SENATE BILL REPORT
ESB 6440
BYSenators Kreidler, Newhouse, Gaspard, Owen, Hayner, Vognild and Bauer
Providing for the clean-up of hazardous wastes.
Senate Committee on Environment & Natural Resources
Senate Hearing Date(s):January 26, 1988; January 27, 1988
Majority Report: Do pass.
Signed by Senators Metcalf, Chairman; Smith, Vice Chairman; Barr, Benitz, DeJarnatt, Kreidler, Owen, Patterson.
Senate Staff:Henry Yates (786-7708); Gary Wilburn (786-7453)
March 2, 1988
House Committe on Environmental Affairs
AS PASSED SENATE, FEBRUARY 10, 1988
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 only to be used 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 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.). Cost recovery against liable parties is authorized. The state is not required to provide any money when federally-owned sites are cleaned up.
In Washington, the 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). Currently, matching money for federal Superfund dollars and funds needed for state sites comes from the general fund. 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 of Ecology 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. Most of the funds for administering this program come from the general fund. 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 of Ecology pay for its water quality permitting and monitoring program by fees on industries or municipalities that are issued permits. Legislation in the 1986 and 1987 sessions to give Ecology the authority to assess fees did not pass.
In addition to hazardous waste cleanup and water quality monitoring responsibilities, the Department of Ecology 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. This 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.
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 based on relative degree of risk and to establish deadlines for investigations. The agency is to provide biennial reports to the Legislature and in 1991 submit a thorough accounting of expenditures.
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 be found liable too. This liability applies only when the substance is used in accordance with the written instructions and causes contamination.
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 for owners who had no knowledge of contamination when they acquired the site and contamination caused solely by acts of God, war or third parties.
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 before that date, legislation is enacted 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. Rules and procedures for public notice and comment are required. Liable parties 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, 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.
DOE may issue cleanup orders or seek a court order requiring cleanup. Willful violations of cleanup orders may result in treble damages. Civil penalties of up to $10,000 per day, assessed by the court, are allowed.
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. Thirty-day notice of the suit is required. 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.
Persons committing fraud in a settlement agreement, covenant-not-to-sue or certification of completion void any limits on liability and subject themselves to damage claims. Civil penalties of up to $10,000 per day may be levied.
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 Director of the Department, 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: 1) cleanups of sites on the hazard ranking list; 2) hazardous waste plans and programs; 3) solid waste plans and programs and 4) solid waste facilities.
One percent of the monies deposited 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, DOE 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. Costs related to enforcement and criminal investigation are not considered administrative expenses.
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 DOE must insure that indirect dischargers do not pay twice. The agency cannot assess fees for permits issued by local government entities. Ecology must review and deny or approve applications for credits before assessing fees on public entities that have monitoring programs.
DOE 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, that all known, available and reasonable treatment is attained, or 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 DOE 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. Expiration dates are provided for Chapter 2, Laws of 1987, 3rd Ex. Sess.; March 1, 1989 if either the act or Initiative 97 are approved by the voters; or if neither is approved, 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
Revenue: yes
Fiscal Note: available
Senate Committee - Testified: Senator Mike Kreidler; Representative Lorraine Hine; David Bricklin, Citizens Toxic Cleanup Campaign; Rodney Brown, Citizens Toxic Cleanup Campaign; Andrew Riniker, Department of Ecology; Jeff Goltz, Department of Ecology; John Littler, Department of Ecology; Nancy Pearson, League of Women Voters; Errett Deck, Western Agricultural Chemical Association; Jim Williams, Association of Washington Counties; Kathleen Collins, Washington Association of Cities; Wendy Wendland, WashPIRG; Jim Waldo, Superfund Now!! Committee; Gary Smith, Independent Business Association
HOUSE AMENDMENTS:
Language in the measure to make the retail hazardous substances tax become effective June 1, 1988 is deleted. Language to make hazardous substances subject to the tax at the time they are deemed hazardous is also deleted.
Language is added to make retail products that are taxable under the Superfund law passed in October subject to a June 1, 1988 effective date. An emergency clause and title amendment are also added.