CERTIFICATION OF ENROLLMENT

SUBSTITUTE HOUSE BILL 1085

68TH LEGISLATURE

2023 REGULAR SESSION

SUBSTITUTE HOUSE BILL 1085

ByHouse Environment & Energy (originally sponsored by Representatives Mena, Bateman, Reed, Fitzgibbon, Ramel, Peterson, Pollet, Berry, Walen, Doglio, Macri, Simmons, Thai, Cortes, Kloba, and Ormsby)

AN ACT Relating to reducing plastic pollution; amending RCW 43.21B.110 and 43.21B.300; adding a new section to chapter 19.27 RCW; adding new sections to chapter 70A.245 RCW; creating new sections; and prescribing penalties.

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

(1) Single-use plastic water bottles, which frequently end up as litter;

(2) The small plastic containers, wrappers, and packaging for personal health and beauty products, which are still often provided in lodging establishments but easily substituted by bulk dispensers and which are difficult to recycle in current systems; and

(3) Certain thin-walled or soft-shell floating extruded or expanded plastic foam structures, which frequently degrade in the environment and contribute to small and microplastic pollution of marine and shoreline environments.

NEW SECTION.  Sec. 2. A new section is added to chapter 19.27 RCW to read as follows:

(1) In any construction subject to the requirements of this chapter in which a drinking fountain is required under the international building code as amended and adopted by the building code council, the rules adopted by the building code council must also require the provision of a bottle filling station, or a combined bottle filling station and drinking fountain for each drinking fountain that is required.

(2) The rules required under this section must take effect and be implemented by July 1, 2026, and may be periodically updated thereafter.

(3) For the purposes of this section, "bottle filling station" means a plumbing fixture connected to the potable water distribution system and sanitary drainage system that is designed and intended for filling personal use drinking water bottles or containers not less than 10 inches (254 millimeters) in height. A bottle filling station may be separate from or integral to a drinking fountain and may incorporate a water filter and a cooling system for chilling the drinking water.

NEW SECTION.  Sec. 3. A new section is added to chapter 70A.245 RCW to read as follows:

(1) Beginning January 1, 2024, it is prohibited to sell, distribute, install, or arrange for the installation of in or into Washington state:

(a) Overwater structures containing expanded or extruded plastic foam that is not fully enclosed and contained in a shell made of plastic with a minimum thickness of 0.15 inches, concrete, aluminum, or steel; and

(b) Blocks or floats containing or comprised of expanded or extruded plastic foam that are not fully enclosed and contained in a shell made of plastic with a minimum thickness of 0.15 inches, concrete, aluminum, or steel, and that are intended for use in or in conjunction with overwater structures.

(2)(a) The department may adopt rules to implement, administer, and enforce this section.

(b) A person in violation of this section is subject to a civil penalty for each violation in an amount not to exceed $10,000.

(c) Penalties collected under this section must be deposited in the model toxics control operating account created in RCW 70A.305.180.

(d) Penalties issued under this section are appealable to the pollution control hearings board established in chapter 43.21B RCW.

(3) For the purposes of this section, overwater structures do not include floating homes or floating on-water residences, as those terms are defined in RCW 90.58.270, but do include docks, floats, walkways, or other accessory overwater structures associated with floating homes or floating on-water residences.

(4) Nothing in this section applies to any dock sold, distributed, or installed prior to January 1, 2024.

NEW SECTION.  Sec. 4. A new section is added to chapter 70A.245 RCW to read as follows:

(1)(a) A lodging establishment may not provide a personal health or beauty product in a small plastic personal health or beauty product container, a plastic wrapper, or any other single-use plastic packaging to a person staying in a lodging unit or within bathrooms shared by the public or guests. A lodging establishment may make products restricted under this subsection available to a person upon request.

(b) The requirements of (a) of this subsection apply beginning January 1, 2027, for lodging establishments with 50 or more lodging units, and beginning January 1, 2028, for lodging establishments with less than 50 lodging units.

(c)(i) Nothing in this subsection restricts the use of plastic refillable bulk health or beauty product dispensers.

(ii) Nothing in this subsection:

(A) Restricts the use of single-use health or beauty product containers, wrappers, or packaging that are not made with plastic; or

(B) Requires the use of refillable bulk health or beauty product dispensers.

(2)(a) The department must issue at least one notice of violation by certified mail to the owner or operator of a lodging establishment prior to assessing a penalty under (b) of this subsection.

(b) For the first and subsequent penalized violations by the owner or operator of a lodging establishment, the department may issue a civil penalty of up to $500 for each day the lodging establishment provides personal health or beauty products in violation of this section. The department may not issue penalties to a lodging establishment in excess of $2,000 annually.

(c) Penalties collected under this section must be deposited in the model toxics control operating account created in RCW 70A.305.180.

(d) A lodging establishment may appeal penalties assessed under this subsection to the pollution control hearings board created in chapter 43.21B RCW within 30 days of assessment.

(3)(a) The department may adopt rules to implement, administer, and enforce this section.

(b) The enforcement of this section must be primarily based on complaints filed with the department. The department must establish a forum for the filing of complaints, and any person may file complaints with the department using the forum. The forum established by the department may include a complaint form on the department's website, a telephone hotline, or a public outreach strategy relying upon electronic social media to receive complaints that allege violations. The department must provide a website with education and outreach resources that provides information about the requirements of this section to lodging establishments, consumers, and other interested individuals.

(4) On and after July 23, 2023, a city, town, or county may not enforce an ordinance, resolution, regulation, or rule relating to personal health or beauty products in single-use plastic bottles, wrappers, or packaging provided at lodging establishments.

(5) The definitions in this subsection apply throughout this section unless the context clearly requires otherwise.

(a)(i) "Lodging establishment" means an establishment that contains one or more sleeping room accommodations that are rented or otherwise provided to the public including, but not limited to, a hotel, motel, resort, bed and breakfast, inn, timeshare property, short-term rental, or vacation rental.

(ii) "Lodging establishment" does not include a hospital, nursing home, residential retirement community, prison, jail, homeless shelter, boarding school, worker housing, or long-term rental.

(b) "Lodging unit" means one self-contained unit of a lodging establishment including, but not limited to, self-contained units designated by number, letter, or some other method of identification.

(c) "Personal health or beauty product" means:

(i) Shampoo, hair conditioner, bath soap, body wash, or shower gel that is intended to serve the same function as body wash or soap, and that is intended to be applied to or used on the human body in the shower or bath;

(ii) Lotion;

(iii) Hand soap; and

(iv) Hand sanitizer.

(d) "Short-term rental" has the same meaning as defined in RCW 64.37.010.

(e) "Small plastic personal health or beauty product container" means a plastic bottle, tube, sachet, or other plastic container with less than a six-ounce capacity that is not intended to be reusable by the end user and that contains a personal health or beauty product.

(2) The study should assess the following:

(a) Durability;

(b) The costs associated with the purchase, installation, replacement, maintenance, and disposal of products;

(c) Reuse or recycle potential;

(d) Buoyancy;

(e) Availability;

(f) Transport costs and requirements; and

(g) The degree to which flotation containers demonstrate the ability to securely contain materials within a protective shell.

(3) The results of the study must be submitted to the appropriate committees of the legislature and must include findings and recommendations.

(4) In carrying out the study required under subsection (1) of this section, the department of fish and wildlife or its contractor must solicit input from a diverse set of affected stakeholders, including ports, maritime associations, maritime businesses including installers of docks or piers, manufacturers of floats, state, federal, and local government entities, and environmental organizations.

Sec. 6. RCW 43.21B.110 and 2022 c 180 s 812 are each amended to read as follows:

(1) The hearings board shall only have jurisdiction to hear and decide appeals from the following decisions of the department, the director, local conservation districts, the air pollution control boards or authorities as established pursuant to chapter 70A.15 RCW, local health departments, the department of natural resources, the department of fish and wildlife, the parks and recreation commission, and authorized public entities described in chapter 79.100 RCW:

(a) Civil penalties imposed pursuant to RCW 18.104.155, 70A.15.3160, 70A.300.090, 70A.20.050, 70A.530.040, 70A.350.070, 70A.515.060, 70A.245.040, 70A.245.050, 70A.245.070, 70A.245.080, sections 3 and 4 of this act, 70A.65.200, 70A.455.090, 76.09.170, 77.55.440, 78.44.250, 88.46.090, 90.03.600, 90.46.270, 90.48.144, 90.56.310, 90.56.330, and 90.64.102.

(b) Orders issued pursuant to RCW 18.104.043, 18.104.060, 43.27A.190, 70A.15.2520, 70A.15.3010, 70A.300.120, 70A.350.070, 70A.245.020, 70A.65.200, 86.16.020, 88.46.070, 90.14.130, 90.46.250, 90.48.120, and 90.56.330.

(c) Except as provided in RCW 90.03.210(2), the issuance, modification, or termination of any permit, certificate, or license by the department or any air authority in the exercise of its jurisdiction, including the issuance or termination of a waste disposal permit, the denial of an application for a waste disposal permit, the modification of the conditions or the terms of a waste disposal permit, or a decision to approve or deny an application for a solid waste permit exemption under RCW 70A.205.260.

(d) Decisions of local health departments regarding the grant or denial of solid waste permits pursuant to chapter 70A.205 RCW.

(e) Decisions of local health departments regarding the issuance and enforcement of permits to use or dispose of biosolids under RCW 70A.226.090.

(f) Decisions of the department regarding waste-derived fertilizer or micronutrient fertilizer under RCW 15.54.820, and decisions of the department regarding waste-derived soil amendments under RCW 70A.205.145.

(g) Decisions of local conservation districts related to the denial of approval or denial of certification of a dairy nutrient management plan; conditions contained in a plan; application of any dairy nutrient management practices, standards, methods, and technologies to a particular dairy farm; and failure to adhere to the plan review and approval timelines in RCW 90.64.026.

(h) Any other decision by the department or an air authority which pursuant to law must be decided as an adjudicative proceeding under chapter 34.05 RCW.

(i) Decisions of the department of natural resources, the department of fish and wildlife, and the department that are reviewable under chapter 76.09 RCW, and the department of natural resources' appeals of county, city, or town objections under RCW 76.09.050(7).

(j) Forest health hazard orders issued by the commissioner of public lands under RCW 76.06.180.

(k) Decisions of the department of fish and wildlife to issue, deny, condition, or modify a hydraulic project approval permit under chapter 77.55 RCW, to issue a stop work order, to issue a notice to comply, to issue a civil penalty, or to issue a notice of intent to disapprove applications.

(l) Decisions of the department of natural resources that are reviewable under RCW 78.44.270.

(m) Decisions of an authorized public entity under RCW 79.100.010 to take temporary possession or custody of a vessel or to contest the amount of reimbursement owed that are reviewable by the hearings board under RCW 79.100.120.

(n) Decisions of the department of ecology that are appealable under RCW 70A.245.020 to set recycled minimum postconsumer content for covered products or to temporarily exclude types of covered products in plastic containers from minimum postconsumer recycled content requirements.

(o) Orders by the department of ecology under RCW 70A.455.080.

(2) The following hearings shall not be conducted by the hearings board:

(a) Hearings required by law to be conducted by the shorelines hearings board pursuant to chapter 90.58 RCW.

(b) Hearings conducted by the department pursuant to RCW 70A.15.3010, 70A.15.3070, 70A.15.3080, 70A.15.3090, 70A.15.3100, 70A.15.3110, and 90.44.180.

(c) Appeals of decisions by the department under RCW 90.03.110 and 90.44.220.

(d) Hearings conducted by the department to adopt, modify, or repeal rules.

(3) Review of rules and regulations adopted by the hearings board shall be subject to review in accordance with the provisions of the administrative procedure act, chapter 34.05 RCW.

Sec. 7. RCW 43.21B.300 and 2022 c 180 s 813 are each amended to read as follows:

(1) Any civil penalty provided in RCW 18.104.155, 70A.15.3160, 70A.205.280, 70A.300.090, 70A.20.050, 70A.245.040, 70A.245.050, 70A.245.070, 70A.245.080, sections 3 and 4 of this act, 70A.65.200, 70A.455.090, 88.46.090, 90.03.600, 90.46.270, 90.48.144, 90.56.310, 90.56.330, and 90.64.102 and chapter 70A.355 RCW 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 30 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 30 days after the date of receipt by the person penalized of the notice imposing the penalty or 30 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 30 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 30 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 70A.15.3160, the disposition of which shall be governed by that provision, RCW 70A.245.040 and 70A.245.050, which shall be credited to the recycling enhancement account created in RCW 70A.245.100, RCW 70A.300.090, which shall be credited to the model toxics control operating account created in RCW 70A.305.180, RCW 70A.65.200, which shall be credited to the climate investment account created in RCW 70A.65.250, RCW 90.56.330, which shall be credited to the coastal protection fund created by RCW 90.48.390, and RCW 70A.355.070, which shall be credited to the underground storage tank account created by RCW 70A.355.090.

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