ESSB 5458 -
By Representative Short
FAILED 04/09/2013
Strike everything after the enacting clause and insert the following:
"NEW SECTION. Sec. 1 Asbestos is a known human carcinogen that
causes painful, premature deaths due to diseases such as asbestosis,
mesothelioma, lung and gastrointestinal cancers, and other diseases and
cancers. Activities that can lead to the release of asbestos fibers
include installation, use, maintenance, repair, removal, and disposal
of asbestos-containing building materials.
Many people are unaware that asbestos-containing building materials
are still imported, sold, and used in the United States. Because few
regulations exist that require the disclosure of asbestos in building
materials, people can unknowingly be exposed to asbestos. Asbestos is
generally invisible, odorless, very durable, and highly aerodynamic.
Exposure can occur well after it has been disturbed and long distances
from where the asbestos release occurred.
The purpose of this chapter is to allow people to make informed
decisions regarding whether or not they purchase or use building
materials containing asbestos. More specifically, building materials
that contain asbestos must be clearly labeled as such by manufacturers,
wholesalers, and distributors.
NEW SECTION. Sec. 2 The definitions in this section apply
throughout this chapter unless the context clearly requires otherwise.
(1) "Asbestos" includes the asbestiform varieties of actinolite,
amosite (cummingtonite-grunerite), tremolite, chrysotile (serpentine),
crocidolite (riebeckite), anthophyllite, and any of these minerals that
have been chemically treated or altered. The chemical abstracts
service registry number for each is as follows: Asbestos (1332-21-4),
actinolite (13768-00-8), amosite (12172-73-5), tremolite (14567-73-8),
chrysotile (12001-29-5), crocidolite (12001-28-4), and anthophyllite
(17068-78-9).
(2) "Asbestos-containing building material" means any building
material to which asbestos is deliberately added in any concentration
or that contains more than one percent asbestos by weight or area as
determined using the United States environmental protection agency
method for the determination of asbestos in building materials,
EPA/600/R-93/116, July 1993.
(3) "Building material" includes materials designed for, or used
in, construction, renovation, repair, or maintenance of institutional,
commercial, public, industrial, or residential buildings and
structures. The term does not include automobiles, recreational
vehicles, boats, or other mobile means of transportation.
(4) "Consumer" means any person that acquires a building material
for direct use or ownership, rather than for resale or use in
production and manufacturing.
(5) "Department" means the department of ecology.
(6) "Person" means any individual, firm, public or private
corporation, association, partnership, political subdivision,
municipality, or government agency.
(7) "Retailer" means any person that sells goods or commodities
directly to consumers.
NEW SECTION. Sec. 3 (1) Except as otherwise provided in this
section or section 4 of this act, it is unlawful to manufacture,
wholesale, or distribute for sale an asbestos-containing building
material that is not labeled as required by section 5 of this act or as
required under federal law, 40 C.F.R. part 763, subpart I, Sec. 173.171
(1994). The labeling requirement also applies to stock-on-hand,
meaning any asbestos-containing building material in the possession or
control of a manufacturer, wholesaler, or distributor after December
31, 2013, must be labeled.
(2)(a) Subsection (1) of this section does not apply to asbestos-containing building materials that have already been installed,
applied, or used by the consumer.
(b) Subsection (1) of this section does not apply to asbestos-containing building materials used solely for United States military
purposes.
(3) Any manufacturer, wholesaler, or distributor may submit a
written request for an exemption from the labeling requirements of this
chapter, and the department may grant such an exemption if it
determines that the labeling requirements are technically infeasible or
create an undue economic hardship. Each exemption is in effect for a
period not to exceed three years from the date issued and is subject to
the terms and conditions prescribed by the department.
NEW SECTION. Sec. 4 Except for the provisions of section 5(4) of
this act, retailers that do not manufacture, wholesale, or distribute
asbestos-containing building materials are exempt from this chapter.
NEW SECTION. Sec. 5 (1) A label must be placed in a prominent
location adjacent to the product name or description on the exterior of
the wrapping and packaging in which the asbestos-containing building
material is placed for storage, shipment, and sale.
(2) A label must also be placed on the exterior surface of the
asbestos-containing building material itself unless it is sold as a
liquid or paste, is sand or gravel, or an exemption is granted pursuant
to section 3(3) of this act.
(3) Asbestos-containing building materials must have a legible
label that clearly identifies it as containing asbestos. At a minimum,
the label must state the following:
CAUTION!
This product contains ASBESTOS which is known to cause cancer and lung disease. Avoid creating dust. Intentionally removing or tampering with this label is a violation of state law.
NEW SECTION. Sec. 6 (1) The provisions of this chapter may be
enforced by the department, a local air authority formed under chapter
70.94 RCW, or their designees.
(2) Whenever the department or authority determines, after
receiving a complaint, that a person has violated any provision of this
chapter, the department may issue an order requiring compliance either
immediately or within a specified period of time.
(3) Any person who has received a corrective action order under
subsection (2) of this section within the preceding twelve calendar
months and is determined to have subsequently violated this chapter, or
any person who fails to take corrective action as specified by an order
issued pursuant to subsection (2) of this section and is subsequently
determined to be in continuing violation of this chapter, is liable for
a civil penalty of not more than one thousand dollars per day. In the
case of a continuing violation, each day's continuance is a separate
and distinct violation.
(4) The penalties provided in this section are imposed pursuant to
RCW 43.21B.300. All penalties recovered under this chapter by the
department must be paid into the state treasury and credited to the air
pollution control account established in RCW 70.94.015 or, if recovered
by an authority, must be paid into the treasury of an authority and
credited to its funds. If a prior penalty for the same violation has
been paid to an authority, the penalty imposed by the department under
subsection (3) of this section must be reduced by the amount of the
payment.
(5) For the purposes of this section, "authority" has the same
meaning as defined in RCW 70.94.030.
Sec. 7 RCW 43.21B.300 and 2010 c 210 s 12 and 2010 c 84 s 4 are
each reenacted and amended to read as follows:
(1) Any civil penalty provided in RCW 18.104.155, 70.94.431,
70.95.315, 70.105.080, 70.107.050, 88.46.090, 90.03.600, 90.46.270,
90.48.144, 90.56.310, 90.56.330, and 90.64.102 and chapter 90.76 RCW
and chapter 70.-- RCW (the new chapter created in section 9 of this
act), shall be imposed by a notice in writing, either by certified mail
with return receipt requested or by personal service, to the person
incurring the penalty from the department or the local air authority,
describing the violation with reasonable particularity. For penalties
issued by local air authorities, within thirty days after the notice is
received, the person incurring the penalty may apply in writing to the
authority for the remission or mitigation of the penalty. Upon receipt
of the application, the authority may remit or mitigate the penalty
upon whatever terms the authority in its discretion deems proper. The
authority may ascertain the facts regarding all such applications in
such reasonable manner and under such rules as it may deem proper and
shall remit or mitigate the penalty only upon a demonstration of
extraordinary circumstances such as the presence of information or
factors not considered in setting the original penalty.
(2) Any penalty imposed under this section may be appealed to the
pollution control hearings board in accordance with this chapter if the
appeal is filed with the hearings board and served on the department or
authority thirty days after the date of receipt by the person penalized
of the notice imposing the penalty or thirty days after the date of
receipt of the notice of disposition by a local air authority of the
application for relief from penalty.
(3) A penalty shall become due and payable on the later of:
(a) Thirty days after receipt of the notice imposing the penalty;
(b) Thirty days after receipt of the notice of disposition by a
local air authority on application for relief from penalty, if such an
application is made; or
(c) Thirty days after receipt of the notice of decision of the
hearings board if the penalty is appealed.
(4) If the amount of any penalty is not paid to the department
within thirty days after it becomes due and payable, the attorney
general, upon request of the department, shall bring an action in the
name of the state of Washington in the superior court of Thurston
county, or of any county in which the violator does business, to
recover the penalty. If the amount of the penalty is not paid to the
authority within thirty days after it becomes due and payable, the
authority may bring an action to recover the penalty in the superior
court of the county of the authority's main office or of any county in
which the violator does business. In these actions, the procedures and
rules of evidence shall be the same as in an ordinary civil action.
(5) All penalties recovered shall be paid into the state treasury
and credited to the general fund except those penalties imposed
pursuant to RCW 18.104.155, which shall be credited to the reclamation
account as provided in RCW 18.104.155(7), RCW 70.94.431, the
disposition of which shall be governed by that provision, RCW
70.105.080, which shall be credited to the hazardous waste control and
elimination account created by RCW 70.105.180, RCW 90.56.330, which
shall be credited to the coastal protection fund created by RCW
90.48.390, and RCW 90.76.080, which shall be credited to the
underground storage tank account created by RCW 90.76.100.
NEW SECTION. Sec. 8 The department may adopt rules regarding
the implementation of this chapter.
NEW SECTION. Sec. 9 Sections 1 through 6 and 8 of this act
constitute a new chapter in Title
NEW SECTION. Sec. 10 This act takes effect January 1, 2014."
Correct the title.
EFFECT: Specifies that actions taken by the department of ecology
or a local air authority to enforce asbestos labeling provisions must
be initiated only after the receipt of a complaint;
Narrows the exemption for retailers, so that retailers are
prohibited from intentionally removing or defacing a label, but remain
otherwise exempt from the bill's requirements;
Narrows the prohibition on label removal and defacement so that
certain inadvertent violations are not punishable; and
Changes the penalty from $10,000 per violation per day to $1,000
per day, and allows for penalties to be issued only after a company
fails to respond to a corrective action order, or has received a prior
corrective action order within the previous year.