BILL REQ. #: S-3581.2
State of Washington | 62nd Legislature | 2012 Regular Session |
Read first time 01/16/12. Referred to Committee on Environment.
AN ACT Relating to accelerating cleanup of hazardous waste sites; amending RCW 70.105D.010, 70.105D.020, and 70.105D.040; reenacting and amending RCW 70.105D.070; adding new sections to chapter 70.105D RCW; and creating new sections.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
NEW SECTION. Sec. 1 The legislature finds that the cleanup and
reuse of former commercial, industrial, and other sites contaminated
with hazardous substances has both economic and public health benefits
for the communities hosting these sites. Public investment in the
cleanup of hazardous waste sites has multiple benefits, with some
estimates indicating that for every state dollar invested toward
cleanup, there is generated six dollars in local tax revenue, seven
dollars in payroll revenue, and thirty-two dollars in business revenue.
The legislature further finds that these "brownfield" cleanups should
not be conducted in isolation from the community's plans for future
economic and social uses of the property, and that integrating the
cleanup with future site uses provides a greater opportunity to bring
substantial private resources into the cleanup.
Therefore, it is the intent of this act to authorize a greater
emphasis in the allocation of state resources toward the cleanup and
reuse of brownfield properties, to provide more flexible funding and
oversight authority for local governments guiding clean-up efforts in
brownfield areas, and to modify the state's cleanup program in ways
that will accelerate cleanups throughout the state, thus providing both
near-term job benefits in the clean-up work as well as ongoing economic
benefits through reuse of the cleaned up properties.
Sec. 2 RCW 70.105D.010 and 2002 c 288 s 1 are each amended to
read as follows:
(1) Each person has a fundamental and inalienable right to a
healthful environment, and each person has a responsibility to preserve
and enhance that right. The beneficial stewardship of the land, air,
and waters of the state is a solemn obligation of the present
generation for the benefit of future generations.
(2) A healthful environment is now threatened by the irresponsible
use and disposal of hazardous substances. There are hundreds of
hazardous waste sites in this state, and more will be created if
current waste practices continue. Hazardous waste sites threaten the
state's water resources, including those used for public drinking
water. Many of our municipal landfills are current or potential
hazardous waste sites and present serious threats to human health and
environment. The costs of eliminating these threats in many cases are
beyond the financial means of our local governments and ratepayers.
The ((main)) overriding purpose of chapter 2, Laws of 1989 is to raise
sufficient funds to clean up all hazardous waste sites and to prevent
the creation of future hazards due to improper disposal of toxic wastes
into the state's land and waters.
(3) Many farmers and small business owners who have followed the
law with respect to their uses of pesticides and other chemicals
nonetheless may face devastating economic consequences because their
uses have contaminated the environment or the water supplies of their
neighbors. With a source of funds, the state may assist these farmers
and business owners, as well as those persons who sustain damages, such
as the loss of their drinking water supplies, as a result of the
contamination.
(4) It is in the public's interest to efficiently use our finite
land base, to integrate our land use planning policies with our clean-up policies, and to clean up and reuse contaminated industrial and
other brownfield properties in order to minimize ((industrial))
development pressures on undeveloped land and to make clean land
available for ((future)) economic, environmental, and social ((use))
reuses.
(5) Because it is often difficult or impossible to allocate
responsibility among persons liable for hazardous waste sites and
because it is essential that sites be cleaned up well and
expeditiously, each responsible person should be liable jointly and
severally.
(6) Because releases of hazardous substances can adversely affect
the health and welfare of the public, the environment, and property
values, it is in the public interest that affected communities be
notified of where releases of hazardous substances have occurred and
what is being done to clean them up.
Sec. 3 RCW 70.105D.020 and 2007 c 104 s 18 are each amended to
read as follows:
The definitions in this section apply throughout this chapter
unless the context clearly requires otherwise.
(1) "Agreed order" means an order issued by the department under
this chapter with which the potentially liable person or prospective
purchaser receiving the order agrees to comply. An agreed order may be
used to require or approve any cleanup or other remedial actions but it
is not a settlement under RCW 70.105D.040(4) and shall not contain a
covenant not to sue, or provide protection from claims for
contribution, or provide eligibility for public funding of remedial
actions under RCW 70.105D.070(2)(d)(xi).
(2) "Department" means the department of ecology.
(3) "Director" means the director of ecology or the director's
designee.
(4) "Environmental covenant" has the same meaning as defined in RCW
64.70.020.
(5) "Facility" means (a) any building, structure, installation,
equipment, pipe or pipeline (including any pipe into a sewer or
publicly owned treatment works), well, pit, pond, lagoon, impoundment,
ditch, landfill, storage container, motor vehicle, rolling stock,
vessel, or aircraft, or (b) any site or area where a hazardous
substance, other than a consumer product in consumer use, has been
deposited, stored, disposed of, or placed, or otherwise come to be
located.
(6) "Federal cleanup law" means the federal comprehensive
environmental response, compensation, and liability act of 1980, 42
U.S.C. Sec. 9601 et seq., as amended by Public Law 99-499.
(7)(a) "Fiduciary" means a person acting for the benefit of another
party as a bona fide trustee; executor; administrator; custodian;
guardian of estates or guardian ad litem; receiver; conservator;
committee of estates of incapacitated persons; trustee in bankruptcy;
trustee, under an indenture agreement, trust agreement, lease, or
similar financing agreement, for debt securities, certificates of
interest or certificates of participation in debt securities, or other
forms of indebtedness as to which the trustee is not, in the capacity
of trustee, the lender. Except as provided in subsection (17)(b)(iii)
of this section, the liability of a fiduciary under this chapter shall
not exceed the assets held in the fiduciary capacity.
(b) "Fiduciary" does not mean:
(i) A person acting as a fiduciary with respect to a trust or other
fiduciary estate that was organized for the primary purpose of, or is
engaged in, actively carrying on a trade or business for profit, unless
the trust or other fiduciary estate was created as part of, or to
facilitate, one or more estate plans or because of the incapacity of a
natural person;
(ii) A person who acquires ownership or control of a facility with
the objective purpose of avoiding liability of the person or any other
person. It is prima facie evidence that the fiduciary acquired
ownership or control of the facility to avoid liability if the facility
is the only substantial asset in the fiduciary estate at the time the
facility became subject to the fiduciary estate;
(iii) A person who acts in a capacity other than that of a
fiduciary or in a beneficiary capacity and in that capacity directly or
indirectly benefits from a trust or fiduciary relationship;
(iv) A person who is a beneficiary and fiduciary with respect to
the same fiduciary estate, and who while acting as a fiduciary receives
benefits that exceed customary or reasonable compensation, and
incidental benefits permitted under applicable law;
(v) A person who is a fiduciary and receives benefits that
substantially exceed customary or reasonable compensation, and
incidental benefits permitted under applicable law; or
(vi) A person who acts in the capacity of trustee of state or
federal lands or resources.
(8) "Fiduciary capacity" means the capacity of a person holding
title to a facility, or otherwise having control of an interest in the
facility pursuant to the exercise of the responsibilities of the person
as a fiduciary.
(9) "Foreclosure and its equivalents" means purchase at a
foreclosure sale, acquisition, or assignment of title in lieu of
foreclosure, termination of a lease, or other repossession, acquisition
of a right to title or possession, an agreement in satisfaction of the
obligation, or any other comparable formal or informal manner, whether
pursuant to law or under warranties, covenants, conditions,
representations, or promises from the borrower, by which the holder
acquires title to or possession of a facility securing a loan or other
obligation.
(10) "Hazardous substance" means:
(a) Any dangerous or extremely hazardous waste as defined in RCW
70.105.010 (((5) and (6))) (1) and (7), or any dangerous or extremely
dangerous waste designated by rule pursuant to chapter 70.105 RCW;
(b) Any hazardous substance as defined in RCW 70.105.010(((14)))
(10) or any hazardous substance as defined by rule pursuant to chapter
70.105 RCW;
(c) Any substance that, on March 1, 1989, is a hazardous substance
under section 101(14) of the federal cleanup law, 42 U.S.C. Sec.
9601(14);
(d) Petroleum or petroleum products; and
(e) Any substance or category of substances, including solid waste
decomposition products, determined by the director by rule to present
a threat to human health or the environment if released into the
environment.
The term hazardous substance does not include any of the following
when contained in an underground storage tank from which there is not
a release: Crude oil or any fraction thereof or petroleum, if the tank
is in compliance with all applicable federal, state, and local law.
(11) "Holder" means a person who holds indicia of ownership
primarily to protect a security interest. A holder includes the
initial holder such as the loan originator, any subsequent holder such
as a successor-in-interest or subsequent purchaser of the security
interest on the secondary market, a guarantor of an obligation, surety,
or any other person who holds indicia of ownership primarily to protect
a security interest, or a receiver, court-appointed trustee, or other
person who acts on behalf or for the benefit of a holder. A holder can
be a public or privately owned financial institution, receiver,
conservator, loan guarantor, or other similar persons that loan money
or guarantee repayment of a loan. Holders typically are banks or
savings and loan institutions but may also include others such as
insurance companies, pension funds, or private individuals that engage
in loaning of money or credit.
(12) "Independent remedial actions" means remedial actions
conducted without department oversight or approval, and not under an
order, agreed order, or consent decree.
(13) "Indicia of ownership" means evidence of a security interest,
evidence of an interest in a security interest, or evidence of an
interest in a facility securing a loan or other obligation, including
any legal or equitable title to a facility acquired incident to
foreclosure and its equivalents. Evidence of such interests includes,
mortgages, deeds of trust, sellers interest in a real estate contract,
liens, surety bonds, and guarantees of obligations, title held pursuant
to a lease financing transaction in which the lessor does not select
initially the leased facility, or legal or equitable title obtained
pursuant to foreclosure and their equivalents. Evidence of such
interests also includes assignments, pledges, or other rights to or
other forms of encumbrance against the facility that are held primarily
to protect a security interest.
(14) "Industrial properties" means properties that are or have been
characterized by, or are to be committed to, traditional industrial
uses such as processing or manufacturing of materials, marine terminal
and transportation areas and facilities, fabrication, assembly,
treatment, or distribution of manufactured products, or storage of bulk
materials, that are either:
(a) Zoned for industrial use by a city or county conducting land
use planning under chapter 36.70A RCW; or
(b) For counties not planning under chapter 36.70A RCW and the
cities within them, zoned for industrial use and adjacent to properties
currently used or designated for industrial purposes.
(15) "Institutional controls" means measures undertaken to limit or
prohibit activities that may interfere with the integrity of a remedial
action or result in exposure to or migration of hazardous substances at
a site. "Institutional controls" include environmental covenants.
(16) "Operating a facility primarily to protect a security
interest" occurs when all of the following are met: (a) Operating the
facility where the borrower has defaulted on the loan or otherwise
breached the security agreement; (b) operating the facility to preserve
the value of the facility as an ongoing business; (c) the operation is
being done in anticipation of a sale, transfer, or assignment of the
facility; and (d) the operation is being done primarily to protect a
security interest. Operating a facility for longer than one year prior
to foreclosure or its equivalents shall be presumed to be operating the
facility for other than to protect a security interest.
(17) "Owner or operator" means:
(a) Any person with any ownership interest in the facility or who
exercises any control over the facility; or
(b) In the case of an abandoned facility, any person who had owned,
or operated, or exercised control over the facility any time before its
abandonment;
The term does not include:
(i) An agency of the state or unit of local government which
acquired ownership or control through a drug forfeiture action under
RCW 69.50.505, or involuntarily through bankruptcy, tax delinquency,
abandonment, or other circumstances in which the government
involuntarily acquires title. This exclusion does not apply to an
agency of the state or unit of local government which has caused or
contributed to the release or threatened release of a hazardous
substance from the facility;
(ii) A person who, without participating in the management of a
facility, holds indicia of ownership primarily to protect the person's
security interest in the facility. Holders after foreclosure and its
equivalent and holders who engage in any of the activities identified
in subsection (18)(e) through (g) of this section shall not lose this
exemption provided the holder complies with all of the following:
(A) The holder properly maintains the environmental compliance
measures already in place at the facility;
(B) The holder complies with the reporting requirements in the
rules adopted under this chapter;
(C) The holder complies with any order issued to the holder by the
department to abate an imminent or substantial endangerment;
(D) The holder allows the department or potentially liable persons
under an order, agreed order, or settlement agreement under this
chapter access to the facility to conduct remedial actions and does not
impede the conduct of such remedial actions;
(E) Any remedial actions conducted by the holder are in compliance
with any preexisting requirements identified by the department, or, if
the department has not identified such requirements for the facility,
the remedial actions are conducted consistent with the rules adopted
under this chapter; and
(F) The holder does not exacerbate an existing release. The
exemption in this subsection (17)(b)(ii) does not apply to holders who
cause or contribute to a new release or threatened release or who are
otherwise liable under RCW 70.105D.040(1) (b), (c), (d), and (e);
provided, however, that a holder shall not lose this exemption if it
establishes that any such new release has been remediated according to
the requirements of this chapter and that any hazardous substances
remaining at the facility after remediation of the new release are
divisible from such new release;
(iii) A fiduciary in his, her, or its personal or individual
capacity. This exemption does not preclude a claim against the assets
of the estate or trust administered by the fiduciary or against a
nonemployee agent or independent contractor retained by a fiduciary.
This exemption also does not apply to the extent that a person is
liable under this chapter independently of the person's ownership as a
fiduciary or for actions taken in a fiduciary capacity which cause or
contribute to a new release or exacerbate an existing release of
hazardous substances. This exemption applies provided that, to the
extent of the fiduciary's powers granted by law or by the applicable
governing instrument granting fiduciary powers, the fiduciary complies
with all of the following:
(A) The fiduciary properly maintains the environmental compliance
measures already in place at the facility;
(B) The fiduciary complies with the reporting requirements in the
rules adopted under this chapter;
(C) The fiduciary complies with any order issued to the fiduciary
by the department to abate an imminent or substantial endangerment;
(D) The fiduciary allows the department or potentially liable
persons under an order, agreed order, or settlement agreement under
this chapter access to the facility to conduct remedial actions and
does not impede the conduct of such remedial actions;
(E) Any remedial actions conducted by the fiduciary are in
compliance with any preexisting requirements identified by the
department, or, if the department has not identified such requirements
for the facility, the remedial actions are conducted consistent with
the rules adopted under this chapter; and
(F) The fiduciary does not exacerbate an existing release.
The exemption in this subsection (17)(b)(iii) does not apply to
fiduciaries who cause or contribute to a new release or threatened
release or who are otherwise liable under RCW 70.105D.040(1) (b), (c),
(d), and (e); provided however, that a fiduciary shall not lose this
exemption if it establishes that any such new release has been
remediated according to the requirements of this chapter and that any
hazardous substances remaining at the facility after remediation of the
new release are divisible from such new release. The exemption in this
subsection (17)(b)(iii) also does not apply where the fiduciary's
powers to comply with this subsection (17)(b)(iii) are limited by a
governing instrument created with the objective purpose of avoiding
liability under this chapter or of avoiding compliance with this
chapter; or
(iv) Any person who has any ownership interest in, operates, or
exercises control over real property where a hazardous substance has
come to be located solely as a result of migration of the hazardous
substance to the real property through the groundwater from a source
off the property, if:
(A) The person can demonstrate that the hazardous substance has not
been used, placed, managed, or otherwise handled on the property in a
manner likely to cause or contribute to a release of the hazardous
substance that has migrated onto the property;
(B) The person has not caused or contributed to the release of the
hazardous substance;
(C) The person does not engage in activities that damage or
interfere with the operation of remedial actions installed on the
person's property or engage in activities that result in exposure of
humans or the environment to the contaminated groundwater that has
migrated onto the property;
(D) If requested, the person allows the department, potentially
liable persons who are subject to an order, agreed order, or consent
decree, and the authorized employees, agents, or contractors of each,
access to the property to conduct remedial actions required by the
department. The person may attempt to negotiate an access agreement
before allowing access; and
(E) Legal withdrawal of groundwater does not disqualify a person
from the exemption in this subsection (17)(b)(iv).
(18) "Participation in management" means exercising decision-making
control over the borrower's operation of the facility, environmental
compliance, or assuming or manifesting responsibility for the overall
management of the enterprise encompassing the day-to-day decision
making of the enterprise.
The term does not include any of the following: (a) A holder with
the mere capacity or ability to influence, or the unexercised right to
control facility operations; (b) a holder who conducts or requires a
borrower to conduct an environmental audit or an environmental site
assessment at the facility for which indicia of ownership is held; (c)
a holder who requires a borrower to come into compliance with any
applicable laws or regulations at the facility for which indicia of
ownership is held; (d) a holder who requires a borrower to conduct
remedial actions including setting minimum requirements, but does not
otherwise control or manage the borrower's remedial actions or the
scope of the borrower's remedial actions except to prepare a facility
for sale, transfer, or assignment; (e) a holder who engages in workout
or policing activities primarily to protect the holder's security
interest in the facility; (f) a holder who prepares a facility for
sale, transfer, or assignment or requires a borrower to prepare a
facility for sale, transfer, or assignment; (g) a holder who operates
a facility primarily to protect a security interest, or requires a
borrower to continue to operate, a facility primarily to protect a
security interest; and (h) a prospective holder who, as a condition of
becoming a holder, requires an owner or operator to conduct an
environmental audit, conduct an environmental site assessment, come
into compliance with any applicable laws or regulations, or conduct
remedial actions prior to holding a security interest is not
participating in the management of the facility.
(19) "Person" means an individual, firm, corporation, association,
partnership, consortium, joint venture, commercial entity, state
government agency, unit of local government, federal government agency,
or Indian tribe.
(20) "Policing activities" means actions the holder takes to ensure
that the borrower complies with the terms of the loan or security
interest or actions the holder takes or requires the borrower to take
to maintain the value of the security. Policing activities include:
Requiring the borrower to conduct remedial actions at the facility
during the term of the security interest; requiring the borrower to
comply or come into compliance with applicable federal, state, and
local environmental and other laws, regulations, and permits during the
term of the security interest; securing or exercising authority to
monitor or inspect the facility including on-site inspections, or to
monitor or inspect the borrower's business or financial condition
during the term of the security interest; or taking other actions
necessary to adequately police the loan or security interest such as
requiring a borrower to comply with any warranties, covenants,
conditions, representations, or promises from the borrower.
(21) "Potentially liable person" means any person whom the
department finds, based on credible evidence, to be liable under RCW
70.105D.040. The department shall give notice to any such person and
allow an opportunity for comment before making the finding, unless an
emergency requires otherwise.
(22) "Prepare a facility for sale, transfer, or assignment" means
to secure access to the facility; perform routine maintenance on the
facility; remove inventory, equipment, or structures; properly maintain
environmental compliance measures already in place at the facility;
conduct remedial actions to clean up releases at the facility; or to
perform other similar activities intended to preserve the value of the
facility where the borrower has defaulted on the loan or otherwise
breached the security agreement or after foreclosure and its
equivalents and in anticipation of a pending sale, transfer, or
assignment, primarily to protect the holder's security interest in the
facility. A holder can prepare a facility for sale, transfer, or
assignment for up to one year prior to foreclosure and its equivalents
and still stay within the security interest exemption in subsection
(17)(b)(ii) of this section.
(23) "Primarily to protect a security interest" means the indicia
of ownership is held primarily for the purpose of securing payment or
performance of an obligation. The term does not include indicia of
ownership held primarily for investment purposes nor indicia of
ownership held primarily for purposes other than as protection for a
security interest. A holder may have other, secondary reasons, for
maintaining indicia of ownership, but the primary reason must be for
protection of a security interest. Holding indicia of ownership after
foreclosure or its equivalents for longer than five years shall be
considered to be holding the indicia of ownership for purposes other
than primarily to protect a security interest. For facilities that
have been acquired through foreclosure or its equivalents prior to July
23, 1995, this five-year period shall begin as of July 23, 1995.
(24) "Public notice" means, at a minimum, adequate notice mailed to
all persons who have made timely request of the department and to
persons residing in the potentially affected vicinity of the proposed
action; mailed to appropriate news media; published in the newspaper of
largest circulation in the city or county of the proposed action; and
opportunity for interested persons to comment.
(25) "Release" means any intentional or unintentional entry of any
hazardous substance into the environment, including but not limited to
the abandonment or disposal of containers of hazardous substances.
(26) "Remedy" or "remedial action" means any action or expenditure
consistent with the purposes of this chapter to identify, eliminate, or
minimize any threat or potential threat posed by hazardous substances
to human health or the environment including any investigative and
monitoring activities with respect to any release or threatened release
of a hazardous substance and any health assessments or health effects
studies conducted in order to determine the risk or potential risk to
human health.
(27) "Security interest" means an interest in a facility created or
established for the purpose of securing a loan or other obligation.
Security interests include deeds of trusts, sellers interest in a real
estate contract, liens, legal, or equitable title to a facility
acquired incident to foreclosure and its equivalents, and title
pursuant to lease financing transactions. Security interests may also
arise from transactions such as sale and leasebacks, conditional sales,
installment sales, trust receipt transactions, certain assignments,
factoring agreements, accounts receivable financing arrangements,
easements, and consignments, if the transaction creates or establishes
an interest in a facility for the purpose of securing a loan or other
obligation.
(28) "Workout activities" means those actions by which a holder, at
any time prior to foreclosure and its equivalents, seeks to prevent,
cure, or mitigate a default by the borrower or obligor; or to preserve,
or prevent the diminution of, the value of the security. Workout
activities include: Restructuring or renegotiating the terms of the
security interest; requiring payment of additional rent or interest;
exercising forbearance; requiring or exercising rights pursuant to an
assignment of accounts or other amounts owed to an obligor; requiring
or exercising rights pursuant to an escrow agreement pertaining to
amounts owed to an obligor; providing specific or general financial or
other advice, suggestions, counseling, or guidance; and exercising any
right or remedy the holder is entitled to by law or under any
warranties, covenants, conditions, representations, or promises from
the borrower.
(29) "Areawide groundwater contamination" means groundwater
contamination on multiple adjacent properties with different ownerships
consisting of hazardous substances from multiple sources that have
resulted in commingled plumes of contaminated groundwater that are not
practicable to address separately.
(30) "Brownfield" means previously developed and currently
abandoned or underutilized real property where environmental, economic,
and community reuse objectives are hindered by actual or suspected
release of a hazardous substance.
(31) "Brownfield renewal area" means an area of brownfield
properties designated pursuant to section 6 of this act.
(32) "Local government" means any city, county, special purpose
district, or other municipal corporation, including brownfield renewal
authorities created pursuant to section 7 of this act.
NEW SECTION. Sec. 4 A new section is added to chapter 70.105D
RCW to read as follows:
(1) In fulfilling the objectives of this chapter, the department
shall allocate staffing and financial assistance in a manner that
considers both the reduction of human and environmental hazards and the
land reuse potential and planning for the sites or areas to be cleaned
up.
(2) The department may provide financial assistance to local
governments for the purpose of planning for the adaptive reuse of
properties following remediation, and for integrating the remedial
actions of brownfield properties or areas into land use, capital
facilities, economic development, and other local government plans
applicable to the property or area.
NEW SECTION. Sec. 5 A new section is added to chapter 70.105D
RCW to read as follows:
(1) The department is authorized to disburse funds to a local
government conducting a remedial action on a monthly or other periodic
basis pursuant to a remedial action schedule established in the grant
agreement.
(2) The department may extend a remedial action grant to a local
government prior to acquisition of the site or obtaining necessary
access to conduct remedial actions, provided that the grant agreement
is conditioned upon compliance with a schedule to acquire the property
or to obtain such access.
NEW SECTION. Sec. 6 A new section is added to chapter 70.105D
RCW to read as follows:
(1) The department is authorized to establish trust funds for the
provision of state funding to assist with remedial actions within
designated brownfield renewal areas. A trust fund may only be created
when the legislature, through a biennial or supplemental budget
appropriation, provides funding for a specific trust fund.
(2) The department or a third party selected by the department
shall act as the trustee of the fund. A trustee may not be a
potentially liable person or have any financial interest with respect
to any property within the brownfield renewal area.
(3) The local government or governments designating the brownfield
renewal area pursuant to section 7 of this act must be the
beneficiaries of the trust.
(4) Funds may not be disbursed from the trust until the local
government or governments have entered an agreement with the state
establishing a plan for the remediation and reuse of properties within
the brownfield renewal area. All expenditures from the trust fund must
be for the purpose of the cleanup and reuse of properties within the
brownfield renewal area, and must meet the eligibility requirements for
the use by local governments under RCW 70.105D.070.
NEW SECTION. Sec. 7 A new section is added to chapter 70.105D
RCW to read as follows:
(1) A city or county may designate an area within its jurisdiction
as a brownfield renewal area upon adoption of a resolution finding that
the area contains one or more brownfield properties or sites and that
the cleanup of these properties or sites should be integrated with
planning for the future uses of the properties or sites and with
comprehensive land use plans for the entire area. The resolution must
include:
(a) A determination that the future uses of the properties within
the area are consistent with applicable land use plans and are included
within an integrated plan for remedial action and future site uses;
(b) Where the proposed site uses require urban level
infrastructure, the area is served by a public water system and sewage
collection and treatment system and lies within the incorporated area
of a city or town or within an urban growth area designated under RCW
36.70A.110; and
(c) A commitment to finance the infrastructure or other public
improvements needed to implement the renewal plan.
(2) A port district may designate a brownfield renewal area
pursuant to this section when either: (a) The port owns in fee all of
the properties within the area; or (b) the port owns in fee at least
fifty percent of the property in the area designated and the governing
body of the city and county in which the area lies approves by
resolution of the designation. To designate a brownfield renewal area,
the port district must adopt a resolution that includes the
determinations and commitments required under subsection (1) of this
section.
(3) The department shall place a priority upon the extension of
integrated planning grants pursuant to section 4 of this act to assist
in planning for and implementing cleanups within brownfield renewal
areas.
(4) The employees and contractors of the local government may
access at any reasonable time a property within the brownfield renewal
area for the purpose of investigating or assessing the existence and
extent of releases of hazardous substances on the property, including
inspecting, sampling, and testing. The local government may order any
potentially liable person to carry out such an investigation or to
conduct a site assessment of the existence and extent of the release.
(5) The department and the attorney general shall place a priority
upon allocating staff necessary to respond to and finalize a
prospective purchaser consent decree with a local government proposing
a plan for the cleanup and redevelopment of one or more properties
within a brownfield renewal area. The local government must submit a
proposed clean-up schedule and funding plan. The procedures and
standards under RCW 70.105D.040 regarding entry of a consent decree
also apply to resolve the local government's liability regarding
releases of hazardous substances on the property.
(6) For the purposes of this section, a "local government" includes
a city, county, port district, or brownfield renewal authority.
NEW SECTION. Sec. 8 A new section is added to chapter 70.105D
RCW to read as follows:
(1) A city, county, or port district may establish by resolution a
brownfield renewal authority for the purpose of guiding and
implementing the cleanup and reuse of properties within a designated
brownfield renewal area. Any combination of cities, counties, and port
districts may establish a brownfield renewal authority through an
interlocal agreement under chapter 39.34 RCW, and the brownfield
renewal authority may exercise those powers as are authorized under
chapter 39.34 RCW and under this chapter.
(2) A brownfield renewal authority must be governed by a board of
directors selected as determined by the resolution or interlocal
agreement establishing the authority.
(3) A brownfield renewal authority must be a separate legal entity
and be deemed a municipal corporation. It has the power to: Sue and
be sued; receive, account for, and disburse funds; employ personnel;
and acquire or dispose of any interest in real or personal property
within or outside a brownfield renewal area in the furtherance of the
authority purposes. A brownfield renewal authority has the power to
contract indebtedness and to issue and sell general obligation bonds
pursuant to and in the manner provided for general county bonds in
chapters 36.67 and 39.46 RCW and other applicable statutes, and to
issue revenue bonds pursuant to and in the manner provided for revenue
bonds in chapter 36.67 RCW and other applicable statutes.
NEW SECTION. Sec. 9 A new section is added to chapter 70.105D
RCW to read as follows:
(1) The department shall establish performance measures and
allocation of staff resources to increase the number of independent
remedial actions and interim independent remedial actions receiving
review by the department.
(2) Beginning July 1, 2012, the department shall allocate staff
resources needed to increase the number of independent remedial actions
receiving review or technical assistance to three hundred sites or a
lesser number if fewer sites seek review.
(3) By November 1, 2012, the department shall submit to the
governor and the appropriate fiscal and policy committees in the senate
and house of representatives a recommendation for appropriations
necessary to accomplish the increased review of independent remedial
actions required by this section.
Sec. 10 RCW 70.105D.040 and 1997 c 406 s 4 are each amended to
read as follows:
(1) Except as provided in subsection (3) of this section, the
following persons are liable with respect to a facility:
(a) The owner or operator of the facility;
(b) Any person who owned or operated the facility at the time of
disposal or release of the hazardous substances;
(c) Any person who owned or possessed a hazardous substance and who
by contract, agreement, or otherwise arranged for disposal or treatment
of the hazardous substance at the facility, or arranged with a
transporter for transport for disposal or treatment of the hazardous
substances at the facility, or otherwise generated hazardous wastes
disposed of or treated at the facility;
(d) Any person (i) who accepts or accepted any hazardous substance
for transport to a disposal, treatment, or other facility selected by
such person from which there is a release or a threatened release for
which remedial action is required, unless such facility, at the time of
disposal or treatment, could legally receive such substance; or (ii)
who accepts a hazardous substance for transport to such a facility and
has reasonable grounds to believe that such facility is not operated in
accordance with chapter 70.105 RCW; and
(e) Any person who both sells a hazardous substance and is
responsible for written instructions for its use if (i) the substance
is used according to the instructions and (ii) the use constitutes a
release for which remedial action is required at the facility.
(2) Each person who is liable under this section is strictly
liable, jointly and severally, for all remedial action costs and for
all natural resource damages resulting from the releases or threatened
releases of hazardous substances. The attorney general, at the request
of the department, is empowered to recover all costs and damages from
persons liable therefor.
(3) The following persons are not liable under this section:
(a) Any person who can establish that the release or threatened
release of a hazardous substance for which the person would be
otherwise responsible was caused solely by:
(i) An act of God;
(ii) An act of war; or
(iii) An act or omission of a third party (including but not
limited to a trespasser) other than (A) an employee or agent of the
person asserting the defense, or (B) any person whose act or omission
occurs in connection with a contractual relationship existing, directly
or indirectly, with the person asserting this defense to liability.
This defense only applies where the person asserting the defense has
exercised the utmost care with respect to the hazardous substance, the
foreseeable acts or omissions of the third party, and the foreseeable
consequences of those acts or omissions;
(b) Any person who is an owner, past owner, or purchaser of a
facility and who can establish by a preponderance of the evidence that
at the time the facility was acquired by the person, the person had no
knowledge or reason to know that any hazardous substance, the release
or threatened release of which has resulted in or contributed to the
need for the remedial action, was released or disposed of on, in, or at
the facility. This subsection (b) is limited as follows:
(i) To establish that a person had no reason to know, the person
must have undertaken, at the time of acquisition, all appropriate
inquiry into the previous ownership and uses of the property,
consistent with good commercial or customary practice in an effort to
minimize liability. Any court interpreting this subsection (b) shall
take into account any specialized knowledge or experience on the part
of the person, the relationship of the purchase price to the value of
the property if uncontaminated, commonly known or reasonably
ascertainable information about the property, the obviousness of the
presence or likely presence of contamination at the property, and the
ability to detect such contamination by appropriate inspection;
(ii) The defense contained in this subsection (b) is not available
to any person who had actual knowledge of the release or threatened
release of a hazardous substance when the person owned the real
property and who subsequently transferred ownership of the property
without first disclosing such knowledge to the transferee;
(iii) The defense contained in this subsection (b) is not available
to any person who, by any act or omission, caused or contributed to the
release or threatened release of a hazardous substance at the facility;
(c) Any natural person who uses a hazardous substance lawfully and
without negligence for any personal or domestic purpose in or near a
dwelling or accessory structure when that person is: (i) A resident of
the dwelling; (ii) a person who, without compensation, assists the
resident in the use of the substance; or (iii) a person who is employed
by the resident, but who is not an independent contractor;
(d) Any person who, for the purpose of growing food crops, applies
pesticides or fertilizers without negligence and in accordance with all
applicable laws and regulations.
(4) There may be no settlement by the state with any person
potentially liable under this chapter except in accordance with this
section.
(a) The attorney general may agree to a settlement with any
potentially liable person only if the department finds, after public
notice and any required hearing, that the proposed settlement would
lead to a more expeditious cleanup of hazardous substances in
compliance with clean-up standards under RCW 70.105D.030(2)(e) and with
any remedial orders issued by the department. Whenever practicable and
in the public interest, the attorney general may expedite such a
settlement with persons whose contribution is insignificant in amount
and toxicity. A hearing shall be required only if at least ten persons
request one or if the department determines a hearing is necessary.
(b) A settlement agreement under this section shall be entered as
a consent decree issued by a court of competent jurisdiction.
(c) A settlement agreement may contain a covenant not to sue only
of a scope commensurate with the settlement agreement in favor of any
person with whom the attorney general has settled under this section.
Any covenant not to sue shall contain a reopener clause which requires
the court to amend the covenant not to sue if factors not known at the
time of entry of the settlement agreement are discovered and present a
previously unknown threat to human health or the environment.
(d) A party who has resolved its liability to the state under this
section shall not be liable for claims for contribution regarding
matters addressed in the settlement. The settlement does not discharge
any of the other liable parties but it reduces the total potential
liability of the others to the state by the amount of the settlement.
(e) If the state has entered into a consent decree with an owner or
operator under this section, the state shall not enforce this chapter
against any owner or operator who is a successor in interest to the
settling party unless under the terms of the consent decree the state
could enforce against the settling party, if:
(i) The successor owner or operator is liable with respect to the
facility solely due to that person's ownership interest or operator
status acquired as a successor in interest to the owner or operator
with whom the state has entered into a consent decree; and
(ii) The stay of enforcement under this subsection does not apply
if the consent decree was based on circumstances unique to the settling
party that do not exist with regard to the successor in interest, such
as financial hardship. For consent decrees entered into before July
27, 1997, at the request of a settling party or a potential successor
owner or operator, the attorney general shall issue a written opinion
on whether a consent decree contains such unique circumstances. For
all other consent decrees, such unique circumstances shall be specified
in the consent decree.
(f) Any person who is not subject to enforcement by the state under
(e) of this subsection is not liable for claims for contribution
regarding matters addressed in the settlement.
(5)(a) In addition to the settlement authority provided under
subsection (4) of this section, the attorney general may agree to a
settlement with a ((person not currently liable for remedial action at
a facility who proposes to purchase, redevelop, or reuse the facility))
prospective purchaser, provided that:
(i) The settlement will yield substantial new resources ((to
facilitate)) for cleanup and without these resources the cleanup is not
likely to be accomplished;
(ii) The settlement will expedite remedial action consistent with
the rules adopted under this chapter; and
(iii) Based on available information, the department determines
that the redevelopment or reuse of the facility is not likely to
contribute to the existing release or threatened release, interfere
with remedial actions that may be needed at the site, or increase
health risks to persons at or in the vicinity of the site.
(b) The legislature recognizes that the state does not have
adequate resources to participate in all property transactions
involving contaminated property. The primary purpose of this
subsection (5) is to promote the cleanup and reuse of ((vacant or
abandoned commercial or industrial contaminated)) brownfield property.
The attorney general and the department may give priority to
settlements that will provide a substantial public benefit, including,
but not limited to:
(i) The reuse of ((a vacant or abandoned manufacturing or
industrial facility, or)) brownfield property;
(ii) The development of a facility by a governmental entity to
address an important public purpose;
(iii) The cleanup and reuse of a property would provide public
access to an area not otherwise accessible to the public, provide for
new or improved public recreational opportunities, preserve a historic
property listed pursuant to chapter 84.26 RCW, or otherwise create new
publicly accessible facilities.
(c) A settlement entered under this subsection is governed by the
procedures and include the liability protections and limitations
provided in subsection (4) of this section.
(6) As an alternative to a settlement under subsection (5) of this
section, the department may issue an agreed order to a prospective
purchaser of a property within a designated brownfield renewal area.
The order is subject to the limitations of an agreed order included in
RCW 70.105D.020, but stays enforcement by the state regarding remedial
action as long as the prospective purchaser complies with the
requirements of the order. The department shall place a priority upon
processing requests for an agreed order under this subsection when the
prospective purchaser is a city, county, port district, or brownfield
renewal authority.
(7) Nothing in this chapter affects or modifies in any way any
person's right to seek or obtain relief under other statutes or under
common law, including but not limited to damages for injury or loss
resulting from a release or threatened release of a hazardous
substance. No settlement by the department or remedial action ordered
by a court or the department affects any person's right to obtain a
remedy under common law or other statutes.
Sec. 11 RCW 70.105D.070 and 2011 1st sp.s. c 50 s 964 are each
reenacted and amended to read as follows:
(1) The state toxics control account and the local toxics control
account are hereby created in the state treasury.
(2) The following moneys shall be deposited into the state toxics
control account: (a) Those revenues which are raised by the tax
imposed under RCW 82.21.030 and which are attributable to that portion
of the rate equal to thirty-three one-hundredths of one percent; (b)
the costs of remedial actions recovered under this chapter or chapter
70.105A RCW; (c) penalties collected or recovered under this chapter;
and (d) any other money appropriated or transferred to the account by
the legislature. Moneys in the account may be used only to carry out
the purposes of this chapter, including but not limited to the
following activities:
(i) The state's responsibility for hazardous waste planning,
management, regulation, enforcement, technical assistance, and public
education required under chapter 70.105 RCW;
(ii) The state's responsibility for solid waste planning,
management, regulation, enforcement, technical assistance, and public
education required under chapter 70.95 RCW;
(iii) The hazardous waste cleanup program required under this
chapter;
(iv) State matching funds required under the federal cleanup law;
(v) Financial assistance for local programs in accordance with
chapters 70.95, 70.95C, 70.95I, and 70.105 RCW;
(vi) State government programs for the safe reduction, recycling,
or disposal of hazardous wastes from households, small businesses, and
agriculture;
(vii) Hazardous materials emergency response training;
(viii) Water and environmental health protection and monitoring
programs;
(ix) Programs authorized under chapter 70.146 RCW;
(x) A public participation program, including regional citizen
advisory committees;
(xi) Public funding to assist potentially liable persons to pay for
the costs of remedial action in compliance with clean-up standards
under RCW 70.105D.030(2)(e) but only when:
(A) The amount and terms of such funding are established under a
settlement agreement under RCW 70.105D.040(4) and when the director has
found that the funding will achieve both (((A))) (I) a substantially
more expeditious or enhanced cleanup than would otherwise occur, and
(((B))) (II) the prevention or mitigation of unfair economic hardship;
or
(B) The clean-up area is within a designated brownfield renewal
area, the public funding will provide for substantial new economic
development that would not otherwise occur, and the public funding will
provide one or more of the following public benefits commensurate with
the scope of funding:
(I) Provide public access to an area not otherwise accessible to
the public;
(II) Provide for new or improved public recreational activities;
(III) Provide for restoration of habitat that would otherwise not
occur; or
(IV) Preserve a historic property listed pursuant to chapter 84.26
RCW;
(xii) Development and demonstration of alternative management
technologies designed to carry out the hazardous waste management
priorities of RCW 70.105.150;
(xiii) During the 2009-2011 and 2011-2013 fiscal biennia, shoreline
update technical assistance;
(xiv) During the 2009-2011 fiscal biennium, multijurisdictional
permitting teams; and
(xv) During the 2011-2013 fiscal biennium, actions for reducing
public exposure to toxic air pollution.
(3) The following moneys shall be deposited into the local toxics
control account: Those revenues which are raised by the tax imposed
under RCW 82.21.030 and which are attributable to that portion of the
rate equal to thirty-seven one-hundredths of one percent.
(a) Moneys deposited in the local toxics control account shall be
used by the department for grants or loans to local governments for the
following purposes in descending order of priority:
(i) Remedial actions, including funding provided to local
governments under section 4 of this act;
(ii) Hazardous waste plans and programs under chapter 70.105 RCW;
(iii) Solid waste plans and programs under chapters 70.95, 70.95C,
70.95I, and 70.105 RCW;
(iv) Funds for a program to assist in the assessment and cleanup of
sites of methamphetamine production, but not to be used for the initial
containment of such sites, consistent with the responsibilities and
intent of RCW 69.50.511; and
(v) Cleanup and disposal of hazardous substances from abandoned or
derelict vessels, defined for the purposes of this section as vessels
that have little or no value and either have no identified owner or
have an identified owner lacking financial resources to clean up and
dispose of the vessel, that pose a threat to human health or the
environment.
(b) Funds for plans and programs shall be allocated consistent with
the priorities and matching requirements established in chapters
70.105, 70.95C, 70.95I, and 70.95 RCW, except that any applicant that
is a Puget Sound partner, as defined in RCW 90.71.010, along with any
project that is referenced in the action agenda developed by the Puget
Sound partnership under RCW 90.71.310, shall, except as conditioned by
RCW 70.105D.120, receive priority for any available funding for any
grant or funding programs or sources that use a competitive bidding
process. During the 2007-2009 fiscal biennium, moneys in the account
may also be used for grants to local governments to retrofit public
sector diesel equipment and for storm water planning and implementation
activities.
(c) To expedite cleanups throughout the state, the department shall
partner with local communities and liable ((parties for cleanups. The
department is authorized to use)) persons conducting remedial actions,
using the following additional strategies in order to facilitate
economic development and ensure a healthful environment for future
generations:
(i) The director may alter ((grant-matching)) grant or loan
matching requirements to create incentives for local governments to
expedite cleanups when one of the following conditions exists:
(A) Funding would prevent or mitigate unfair economic hardship
imposed by the clean-up liability;
(B) Funding would create new substantial economic development,
public recreational, or habitat restoration opportunities that would
not otherwise occur; or
(C) Funding would create an opportunity for acquisition and
redevelopment of ((vacant, orphaned, or)) abandoned property under RCW
70.105D.040(5) that would not otherwise occur;
(ii) ((The use of outside contracts to conduct necessary studies))
To provide integrated planning grants or loans to local governments to
fund studies necessary to facilitate renewal of brownfields including
but not limited to environmental site assessments, remedial
investigations, health assessments, remedial action feasibility
studies, site planning, community involvement, land use and regulatory
analyses, building and infrastructure assessments, economic and fiscal
analyses, and general environmental analyses pursuant to chapter 43.21C
RCW;
(iii) The purchase of remedial action cost-cap insurance, when
necessary to expedite multiparty clean-up efforts;
(iv) Provide grants or loans to local governments for remedial
actions related to areawide groundwater contamination. The local
government need not be a potentially liable person under this chapter,
or be required to seek reimbursement of funds from potentially liable
persons, to be eligible to receive funds under this subsection
(3)(c)(iv).
(d) When there are insufficient funds to fill all the requests for
funding under (c) of this subsection, designated brownfield renewal
areas must receive priority for distribution of available funds.
(e) To facilitate and expedite cleanups using funds from the local
toxics control account, during the 2009-2011 fiscal biennium the
director may establish grant-funded accounts to hold and disperse local
toxics control account funds and funds from local governments to be
used for remedial actions.
(4) Except for unanticipated receipts under RCW 43.79.260 through
43.79.282, moneys in the state and local toxics control accounts may be
spent only after appropriation by statute.
(5) Except during the 2009-2011 fiscal biennium, one percent of the
moneys deposited into the state and local toxics control accounts shall
be allocated only for public participation grants to persons who may be
adversely affected by a release or threatened release of a hazardous
substance and to not-for-profit public interest organizations. The
primary purpose of these grants is to facilitate the participation by
persons and organizations in the investigation and remedying of
releases or threatened releases of hazardous substances and to
implement the state's solid and hazardous waste management priorities.
No grant may exceed sixty thousand dollars. Grants may be renewed
annually. Moneys appropriated for public participation from either
account which are not expended at the close of any biennium shall
revert to the state toxics control account.
(6) No moneys deposited into either the state or local toxics
control account may be used for solid waste incinerator feasibility
studies, construction, maintenance, or operation, or, after January 1,
2010, for projects designed to address the restoration of Puget Sound,
funded in a competitive grant process, that are in conflict with the
action agenda developed by the Puget Sound partnership under RCW
90.71.310.
(7) The department shall adopt rules for grant or loan issuance and
performance. To accelerate both remedial action and economic recovery,
the department may expedite the necessary adoption of rules to
implement this act using the expedited procedures in RCW 34.05.353.
The department shall initiate the award of financial assistance by July
1, 2012, and to ensure that the adoption of rules will not delay the
awards, the department may administer the award of financial assistance
through interpretive guidance pending the adoption of rules not later
than January 1, 2013.
(8) During the 2007-2009 and 2009-2011 fiscal biennia, the
legislature may transfer from the local toxics control account to
either the state general fund or the oil spill prevention account, or
both such amounts as reflect excess fund balance in the account.
(9) During the 2009-2011 fiscal biennium, the local toxics control
account may also be used for a standby rescue tug at Neah Bay, local
government shoreline update grants, private and public sector diesel
equipment retrofit, and oil spill prevention, preparedness, and
response activities.
(10) During the 2009-2011 fiscal biennium, the legislature may
transfer from the state toxics control account to the state general
fund such amounts as reflect the excess fund balance in the account.
(11) During the 2011-2013 fiscal biennium, the local toxics control
account may also be used for local government shoreline update grants
and actions for reducing public exposure to toxic air pollution.
NEW SECTION. Sec. 12 (1) By December 20, 2012, the department
shall report to the fiscal and hazardous waste cleanup committees in
the senate and house of representatives on additional legislative and
administrative actions that would accelerate the pace of cleanup and
reuse of brownfield properties. The report may be combined with the
report required by RCW 70.105D.030(4). The report must include but is
not limited to an analysis and recommendations on:
(a) Alternatives for state licensing or other recognition of site
remediation professionals that design and oversee remediation action
work on behalf of potentially liable parties. The objective is to
streamline state oversight while ensuring that remedial action meets
all applicable state and federal standards;
(b) Methods to provide greater liability protections for persons
completing independent remedial actions that meet all applicable state
and federal clean-up standards; and
(c) Clarifying the standards applicable for liability protection
for innocent purchasers, and streamlining the procedures and standards
for prospective purchasers to receive liability protection.
(2) The definitions in RCW 70.105D.020 apply throughout this
section.
NEW SECTION. Sec. 13 If any provision of this act or its
application to any person or circumstance is held invalid, the
remainder of the act or the application of the provision to other
persons or circumstances is not affected.