SENATE BILL REPORT

SB 5435

BYSenators Kreidler and Rinehart; by request of Department of Ecology

Providing for procedures to protect the public from hazardous substances.

Senate Committee on Parks & Ecology

Senate Hearing Date(s):February 6, 1987

Senate Staff:Henry Yates (786-7708)

AS OF FEBRUARY 6, 1987

BACKGROUND:

Numerous sites where hazardous wastes have contaminated soil, water, or air have been discovered in the state and it is estimated that currently one to two new sites per month are being revealed.  Some sites in the state will be eligible for cleanup under the federal Superfund program, which details steps the Environmental Protection Agency must follow when it discovers a site.  It also provides funding.  The federal program has provisions for assessing liability, specifying how funds can be spent, procedures for investigation and cleanup, enforcement authority, penalties, etc.  Monies spent from the federal Superfund are used only if the persons responsible for the contamination do not act.  The federal government then attempts to recover the costs in court.  Sites that are cleaned up using Superfund money require the state to provide 10 to 50 percent of the total cleanup costs.  Only the worst sites are eligible for federal monies.  The majority of sites in any state are not eligible.

A state program somewhat like Superfund, which details steps the Department of Ecology must take once a site that is ineligible for federal funding is discovered is needed.  Funding for the state program and money to match federal cleanup funds would accompany it.

The Department of Ecology has identified 158 contaminated sites in the state and is currently assessing 400 potential sites.  The agency estimates that $203 million will be needed to clean up hazardous waste sites for the next two years.

SUMMARY:

The standard of liability for persons responsible for contaminated sites is to be strict joint and several and anyone found liable can be made to pay all costs involved in addressing a site.  Liability will not be imposed in specified situations.

The Department may require specified information from potentially responsible parties if it has reasonable basis to believe there is a release or threatened release of hazardous substances into the environment occurring.  The Department is given subpoena power.  Upon reasonable notice, if there is reasonable basis to believe there may be a release of hazardous substances into the environment, the Department or responsible parties acting under an approved plan, may enter a site and conduct sampling.

If there is no emergency, before the Department of Ecology can begin addressing a contaminated site, it must investigate the site and notify interested persons, the public and those responsible for the contamination.

Persons who receive notice that they are responsible for a contaminated site, must prepare a plan for cleanup within 45 days of notification and it must include specified elements.  The Department is to give notice of the proposed plan and results of the investigation to the public and interested persons and allow at least a 45-day comment period.  A list of factors are included for the agency to use in determining whether to accept, accept with conditions or reject the cleanup plan.  If the Department rejects the plan or the plan is not carried out, the responsible parties are liable for the cost to Ecology to clean up the site.  If the action is wilful, the responsible party is liable for up to three times the reasonable and necessary costs of responding to the site.  A responsible party who does not comply with an Ecology order to address a hazardous waste site is also liable for up to three times the agency's cost.

The Department is to provide a covenant not to sue when approving a cleanup plan if the waste and its byproducts will be eliminated.  A covenant not to sue is also to be granted when the waste cannot be eliminated or permanently immobilized and must be transported and disposed of at a facility meeting federal hazardous waste requirements.  The agency may issue a covenant not to if specified public interest criteria are met.  Any covenant not to sue is subject to agency certification that cleanup is complete and will not be granted until a specific amount of money is placed in a reserve account to address future cleanup.  All covenants not to sue may be conditioned based on listed elements and will not be offered after June 30, 1995.

If an emergency exists and the responsible party is unwilling or unable to take immediate action, the Department may take actions necessary to address the emergency.  In nonemergency situations, if the potentially responsible party fails to implement the cleanup plan, the Department may initiate it after following certain procedures.  The agency determination that action is necessary to address the hazardous waste contamination is not appealable through the environmental hearings office or the Administrative Procedure Act.  All cleanup actions must meet minimum substantive requirements of all state and federal laws that would be applicable.  An exception process is provided.

The Department's decision on the adequacy of a cleanup plan can only be reviewed through an arbitration process which is specified.  Decisions on mandatory covenants not to sue may be appealed to Thurston County court.  Discretionary covenants are not to be reviewable.

Anyone in charge of a vessel or facility from which hazardous substances are released and fails to immediately notify Ecology or knowingly submits a false report is subject to a $25,000 fine.  Also, the person may be imprisoned for a specified length of time.  Persons who fail to submit a cleanup plan when requested to do or violates provisions of a plan is liable for up to a $25,000 per day fine.

Anyone aggrieved by the action or inaction of a potentially responsible party which may result in a release of hazardous substance that present an imminent and substantial endangerment may bring action in superior court.  The person must give the Department 30 days notice before filing suit.  Anyone aggrieved by the release of a hazardous substance into the environment may commence a civil action against anyone who fails to carry out a cleanup plan.

Potentially responsible party liability for cleanup is to be a debt to the state and constitutes a lien on all real property owned by the liable party.  Specific information must be provided to the auditor of the county where a significant release of hazardous substance occurs.  Before transferring property, a written statement must accompany the application documents which describes any reportable quantity of hazardous substance which the owner knows to have been released on the property.

Under this law, provisions of the State Environmental Policy Act and other traditionally applicable environmental permitting laws are exempted when action to address a release of a hazardous substance occurs.

Hazardous waste notifiers (generators, transporters storers, treaters, disposers) are to pay an annual fee and inspection charge.  The Department is to establish the inspection charge based on actual inspection costs.  The agency is also to set a permit charge for hazardous waste notifiers requesting permits to handle waste.  The charge is to be based on specified criteria.

A hazardous waste assessment is to be levied at a rate of five one hundredths of 1 percent of that person's gross proceeds of sale, gross income of the business or value of products.  The assessment is imposed on persons currently paying business and occupation and utility tax in the state.  The assessment is not to be imposed on persons who produce, consume, dispose, transport or import within the state less than one hundred kilograms (220 pounds) of hazardous substances monthly or two hundred and fifty kilograms quarterly.  Several additional exemptions are listed.

Revenue:    Approximately $14.8 million annually.

Fiscal Note:      requested