place of abode within
the state for at least ninety days immediately preceding an application
for a license, has established by formal evidence an intent to continue
residing within the state, and who is not licensed to hunt or fish as
a resident in another state; and
(b) A person age eighteen or younger who does not qualify as a
resident under (a) of this subsection, but who has a parent that
qualifies as a resident under (a) of this subsection.
(46) "Retail-eligible species" means commercially harvested salmon,
crab, and sturgeon.
(47) "Saltwater" means those marine waters seaward of river mouths.
(48) "Seaweed" means marine aquatic plant species that are
dependent upon the marine aquatic or tidal environment, and exist in
either an attached or free floating form, and includes but is not
limited to marine aquatic plants in the classes Chlorophyta,
Phaeophyta, and Rhodophyta.
(49) "Senior" means a person seventy years old or older.
(50) "Shellfish" means those species of marine and freshwater
invertebrates that have been classified and that shall not be taken
except as authorized by rule of the commission. The term "shellfish"
includes all stages of development and the bodily parts of shellfish
species.
(51) "State waters" means all marine waters and fresh waters within
ordinary high water lines and within the territorial boundaries of the
state.
(52) "To fish," "to harvest," and "to take," and their derivatives
means an effort to kill, injure, harass, or catch a fish or shellfish.
(53) "To hunt" and its derivatives means an effort to kill, injure,
capture, or harass a wild animal or wild bird.
(54) "To process" and its derivatives mean preparing or preserving
fish, wildlife, or shellfish.
(55) "To trap" and its derivatives means a method of hunting using
devices to capture wild animals or wild birds.
(56) "Trafficking" means offering, attempting to engage, or
engaging in sale, barter, or purchase of fish, shellfish, wildlife, or
deleterious exotic wildlife.
(57) "Unclaimed" means that no owner of the property has been
identified or has requested, in writing, the release of the property to
themselves nor has the owner of the property designated an individual
to receive the property or paid the required postage to effect delivery
of the property.
(58) "Unlisted aquatic animal species" means a nonnative animal
species that has not been classified as a prohibited aquatic animal
species, a regulated aquatic animal species, or an unregulated aquatic
animal species by the commission.
(59) "Unregulated aquatic animal species" means a nonnative animal
species that has been classified as an unregulated aquatic animal
species by the commission.
(60) "Wholesale fish dealer" means a person who, acting for
commercial purposes, takes possession or ownership of fish or shellfish
and sells, barters, or exchanges or attempts to sell, barter, or
exchange fish or shellfish that have been landed into the state of
Washington or entered the state of Washington in interstate or foreign
commerce.
(61) "Wild animals" means those species of the class Mammalia whose
members exist in Washington in a wild state and the species Rana
catesbeiana (bullfrog). The term "wild animal" does not include feral
domestic mammals or old world rats and mice of the family Muridae of
the order Rodentia.
(62) "Wild birds" means those species of the class Aves whose
members exist in Washington in a wild state.
(63) "Wildlife" means all species of the animal kingdom whose
members exist in Washington in a wild state. This includes but is not
limited to mammals, birds, reptiles, amphibians, fish, and
invertebrates. The term "wildlife" does not include feral domestic
mammals, old world rats and mice of the family Muridae of the order
Rodentia, or those fish, shellfish, and marine invertebrates classified
as food fish or shellfish by the director. The term "wildlife"
includes all stages of development and the bodily parts of wildlife
members.
(64) "Youth" means a person fifteen years old for fishing and under
sixteen years old for hunting.
NEW SECTION. Sec. 125 A new section is added to chapter 77.04
RCW to read as follows:
(1) The powers, duties, and functions of the department of fish and
wildlife are hereby transferred to the department of fish, wildlife,
and recreation. All references to the department of fish and wildlife
in the Revised Code of Washington shall be construed to mean the
department of fish, wildlife, and recreation.
(2)(a) All reports, documents, surveys, books, records, files,
papers, or written material in the possession of the department of fish
and wildlife shall be delivered to the custody of the department of
fish, wildlife, and recreation. All cabinets, furniture, office
equipment, motor vehicles, and other tangible property employed by the
department of fish and wildlife shall be made available to the
department of fish, wildlife, and recreation. All funds, credits, or
other assets held by the department of fish and wildlife shall be
assigned to the department of fish, wildlife, and recreation.
(b) Any appropriations made to the department of fish and wildlife
shall, on the effective date of this section, be transferred and
credited to the department of fish, wildlife, and recreation.
(c) If any question arises as to the transfer of any personnel,
funds, books, documents, records, papers, files, equipment, or other
tangible property used or held in the exercise of the powers and the
performance of the duties and functions transferred, the director of
financial management shall make a determination as to the proper
allocation and certify the same to the state agencies concerned.
(3) All rules and all pending business before the department of
fish and wildlife shall be continued and acted upon by the department
of fish, wildlife, and recreation. All existing contracts and
obligations shall remain in full force and shall be performed by the
department of fish, wildlife, and recreation.
(4) The transfer of the powers, duties, functions, and personnel of
the department of fish and wildlife shall not affect the validity of
any act performed before the effective date of this section.
(5) If apportionments of budgeted funds are required because of the
transfers directed by this section, the director of financial
management shall certify the apportionments to the agencies affected,
the state auditor, and the state treasurer. Each of these shall make
the appropriate transfer and adjustments in funds and appropriation
accounts and equipment records in accordance with the certification.
(6) All employees of the department of fish and wildlife engaged in
performing the powers, functions, and duties transferred to the
department of fish, wildlife, and recreation, are transferred to the
department of fish, wildlife, and recreation. All employees classified
under chapter 41.06 RCW, the state civil service law, are assigned to
the department of fish, wildlife, and recreation to perform their usual
duties upon the same terms as formerly, without any loss of rights,
subject to any action that may be appropriate thereafter in accordance
with the laws and rules governing state civil service law.
NEW SECTION. Sec. 126 A new section is added to chapter 43.30
RCW to read as follows:
(1) The powers, duties, and functions of the law enforcement
program of the department of natural resources are hereby transferred
to the department of fish, wildlife, and recreation.
(2) All employees of the department of natural resources engaged in
performing the powers, functions, and duties transferred to the
department of fish, wildlife, and recreation, are transferred to the
department of fish, wildlife, and recreation. All employees classified
under chapter 41.06 RCW, the state civil service law, are assigned to
the department of fish, wildlife, and recreation to perform their usual
duties upon the same terms as formerly, without any loss of rights,
subject to any action that may be appropriate thereafter in accordance
with the laws and rules governing state civil service law.
Sec. 127 RCW 79A.05.010 and 1999 c 249 s 101 are each amended to
read as follows:
The definitions in this section apply throughout this title unless
the context clearly requires otherwise.
(1) "Commission" means the state parks and recreation commission
within the department of fish, wildlife, and recreation.
(2) "Chair" means the member of the commission elected pursuant to
RCW 79A.05.025.
(3) "Director" and "director of the state parks and recreation
commission" means the ((director)) secretary of ((parks and recreation
or the director's)) the department of fish, wildlife, and recreation or
the secretary's designee.
(4) "Recreation" means those activities of a voluntary and leisure
time nature that aid in promoting entertainment, pleasure, play,
relaxation, or instruction.
(5) "Natural forest" means a forest that faithfully represents, or
is meant to become representative of, its unaltered state.
Sec. 128 RCW 79A.05.070 and 2006 c 141 s 1 are each amended to
read as follows:
The commission may:
(1) Make rules and regulations for the proper administration of its
duties;
(2) Accept any grants of funds made with or without a matching
requirement by the United States, or any agency thereof, for purposes
in keeping with the purposes of this chapter; accept gifts, bequests,
devises and endowments for purposes in keeping with such purposes;
enter into cooperative agreements with and provide for private
nonprofit groups to use state park property and facilities to raise
money to contribute gifts, grants, and support to the commission for
the purposes of this chapter. The commission may assist the nonprofit
group in a cooperative effort by providing necessary agency personnel
and services, if available. However, none of the moneys raised may
inure to the benefit of the nonprofit group, except in furtherance of
its purposes to benefit the commission as provided in this chapter.
The agency and the private nonprofit group shall agree on the nature of
any project to be supported by such gift or grant prior to the use of
any agency property or facilities for raising money. Any such gifts
may be in the form of recreational facilities developed or built in
part or in whole for public use on agency property, provided that the
facility is consistent with the purposes of the agency;
(3) Require certification by the commission of all parks and
recreation workers employed in state aided or state controlled
programs;
(4) Act jointly, when advisable, with the United States, any other
state agencies, institutions, departments, boards, or commissions in
order to carry out the objectives and responsibilities of this chapter;
(5) Grant franchises and easements for any legitimate purpose on
parks or parkways, for such terms and subject to such conditions and
considerations as the commission shall specify;
(6) Charge such fees for services, utilities, and use of facilities
as the commission shall deem proper. The commission may not charge
fees for general park access or parking;
(7) Enter into agreements whereby individuals or companies may rent
undeveloped parks or parkway land for grazing, agricultural, or mineral
development purposes upon such terms and conditions as the commission
shall deem proper, for a term not to exceed forty years; and
(8) ((Determine the qualifications of and employ a director of
parks and recreation who shall receive a salary as fixed by the
governor in accordance with the provisions of RCW 43.03.040 and
determine the qualifications and salary of and employ such other
persons as may be needed to carry out the provisions hereof; and)) Without being limited to the powers hereinbefore enumerated,
the commission shall have such other powers as in the judgment of a
majority of its members are deemed necessary to effectuate the purposes
of this chapter: PROVIDED, That the commission shall not have power to
supervise directly any local park or recreation district, and no funds
shall be made available for such purpose.
(9)
NEW SECTION. Sec. 129 A new section is added to chapter 79A.05
RCW to read as follows:
(1) The powers, duties, and functions of the state parks and
recreation commission are hereby transferred to the department of fish,
wildlife, and recreation. All references to the state parks and
recreation commission in the Revised Code of Washington shall be
construed to mean the state parks and recreation commission within the
department of fish, wildlife, and recreation.
(2)(a) All reports, documents, surveys, books, records, files,
papers, or written material in the possession of the state parks and
recreation commission shall be delivered to the custody of the
department of fish, wildlife, and recreation. All cabinets, furniture,
office equipment, motor vehicles, and other tangible property employed
by the state parks and recreation commission shall be made available to
the department of fish, wildlife, and recreation. All funds, credits,
or other assets held by the state parks and recreation commission shall
be assigned to the department of fish, wildlife, and recreation.
(b) Any appropriations made to the state parks and recreation
commission shall, on the effective date of this section, be transferred
and credited to the department of fish, wildlife, and recreation.
(c) If any question arises as to the transfer of any personnel,
funds, books, documents, records, papers, files, equipment, or other
tangible property used or held in the exercise of the powers and the
performance of the duties and functions transferred, the director of
financial management shall make a determination as to the proper
allocation and certify the same to the state agencies concerned.
(3) All rules and all pending business before the state parks and
recreation commission shall be continued and acted upon by the
department of fish, wildlife, and recreation. All existing contracts
and obligations shall remain in full force and shall be performed by
the department of fish, wildlife, and recreation.
(4) The transfer of the powers, duties, functions, and personnel of
the state parks and recreation commission shall not affect the validity
of any act performed before the effective date of this section.
(5) If apportionments of budgeted funds are required because of the
transfers directed by this section, the director of financial
management shall certify the apportionments to the agencies affected,
the state auditor, and the state treasurer. Each of these shall make
the appropriate transfer and adjustments in funds and appropriation
accounts and equipment records in accordance with the certification.
(6) All employees of the state parks and recreation commission
engaged in performing the powers, functions, and duties transferred to
the department of fish, wildlife, and recreation are transferred to the
department of fish, wildlife, and recreation. All employees classified
under chapter 41.06 RCW, the state civil service law, are assigned to
the department of fish, wildlife, and recreation to perform their usual
duties upon the same terms as formerly, without any loss of rights,
subject to any action that may be appropriate thereafter in accordance
with the laws and rules governing state civil service law.
Sec. 130 RCW 79A.25.005 and 2007 c 241 s 39 are each amended to
read as follows:
(1) As Washington begins its second century of statehood, the
legislature recognizes that renewed efforts are needed to preserve,
conserve, and enhance the state's recreational resources. Rapid
population growth and increased urbanization have caused a decline in
suitable land for recreation and resulted in overcrowding and
deterioration of existing facilities. Lack of adequate recreational
resources directly affects the health and well-being of all citizens of
the state, reduces the state's economic viability, and prevents
Washington from maintaining and achieving the quality of life that it
deserves.
It is therefore the policy of the state and its agencies to
preserve, conserve, and enhance recreational resources and open space.
In carrying out this policy, the mission of the recreation and
conservation funding board and ((its office)) the department of fish,
wildlife, and recreation is to (a) create and work actively for the
implementation of a unified statewide strategy for meeting the
recreational needs of Washington's citizens, (b) represent and promote
the interests of the state on recreational issues in concert with other
state and local agencies and the governor, (c) encourage and provide
interagency and regional coordination, and interaction between public
and private organizations, (d) administer recreational grant-in-aid
programs and provide technical assistance, and (e) serve as a
repository for information, studies, research, and other data relating
to recreation.
(2) Washington is uniquely endowed with fresh and salt waters rich
in scenic and recreational value. This outdoor heritage enriches the
lives of citizens, attracts new residents and businesses to the state,
and is a major support of its expanding tourist industry. Rising
population, increased income and leisure time, and the rapid growth of
boating and other water sports have greatly increased the demand for
water related recreation, while waterfront land is rapidly rising in
value and disappearing from public use. There is consequently an
urgent need for the acquisition or improvement of waterfront land on
fresh and salt water suitable for marine recreational use by Washington
residents and visitors. To meet this need, it is necessary and proper
that the portion of motor vehicle fuel taxes paid by boat owners and
operators on fuel consumed in their watercraft and not reclaimed as
presently provided by law should be expended for the acquisition or
improvement of marine recreation land on the Pacific Ocean, Puget
Sound, bays, lakes, rivers, reservoirs and other fresh and salt waters
of the state.
Sec. 131 RCW 79A.25.010 and 2007 c 241 s 40 are each amended to
read as follows:
The definitions in this section apply throughout this chapter
unless the context clearly requires otherwise.
(1) "Marine recreation land" means any land with or without
improvements which (a) provides access to, or in whole or in part
borders on, fresh or salt water suitable for recreational use by
watercraft, or (b) may be used to create, add to, or make more usable,
bodies of water, waterways, or land, for recreational use by
watercraft.
(2) "Public body" means any county, city, town, port district, park
and recreation district, metropolitan park district, or other municipal
corporation which is authorized to acquire or improve public outdoor
recreation land, and shall also mean Indian tribes now or hereafter
recognized as such by the federal government for participation in the
land and water conservation program.
(3) "Tax on marine fuel" means motor vehicle fuel tax which is (a)
tax on fuel used in, or sold or distributed for use in, any watercraft,
(b) refundable pursuant to chapter 82.36 RCW, and (c) paid to the
director of licensing with respect to taxable sales, distributions, or
uses occurring on or after December 3, 1964.
(4) "Watercraft" means any boat, vessel, or other craft used for
navigation on or through water.
(5) "Board" means the recreation and conservation funding board.
(6) "Director" means the ((director)) secretary of the ((recreation
and conservation office)) department of fish, wildlife, and recreation.
(7) "Office," "recreation and conservation office," or "the office
of recreation and conservation" means the department of fish, wildlife,
and recreation, the state agency responsible for administration of
programs and activities of the recreation and conservation funding
board, the salmon recovery funding board, the invasive species council,
and such other duties or boards, councils, or advisory groups as are or
may be established or directed for administrative placement in the
((agency)) department.
(8) "Council" means the Washington invasive species council created
in RCW 79A.25.310.
Sec. 132 RCW 79A.25.110 and 2007 c 241 s 47 are each amended to
read as follows:
There is created the recreation and conservation funding board,
within the department of fish, wildlife, and recreation, consisting of
the commissioner of public lands, ((the director of parks and
recreation, and the director of fish and wildlife, or their
designees,)) and, by appointment of the governor with the advice and
consent of the senate, five members from the public at large who have
a demonstrated interest in and a general knowledge of outdoor
recreation and conservation in the state. The terms of members
appointed from the public at large shall commence on January 1st of the
year of appointment and shall be for three years or until a successor
is appointed, except in the case of appointments to fill vacancies
which shall be for the remainder of the unexpired term. The governor
shall appoint one of the members from the public at large to serve as
chair of the board for the duration of the member's term. Members
employed by the state shall serve without additional pay and
participation in the work of the board shall be deemed performance of
their employment. Members from the public at large shall be
compensated in accordance with RCW 43.03.240 and shall be entitled to
reimbursement individually for travel expenses incurred in performance
of their duties as members of the board in accordance with RCW
43.03.050 and 43.03.060.
NEW SECTION. Sec. 133 A new section is added to chapter 79A.25
RCW to read as follows:
(1) It is the intent of the legislature that a proper barrier be
maintained between the board and the department in matters affecting
the department as either a grant applicant or grant recipient, or both.
(2) For those grant award and management issues where the
department is either a grant applicant or grant recipient, or both,
including but not limited to issues of project scope changes, deed
restrictions, conversions, and time extensions, the board shall have
independent and final decision-making authority. The board shall adopt
written policies and procedures by July 1, 2012, to implement this
section.
Sec. 134 RCW 79A.25.150 and 2010 c 128 s 7 are each amended to
read as follows:
When requested by the board, members employed by the state shall
furnish assistance to the board from their departments for the analysis
and review of proposed plans and projects, and such assistance shall be
a proper charge against the appropriations to the several agencies
represented on the board. Assistance may be in the form of money,
personnel, or equipment and supplies, whichever is most suitable to the
needs of the board.
((The director of the recreation and conservation office shall be
appointed by, and serve at the pleasure of, the governor. The governor
shall select the director from a list of three candidates submitted by
the board. However, the governor may request and the board shall
provide an additional list or lists from which the governor may select
the director. The director shall have background and experience in the
areas of recreation and conservation management and policy. The
director shall be paid a salary to be fixed by the governor in
accordance with the provisions of RCW 43.03.040. The director shall
appoint such personnel as may be necessary to carry out the duties of
the office. Not more than three employees appointed by the director
shall be exempt from the provisions of chapter 41.06 RCW.))
Sec. 135 RCW 77.85.110 and 2007 c 241 s 20 are each amended to
read as follows:
(1) The salmon recovery funding board is created consisting of ten
members.
(2) Five members of the board shall be voting members who are
appointed by the governor, subject to confirmation by the senate. One
of these voting members shall be a cabinet-level appointment as the
governor's representative to the board. Board members who represent
the general public shall not have a financial or regulatory interest in
salmon recovery. The governor shall appoint one of the general public
members of the board as the chair. The voting members of the board
shall be appointed for terms of four years, except that two members
initially shall be appointed for terms of two years and three members
shall initially be appointed for terms of three years. In making the
appointments, the governor shall seek a board membership that
collectively provide the expertise necessary to provide strong fiscal
oversight of salmon recovery expenditures, and that provide extensive
knowledge of local government processes and functions and an
understanding of issues relevant to salmon recovery in Washington
state. The governor shall appoint at least three of the voting members
of the board no later than ninety days after July 1, 1999. Vacant
positions on the board shall be filled in the same manner as the
original appointments. The governor may remove members of the board
for good cause.
In addition to the five voting members of the board, the following
five state officials shall serve as ex officio nonvoting members of the
board: The ((director)) secretary of the department of fish ((and)),
wildlife, and recreation, the executive director of the conservation
commission, the secretary of transportation, the director of the
department of ecology, and the commissioner of public lands. The state
officials serving in an ex officio capacity may designate a
representative of their respective agencies to serve on the board in
their behalf. Such designations shall be made in writing and in such
manner as is specified by the board.
(3) Staff support to the board shall be provided by the
((recreation and conservation office)) department of fish, wildlife,
and recreation. For administrative purposes, the board shall be
located with the ((recreation and conservation office)) department of
fish, wildlife, and recreation.
(4) Members of the board who do not represent state agencies shall
be compensated as provided by RCW 43.03.250. Members of the board
shall be reimbursed for travel expenses as provided by RCW 43.03.050
and 43.03.060.
NEW SECTION. Sec. 136 A new section is added to chapter 77.85
RCW to read as follows:
(1) It is the intent of the legislature that a proper barrier be
maintained between the salmon recovery funding board and the department
in matters affecting the department as either a grant applicant or
grant recipient, or both.
(2) For those grant award and management issues where the
department is either a grant applicant or grant recipient, or both,
including but not limited to issues of project scope changes, deed
restrictions, conversions, and time extensions, the salmon recovery
funding board shall have independent and final decision-making
authority. The salmon recovery funding board shall adopt written
policies and procedures by July 1, 2012, to implement this section.
NEW SECTION. Sec. 137 A new section is added to chapter 79A.25
RCW to read as follows:
(1) The powers, duties, and functions of the recreation and
conservation office are hereby transferred to the department of fish,
wildlife, and recreation. All references to the recreation and
conservation office in the Revised Code of Washington shall be
construed to mean the department of fish, wildlife, and recreation.
(2)(a) All reports, documents, surveys, books, records, files,
papers, or written material in the possession of the recreation and
conservation office shall be delivered to the custody of the department
of fish, wildlife, and recreation. All cabinets, furniture, office
equipment, motor vehicles, and other tangible property employed by the
recreation and conservation office shall be made available to the
department of fish, wildlife, and recreation. All funds, credits, or
other assets held by the recreation and conservation office shall be
assigned to the department of fish, wildlife, and recreation.
(b) Any appropriations made to the recreation and conservation
office shall, on the effective date of this section, be transferred and
credited to the department of fish, wildlife, and recreation.
(c) If any question arises as to the transfer of any personnel,
funds, books, documents, records, papers, files, equipment, or other
tangible property used or held in the exercise of the powers and the
performance of the duties and functions transferred, the director of
financial management shall make a determination as to the proper
allocation and certify the same to the state agencies concerned.
(3) All rules and all pending business before the recreation and
conservation office shall be continued and acted upon by the department
of fish, wildlife, and recreation. All existing contracts and
obligations shall remain in full force and shall be performed by the
department of fish, wildlife, and recreation.
(4) The transfer of the powers, duties, functions, and personnel of
the recreation and conservation office shall not affect the validity of
any act performed before the effective date of this section.
(5) If apportionments of budgeted funds are required because of the
transfers directed by this section, the director of financial
management shall certify the apportionments to the agencies affected,
the state auditor, and the state treasurer. Each of these shall make
the appropriate transfer and adjustments in funds and appropriation
accounts and equipment records in accordance with the certification.
(6) All employees of the recreation and conservation office engaged
in performing the powers, functions, and duties transferred to the
department of fish, wildlife, and recreation, are transferred to the
department of fish, wildlife, and recreation. All employees classified
under chapter 41.06 RCW, the state civil service law, are assigned to
the department of fish, wildlife, and recreation to perform their usual
duties upon the same terms as formerly, without any loss of rights,
subject to any action that may be appropriate thereafter in accordance
with the laws and rules governing state civil service law.
NEW SECTION. Sec. 138 The following acts or parts of acts are
each repealed:
(1) RCW 77.04.013 (Findings and intent) and 1995 1st sp.s. c 2 s 1;
(2) RCW 77.04.080 (Director -- Qualifications -- Duties -- Salary) and
2000 c 107 s 205, 1995 1st sp.s. c 2 s 5, 1993 sp.s. c 2 s 64, 1987 c
506 s 9, 1980 c 78 s 8, & 1955 c 36 s 77.04.080;
(3) RCW 77.15.005 (Finding -- Intent) and 1998 c 190 s 1;
(4) RCW 43.300.010 (Department created -- Transfer of powers, duties,
and functions) and 1993 sp.s. c 2 s 2;
(5) RCW 43.300.040 (Director's duties) and 1996 c 267 s 33 & 1993
sp.s. c 2 s 5; and
(6) RCW 43.300.050 (Exempt positions) and 1993 sp.s. c 2 s 6.
NEW SECTION. Sec. 139 The consolidation directed pursuant to
sections 101 through 138 of this act takes effect July 1, 2012.
Sec. 201 RCW 70.148.005 and 1990 c 64 s 1 are each amended to
read as follows:
(1) The legislature finds that:
(a) Final regulations adopted by the United States environmental
protection agency (EPA) require owners and operators of underground
petroleum storage tanks to demonstrate financial responsibility for
accidental releases of petroleum as a precondition to continued
ownership and operation of such tanks;
(b) Financial responsibility is demonstrated through the purchase
of pollution liability insurance or an acceptable alternative such as
coverage under a state financial responsibility program, in the amount
of at least five hundred thousand dollars per occurrence and one
million dollars annual aggregate depending upon the nature, use, and
number of tanks owned or operated;
(c) Many owners and operators of underground petroleum storage
tanks cannot purchase pollution liability insurance either because
private insurance is unavailable at any price or because owners and
operators cannot meet the rigid underwriting standards of existing
insurers, nor can many owners and operators meet the strict regulatory
standards imposed for alternatives to the purchase of insurance; and
(d) Without a state financial responsibility program for owners and
operators of underground petroleum storage tanks, many tank owners and
operators will be forced to discontinue the ownership and operation of
these tanks.
(2) The purpose of this chapter is to create a state financial
responsibility program meeting EPA standards for owners and operators
of underground petroleum storage tanks in a manner that:
(a) Minimizes state involvement in pollution liability claims
management and insurance administration;
(b) Protects the state of Washington from unwanted and
unanticipated liability for accidental release claims;
(c) Creates incentives for private insurers to provide needed
liability insurance; and
(d) Parallels generally accepted principles of insurance and risk
management.
To that end, this chapter establishes a temporary program to
provide pollution liability reinsurance at a price that will encourage
a private insurance company or risk retention group to sell pollution
liability insurance in accordance with the requirements of this chapter
to owners and operators of underground petroleum storage tanks, thereby
allowing the owners and operators to comply with the financial
responsibility regulations of the EPA.
(3) It is not the intent of this chapter to permit owners and
operators of underground petroleum storage tanks to obtain pollution
liability insurance without regard to the quality or condition of their
storage tanks or without regard to the risk management practices of
tank owners and operators, nor is it the intent of this chapter to
provide coverage or funding for past or existing petroleum releases.
Further, it is the intent of the legislature that the program follow
generally accepted insurance underwriting and actuarial principles and
to deviate from those principles only to the extent necessary and
within the tax revenue limits provided, to make pollution liability
insurance reasonably affordable and available to owners and operators
who meet the requirements of this chapter, particularly to those owners
and operators whose underground storage tanks meet a vital economic
need within the affected community.
(4) The pollution liability insurance program established by this
chapter and chapter 70.149 RCW is merged into the department.
(5) This section expires June 1, 2013.
Sec. 202 RCW 70.148.010 and 1990 c 64 s 2 are each amended to
read as follows:
Unless the context requires otherwise, the definitions in this
section apply throughout this chapter.
(1) "Accidental release" means any sudden or nonsudden release of
petroleum arising from operating an underground storage tank that
results in a need for corrective action, bodily injury, or property
damage neither expected nor intended by the owner or operator.
(2) "Director" means the ((Washington pollution liability insurance
program)) director of the department or the director's appointed
representative.
(3) "Bodily injury" means bodily injury, sickness, or disease
sustained by any person, including death at any time resulting from the
injury, sickness, or disease.
(4) "Corrective action" means those actions reasonably required to
be undertaken by the insured to remove, treat, neutralize, contain, or
clean up an accidental release in order to comply with any statute,
ordinance, rule, regulation, directive, order, or similar legal
requirement of the United States, the state of Washington, or any
political subdivision of the United States or the state of Washington
in effect at the time of an accidental release. "Corrective action"
includes, when agreed to in writing, in advance by the insurer, action
to remove, treat, neutralize, contain, or clean up an accidental
release to avert, reduce, or eliminate the liability of the insured for
corrective action, bodily injury, or property damage. "Corrective
action" also includes actions reasonably necessary to monitor, assess,
and evaluate an accidental release.
"Corrective action" does not include:
(a) Replacement or repair of storage tanks or other receptacles;
(b) Replacement or repair of piping, connections, and valves of
storage tanks or other receptacles;
(c) Excavation or backfilling done in conjunction with (a) or (b)
of this subsection; or
(d) Testing for a suspected accidental release if the results of
the testing indicate that there has been no accidental release.
(5) "Defense costs" include the costs of legal representation,
expert fees, and related costs and expenses incurred in defending
against claims or actions brought by or on behalf of:
(a) The United States, the state of Washington, or any political
subdivision of the United States or state of Washington to require
corrective action or to recover costs of corrective action; or
(b) A third party for bodily injury or property damage caused by an
accidental release.
(6) (("Washington pollution liability insurance program" or
"program" means the reinsurance program created by this chapter))
"Department" means the Washington state department of ecology.
(7) "Insured" means the owner or operator who is provided insurance
coverage in accordance with this chapter.
(8) "Insurer" means the insurance company or risk retention group
licensed or qualified to do business in Washington and authorized by
the ((director)) department to provide insurance coverage in accordance
with this chapter.
(9) "Loss reserve" means the amount traditionally set aside by
commercial liability insurers for costs and expenses related to claims
that have been made. "Loss reserve" does not include losses that have
been incurred but not reported to the insurer.
(10) "Occurrence" means an accident, including continuous or
repeated exposure to conditions, that results in a release from an
underground storage tank.
(11) "Operator" means a person in control of, or having
responsibility for, the daily operation of an underground storage tank.
(12) "Owner" means a person who owns an underground storage tank.
(13) "Person" means an individual, trust, firm, joint stock
company, corporation (including government corporation), partnership,
association, consortium, joint venture, commercial entity, state,
municipality, commission, political subdivision of a state, interstate
body, the federal government, or any department or agency of the
federal government.
(14) "Petroleum" means crude oil or any fraction of crude oil that
is liquid at standard conditions of temperature and pressure, which
means at sixty degrees Fahrenheit and 14.7 pounds per square inch
absolute and includes gasoline, kerosene, heating oils, and diesel
fuels.
(15) "Property damage" means:
(a) Physical injury to, destruction of, or contamination of
tangible property, including the loss of use of the property resulting
from the injury, destruction, or contamination; or
(b) Loss of use of tangible property that has not been physically
injured, destroyed, or contaminated but has been evacuated, withdrawn
from use, or rendered inaccessible because of an accidental release.
(16) "Release" means the emission, discharge, disposal, dispersal,
seepage, or escape of petroleum from an underground storage tank into
or upon land, groundwater, surface water, subsurface soils, or the
atmosphere.
(17) "Surplus reserve" means the amount traditionally set aside by
commercial property and casualty insurance companies to provide
financial protection from unexpected losses and to serve, in part, as
a measure of an insurance company's net worth.
(18) "Tank" means a stationary device, designed to contain an
accumulation of petroleum, that is constructed primarily of nonearthen
materials such as wood, concrete, steel, or plastic that provides
structural support.
(19) "Underground storage tank" means any one or a combination of
tanks including underground pipes connected to the tank, that is used
to contain an accumulation of petroleum and the volume of which
(including the volume of the underground pipes connected to the tank)
is ten percent or more beneath the surface of the ground.
(20) "Pollution liability insurance program" or "program" means the
reinsurance program created in this chapter.
This section expires June 1, 2013.
Sec. 203 RCW 70.148.020 and 2006 c 276 s 1 are each amended to
read as follows:
(1) The pollution liability insurance program trust account is
established in the custody of the state treasurer. All funds
appropriated for this chapter and all premiums collected for
reinsurance shall be deposited in the account. Expenditures from the
account shall be used exclusively for the purposes of this chapter
including payment of costs of administering the pollution liability
insurance and underground storage tank community assistance programs.
Expenditures for payment of administrative and operating costs of the
((agency)) program are subject to the allotment procedures under
chapter 43.88 RCW and may be made only after appropriation by statute.
No appropriation is required for other expenditures from the account.
(2) Each calendar quarter, the ((director)) department shall report
to the insurance commissioner the loss and surplus reserves required
for the calendar quarter. The ((director)) department shall notify the
department of revenue of this amount by the fifteenth day of each
calendar quarter.
(3) Each calendar quarter the ((director)) department shall
determine the amount of reserves necessary to fund commitments made to
provide financial assistance under RCW 70.148.130 to the extent that
the financial assistance reserves do not jeopardize the operations and
liabilities of the pollution liability insurance program. The
((director)) department shall notify the department of revenue of this
amount by the fifteenth day of each calendar quarter. The ((director))
department may immediately establish an initial financial assistance
reserve of five million dollars from available revenues. The director
may not expend more than fifteen million dollars for the financial
assistance program.
(4) ((During the 2005-2007 fiscal biennium, the legislature may
transfer from the pollution liability insurance program trust account
to the state general fund such amounts as reflect the excess fund
balance of the account.)) This section expires June 1, 2013.
(5)
Sec. 204 RCW 70.148.025 and 1995 c 20 s 12 are each amended to
read as follows:
(1) The ((director)) department shall provide reinsurance through
the pollution liability insurance program trust account to the heating
oil pollution liability protection program under chapter 70.149 RCW.
(2) This section expires June 1, 2013.
Sec. 205 RCW 70.148.030 and 1994 sp.s. c 9 s 805 are each amended
to read as follows:
(1) The ((Washington)) pollution liability insurance program is
((created as an independent agency of the state. The administrative
head and appointing authority of the program shall be the director who
shall be appointed by the governor, with the consent of the senate, and
shall serve at the pleasure of the governor. The salary for this
office shall be set by the governor pursuant to RCW 43.03.040. The
director shall appoint a deputy director. The director, deputy
director, and up to three other employees are exempt from the civil
service law, chapter 41.06 RCW)) merged into the department. The
administrative head must be appointed by the director. The
administrative head of the program and up to three other employees are
exempt from the civil service law, chapter 41.06 RCW, and serve at the
pleasure of the director.
(2) The director shall employ such other staff as are necessary to
fulfill the responsibilities and duties of the ((director)) department.
The staff is subject to the civil service law, chapter 41.06 RCW. In
addition, the director may contract with third parties for services
necessary to carry out its activities where this will promote economy,
avoid duplication of effort, and make best use of available expertise.
To the extent necessary to protect the state from unintended liability
and ensure quality program and contract design, the director shall
contract with an organization or organizations with demonstrated
experience and ability in managing and designing pollution liability
insurance and with an organization or organizations with demonstrated
experience and ability in managing and designing pollution liability
reinsurance. The director shall enter into such contracts after
competitive bid but need not select the lowest bid. The contracting
activity is not subject to the competitive contracting provisions of
RCW 41.06.142. Any such contractor or consultant is prohibited from
releasing, publishing, or otherwise using any information made
available to it under its contractual responsibility without specific
permission of the ((program)) director. The director may call upon
other agencies of the state to provide technical support and available
information as necessary to assist the director in meeting the
director's responsibilities under this chapter. Agencies shall supply
this support and information as promptly as circumstances permit.
(3) The ((director)) department may appoint ad hoc technical
advisory committees to obtain expertise necessary to fulfill the
purposes of this chapter.
(4) This section expires June 1, 2013.
Sec. 206 RCW 70.148.035 and 1990 c 64 s 11 are each amended to
read as follows:
(1) The ((director)) department may design the program to cover the
costs incurred in determining whether a proposed applicant for
pollution insurance under the program meets the underwriting standards
of the insurer. In covering such costs the ((director)) department
shall consider the financial resources of the applicant, shall take
into consideration the economic impact of the discontinued use of the
applicant's storage tank upon the affected community, shall provide
coverage within the revenue limits provided under this chapter, and
shall limit coverage of such costs to the extent that coverage would be
detrimental to providing affordable insurance under the program.
(2) This section expires June 1, 2013.
Sec. 207 RCW 70.148.040 and 1990 c 64 s 5 are each amended to
read as follows:
(1) The ((director)) department may adopt rules consistent with
this chapter to carry out the purposes of this chapter. All rules
shall be adopted in accordance with chapter 34.05 RCW.
(2) This section expires June 1, 2013.
Sec. 208 RCW 70.148.050 and 2006 c 276 s 2 are each amended to
read as follows:
The ((director)) department has the following powers and duties:
(1) To design and from time to time revise a reinsurance contract
providing coverage to an insurer meeting the requirements of this
chapter. Before initially entering into a reinsurance contract, the
((director)) department shall prepare an actuarial report describing
the various reinsurance methods considered by the ((director))
department and describing each method's costs. In designing the
reinsurance contract the ((director)) department shall consider common
insurance industry reinsurance contract provisions and shall design the
contract in accordance with the following guidelines:
(a) The contract shall provide coverage to the insurer for the
liability risks of owners and operators of underground storage tanks
for third party bodily injury and property damage and corrective action
that are underwritten by the insurer.
(b) In the event of an insolvency of the insurer, the reinsurance
contract shall provide reinsurance payable directly to the insurer or
to its liquidator, receiver, or successor on the basis of the liability
of the insurer in accordance with the reinsurance contract. In no
event may the program be liable for or provide coverage for that
portion of any covered loss that is the responsibility of the insurer
whether or not the insurer is able to fulfill the responsibility.
(c) The total limit of liability for reinsurance coverage shall not
exceed one million dollars per occurrence and two million dollars
annual aggregate for each policy underwritten by the insurer less the
ultimate net loss retained by the insurer as defined and provided for
in the reinsurance contract.
(d) Disputes between the insurer and the insurance program shall be
settled through arbitration.
(2) To design and implement a structure of periodic premiums due
the ((director)) department from the insurer that takes full advantage
of revenue collections and projected revenue collections to ensure
affordable premiums to the insured consistent with sound actuarial
principles.
(3) To periodically review premium rates for reinsurance to
determine whether revenue appropriations supporting the program can be
reduced without substantially increasing the insured's premium costs.
(4) To solicit bids from insurers and select an insurer to provide
pollution liability insurance to owners and operators of underground
storage tanks for third party bodily injury and property damage and
corrective action.
(5) To monitor the activities of the insurer to ensure compliance
with this chapter and protect the program from excessive loss exposure
resulting from claims mismanagement by the insurer.
(6) To monitor the success of the program and periodically make
such reports and recommendations to the legislature as the ((director))
department deems appropriate, and to annually publish a financial
report on the pollution liability insurance program trust account
showing, among other things, administrative and other expenses paid
from the fund.
(7) To annually report the financial and loss experience of the
insurer as to policies issued under the program and the financial and
loss experience of the program to the legislature.
(8) To enter into contracts with public and private agencies to
assist the ((director)) department in ((his or her)) its duties to
design, revise, monitor, and evaluate the program and to provide
technical or professional assistance to the ((director)) department.
(9) To examine the affairs, transactions, accounts, records,
documents, and assets of insurers as the ((director)) department deems
advisable.
This section expires June 1, 2013.
Sec. 209 RCW 70.148.060 and 2005 c 274 s 341 are each amended to
read as follows:
(1) All examination and proprietary reports and information
obtained by the ((director)) department and the ((director's))
department's staff in soliciting bids from insurers and in monitoring
the insurer selected by the ((director)) department shall not be made
public or otherwise disclosed to any person, firm, corporation, agency,
association, governmental body, or other entity.
(2) Subsection (1) of this section notwithstanding, the
((director)) department may furnish all or part of examination reports
prepared by the ((director)) department or by any person, firm,
corporation, association, or other entity preparing the reports on
behalf of the ((director)) department to:
(a) The Washington state insurance commissioner;
(b) A person or organization officially connected with the insurer
as officer, director, attorney, auditor, or independent attorney or
independent auditor; and
(c) The attorney general in his or her role as legal advisor to the
((director)) department.
(3) Subsection (1) of this section notwithstanding, the
((director)) department may furnish all or part of the examination or
proprietary reports or information obtained by the ((director))
department to:
(a) The Washington state insurance commissioner; and
(b) A person, firm, corporation, association, governmental body, or
other entity with whom the ((director)) department has contracted for
services necessary to perform his or her official duties.
(4) Examination reports and proprietary information obtained by the
((director)) department and the ((director's)) department's staff are
not subject to public disclosure under chapter 42.56 RCW.
(5) A person who violates any provision of this section is guilty
of a gross misdemeanor.
(6) This section expires June 1, 2013.
Sec. 210 RCW 70.148.070 and 1990 c 64 s 8 are each amended to
read as follows:
(1) In selecting an insurer to provide pollution liability
insurance coverage to owners and operators of underground storage
tanks, the ((director)) department shall evaluate bids based upon
criteria established by the ((director)) department that shall include:
(a) The insurer's ability to underwrite pollution liability
insurance;
(b) The insurer's ability to settle pollution liability claims
quickly and efficiently;
(c) The insurer's estimate of underwriting and claims adjustment
expenses;
(d) The insurer's estimate of premium rates for providing coverage;
(e) The insurer's ability to manage and invest premiums; and
(f) The insurer's ability to provide risk management guidance to
insureds.
The ((director)) department shall select the bidder most qualified
to provide insurance consistent with this chapter and need not select
the bidder submitting the least expensive bid. The ((director))
department may consider bids by groups of insurers and management
companies who propose to act in concert in providing coverage and who
otherwise meet the requirements of this chapter.
(2) The successful bidder shall agree to provide liability
insurance coverage to owners and operators of underground storage tanks
for third party bodily injury and property damage and corrective action
consistent with the following minimum standards:
(a) The insurer shall provide coverage for defense costs.
(b) The insurer shall collect a deductible from the insured for
corrective action in an amount approved by the ((director)) department.
(c) The insurer shall provide coverage for accidental releases in
the amount of five hundred thousand dollars per occurrence and one
million dollars annual aggregate but no more than one million dollars
per occurrence and two million dollars annual aggregate exclusive of
defense costs.
(d) The insurer shall require insurance applicants to meet at least
the following underwriting standards before issuing coverage to the
applicant:
(i) The applicant must be in compliance with statutes, ordinances,
rules, regulations, and orders governing the ownership and operation of
underground storage tanks as identified by the ((director)) department
by rule; and
(ii) The applicant must exercise adequate underground storage tank
risk management as specified by the ((director)) department by rule.
(e) The insurer may exclude coverage for losses arising before the
effective date of coverage, and the ((director)) department may adopt
rules establishing standards for determining whether a loss was
incurred before the effective date of coverage.
(f) The insurer may exclude coverage for bodily injury, property
damage, and corrective action as permitted by the ((director))
department by rule.
(g) The insurer shall use a variable rate schedule approved by the
((director)) department taking into account tank type, tank age, and
other factors specified by the ((director)) department.
(3) The ((director)) department shall adopt all rules necessary to
implement this section. In developing and adopting rules governing
rates, deductibles, underwriting standards, and coverage conditions,
limitations, and exclusions, the ((director)) department shall balance
the owner and operator's need for coverage with the need to maintain
the actuarial integrity of the program, shall take into consideration
the economic impact of the discontinued use of a storage tank upon the
affected community, and shall consult with the ((standing)) ad hoc
technical advisory committee established under RCW 70.148.030(3). ((In
developing and adopting rules governing coverage exclusions affecting
corrective action, the director shall consult with the Washington state
department of ecology.))
(4) Notwithstanding the definitions contained in RCW 70.148.010,
the ((director)) department may permit an insurer to use different
words or phrases describing the coverage provided under the program.
In permitting such deviations from the definitions contained in RCW
70.148.010, the ((director)) department shall consider the regulations
adopted by the United States environmental protection agency requiring
financial responsibility by owners and operators of underground
petroleum storage tanks.
(5) Owners and operators of underground storage tanks or sites
containing underground storage tanks where a preexisting release has
been identified or where the owner or operator knows of a preexisting
release are eligible for coverage under the program subject to the
following conditions:
(a) The owner or operator must have a plan for proceeding with
corrective action; and
(b) If the owner or operator files a claim with the insurer, the
owner or operator has the burden of proving that the claim is not
related to a preexisting release until the owner or operator
demonstrates to the satisfaction of the ((director)) department that
corrective action has been completed.
(6) ((When)) Within thirty days of a reinsurance contract ((has
been)) being entered into by the ((agency)) department and insurance
companies, ((the director shall notify the department of ecology of the
letting of the contract. Within thirty days of that notification,))
the department ((of ecology)) shall notify all known owners and
operators of petroleum underground storage tanks that appropriate
levels of financial responsibility must be established by October 26,
1990, in accordance with federal environmental protection agency
requirements, and that insurance under the program is available. All
owners and operators of petroleum underground storage tanks must also
be notified that declaration of method of financial responsibility or
intent to seek to be insured under the program must be made to the
state by November 1, 1990. If the declaration of method of financial
responsibility is not made by November 1, 1990, the department ((of
ecology)) shall, pursuant to chapter 90.76 RCW, prohibit the owner or
operator of an underground storage tank from obtaining a tank tag or
receiving petroleum products until such time as financial
responsibility has been established.
(7) This section expires June 1, 2013.
Sec. 211 RCW 70.148.080 and 1990 c 64 s 9 are each amended to
read as follows:
(1) If the insurer cancels or refuses to issue or renew a policy,
the affected owner or operator may appeal the insurer's decision to the
director or the director's designee. The director or the director's
designee shall conduct a brief adjudicative proceeding under chapter
34.05 RCW.
(2) This section expires June 1, 2013.
Sec. 212 RCW 70.148.090 and 1990 c 64 s 10 are each amended to
read as follows:
(1) The activities and operations of the program are exempt from
the provisions and requirements of Title 48 RCW and to the extent of
their participation in the program, the activities and operations of
the insurer selected by the ((director)) department to provide
liability insurance coverage to owners and operators of underground
storage tanks are exempt from the requirements of Title 48 RCW except
for:
(a) Chapter 48.03 RCW pertaining to examinations;
(b) RCW 48.05.250 pertaining to annual reports;
(c) Chapter 48.12 RCW pertaining to assets and liabilities;
(d) Chapter 48.13 RCW pertaining to investments;
(e) Chapter 48.30 RCW pertaining to deceptive, false, or fraudulent
acts or practices; and
(f) Chapter 48.92 RCW pertaining to liability risk retention.
(2) To the extent of their participation in the program, the
insurer selected by the ((director)) department to provide liability
insurance coverage to owners and operators of underground storage tanks
shall not participate in the Washington insurance guaranty association
nor shall the association be liable for coverage provided to owners and
operators of underground storage tanks issued in connection with the
program.
(3) This section expires June 1, 2013.
Sec. 213 RCW 70.148.130 and 2005 c 428 s 2 are each amended to
read as follows:
(1) Subject to the conditions and limitations of RCW 70.148.120
through 70.148.170, the ((director)) department shall establish and
manage a program for providing financial assistance to public and
private owners and operators of underground storage tanks who have been
certified by the governing body of the county, city, or town in which
the tanks are located as meeting a vital local government, public
health or safety need. In providing such financial assistance the
((director)) department shall:
(a) Require owners and operators, including local government owners
and operators, to demonstrate serious financial hardship;
(b) Limit assistance to only that amount necessary to supplement
applicant financial resources;
(c) Limit assistance to no more than two hundred thousand dollars
in value for any one underground storage tank site of which amount no
more than seventy-five thousand dollars in value may be provided for
corrective action; and
(d) Whenever practicable, provide assistance through the direct
payment of contractors and other professionals for labor, materials,
and other services.
(2)(a) Except as otherwise provided in RCW 70.148.120 through
70.148.170, no grant of financial assistance may be used for any
purpose other than for corrective action and repair, replacement,
reconstruction, and improvement of underground storage tanks and tank
sites. If at any time prior to providing financial assistance or in
the course of providing such assistance, it appears to the ((director))
department that corrective action costs may exceed seventy-five
thousand dollars, the ((director)) department may not provide further
financial assistance until the owner or operator has developed and
implemented a corrective action plan with the department ((of
ecology)).
(b) A grant of financial assistance may also be made to an owner or
operator that has discontinued using underground petroleum storage
tanks due to economic hardship. An owner or operator may receive a
grant up to two hundred thousand dollars per retailing location if:
(i) The property is located in an underserved rural area;
(ii) The property was previously used by a private owner or
operator to provide motor vehicle fuel; and
(iii) The property is at least ten miles from the nearest motor
vehicle fuel service station.
(3) When requests for financial assistance exceed available funds,
the ((director)) department shall give preference to providing
assistance first to those underground storage tank sites which
constitute the sole source of petroleum products in remote rural
communities.
(4) The ((director shall consult with the)) department ((of
ecology)), in approving financial assistance for corrective action
((to)), shall ensure compliance with ((regulations)) rules governing
underground petroleum storage tanks and corrective action.
(5) The ((director)) department shall approve or disapprove
applications for financial assistance within sixty days of receipt of
a completed application meeting the requirements of RCW 70.148.120
through 70.148.170. The certification by local government of an owner
or operator shall not preclude the ((director)) department from
disapproving an application for financial assistance if the
((director)) department finds that such assistance would not meet the
purposes of RCW 70.148.120 through 70.148.170.
(6) The ((director)) department may adopt all rules necessary to
implement the financial assistance program and shall consult with the
technical advisory committee established under RCW 70.148.030 in
developing such rules and in reviewing applications for financial
assistance.
(7) This section expires June 1, 2013.
Sec. 214 RCW 70.148.140 and 1991 c 4 s 3 are each amended to read
as follows:
(1) To qualify for financial assistance, a private owner or
operator retailing petroleum products to the public must:
(a) First apply for insurance from the pollution liability
insurance program and request financial assistance in a form and manner
required by the ((director)) department;
(b) If the ((director)) department makes a preliminary
determination of possible eligibility for financial assistance, apply
to the appropriate governing body of the city or town in which the
tanks are located or in the case where the tanks are located outside of
the jurisdiction of a city or town, then to the appropriate governing
body of the county in which the tanks are located, for a determination
by the governing body of the city, town, or county that the continued
operation of the tanks meets a vital local government, or public health
or safety need; and
(c) Qualify for insurance coverage from the pollution liability
insurance program if such financial assistance were to be provided.
(2) In consideration for financial assistance and prior to
receiving such assistance the owner and operator must enter into an
agreement with the state whereby the owner and operator agree:
(a) To sell petroleum products to the public;
(b) To maintain the tank site for use in the retail sale of
petroleum products for a period of not less than fifteen years from the
date of agreement;
(c) To sell petroleum products to local government entities within
the affected community on a cost-plus basis periodically negotiated
between the owner and operator and the city, town, or county in which
the tanks are located; and
(d) To maintain compliance with state underground storage tank
financial responsibility and environmental regulations.
(3) The agreement shall be filed as a real property lien against
the tank site with the county auditor (([of the county])) of the county
in which the tanks are located. If the owner or operator transfers his
or her interest in such property, the new owner or operator must agree
to abide by the agreement or any financial assistance provided under
RCW 70.148.120 through 70.148.170 shall be immediately repaid to the
state by the owner or operator who received such assistance.
(4) As determined by the ((director)) department, if an owner or
operator materially breaches the agreement, any financial assistance
provided shall be immediately repaid by such owner or operator.
(5) The agreement between an owner and operator and the state
required under this section shall expire fifteen years from the date of
entering into the agreement.
(6) This section expires June 1, 2013.
Sec. 215 RCW 70.148.150 and 1991 c 4 s 4 are each amended to read
as follows:
(1) To qualify for financial assistance, a public owner or operator
must:
(a) First apply for insurance from the pollution liability
insurance program and request financial assistance in a form and manner
required by the ((director)) department;
(b) Provide to the ((director)) department a copy of the resolution
by the governing body of the city, town, or county having jurisdiction,
finding that the continued operation of the tanks is necessary to
maintain vital local public health, education, or safety needs;
(c) Qualify for insurance coverage from the pollution liability
insurance program if such financial assistance were to be provided.
(2) The ((director)) department shall give priority to and shall
encourage local government entities to consolidate multiple operational
underground storage tank sites into as few sites as possible. For this
purpose, the ((director)) department may provide financial assistance
for the establishment of a new local government underground storage
tank site contingent upon the closure of other operational sites in
accordance with environmental regulations. Within the per site
financial limits imposed under RCW 70.148.120 through 70.148.170, the
((director)) department may authorize financial assistance for the
closure of operational sites when closure is for the purpose of
consolidation.
(3) This section expires June 1, 2013.
Sec. 216 RCW 70.148.160 and 1991 c 4 s 5 are each amended to read
as follows:
To qualify for financial assistance, a rural hospital ((as defined
in RCW 18.89.020)), owning or operating an underground storage tank
must:
(1) First apply for insurance from the pollution liability
insurance program and request financial assistance in a form and manner
required by the ((director)) department;
(2) Apply to the governing body of the city, town, or county in
which the hospital is located for certification that the continued
operation of the tank or tanks is necessary to maintain vital local
public health or safety needs;
(3) Qualify for insurance coverage from the pollution liability
insurance program if such financial assistance were to be provided; and
(4) Agree to provide charity care ((as defined in RCW 70.39.020))
in an amount of equivalent value to the financial assistance provided
under RCW 70.148.120 through 70.148.170. The ((director)) department
shall consult with the department of health to monitor and determine
the time period over which such care should be expected to be provided
in the local community.
(5) This section expires June 1, 2013.
Sec. 217 RCW 70.148.170 and 1991 c 4 s 6 are each amended to read
as follows:
(1) The ((director)) department shall develop and distribute to
appropriate cities, towns, and counties a form for use by the local
government in making the certification required for all private owner
and operator financial assistance along with instructions on the use of
such form.
(2) In certifying a private owner or operator retailing petroleum
products to the public as meeting vital local government, public health
or safety needs, the local government shall:
(a) Consider and find that other retail suppliers of petroleum
products are located remote from the local community;
(b) Consider and find that the owner or operator requesting
certification is capable of faithfully fulfilling the agreement
required for financial assistance;
(c) Designate the local government official who will be responsible
for negotiating the price of petroleum products to be sold on a cost-plus basis to the local government entities in the affected communities
and the entities eligible to receive petroleum products at such price;
and
(d) State the vital need or needs that the owner or operator meets.
(3) In certifying a hospital as meeting local public health and
safety needs the local government shall:
(a) Consider and find that the continued use of the underground
storage tank by the hospital is necessary; and
(b) Consider and find that the hospital provides health care
services to the poor and otherwise provides charity care.
(4) The ((director)) department shall notify the governing body of
the city, town, or county providing certification when financial
assistance for a private owner or operator has been approved.
(5) This section expires June 1, 2013.
Sec. 218 RCW 70.149.010 and 1995 c 20 s 1 are each amended to
read as follows:
(1) It is the intent of the legislature to establish a temporary
regulatory program to assist owners and operators of heating oil tanks.
The legislature finds that it is in the best interests of all citizens
for heating oil tanks to be operated safely and for tank leaks or
spills to be dealt with expeditiously. The legislature further finds
that it is necessary to protect tank owners from the financial hardship
related to damaged heating oil tanks. The problem is especially acute
because owners and operators of heating oil tanks used for space
heating have been unable to obtain pollution liability insurance or
insurance has been unaffordable.
(2) The pollution liability insurance program established by this
chapter and chapter 70.148 RCW is merged into the department.
(3) This section expires June 1, 2013.
Sec. 219 RCW 70.149.030 and 1995 c 20 s 3 are each amended to
read as follows:
Unless the context clearly requires otherwise, the definitions in
this section apply throughout this chapter.
(1) "Accidental release" means a sudden or nonsudden release of
heating oil, occurring after July 23, 1995, from operating a heating
oil tank that results in bodily injury, property damage, or a need for
corrective action, neither expected nor intended by the owner or
operator.
(2) "Bodily injury" means bodily injury, sickness, or disease
sustained by a person, including death at any time, resulting from the
injury, sickness, or disease.
(3)(a) "Corrective action" means those actions reasonably required
to be undertaken by the insured to remove, treat, neutralize, contain,
or clean up an accidental release in order to comply with a statute,
ordinance, rule, regulation, directive, order, or similar legal
requirement, in effect at the time of an accidental release, of the
United States, the state of Washington, or a political subdivision of
the United States or the state of Washington. "Corrective action"
includes, where agreed to in writing, in advance by the insurer, action
to remove, treat, neutralize, contain, or clean up an accidental
release to avert, reduce, or eliminate the liability of the insured for
corrective action, bodily injury, or property damage. "Corrective
action" also includes actions reasonably necessary to monitor, assess,
and evaluate an accidental release.
(b) "Corrective action" does not include:
(i) Replacement or repair of heating oil tanks or other
receptacles; or
(ii) Replacement or repair of piping, connections, and valves of
tanks or other receptacles.
(4) "Defense costs" include the costs of legal representation,
expert fees, and related costs and expenses incurred in defending
against claims or actions brought by or on behalf of:
(a) The United States, the state of Washington, or a political
subdivision of the United States or state of Washington to require
corrective action or to recover costs of corrective action; or
(b) A third party for bodily injury or property damage caused by an
accidental release.
(5) "Director" means the director of the ((Washington state
pollution liability insurance agency)) department or the director's
appointed representative.
(6) "Heating oil" means any petroleum product used for space
heating in oil-fired furnaces, heaters, and boilers, including stove
oil, diesel fuel, or kerosene. "Heating oil" does not include
petroleum products used as fuels in motor vehicles, marine vessels,
trains, buses, aircraft, or any off-highway equipment not used for
space heating, or for industrial processing or the generation of
electrical energy.
(7) "Heating oil tank" means a tank and its connecting pipes,
whether above or below ground, or in a basement, with pipes connected
to the tank for space heating of human living or working space on the
premises where the tank is located. "Heating oil tank" does not
include a decommissioned or abandoned heating oil tank, or a tank used
solely for industrial process heating purposes or generation of
electrical energy.
(8) "Occurrence" means an accident, including continuous or
repeated exposure to conditions, that results in a release from a
heating oil tank.
(9) "Owner or operator" means a person in control of, or having
responsibility for, the daily operation of a heating oil tank.
(10) "Pollution liability insurance ((agency)) program" or
"program" means the Washington state pollution liability insurance
((agency)) program located within the department.
(11) "Property damage" means:
(a) Physical injury to, destruction of, or contamination of
tangible property, including the loss of use of the property resulting
from the injury, destruction, or contamination; or
(b) Loss of use of tangible property that has not been physically
injured, destroyed, or contaminated but has been evacuated, withdrawn
from use, or rendered inaccessible because of an accidental release.
(12) "Release" means a spill, leak, emission, escape, or leaching
into the environment.
(13) "Remedial action costs" means reasonable costs that are
attributable to or associated with a remedial action.
(14) "Tank" means a stationary device, designed to contain an
accumulation of heating oil, that is constructed primarily of
nonearthen materials such as concrete, steel, fiberglass, or plastic
that provides structural support.
(15) "Third-party liability" means the liability of a heating oil
tank owner to another person due to property damage or personal injury
that results from a leak or spill.
(16) "Department" means the Washington state department of ecology.
This section expires June 1, 2013.
Sec. 220 RCW 70.149.040 and 2009 c 560 s 11 are each amended to
read as follows:
The ((director)) department shall:
(1) Design a program, consistent with RCW 70.149.120, for providing
pollution liability insurance for heating oil tanks that provides up to
sixty thousand dollars per occurrence coverage and aggregate limits,
and protects the state of Washington from unwanted or unanticipated
liability for accidental release claims;
(2) Administer, implement, and enforce the provisions of this
chapter. To assist in administration of the program, the director is
authorized to appoint up to two employees who are exempt from the civil
service law, chapter 41.06 RCW, and who shall serve at the pleasure of
the director;
(3) Administer the heating oil pollution liability trust account,
as established under RCW 70.149.070;
(4) Employ and discharge, at ((his or her)) its discretion, agents,
attorneys, consultants, companies, organizations, and employees as
deemed necessary, and to prescribe their duties and powers, and fix
their compensation;
(5) Adopt rules under chapter 34.05 RCW as necessary to carry out
the provisions of this chapter;
(6) Design and from time to time revise a reinsurance contract
providing coverage to an insurer or insurers meeting the requirements
of this chapter. The ((director)) department is authorized to provide
reinsurance through the pollution liability insurance program trust
account;
(7) Solicit bids from insurers and select an insurer to provide
pollution liability insurance for third-party bodily injury and
property damage, and corrective action to owners and operators of
heating oil tanks;
(8) Register, and design a means of accounting for, operating
heating oil tanks;
(9) Implement a program to provide advice and technical assistance
to owners and operators of active and abandoned heating oil tanks if
contamination from an active or abandoned heating oil tank is
suspected. Advice and assistance regarding administrative and
technical requirements may include observation of testing or site
assessment and review of the results of reports. If the ((director))
department finds that contamination is not present or that the
contamination is apparently minor and not a threat to human health or
the environment, the ((director)) department may provide written
opinions and conclusions on the results of the investigation to owners
and operators of active and abandoned heating oil tanks. The
((agency)) department is authorized to collect, from persons requesting
advice and assistance, the costs incurred by the ((agency)) department
in providing such advice and assistance. The costs may include travel
costs and expenses associated with review of reports and preparation of
written opinions and conclusions. Funds from cost reimbursement must
be deposited in the heating oil pollution liability trust account. The
state of Washington, the department, the pollution liability insurance
((agency)) program, and its officers and employees are immune from all
liability, and no cause of action arises from any act or omission in
providing, or failing to provide, such advice, opinion, conclusion, or
assistance;
(10) Establish a public information program to provide information
regarding liability, technical, and environmental requirements
associated with active and abandoned heating oil tanks;
(11) Monitor ((agency)) program expenditures and seek to minimize
costs and maximize benefits to ensure responsible financial
stewardship;
(12) Study if appropriate user fees to supplement program funding
are necessary and develop recommendations for legislation to authorize
such fees.
This section expires June 1, 2013.
Sec. 221 RCW 70.149.050 and 1995 c 20 s 5 are each amended to
read as follows:
(1) In selecting an insurer to provide pollution liability
insurance coverage to owners and operators of heating oil tanks used
for space heating, the ((director)) department shall evaluate bids
based upon criteria established by the ((director)) department that
shall include:
(a) The insurer's ability to underwrite pollution liability
insurance;
(b) The insurer's ability to settle pollution liability claims
quickly and efficiently;
(c) The insurer's estimate of underwriting and claims adjustment
expenses;
(d) The insurer's estimate of premium rates for providing coverage;
(e) The insurer's ability to manage and invest premiums; and
(f) The insurer's ability to provide risk management guidance to
insureds.
(2) The ((director)) department shall select the bidder most
qualified to provide insurance consistent with this chapter and need
not select the bidder submitting the least expensive bid. The
((director)) department may consider bids by groups of insurers and
management companies who propose to act in concert in providing
coverage and who otherwise meet the requirements of this chapter.
(3) Owners and operators of heating oil tanks, or sites containing
heating oil tanks where a preexisting release has been identified or
where the owner or operator knows of a preexisting release are eligible
for coverage under the program subject to the following conditions:
(a) The owner or operator must have a plan for proceeding with
corrective action; and
(b) If the owner or operator files a claim with the insurer, the
owner or operator has the burden of proving that the claim is not
related to a preexisting release until the owner or operator
demonstrates to the satisfaction of the ((director)) department that
corrective action has been completed.
(4) This section expires June 1, 2013.
Sec. 222 RCW 70.149.060 and 1995 c 20 s 6 are each amended to
read as follows:
(1) The activities and operations of the program are exempt from
the provisions and requirements of Title 48 RCW and to the extent of
their participation in the program, the activities and operations of
the insurer selected by the ((director)) department to provide
liability insurance coverage to owners and operators of heating oil
tanks are exempt from the requirements of Title 48 RCW except for:
(a) Chapter 48.03 RCW pertaining to examinations;
(b) RCW 48.05.250 pertaining to annual reports;
(c) Chapter 48.12 RCW pertaining to assets and liabilities;
(d) Chapter 48.13 RCW pertaining to investments;
(e) Chapter 48.30 RCW pertaining to deceptive, false, or fraudulent
acts or practices; and
(f) Chapter 48.92 RCW pertaining to liability risk retention.
(2) To the extent of their participation in the program, the
insurer selected by the ((director)) department to provide liability
insurance coverage to owners and operators of heating oil tanks shall
not participate in the Washington insurance guaranty association nor
shall the association be liable for coverage provided to owners and
operators of heating oil tanks issued in connection with the program.
(3) This section expires June 1, 2013.
Sec. 223 RCW 70.149.090 and 2005 c 274 s 342 are each amended to
read as follows:
The following shall be confidential and exempt under chapter 42.56
RCW, subject to the conditions set forth in this section:
(1) All examination and proprietary reports and information
obtained by the ((director)) department and the ((director's))
department's staff in soliciting bids from insurers and in monitoring
the insurer selected by the ((director)) department may not be made
public or otherwise disclosed to any person, firm, corporation, agency,
association, governmental body, or other entity.
(2) All information obtained by the ((director)) department or the
((director's)) department's staff related to registration of heating
oil tanks to be insured may not be made public or otherwise disclosed
to any person, firm, corporation, agency, association, governmental
body, or other entity.
(3) The ((director)) department may furnish all or part of
examination reports prepared by the ((director)) department or by any
person, firm, corporation, association, or other entity preparing the
reports on behalf of the ((director)) department to:
(a) The Washington state insurance commissioner;
(b) A person or organization officially connected with the insurer
as officer, director, attorney, auditor, or independent attorney or
independent auditor; and
(c) The attorney general in his or her role as legal advisor to the
((director)) department.
This section expires June 1, 2013.
Sec. 224 RCW 70.149.120 and 2007 c 240 s 2 are each amended to
read as follows:
(1) The ((pollution liability insurance agency)) department shall
identify design criteria for heating oil tanks that provide superior
protection against future leaks as compared to standard steel tank
designs. Any tank designs identified under this section must either be
constructed with fiberglass or offer at least an equivalent level of
protection against leaks as a standard fiberglass design.
(2) The ((pollution liability insurance agency)) department shall
reimburse any owner or operator, who is participating in the program
created in this chapter and who has experienced an occurrence or
remedial action, for the difference in price between a standard steel
heating tank and a new heating oil tank that satisfies the design
standards identified under subsection (1) of this section, if the owner
or operator chooses or is required to replace his or her tank at the
time of the occurrence or remedial action.
(3) Any new heating oil tank reimbursement provided under this
section must be funded within the amount of per occurrence coverage
provided to the owner or operator under RCW 70.149.040.
(4) This section expires June 1, 2013.
NEW SECTION. Sec. 225 A new section is added to chapter 70.148
RCW to read as follows:
(1) The pollution liability insurance agency is transferred to the
department.
(2)(a) All reports, documents, surveys, books, records, files,
papers, or written material in the possession of the pollution
liability insurance agency shall be delivered to the custody of the
department of ecology. All cabinets, furniture, office equipment,
motor vehicles, and other tangible property employed by the pollution
liability insurance agency shall be transferred to the department of
ecology. All funds, credits, or other assets held by the pollution
liability insurance agency shall be assigned to the department of
ecology.
(b) Any appropriations made to the pollution liability insurance
agency shall be transferred and credited to the department of ecology.
(c) If any question arises as to the transfer of any personnel,
funds, books, documents, records, papers, files, equipment, or other
tangible property used or held in the exercise of the powers and the
performance of the duties and functions transferred, the director of
financial management shall make a determination as to the proper
allocation and certify the same to the state agencies concerned.
(3) All employees of the pollution liability insurance agency are
transferred to the jurisdiction of the department of ecology. All
employees classified under chapter 41.06 RCW, the state civil service
law, are assigned to the department of ecology to perform their usual
duties upon the same terms as formerly, without any loss of rights,
subject to any action that may be appropriate thereafter in accordance
with the laws and rules governing state civil service.
(4) All rules and all pending business before the pollution
liability insurance agency shall be continued and acted upon by the
pollution liability insurance program as part of the department of
ecology. All existing contracts and obligations shall remain in full
force and shall be performed by the pollution liability insurance
program as part of the department of ecology.
(5) The transfer of the powers, duties, functions, and personnel of
the pollution liability insurance agency to the department of ecology
under this act shall not affect the validity of any activity performed
before the effective date of this section or the effective date of the
consolidation.
(6) If apportionments of budgeted funds are required because of the
consolidation directed by this section, the director of financial
management shall certify the apportionments to the affected agencies,
the state auditor, and the state treasurer. Each of these shall make
the appropriate transfer and adjustments in funds and appropriation
accounts and equipment records in accordance with the certification.
(7) All classified employees of the pollution liability insurance
agency assigned to the department of ecology under this act whose
positions are within an existing bargaining unit description at the
department of ecology shall become a part of the existing bargaining
unit at the department of ecology and shall be considered an
appropriate inclusion or modification of the existing bargaining unit
under the provisions of chapter 41.80 RCW.
(8) This section expires June 1, 2013.
Sec. 226 RCW 90.46.005 and 2007 c 445 s 2 are each amended to
read as follows:
The legislature finds that by encouraging the use of reclaimed
water while assuring the health and safety of all Washington citizens
and the protection of its environment, the state of Washington will
continue to use water in the best interests of present and future
generations.
To facilitate the immediate use of reclaimed water for uses
approved by the department((s)) of ecology ((and health)), the state
shall expand both direct financial support and financial incentives for
capital investments in water reuse and reclaimed water to effectuate
the goals of this chapter. The legislature further directs ((the
department of health and)) the department of ecology to ((coordinate
efforts towards developing)) develop an efficient and streamlined
process for creating and implementing processes for the use of
reclaimed water.
It is hereby declared that the people of the state of Washington
have a primary interest in the development of facilities to provide
reclaimed water to replace potable water in nonpotable applications, to
supplement existing surface and ground water supplies, and to assist in
meeting the future water requirements of the state.
The legislature further finds and declares that the utilization of
reclaimed water by local communities for domestic, agricultural,
industrial, recreational, and fish and wildlife habitat creation and
enhancement purposes, including wetland enhancement, will contribute to
the peace, health, safety, and welfare of the people of the state of
Washington. To the extent reclaimed water is appropriate for
beneficial uses, it should be so used to preserve potable water for
drinking purposes, contribute to the restoration and protection of
instream flows that are crucial to preservation of the state's salmonid
fishery resources, contribute to the restoration of Puget Sound by
reducing wastewater discharge, provide a drought resistant source of
water supply for nonpotable needs, or be a source of supply integrated
into state, regional, and local strategies to respond to population
growth and global warming. Use of reclaimed water constitutes the
development of new basic water supplies needed for future generations
and local and regional water management planning should consider
coordination of infrastructure, development, storage, water reclamation
and reuse, and source exchange as strategies to meet water demands
associated with population growth and impacts of global warming.
The legislature further finds and declares that the use of
reclaimed water is not inconsistent with the policy of antidegradation
of state waters announced in other state statutes, including the water
pollution control act, chapter 90.48 RCW and the water resources act,
chapter 90.54 RCW.
The legislature finds that other states, including California,
Florida, and Arizona, have successfully used reclaimed water to
supplement existing water supplies without threatening existing
resources or public health.
It is the intent of the legislature that the department of ecology
((and the department of health)) undertake the necessary steps to
encourage the development of water reclamation facilities so that
reclaimed water may be made available to help meet the growing water
requirements of the state.
The legislature further finds and declares that reclaimed water
facilities are water pollution control facilities as defined in chapter
70.146 RCW and are eligible for financial assistance as provided in
chapter 70.146 RCW. The legislature finds that funding demonstration
projects will ensure the future use of reclaimed water. ((The
demonstration projects in RCW 90.46.110 are varied in nature and will
provide the experience necessary to test different facets of the
standards and refine a variety of technologies so that water purveyors
can begin to use reclaimed water technology in a more cost-effective
manner.)) This is especially critical in smaller cities and
communities where the feasibility for such projects is great, but there
are scarce resources to develop the necessary facilities.
The legislature further finds that the agricultural processing
industry can play a critical and beneficial role in promoting the
efficient use of water by having the opportunity to develop and reuse
agricultural industrial process water from food processing.
Sec. 227 RCW 90.46.010 and 2009 c 456 s 1 are each amended to
read as follows:
The definitions in this section apply throughout this chapter
unless the context clearly requires otherwise.
(1) "Agricultural industrial process water" means water that has
been used for the purpose of agricultural processing and has been
adequately and reliably treated, so that as a result of that treatment,
it is suitable for other agricultural water use.
(2) "Agricultural processing" means the processing of crops or milk
to produce a product primarily for wholesale or retail sale for human
or animal consumption, including but not limited to potato, fruit,
vegetable, and grain processing.
(3) "Agricultural water use" means the use of water for irrigation
and other uses related to the production of agricultural products.
These uses include, but are not limited to, construction, operation,
and maintenance of agricultural facilities and livestock operations at
farms, ranches, dairies, and nurseries. Examples of these uses
include, but are not limited to, dust control, temperature control, and
fire control.
(4) "Constructed beneficial use wetlands" means those wetlands
intentionally constructed on nonwetland sites to produce or create
natural wetland functions and values.
(5) "Constructed treatment wetlands" means wetland-like
impoundments intentionally constructed on nonwetland sites and managed
for the primary purpose of further treatment or retention of reclaimed
water as distinct from creating natural wetland functions and values.
(6) "Direct groundwater recharge" means the controlled subsurface
addition of water directly into groundwater for the purpose of
replenishing groundwater.
(7) "Domestic wastewater" means wastewater from greywater, toilet,
or urinal sources.
(8) "Greywater or gray water" means domestic type flows from
bathtubs, showers, bathroom sinks, washing machines, dishwashers, and
kitchen or utility sinks. Gray water does not include flow from a
toilet or urinal.
(9) "Industrial reuse water" means water that has been used for the
purpose of industrial processing and has been adequately and reliably
treated so that, as a result of that treatment, it is suitable for
other uses.
(10) "Land application" means use of reclaimed water as permitted
under this chapter for the purpose of irrigation or watering of
landscape vegetation.
(11) (("Lead agency" means either the department of health or the
department of ecology that has been designated by rule as the agency
that will coordinate, review, issue, and enforce a reclaimed water
permit issued under this chapter.)) "Person" means any state, individual, public or private
corporation, political subdivision, governmental subdivision,
governmental agency, municipality, copartnership, association, firm,
trust estate, or any other legal entity whatever.
(12) "Nonlead agency" means either the department of health or the
department of ecology, whichever is not the lead agency for purposes of
this chapter.
(13)
(((14))) (12) "Planned groundwater recharge project" means any
reclaimed water project designed for the purpose of recharging
groundwater.
(((15))) (13) "Reclaimed water" means water derived in any part
from wastewater with a domestic wastewater component that has been
adequately and reliably treated, so that it can be used for beneficial
purposes. Reclaimed water is not considered a wastewater.
(((16))) (14) "State drinking water contaminant criteria" means the
contaminant criteria found in the drinking water quality standards
adopted by the state board of health pursuant to chapter 43.20 RCW and
the department of health pursuant to chapter 70.119A RCW.
(((17))) (15) "Streamflow or surface water augmentation" means the
intentional use of reclaimed water for rivers and streams of the state
or other surface water bodies, for the purpose of increasing volumes.
(((18))) (16) "Surface percolation" means the controlled
application of water to the ground surface or to unsaturated soil for
the purpose of replenishing groundwater.
(((19))) (17) "User" means any person who uses reclaimed water.
(((20))) (18) "Wastewater" means water-carried wastes from
residences, buildings, industrial and commercial establishments, or
other places, together with such groundwater infiltration and inflow as
may be present.
(((21))) (19) "Wetland or wetlands" means areas that are inundated
or saturated by surface water or groundwater at a frequency and
duration sufficient to support, and that under normal circumstances do
support, a prevalence of vegetation typically adapted to life in
saturated soil conditions. Wetlands generally include swamps, marshes,
bogs, and similar areas. Wetlands regulated under this chapter shall
be delineated in accordance with the manual adopted by the department
of ecology pursuant to RCW 90.58.380.
(20) "Department" means the department of ecology.
Sec. 228 RCW 90.46.015 and 2009 c 456 s 2 are each amended to
read as follows:
(1) The department ((of ecology)) shall((, in coordination with the
department of health,)) adopt rules for reclaimed water use consistent
with this chapter. The rules must address all aspects of reclaimed
water use, including commercial and industrial uses, land applications,
direct groundwater recharge, wetland discharge, surface percolation,
constructed wetlands, and streamflow or surface water augmentation.
The department of health shall, in coordination with the department
((of ecology)), adopt rules for greywater reuse. ((The rules must also
designate whether the department of ecology or the department of health
will be the lead agency responsible for a particular aspect of
reclaimed water use.)) In developing the rules, the ((departments of
health and ecology)) department shall amend or rescind any existing
rules on reclaimed water in conflict with the new rules.
(2) All rules required to be adopted pursuant to this section must
be completed no later than December 31, 2010, although the department
((of ecology)) is encouraged to adopt the final rules as soon as
possible.
(3) The department ((of ecology)) must consult with the advisory
committee created under RCW 90.46.050 in all aspects of rule
development required under this section.
Sec. 229 RCW 90.46.030 and 2006 c 279 s 5 are each amended to
read as follows:
(1)(((a) The department of health shall, in coordination with the
department of ecology, adopt a single set of standards, procedures, and
guidelines on or before August 1, 1993, for the industrial and
commercial use of reclaimed water.)) The department ((
(b) Standards adopted under this section are superseded by any
rules adopted by the department of ecology pursuant to RCW 90.46.015 as
they relate to the industrial and commercial use of reclaimed water.
(2) Unlessof ecology adopts)) shall adopt rules
pursuant to RCW 90.46.015 that relate to the industrial and commercial
use of reclaimed water ((specifying otherwise,)). The department ((of
health)) may issue a reclaimed water permit for industrial and
commercial uses of reclaimed water to the generator of reclaimed water
who may then distribute the water, subject to provisions in the permit
governing the location, rate, water quality, and purposes of use.
Permits issued after the adoption of rules under RCW 90.46.015 must be
consistent with the adopted rules.
(((3))) (2) The department ((of health)) in consultation with the
advisory committee established in RCW 90.46.050, shall develop
recommendations for a fee structure for permits issued under
((subsection (2) of)) this ((section)) chapter. Fees shall be
established in amounts to fully recover, and not exceed, expenses
incurred by the department ((of health)) in processing permit
applications and modifications, monitoring and evaluating compliance
with permits, and conducting inspections and supporting the reasonable
overhead expenses that are directly related to these activities.
Permit fees may not be used for research or enforcement activities.
((The department of health shall not issue permits under this section
until a fee structure has been established.)) (3) A permit under this section for use of reclaimed water
may be issued only to:
(4)
(a) A municipal, quasi-municipal, or other governmental entity;
(b) A private utility as defined in RCW 36.94.010; ((or))
(c) The holder of a waste discharge permit issued under chapter
90.48 RCW or operating permit under chapter 70.118B RCW; or
(d) The owner of an agricultural processing facility that is
generating agricultural industrial process water for agricultural use,
or the owner of an industrial facility that is generating industrial
process water for reuse.
(((5))) (4) The authority and duties created in this section are in
addition to any authority and duties already provided in law with
regard to sewage and wastewater collection, treatment, and disposal for
the protection of health and safety of the state's waters. Nothing in
this section limits the powers of the state or any political
subdivision to exercise such authority.
(((6) Unless the department of ecology adopts rules pursuant to RCW
90.46.015 that relate to the industrial and commercial use of reclaimed
water specifying otherwise, the department of health may implement the
requirements of this section through the department of ecology by
execution of a formal agreement between the departments. Upon
execution of such an agreement, the department of ecology may issue
reclaimed water permits for industrial and commercial uses of reclaimed
water by issuance of permits under chapter 90.48 RCW, and may establish
and collect fees as required for permits issued under chapter 90.48
RCW.))
(7) Unless the department of ecology adopts rules pursuant to RCW
90.46.015 that relate to the industrial and commercial use of reclaimed
water specifying otherwise, and
(5) Before deciding whether to issue a permit under this section to
a private utility, the department ((of health)) may require information
that is reasonable and necessary to determine whether the private
utility has the financial and other resources to ensure the
reliability, continuity, and supervision of the reclaimed water
facility.
Sec. 230 RCW 90.46.050 and 2006 c 279 s 2 are each amended to
read as follows:
The department ((of ecology)) shall((, before July 1, 2006,)) form
an advisory committee((, in coordination with the department of health
and the department of agriculture,)) which will provide technical
assistance in the development of standards, procedures, and guidelines
required by this chapter. The advisory committee shall be composed of
a broad range of interested individuals representing the various
stakeholders that utilize or are potentially impacted by the use of
reclaimed water and include a representative from the department of
health and a representative from the department of agriculture. The
advisory committee must also contain individuals with technical
expertise and knowledge of new advancements in technology.
Sec. 231 RCW 90.46.090 and 2006 c 279 s 10 are each amended to
read as follows:
(1) Reclaimed water may be beneficially used for discharge into
constructed beneficial use wetlands and constructed treatment wetlands
provided the reclaimed water meets the class A or B reclaimed water
standards as defined in the reclamation criteria, and the discharge is
incorporated into a sewer or water comprehensive plan, as applicable,
adopted by the applicable local government and approved by the
department of health or department of ecology as applicable.
(2) Reclaimed water that does not meet the class A or B reclaimed
water standards may be beneficially used for discharge into constructed
treatment wetlands where the department ((of ecology, in consultation
with the department of health,)) has specifically authorized such use
at such lower standards.
(3)(a) The department ((of ecology and the department of health))
must develop appropriate standards for discharging reclaimed water into
constructed beneficial use wetlands and constructed treatment wetlands.
These standards must be considered as part of the approval process
under subsections (1) and (2) of this section.
(b) Standards adopted under this section are superseded by any
rules adopted by the department ((of ecology)) pursuant to RCW
90.46.015 as they relate to discharge into constructed beneficial use
wetlands and constructed treatment wetlands.
Sec. 232 RCW 90.46.120 and 2009 c 456 s 5 are each amended to
read as follows:
(1) The owner of a wastewater treatment facility that is reclaiming
water with a permit issued under this chapter has the exclusive right
to any reclaimed water generated by the wastewater treatment facility.
Use, distribution, storage, and the recovery from storage of reclaimed
water permitted under this chapter is exempt from the permit
requirements of RCW 90.03.250 and 90.44.060, provided that a permit for
recovery of reclaimed water from aquifer storage shall be reviewed
under the standards established under RCW 90.03.370(2) for aquifer
storage and recovery projects. Revenues derived from the reclaimed
water facility shall be used only to offset the cost of operation of
the wastewater utility fund or other applicable source of systemwide
funding.
(2) If the proposed use of reclaimed water is to augment or replace
potable water supplies or to create the potential for the development
of an additional new potable water supply, then regional water supply
plans, or any other potable water supply plans prepared by multiple
water purveyors, must consider the proposed use of the reclaimed water
as they are developed or updated.
(a) Regional water supply plans include those adopted under state
board of health laws (chapter 43.20 RCW), the public water system
coordination act of 1977 (chapter 70.116 RCW), groundwater protection
laws (chapter 90.44 RCW), and the watershed planning act (chapter 90.82
RCW).
(b) The requirement to consider the use of reclaimed water does not
change the plan approval process established under these statutes.
(c) When regional water supply plans are being developed, the
owners of wastewater treatment facilities that produce or propose to
produce reclaimed water for use within the planning area must be
included in the planning process.
(3) When reclaimed water is available or is proposed for use under
a water supply or wastewater plan developed under chapter 43.20,
70.116, 90.44, 90.48, or 90.82 RCW these plans must be coordinated to
ensure that opportunities for reclaimed water are evaluated. The
requirements of this subsection (3) do not apply to water system plans
developed under chapter 43.20 RCW for utilities serving less than one
thousand service connections.
(4) The provisions of any plan for reclaimed water, developed under
the authorities in subsections (2) and (3) of this section, should be
included by a city, town, or county in reviewing provisions for water
supplies in a proposed short plat, short subdivision, or subdivision
under chapter 58.17 RCW, where reclaimed water supplies may be proposed
for nonpotable purposes in the short plat, short subdivision, or
subdivision.
(((5) By November 30, 2009, the department of ecology shall review
comments from the reclaimed water advisory committee under RCW
90.46.050 and the reclaimed water and water rights advisory committee
under the direction of the department of ecology and submit a
recommendation to the legislature on the impairment requirements and
standards for reclaimed water. The department of ecology shall also
provide a report to the legislature that describes the opinions of the
stakeholders on the impairment requirements and standards for reclaimed
water.))
Sec. 233 RCW 90.46.150 and 2001 c 69 s 3 are each amended to read
as follows:
The permit to apply agricultural industrial process water to
agricultural water use shall be the permit issued under chapter 90.48
RCW to the owner of the agricultural processing plant who may then
distribute the water through methods including, but not limited to,
irrigation systems, subject to provisions in the permit governing the
location, rate, water quality, and purpose. ((In cases where the
department of ecology determines that a significant risk to public
health exists, in land application of the water, the department must
refer the application to the department of health for review and
consultation.))
The owner of the agricultural processing plant who obtains a permit
under this section has the exclusive right to the use of any
agricultural industrial process water generated from the plant and to
the distribution of such water through facilities including irrigation
systems. Use and distribution of the water by the owner is exempt from
the permit requirements of RCW 90.03.250, 90.03.380, 90.44.060, and
90.44.100.
Nothing in chapter 69, Laws of 2001 shall be construed to affect
any right to reuse agricultural industrial discharge water in existence
on or before July 22, 2001.
Sec. 234 RCW 90.46.160 and 2002 c 329 s 6 are each amended to
read as follows:
(1) The permit to use industrial reuse water shall be the permit
issued under chapter 90.48 RCW to the owner of the plant that is the
source of the industrial process water, who may then distribute the
water according to provisions in the permit governing the location,
rate, water quality, and purpose. ((In cases where the department of
ecology determines that a proposed use may pose a significant risk to
public health, the department shall refer the permit application to the
department of health for review and consultation.))
(2) The owner of the industrial plant who obtains a permit under
this section has the exclusive right to the use of any industrial reuse
water generated from the plant and to the distribution of such water.
Use and distribution of the water by the owner is exempt from the
permit requirements of RCW 90.03.250, 90.03.380, 90.44.060, and
90.44.100.
(3) Nothing in this section affects any right to reuse industrial
process water in existence on or before June 13, 2002.
Sec. 235 RCW 90.46.200 and 2009 c 456 s 7 are each amended to
read as follows:
(1) ((The department of ecology and the department of health shall
have authority to carry out all the provisions of this chapter
including, but not limited to, permitting and enforcement. Only the
department of ecology or the department of health may act as a lead
agency for purposes of this chapter and will be established as such by
rule. Enforcement of a permit issued under this chapter shall be at
the sole discretion of the lead agency that issued the permit.)) The department shall consult with the department of health in
cases where a proposed use of reclaimed water may pose a significant
risk to public health.
(2) All permit applications shall be referred to the nonlead agency
for review and consultation. The nonlead agency may choose to limit
the scope of its review.
(3)
(2) The authority and duties created in this chapter are in
addition to any authority and duties already provided in law. Nothing
in this chapter limits the powers of the state or any political
subdivision to exercise such authority.
Sec. 236 RCW 90.46.210 and 2009 c 456 s 8 are each amended to
read as follows:
The ((lead agency)) 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, as may be necessary to
carry out the provisions of this chapter. The ((lead agency))
department may bring the action in the superior court of the county in
which the violation occurred or in the superior court of Thurston
county. The court may award reasonable attorneys' fees for the cost of
the attorney general's office in representing the ((lead agency))
department.
Sec. 237 RCW 90.46.220 and 2009 c 456 s 9 are each amended to
read as follows:
(1) Any person proposing to generate any type of reclaimed water
for a use regulated under this chapter shall obtain a permit from the
((lead agency)) department prior to distribution or use of that water.
The permittee may then distribute and use the water, subject to the
provisions in the permit. The permit must include provisions that
protect human health and the environment. At a minimum, the permit
must:
(a) Assure adequate and reliable treatment; and
(b) Govern the water quality, location, rate, and purpose of use.
(2) A permit under this chapter may be issued only to:
(a) A municipal, quasi-municipal, or other governmental entity;
(b) A private utility as defined in RCW 36.94.010;
(c) The holder of a waste disposal permit issued under chapter
90.48 RCW or operating permit under chapter 70.118B RCW; or
(d) The owner of an agricultural processing facility that is
generating agricultural industrial process water for agricultural use,
or the owner of an industrial facility that is generating industrial
process water for reuse.
(3) Before deciding whether to issue a permit under this section to
a private utility, the ((lead agency)) department may require
information that is reasonable and necessary to determine whether the
private utility has the financial and other resources to ensure the
reliability, continuity, and supervision of the reclaimed water
facility.
(4) Permits shall be issued for a fixed term specified by the rules
adopted under RCW 90.46.015. A permittee shall apply for permit
renewal prior to the end of the term. The rules adopted under RCW
90.46.015 shall specify the process of renewal, modification, change of
ownership, suspension, and termination.
(5) The ((lead agency)) department may deny an application for a
permit or modify, suspend, or revoke a permit for good cause, including
but not limited to, any case in which it finds that the permit was
obtained by fraud or misrepresentation, or there is or has been a
failure, refusal, or inability to comply with the requirements of this
chapter or the rules adopted under this chapter.
(6) The ((lead agency)) department shall provide for adequate
public notice and opportunity for review and comment on all initial
permit applications and renewal applications. Methods for providing
notice may include electronic mail, posting on the ((lead agency's))
department's internet site, publication in a local newspaper, press
releases, mailings, or other means of notification the ((lead agency))
department determines appropriate. The ((lead agency)) department
shall also publicize notice of final permitting decisions.
(7) Any person aggrieved by a permitting decision has the right to
an adjudicative proceeding. An adjudicative proceeding conducted under
this subsection is governed by chapter 34.05 RCW. ((For any permit
decision for which the department of ecology is the lead agency under
this chapter,)) Any appeal shall be in accordance with chapter 43.21B
RCW. ((For any permit decision for which department of health is the
lead agency under this chapter, any application for an adjudicative
proceeding must be in writing, state the basis for contesting the
action, include a copy of the decision, be served on and received by
the department of health within twenty-eight days of receipt of notice
of the final decision, and be served in a manner that shows proof of
receipt.))
(8) Permit requirements for the distribution and use of greywater
will be established in rules adopted by the department of health under
RCW 90.46.015.
Sec. 238 RCW 90.46.230 and 2009 c 456 s 10 are each amended to
read as follows:
(1)(a) Except as otherwise provided in (b) of this subsection, the
((lead agency)) department or its designee shall have the right to
enter and inspect any property related to the purpose of the permit,
public or private, at reasonable times with prior notification in order
to determine compliance with laws and rules administered by the ((lead
agency)) department. During such inspections, the ((lead agency))
department shall have free and unimpeded access to all data,
facilities, and property involved in the generation, distribution, and
use of reclaimed water.
(b) The ((lead agency)) department or its designee need not give
prior notification to enter property under (a) of this subsection if
the purpose of the entry is to ensure compliance by the permittee with
a prior order of the ((lead agency)) department or if the ((lead
agency)) department or its designee has reasonable cause to believe
there is a violation of the law that poses a serious threat to public
health and safety or the environment.
(2) The ((lead agency)) department or its designee may apply for an
administrative search warrant to a court of competent jurisdiction and
an administrative search warrant may issue where:
(a) The ((lead agency)) department has attempted an inspection
under this chapter and access has been actually or constructively
denied; or
(b) There is reasonable cause to believe that a violation of this
chapter or rules adopted under this chapter is occurring or has
occurred.
Sec. 239 RCW 90.46.240 and 2009 c 456 s 11 are each amended to
read as follows:
All required feasibility studies, planning documents, engineering
reports, and plans and specifications for the construction of new
reclaimed water, agricultural industrial process water, and industrial
reuse water facilities, including generation, distribution, and use
facilities, or for improvements or extensions to existing facilities,
and the proposed method of future operation and maintenance of said
facility or facilities, shall be submitted to and be approved by the
((lead agency)) department, before construction thereof may begin. No
approval shall be given until the ((lead agency)) department is
satisfied that the plans, reports, and specifications and the methods
of operation and maintenance submitted are adequate to protect the
quality of the water for the intended use as provided for in this
chapter and are adequate to protect public health and safety as
necessary.
Sec. 240 RCW 90.46.250 and 2009 c 456 s 12 are each amended to
read as follows:
(1) When, in the opinion of the ((lead agency)) department, a
person violates or creates a substantial potential to violate this
chapter, the ((lead agency)) department shall notify the person of its
determination by registered mail. The determination shall not
constitute an appealable order or directive. Within thirty days from
the receipt of notice of such determination, the person shall file with
the ((lead agency)) department a full report stating what steps have
been and are being taken to comply with the determination of the ((lead
agency)) department. After the full report is filed or after the
thirty days have elapsed, the ((lead agency)) department may issue the
order or directive as it deems appropriate under the circumstances,
shall notify the person by registered mail, and shall inform the person
of the process for requesting an adjudicative hearing.
(2) When it appears to the ((lead agency)) department that water
quality conditions or other conditions exist which require immediate
action to protect human health and safety or the environment, the
((lead agency)) department may issue a written order to the person or
persons responsible without first issuing a notice of determination
pursuant to subsection (1) 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, and shall inform
the person or persons responsible of the process for requesting an
adjudicative hearing.
Sec. 241 RCW 90.46.260 and 2009 c 456 s 13 are each amended to
read as follows:
Any person found guilty of willfully violating any of the
provisions of this chapter, or any final written orders or directive of
the ((lead agency)) department or a court in pursuance thereof, is
guilty of a gross misdemeanor, and upon conviction thereof shall be
punished by a fine of up to ten thousand dollars and costs of
prosecution, or by imprisonment in the county jail for not more than
one year, or both, in the discretion of the court. Each day upon which
a willful violation of the provisions of this chapter occurs may be
deemed a separate and additional violation.
Sec. 242 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.
(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)) 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 ((lead
agency)) department.
(4) If no appeal is taken from a final administrative order
assessing a civil penalty under this chapter, the ((lead agency))
department 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)) department and in the amount of the penalty assessed in
the final administrative order.
(5) ((When the penalty herein provided for is imposed by the
department of ecology, it)) The penalty 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.))
NEW SECTION. Sec. 243 A new section is added to chapter 90.46
RCW to read as follows:
(1) The reclaimed water program is transferred from the department
of health to the department of ecology.
(2)(a) All reports, documents, surveys, books, records, files,
papers, or written material in the possession of the department of
health reclaimed water program shall be delivered to the custody of the
department of ecology. All cabinets, furniture, office equipment,
motor vehicles, and other tangible property employed by the department
of health reclaimed water program shall be transferred to the
department of ecology. All funds, credits, or other assets held by the
department of health reclaimed water program shall be assigned to the
department of ecology.
(b) Any appropriations made to the department of health for the
reclaimed water program shall be transferred and credited to the
department of ecology.
(c) If any question arises as to the transfer of any personnel,
funds, books, documents, records, papers, files, equipment, or other
tangible property used or held in the exercise of the powers and the
performance of the duties and functions transferred, the director of
financial management shall make a determination as to the proper
allocation and certify the same to the state agencies concerned.
(3) All employees of the department of health reclaimed water
program are transferred to the jurisdiction of the department of
ecology. All employees classified under chapter 41.06 RCW, the state
civil service law, are assigned to the department of ecology to perform
their usual duties upon the same terms as formerly, without any loss of
rights, subject to any action that may be appropriate thereafter in
accordance with the laws and rules governing state civil service.
(4) All rules and all pending business before the department of
health reclaimed water program shall be continued and acted upon by the
department of ecology. All existing contracts and obligations shall
remain in full force and shall be performed by the department of
ecology.
(5) The transfer of the powers, duties, functions, and personnel of
the department of health reclaimed water program to the department of
ecology under this act shall not affect the validity of any activity
performed before the effective date of this section or the effective
date of the consolidation.
(6) If apportionments of budgeted funds are required because of the
consolidation directed by this section, the director of financial
management shall certify the apportionments to the affected agencies,
the state auditor, and the state treasurer. Each of these shall make
the appropriate transfer and adjustments in funds and appropriation
accounts and equipment records in accordance with the certification.
(7) All classified employees of the department of health reclaimed
water program assigned to the department of ecology under this act
whose positions are within an existing bargaining unit description at
the department of health shall become a part of the existing bargaining
unit at the department of ecology and shall be considered an
appropriate inclusion or modification of the existing bargaining unit
under the provisions of chapter 41.80 RCW.
NEW SECTION. Sec. 244 The following acts or parts of acts are
each repealed:
(1) RCW 90.46.020 (Interim standards for pilot projects for use of
reclaimed water) and 1992 c 204 s 3;
(2) RCW 90.46.072 (Conflict resolution -- Reclaimed water projects
and chapter 372-32 WAC) and 1995 c 342 s 8; and
(3) RCW 90.46.110 (Reclaimed water demonstration program--Demonstration projects) and 1997 c 355 s 2.
NEW SECTION. Sec. 245 A new section is added to chapter 43.97
RCW to read as follows:
(1) As authorized by this chapter for the state of Washington, the
department of ecology shall provide administrative and functional
assistance to the Columbia River Gorge commission. This provision of
administrative and functional assistance does not alter the legal
status of the commission as a bistate compact entity or confer the
status of state agency upon the commission.
(2) Pursuant to RCW 43.97.015 Article IV b., the governor
designates the director of the department of ecology. The commission
shall submit a budget of its estimated expenditures to the director of
the department of ecology. The department of ecology shall include a
request for funding for the commission as a separate program in its
budget submittal to the governor. The department shall separately
account for the commission funding.
Sec. 246 RCW 43.200.015 and 1989 c 322 s 1 are each amended to
read as follows:
As used in this chapter, the following terms have the meanings
indicated unless the context clearly requires otherwise.
(1) "High-level radioactive waste" means "high-level radioactive
waste" as the term is defined in 42 U.S.C. Sec. 10101 (P.L. 97-425).
(2) "Low-level radioactive waste" means waste material that
contains radioactive nuclides emitting primarily beta or gamma
radiation, or both, in concentrations or quantities that exceed
applicable federal or state standards for unrestricted release. Low-level waste does not include waste containing more than one hundred
nanocuries of transuranic contaminants per gram of material, nor spent
nuclear fuel, nor material classified as either high-level radioactive
waste or waste that is unsuited for disposal by near-surface burial
under any applicable federal regulations.
(3) "Radioactive waste" means both high-level and low-level
radioactive waste.
(4) "Spent nuclear fuel" means spent nuclear fuel as the term is
defined in 42 U.S.C. Sec. 10101.
(5) "Department" means the department of ecology.
(6) "Commercial low-level radioactive waste disposal facility" has
the same meaning as "facility" as defined in RCW 43.145.010.
Sec. 247 RCW 43.200.080 and 2003 1st sp.s. c 21 s 1 are each
amended to read as follows:
The director of ecology shall, in addition to the powers and duties
otherwise imposed by law, have the following special powers and duties:
(1) To fulfill the responsibilities of the state under the lease
between the state of Washington and the federal government executed
September 10, 1964, as amended, covering approximately one ((thousand))
hundred fifteen acres of land lying within the Hanford reservation near
Richland, Washington. The department of ecology may sublease to
private or public entities all or a portion of the land for specific
purposes or activities which are determined, after public hearing, to
be in agreement with the terms of the lease and in the best interests
of the citizens of the state consistent with any criteria that may be
developed as a requirement by the legislature;
(2) To assume the responsibilities of the state under the perpetual
care agreement between the state of Washington and the federal
government executed July 29, 1965, and the sublease between the state
of Washington and the site operator of the ((Hanford)) commercial low-level radioactive waste disposal facility. In order to finance
perpetual surveillance and maintenance under the agreement and ensure
site closure under the sublease, the department of ecology shall impose
and collect fees from parties holding radioactive materials for waste
management purposes. The fees shall be established by rule adopted
under chapter 34.05 RCW and shall be an amount determined by the
department of ecology to be necessary to defray the estimated liability
of the state. Such fees shall reflect equity between the disposal
facilities of this and other states. A site closure account and a
perpetual surveillance and maintenance account ((is)) are hereby
created in the state treasury. Site use permit fees collected by the
department of health under RCW 70.98.085(3) must be deposited in the
site closure account and must be used as specified in RCW 70.98.085(3).
Funds in the site closure account other than site use permit fee funds
shall be exclusively available to reimburse, to the extent that moneys
are available in the account, the site operator for its costs plus a
reasonable profit as agreed by the operator and the state, or to
reimburse the state licensing agency and any agencies under contract to
the state licensing agency for their costs in final closure and
decommissioning of the ((Hanford)) commercial low-level radioactive
waste disposal facility. If a balance remains in the account after
satisfactory performance of closure and decommissioning, this balance
shall be transferred to the perpetual surveillance and maintenance
account. The perpetual surveillance and maintenance account shall be
used exclusively by the state to meet post-closure surveillance and
maintenance costs, or for otherwise satisfying surveillance and
maintenance obligations. Appropriations are required to permit
expenditures and payment of obligations from the site closure account
and the perpetual surveillance and maintenance account. ((All moneys,
including earnings from the investment of balances in the site closure
and the perpetual surveillance and maintenance account, less the
allocation to the state treasurer's service fund, pursuant to RCW
43.08.190 accruing under the authority of this section shall be
directed to the site closure account until December 31, 1992.
Thereafter receipts including earnings from the investment of balances
in the site closure and the perpetual surveillance and maintenance
account, less the allocation to the state treasurer's service fund,
pursuant to RCW 43.08.190)) Receipts shall be directed to the site
closure account and the perpetual surveillance and maintenance account
as specified by the department. Additional moneys specifically
appropriated by the legislature or received from any public or private
source may be placed in the site closure account and the perpetual
surveillance and maintenance account. During the 2003-2005 fiscal
biennium, the legislature may transfer up to thirteen million eight
hundred thousand dollars from the site closure account to the general
fund;
(3)(a) Subject to the conditions in (b) of this subsection, on July
1, 2008, and each July 1st thereafter, the treasurer shall transfer
from the perpetual surveillance and maintenance account to the site
closure account the sum of nine hundred sixty-six thousand dollars.
The nine hundred sixty-six thousand dollars transferred on July 1,
2009, and thereafter shall be adjusted to a level equal to the
percentage increase in the United States implicit price deflator for
personal consumption. The last transfer under this section shall occur
on July 1, 2033.
(b) The transfer in (a) of this subsection shall occur only if
written agreement is reached between the state department of ecology
and the United States department of energy pursuant to section 6 of the
perpetual care agreement dated July 29, 1965, between the United States
atomic energy commission and the state of Washington. If agreement
cannot be reached between the state department of ecology and the
United States department of energy by June 1, 2008, the treasurer shall
transfer the funds from the general fund to the site closure account
according to the schedule in (a) of this subsection.
(c) If for any reason the ((Hanford)) commercial low-level
radioactive waste disposal facility is closed to further disposal
operations during or after the 2003-2005 biennium and before 2033, then
the amount remaining to be repaid from the 2003-2005 transfer of
thirteen million eight hundred thousand dollars from the site closure
account shall be transferred by the treasurer from the general fund to
the site closure account to fund the closure and decommissioning of the
facility. The treasurer shall transfer to the site closure account in
full the amount remaining to be repaid upon written notice from the
secretary of health that the department of health has authorized
closure or that disposal operations have ceased. The treasurer shall
complete the transfer within sixty days of written notice from the
secretary of health.
(d) To the extent that money in the site closure account together
with the amount of money identified for repayment to the site closure
account, pursuant to (a) through (c) of this subsection, equals or
exceeds the cost estimate approved by the department of health for
closure and decommissioning of the facility, the money in the site
closure account together with the amount of money identified for
repayment to the site closure account shall constitute adequate
financial assurance for purposes of the department of health financial
assurance requirements;
(4) To assure maintenance of such insurance coverage by state
licensees, lessees, or sublessees as will adequately, in the opinion of
the director, protect the citizens of the state against nuclear
accidents or incidents that may occur on privately or state-controlled
nuclear facilities;
(5) ((To institute a user permit system and issue site use permits,
consistent with regulatory practices, for generators, packagers, or
brokers using the Hanford low-level radioactive waste disposal
facility. The costs of administering the user permit system shall be
borne by the applicants for site use permits. The site use permit fee
shall be set at a level that is sufficient to fund completely the
executive and legislative participation in activities related to the
Northwest Interstate Compact on Low-Level Radioactive Waste Management;)) To make application for or otherwise pursue any federal funds
to which the state may be eligible, through the federal resource
conservation and recovery act or any other federal programs, for the
management, treatment or disposal, and any remedial actions, of wastes
that are both radioactive and hazardous at all ((
(6)Hanford)) commercial
low-level radioactive waste disposal facilities; and
(((7))) (6) To develop contingency plans for duties and options for
the department and other state agencies related to the ((Hanford))
commercial low-level radioactive waste disposal facility based on
various projections of annual levels of waste disposal. These plans
shall include an analysis of expected revenue to the state in various
taxes and funds related to low-level radioactive waste disposal and the
resulting implications that any increase or decrease in revenue may
have on state agency duties or responsibilities. The plans shall be
updated annually.
Sec. 248 RCW 43.200.170 and 1990 c 21 s 3 are each amended to
read as follows:
The governor may assess surcharges and penalty surcharges on the
disposal of waste at the ((Hanford)) commercial low-level radioactive
waste disposal facility. The surcharges may be imposed up to the
maximum extent permitted by federal law. Ten dollars per cubic foot of
the moneys received under this section shall be transmitted monthly to
the site closure account established under RCW 43.200.080. The rest of
the moneys received under this section shall be deposited in the
general fund.
Sec. 249 RCW 43.200.180 and 1998 c 245 s 81 are each amended to
read as follows:
Except as provided in chapter 70.98 RCW, the department of ecology
shall be the state agency responsible for implementation of the federal
low-level radioactive waste policy amendments act of 1985, including:
(1) Collecting and administering the surcharge assessed by the
governor under RCW 43.200.170;
(2) Collecting low-level radioactive waste data from disposal
facility operators, generators, intermediate handlers, and the federal
department of energy;
(3) Developing and operating a computerized information system to
manage low-level radioactive waste data;
(4) Denying and reinstating access to the ((Hanford)) commercial
low-level radioactive waste disposal facility pursuant to the authority
granted under federal law;
(5) Administering and/or monitoring (a) the maximum waste volume
levels for the ((Hanford)) commercial low-level radioactive waste
disposal facility, (b) reactor waste allocations, (c) priority
allocations under the Northwest Interstate Compact on Low-Level
Radioactive Waste Management, and (d) adherence by other states and
compact regions to federal statutory deadlines; and
(6) Coordinating the state's low-level radioactive waste disposal
program with similar programs in other states.
Sec. 250 RCW 43.200.190 and 1998 c 245 s 82 are each amended to
read as follows:
The department of ecology shall perform studies, by contract or
otherwise, to define site closure and perpetual care and maintenance
requirements for the ((Hanford)) commercial low-level radioactive waste
disposal facility and to assess the adequacy of insurance coverage for
general liability, radiological liability, and transportation liability
for the facility.
Sec. 251 RCW 43.200.200 and 1998 c 245 s 83 are each amended to
read as follows:
(1) The director of the department of ecology ((shall)) may
periodically review the potential for bodily injury and property damage
arising from the transportation and disposal of commercial low-level
radioactive waste under permits issued by the state.
(2) ((The director may require permit holders to demonstrate
financial assurance in an amount that is adequate to protect the state
and its citizens from all claims, suits, losses, damages, or expenses
on account of injuries to persons and property damage arising or
growing out of the transportation or disposal of commercial low-level
radioactive waste. The financial assurance may be in the form of
insurance, cash deposits, surety bonds, corporate guarantees, and other
acceptable instruments or guarantees determined by the director to be
acceptable evidence of financial assurance.)) In making the determination of the appropriate level of
financial assurance, the director shall consider:
(3)
(a) The nature and purpose of the activity and its potential for
injury and damages to or claims against the state and its citizens;
(b) The current and cumulative manifested volume and radioactivity
of waste being packaged, transported, buried, or otherwise handled;
(c) The location where the waste is being packaged, transported,
buried, or otherwise handled, including the proximity to the general
public and geographic features such as geology and hydrology, if
relevant; and
(d) The legal defense cost, if any, that will be paid from the
required financial assurance amount.
(((4) The director may establish different levels of required
financial assurance for various classes of permit holders.))
(5) The director shall establish by rule the instruments or
mechanisms by which a permit applicant or holder may demonstrate
financial assurance as required by RCW 43.200.210.
Sec. 252 RCW 43.200.230 and 1991 c 272 s 16 are each amended to
read as follows:
The director of the department of ecology shall require that
generators of waste pay a fee for each cubic foot of waste disposed at
any facility in the state equal to six dollars and fifty cents. The
fee shall be imposed specifically on the generator of the waste and
shall not be considered to apply in any way to the low-level site
operator's disposal activities. The fee shall be allocated in
accordance with RCW 43.200.233 and 43.200.235. ((This subsection shall
be invalidated and the authorization to collect a surcharge removed if
the legislature or any administrative agency of the state of Washington
prior to January 1, 1993, (1) imposes fees, assessments, or charges
other than perpetual care and maintenance, site surveillance, and site
closing fees currently applicable to the Hanford commercial low-level
waste site operator's activities, (2) imposes any additional fees,
assessments, or charges on generators using the Hanford commercial low-level waste site, or (3) increases any existing fees, assessments, or
charges.)) Failure to comply with this section may result in denial or
suspension of the generator's site use permit pursuant to RCW
70.98.085.
Sec. 253 RCW 70.98.030 and 1991 c 3 s 355 are each amended to
read as follows:
(1) "By-product material" means any radioactive material (except
special nuclear material) yielded in or made radioactive by exposure to
the radiation incident to the process of producing or utilizing special
nuclear material.
(2) "Ionizing radiation" means gamma rays and x-rays, alpha and
beta particles, high-speed electrons, neutrons, protons, and other
atomic or subatomic particles; but not sound or radio waves, or
visible, infrared, or ultraviolet light.
(3)(a) "General license" means a license effective pursuant to
rules promulgated by the state radiation control agency, without the
filing of an application, to transfer, acquire, own, possess, or use
quantities of, or devices or equipment utilizing, by-product, source,
special nuclear materials, or other radioactive material occurring
naturally or produced artificially.
(b) "Specific license" means a license, issued after application to
use, manufacture, produce, transfer, receive, acquire, own, or possess
quantities of, or devices or equipment utilizing by-product, source,
special nuclear materials, or other radioactive materials occurring
naturally or produced artificially.
(4) "Person" means any individual, corporation, partnership, firm,
association, trust, estate, public or private institution, group,
agency, political subdivision of this state, any other state or
political subdivision or agency thereof, and any legal successor,
representative, agent, or agency of the foregoing, other than the
United States Atomic Energy Commission, or any successor thereto, and
other than federal government agencies licensed by the United States
Atomic Energy Commission, or any successor thereto.
(5) "Source material" means (a) uranium, thorium, or any other
material which is determined by the United States Nuclear Regulatory
Commission or its successor pursuant to the provisions of section 61 of
the United States Atomic Energy Act of 1954, as amended (42 U.S.C. Sec.
209) to be source material; or (b) ores containing one or more of the
foregoing materials, in such concentration as the commission may by
regulation determine from time to time.
(6) "Special nuclear material" means (a) plutonium, uranium
enriched in the isotope 233 or in the isotope 235, and any other
material which the United States Nuclear Regulatory Commission or its
successor, pursuant to the provisions of section 51 of the United
States Atomic Energy Act of 1954, as amended (42 U.S.C. Sec. 2071),
determines to be special nuclear material, but does not include source
material; or (b) any material artificially enriched by any of the
foregoing, but does not include source material.
(7) "Registration" means registration with the state department of
health by any person possessing a source of ionizing radiation in
accordance with rules adopted by the department of health.
(8) "Radiation source" means any type of device or substance which
is capable of producing or emitting ionizing radiation.
(9) "Site use permit" means a permit, issued after application, to
use the commercial low-level radioactive waste disposal facility.
Sec. 254 RCW 70.98.085 and 1990 c 21 s 7 are each amended to read
as follows:
(1) The agency is empowered to administer a user permit system and
issue site use permits for generators, packagers, or brokers to use the
commercial low-level radioactive waste disposal facility. The agency
may issue a site use permit consistent with the requirements of this
chapter and the rules adopted under it and the requirements of the
Northwest Interstate Compact on Low-Level Radioactive Waste Management
under chapter 43.145 RCW. The agency may deny an application for a
site use permit or modify, suspend ((and reinstate)), or revoke a site
use permit((s consistent with current regulatory practices and in
coordination with the department of ecology, for generators, packagers,
or brokers using the Hanford low-level radioactive waste disposal
facility)) in any case in which it finds that the permit was obtained
by fraud or there is or has been a failure, refusal, or inability to
comply with the requirements of this chapter or rules adopted under
this chapter or the requirements of the Northwest Interstate Compact on
Low-Level Radioactive Waste Management under chapter 43.145 RCW. The
agency may also deny or suspend a site use permit for failure to comply
with RCW 43.200.230.
(2) Any permit issued by the department of ecology for a site use
permit pursuant to chapter 43.200 RCW is valid until the first
expiration date that occurs after July 1, 2012.
(3) The agency shall collect a fee from the applicants for site use
permits that is sufficient to fund the costs to the agency to
administer the user permit system. The site use permit fee must be set
at a level that is also sufficient to fund state participation in
activities related to the Northwest Interstate Compact on Low-Level
Radioactive Waste Management under chapter 43.145 RCW. The site use
permit fees must be deposited in the site closure account established
in RCW 43.200.080(2). Appropriations to the department of health or
the department of ecology are required to permit expenditures using
site use permit fee funds from the site closure account.
(4) The agency shall collect a surveillance fee as an added charge
on each cubic foot of low-level radioactive waste disposed of at the
commercial low-level radioactive waste disposal site in this state
which shall be set at a level that is sufficient to fund completely the
radiation control activities of the agency directly related to the
disposal site, including but not limited to the management, licensing,
monitoring, and regulation of the site. ((The surveillance fee shall
not exceed five percent in 1990, six percent in 1991, and seven percent
in 1992 of the basic minimum fee charged by an operator of a low-level
radioactive waste disposal site in this state. The basic minimum fee
consists of the disposal fee for the site operator, the fee for the
perpetual care and maintenance fund administered by the state, the fee
for the state closure fund, and the tax collected pursuant to chapter
82.04 RCW. Site use permit fees and surcharges collected under chapter
43.200 RCW are not part of the basic minimum fee.)) The fee shall also
provide funds to the Washington state patrol for costs incurred from
inspection of low-level radioactive waste shipments entering this
state. Disbursements for this purpose shall be by authorization of the
secretary of the department of health or the secretary's designee.
(5) The agency shall require that any person who holds or applies
for a permit under this chapter indemnify and hold harmless the state
from claims, suits, damages, or expenses on account of injuries to or
death of persons and property damage, arising or growing out of any
operations and activities for which the person holds the permit, and
any necessary or incidental operations.
(6) The agency may adopt such rules as are necessary to carry out
its responsibilities under this section.
Sec. 255 RCW 70.98.095 and 1992 c 61 s 3 are each amended to read
as follows:
(1) The radiation control agency may require any person who
applies for, or holds, a license under this chapter to demonstrate that
the person has financial assurance sufficient to assure that liability
incurred as a result of licensed operations and activities can be fully
satisfied. Financial assurance may be in the form of insurance, cash
deposits, surety bonds, corporate guarantees, letters of credit, or
other financial instruments or guarantees determined by the agency to
be acceptable financial assurance. The agency may require financial
assurance in an amount determined by the secretary pursuant to RCW
70.98.098.
(2) The radiation control agency may require site use permit
holders to demonstrate financial assurance in an amount that is
adequate to protect the state and its citizens from all claims, suits,
losses, damages, or expenses on account of injuries to persons and
property damage arising or growing out of the transportation or
disposal of commercial low-level radioactive waste. The financial
assurance may be in the form of insurance, cash deposits, surety bonds,
corporate guarantees, and other acceptable instruments or guarantees
determined by the secretary to be acceptable evidence of financial
assurance. The agency may require financial assurance in an amount
determined by the secretary pursuant to RCW 70.98.098.
(3) The radiation control agency shall refuse to issue a license or
permit or suspend the license or permit of any person required by this
section to demonstrate financial assurance who fails to demonstrate
compliance with this section. The license or permit shall not be
issued or reinstated until the person demonstrates compliance with this
section.
(((3))) (4) The radiation control agency shall require (a) that any
person required to demonstrate financial assurance, maintain with the
agency current copies of any insurance policies, certificates of
insurance, letters of credit, surety bonds, or any other documents used
to comply with this section, (b) that the agency be notified of any
changes in the financial assurance or financial condition of the
person, and (c) that the state be named as an insured party on any
insurance policy used to comply with this section.
Sec. 256 RCW 70.98.098 and 2003 1st sp.s. c 21 s 2 are each
amended to read as follows:
(1) In making the determination of the appropriate level of
financial assurance, the secretary shall consider: (a) ((The)) Any
report prepared by the department of ecology pursuant to RCW
43.200.200; (b) the potential cost of decontamination, treatment,
disposal, decommissioning, and cleanup of facilities or equipment; (c)
federal cleanup and decommissioning requirements; and (d) the legal
defense cost, if any, that might be paid from the required financial
assurance.
(2) The secretary may establish different levels of required
financial assurance for various classes of permit or license holders.
(3) The secretary shall establish by rule the instruments or
mechanisms by which a person may demonstrate financial assurance as
required by RCW 70.98.095.
(4) To the extent that money in the site closure account together
with the amount of money identified for repayment to the site closure
account pursuant to RCW 43.200.080 equals or exceeds the cost estimate
approved by the department of health for closure and decommissioning of
the ((Hanford)) commercial low-level radioactive waste disposal
facility, the money in the site closure account together with the
amount of money identified for repayment to the site closure account
shall constitute adequate financial assurance for purposes of the
department of health financial assurance requirements under RCW
70.98.095.
Sec. 257 RCW 70.98.130 and 1989 c 175 s 133 are each amended to
read as follows:
(1) In any proceeding under this chapter for the issuance or
modification or repeal of rules relating to control of sources of
ionizing radiation, the agency shall comply with the requirements of
chapter 34.05 RCW, the administrative procedure act.
(2) Notwithstanding any other provision of this chapter, whenever
the agency finds that an emergency exists requiring immediate action to
protect the public health, safety, or general welfare, the agency may,
in accordance with RCW 34.05.350 without notice or hearing, adopt a
rule reciting the existence of such emergency and require that such
action be taken as is necessary to meet the emergency. As specified in
RCW 34.05.350, such rules are effective immediately.
(3) In any case in which the department denies, modifies, suspends,
or revokes a license or permit, RCW 43.70.115 governs notice of the
action and provides the right to an adjudicative proceeding to the
applicant or licensee or permittee. Such an adjudicative proceeding is
governed by chapter 34.05 RCW.
NEW SECTION. Sec. 258 A new section is added to chapter 70.98
RCW to read as follows:
The agency shall adopt rules for administering a site use permit
program under RCW 70.98.085.
NEW SECTION. Sec. 259 A new section is added to chapter 43.200
RCW to read as follows:
(1) The site use permit program is transferred from the department
of ecology to the department of health.
(2)(a) All reports, documents, surveys, books, records, files,
papers, or written material in the possession of the department of
ecology site use permit program shall be delivered to the custody of
the department of health. All cabinets, furniture, office equipment,
motor vehicles, and other tangible property employed by the department
of ecology site use permit program shall be transferred to the
department of health. All funds, credits, or other assets held by the
department of ecology site use permit program shall be assigned to the
department of health.
(b) Any appropriations made to the department of ecology for the
site use permit program shall be transferred and credited to the
department of health.
(c) If any question arises as to the transfer of any personnel,
funds, books, documents, records, papers, files, equipment, or other
tangible property used or held in the exercise of the powers and the
performance of the duties and functions transferred, the director of
financial management shall make a determination as to the proper
allocation and certify the same to the state agencies concerned.
(3) All employees of the department of ecology site use permit
program are transferred to the jurisdiction of the department of
health. All employees classified under chapter 41.06 RCW, the state
civil service law, are assigned to the department of health to perform
their usual duties upon the same terms as formerly, without any loss of
rights, subject to any action that may be appropriate thereafter in
accordance with the laws and rules governing state civil service.
(4) All rules and all pending business before the department of
ecology site use permit program shall be continued and acted upon by
the department of health. All existing contracts and obligations shall
remain in full force and shall be performed by the department of
health.
(5) The transfer of the powers, duties, functions, and personnel of
the department of ecology site use permit program to the department of
health under this act shall not affect the validity of any activity
performed before the effective date of this section or the effective
date of the consolidation.
(6) If apportionments of budgeted funds are required because of the
consolidation directed by this section, the director of financial
management shall certify the apportionments to the affected agencies,
the state auditor, and the state treasurer. Each of these shall make
the appropriate transfer and adjustments in funds and appropriation
accounts and equipment records in accordance with the certification.
(7) All classified employees of the department of ecology site use
permit program assigned to the department of health under this act
whose positions are within an existing bargaining unit description at
the department of health shall become a part of the existing bargaining
unit at the department of health and shall be considered an appropriate
inclusion or modification of the existing bargaining unit under the
provisions of chapter 41.80 RCW.
NEW SECTION. Sec. 260 RCW 43.200.210 (Immunity of state--Demonstration of financial assurance -- Suspension of permit) and 1992 c
61 s 2, 1990 c 82 s 2, & 1986 c 191 s 2 are each repealed.
NEW SECTION. Sec. 261 (1) On the effective date of this section,
the secretary of health and the directors of the department of ecology,
the pollution liability insurance agency, and the Columbia river gorge
commission must each designate one executive-level representative to
serve on a consolidation transition team. This team must, with the
assistance of their agencies, develop the following work products:
(a) A consolidation transition team report, to be submitted to the
office of financial management and the legislature by August 1, 2011.
This report must, at a minimum, detail all legislative and fiscal
changes necessary for the successful implementation of this
consolidation and identify expected costs and savings associated with
the consolidation.
(b) A supplemental budget request, if necessary, for consideration
during the 2012 legislative session. This request must encompass any
necessary budgetary and legislative changes for the agencies affected
by this consolidation, and be submitted to the office of financial
management by September 1, 2011.
(c) A second consolidation transition team report, to be submitted
to the director of ecology by July 1, 2012. This report must, at a
minimum, detail all additional legislative and fiscal changes necessary
for the successful implementation of this agency consolidation and
identify expected costs and savings associated with the consolidation.
(2) This section applies to the consolidation directed pursuant to
sections 201 through 260 of this act.
NEW SECTION. Sec. 262 The consolidation directed pursuant to
sections 201 through 261 of this act takes effect July 1, 2012.
NEW SECTION. Sec. 263 Except for section 111 of this act, 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 July 1, 2011.