FINAL BILL REPORT

SB 6440

                                  C 112 L 88

BYSenators Kreidler, Newhouse, Gaspard, Owen, Hayner, Vognild and Bauer

Providing for the clean-up of hazardous wastes.

Senate Committee on Environment & Natural Resources

House Committe on Environmental Affairs

SYNOPSIS AS ENACTED

BACKGROUND:

The federal Superfund hazardous waste cleanup program began in 1980 with the passage of the Comprehensive, Environmental Response, Compensation and Liability Act (CERCLA).  It was a $1.6 billion program to fund the cleanup of hazardous waste sites throughout the nation.  The program established a procedure for identifying, ranking, investigating and cleaning up hazardous waste sites.  The federal money was to be used only when a person responsible for cleaning up the site was unwilling or unable to take action.  Once the federal government cleaned up, it sought recovery of its costs from those who were responsible for the contamination.  In 1986, Superfund was reauthorized by Congress with an $8.5 billion program to last over five years.  It is designed to address the worst sites in the nation and leaves to the states other less toxic sites within their boundaries.

When federal Superfund money is used to clean up a site, the state is required to provide 10 percent for sites owned by a private party and 50 percent for sites owned by another public entity (landfills, etc.).  The state Department of Ecology has identified 158 sites with known hazardous waste contamination.  About 25 are listed as eligible for federal Superfund monies.  The rest must be addressed by state government (Department of Ecology).  The agency has estimated it will need more than $28 million in the next two years to address the state sites and match Superfund money.  Local governments have estimated several hundred million dollars are needed to meet state hazardous and solid waste requirements and clean up contaminated landfills.

The department also administers state and federal water quality laws and has issued more than 1000 permits which include restrictions on what large industrial and municipal entities can discharge into state waters.  The Puget Sound Water Quality Authority and other private and government entities contend that the department's water quality monitoring, inspection and permit renewal programs are inadequate.  The authority has developed a recommended program to increase monitoring and provide better protection for Puget Sound and other areas throughout the state.  The authority also has recommended that the department pay for its water quality permitting and monitoring program by fees on industries or municipalities that are issued permits. 

In addition to hazardous waste cleanup and water quality monitoring responsibilities, the department is responsible for regulating the day-to-day production, transportation, storage, treatment and disposal of hazardous waste.  This program requires that the agency issue permits to facilities that manage hazardous waste and inspect and regulate entities producing hazardous waste.  The program is funded by a fee, authorized in 1983, which generates about $1.4 million annually.  The department contends that to run an adequate program it needs more than $4 million yearly.

The Legislature passed a Superfund bill in a special session, October 1987.  The measure made most provisions of the bill effective immediately, but also placed the law on the ballot as the alternative to a toxic waste initiative (Initiative 97), if it received adequate signatures.  The initiative supporters subsequently obtained the required signatures.

There was some question concerning the constitutionality of the Legislature approving an alternative to an initiative that hadn't been submitted to it yet.  Some contend that the only way an alternative can be placed on the ballot is if it is approved after the initiative is submitted to the Legislature.

SUMMARY:

Hazardous Waste

The Department of Ecology (DOE) is granted authority to investigate hazardous waste sites.  The agency is to develop criteria to rank sites and to provide biennial reports to the Legislature.

Persons who may be found liable--strictly, jointly and severally--include those who own or operate the site and those who owned or operated it at the time hazardous substances were released.  Potentially liable are transporters who arrange for disposal at the site or take waste to unapproved facilities.  Certain generators of hazardous waste are also potentially liable.  Manufacturers of hazardous substances who are responsible for their written instructions can also be found liable.

Exemptions from liability are provided for persons growing trees, nursery plants or farm products and who apply pesticides without negligence and according to law.  Homeowners applying hazardous substances on their property and their contractors are exempted, along with persons properly collecting used motor oil for recycling.  Exemptions are provided also for owners who had no knowledge of contamination when they acquired the site.

Petroleum products are defined as hazardous substances, but the cleanup and enforcement provisions apply only to certain petroleum.  The department is given authority to investigate, respond to, clean up and recover costs for all petroleum contamination.  The petroleum section expires July 1, 1991, unless legislation is enacted before that date to provide a cleanup program with specific funding for petroleum contamination from storage tanks.

Cleanups must be conducted to protect health and the environment and must meet all applicable laws.  Where there are none, standards for cleanup can be developed by the department and deviations from applicable laws can be allowed.

The department may reach settlement agreements with liable parties.  Those unable to reach a settlement with the department may obtain an expedited court review on their final cleanup offer.

The department may provide money as part of a settlement agreement if it will expedite or enhance cleanup operations or achieve greater economic fairness.  The agency must provide a covenant-not-to-sue for certain cleanups.

Ecology may issue covenants-not-to-sue when case-by-case standards are met and when a deviation from applicable laws is allowed.  In both cases, public interest criteria must be met prior to covenant approval.

Cleanup contractors working for the department, or for other public or private entities, may be indemnified.  The agency is given authority to obtain information relevant to the site and may subpoena witnesses and documents.  Procedures are specified for department investigations and cleanups.

The department may issue cleanup orders or seek a court order requiring cleanup.  Wilful violations of cleanup orders may result in treble damages.  Civil penalties of up to $10,000 per day are allowed to be assessed by the court.

Citizens may file a lawsuit against the department or a potentially responsible party to enforce compliance with the cleanup law or an approved settlement agreement.  Citizens' suits against potentially responsible parties are not allowed if the department is diligently pursuing cleanup.

When the state takes remedial action at a site, it will have a lien on the property which is subject to pre-existing liens.

Notices regarding contaminated property are to be placed in the county property records.  Sellers who know that the property has been contaminated during the prior 20 years must provide a statement to the purchaser disclosing the contamination.

Programs are included for pesticide and household waste disposal and a business assistance program.  The department is directed to arrange for collection of hazardous substances confiscated by law enforcement agencies when conducting drug-related activities.

An eight-tenths of 1 percent tax on the wholesale value of a hazardous substance is to be levied on the first possession or sale of the substance.  Taxable substances include hazardous substances designated by the federal government, those classified by the department's director, petroleum products and pesticides.  The substances are to be taxed once and successive possession of previously taxed substances is exempt.

Forty-seven percent of the revenues are to go into the state toxics control account and be used for state hazardous and solid waste management programs.  The account is to be used also for the hazardous waste cleanup program, assistance for local government solid and hazardous waste planning and other purposes.

Fifty-three percent of the tax is to be placed in the local toxics control account and used for grants and loans to local governments.  In descending order of priority, the money is to be used for cleanups of sites on the hazard ranking list, hazardous waste plans and programs, solid waste plans and programs, solid waste facilities.

One percent of the monies in the accounts is to be used for public participation grants.  Criteria for grant assistance is detailed.

A toxics control reserve account is created to fund secondary cleanups at sites where covenants-not-to-sue have been issued and the first cleanup failed.  The account will receive $3 million annually until it reaches $20 million and is replenished annually to that level.

Exemptions from specific environmental laws and permits are allowed for cleanups conducted in accordance with the act.

The crime of toxic endangerment is established for persons handling hazardous substances in violation of state law, punishable as a class B felony.  The person must know that such handling places others in imminent danger of death or serious bodily injury.

Water Quality

Beginning in fiscal year 1989, the department is to recover administrative expenses for its water quality discharge permit system.  The total amount collected annually cannot exceed $3.6 million.  Administrative expenses are defined.

The department is to establish an initial fee schedule to begin on July 1, 1988.  The fee for permits authorizing discharges of 800 gallons or less daily cannot exceed $150.

Consideration of fee impacts on small dischargers is required and the agency must insure that indirect dischargers do not pay twice.  The agency cannot assess fees for permits issued by local government entities.

The department is to submit a report to the appropriate standing committees of the Legislature no later than January 1, 1989, that must include a fee schedule proposed for fiscal year 1990, and beyond.  Biennial reports to the Legislature are required.

Monitoring requirements must be for determining permit compliance and insuring that all known, available and reasonable treatment is attained.  Also requirements must relate to the effects a discharger will have on water, animal life or sediment.  Monitoring must be structured so that if it is conducted within the terms of the permit, after an appropriate time, the permittee may request a reduced monitoring schedule.  If the department determines that the monitoring shows no adverse effect, a reduced schedule will apply.  If monitoring identifies measurable adverse effect or potentially measurable adverse effect, more frequent and/or comprehensive monitoring is to apply.

The act will be an alternative to Initiative 97.  March 1, 1989, is the expiration date for the current state law if either the act or Initiative 97 are approved by the voters.  If neither is approved, the current law will expire on the date of certification of election results.

Appropriation:    $30,116,000 to the Department of Ecology; $234,000 to the Department of Agriculture; $384,000 to the Department of Community Development; $106,000 to the Department of Revenue; $710,000 to the Department of Social and Health Services.

VOTES ON FINAL PASSAGE:

      Senate    42     6

      House 73  25 (House amended)

      Senate    40     5 (Senate concurred)

EFFECTIVE:March 18, 1988 (Section 69)

            June 9, 1988

            March 1, 1989 (Sections 1-64)