AN ACT Relating to air quality; amending RCW 70.94.030, 70.94.152, 70.94.425, 70.94.430, and 70.94.431; and adding a new section to chapter 70.94 RCW.

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

Sec. 1. Section 3, chapter 232, Laws of 1957 as last amended by section 119, chapter 141, Laws of 1979 and RCW 70.94.030 are each amended to read as follows:

Unless a different meaning is plainly required by the context, the following words and phrases as hereinafter used in this chapter shall have the following meanings:

(1) "Air contaminant" means dust, fumes, mist, smoke, other particulate matter, vapor, gas, odorous substance, or any combination thereof, including toxic air contaminants.

(2) "Toxic air contaminant" means a substance that, because of its toxic, mutagenic, carcinogenic, or reproductive effects, poses a potential threat to human health or the environment.

(3) "Air pollution" is presence in the outdoor atmosphere of one or more air contaminants in sufficient quantities and of such characteristics and duration as is, or is likely to be, injurious to human health, plant or animal life, or property, or which unreasonably interfere with enjoyment of life and property.

((~~(3)~~)) (4) "Person" means and includes an individual, firm, public or private corporation, association, partnership, political subdivision, municipality or government agency.

((~~(4)~~)) (5) "Authority" means any air pollution control agency whose jurisdictional boundaries are coextensive with the boundaries of one or more counties.

((~~(5)~~)) (6) "Board" means the board of directors of an authority.

((~~(6)~~)) (7) "Control officer" means the air pollution control officer of any authority.

((~~(7)~~)) (8) "State board" means the state air pollution control board, or any department or agency which by law shall succeed to its powers, duties and functions.

((~~(8)~~)) (9) "Emission" means a release into the outdoor atmosphere of air contaminants.

((~~(9)~~)) (10) "Department" means the state department of social and health services.

((~~(10)~~)) (11) "Ambient air" means the surrounding outside air.

((~~(11)~~)) (12) "Multicounty authority" means an authority which consists of two or more counties.

((~~(12)~~)) (13) "Emission standard" means a limitation on the release of a contaminant or multiple contaminants into the ambient air.

((~~(13)~~)) (14) "Air quality standard" means an established concentration, exposure time and frequency of occurrence of a contaminant or multiple contaminants in the ambient air which shall not be exceeded.

((~~(14)~~)) (15) "Air quality objective" means the concentration and exposure time of a contaminant or multiple contaminants in the ambient air below which undesirable effects will not occur.

Sec. 2. Section 29, chapter 238, Laws of 1967 as last amended by section 2, chapter 193, Laws of 1973 1st ex. sess. and RCW 70.94.152 are each amended to read as follows:

(1) The department of ecology or board of any authority may require notice of the construction, installation, or establishment of any new air contaminant sources except single family and duplex dwellings. The department of ecology or board may require such notice to be accompanied by a fee and determine the amount of such fee: PROVIDED, That the amount of the fee may not exceed the cost of reviewing the plans, specifications, and other information and administering such notice: PROVIDED FURTHER, That any such notice given to either the board or to the department of ecology shall preclude a further notice to be given to any other board or to the department of ecology. Within thirty days of its receipt of such notice, the department of ecology or board may require, as a condition precedent to the construction, installation, or establishment of the air contaminant source or sources covered thereby, the submission of plans, specifications, and such other information as it deems necessary in order to determine whether the proposed construction, installation, or establishment will be in accord with applicable rules and regulations in force pursuant to this chapter and the submission of toxic emission control plans including, as a minimum, preventive measures to avoid the accidental release of toxic air contaminants and plans for protecting public health in the event of an emergency or accidental release, and will provide all known available and reasonable methods of emission control. If on the basis of plans, specifications, or other information required pursuant to this section, the department of ecology or board determines that the proposed construction, installation, or establishment will not be in accord with this chapter or the applicable ordinances, resolutions, rules, and regulations adopted pursuant thereto, or will not provide all known available and reasonable means of emission control, or will not provide adequate plans for toxic emission control it shall issue an order for the prevention of the construction, installation, or establishment of the air contaminant source or sources. If on the basis of plans, specifications, or other information required pursuant to this section, the department of ecology or board determines that the proposed construction, installation, or establishment will be in accord with this chapter, and the applicable ordinances, resolutions, rules, and regulations adopted pursuant thereto and will provide all known available and reasonable methods of emission control and will provide adequate plans for toxic emission control, it shall issue an order of approval of the construction, installation, and establishment of the air contaminant source or sources, which order may provide such conditions of operation as are reasonably necessary to assure the maintenance of compliance with this chapter and the applicable ordinances, resolutions, rules, and regulations adopted pursuant thereto.

(2) For the purposes of this chapter, addition to or enlargement or replacement of an air contaminant source, or any major alteration therein, shall be construed as construction or installation or establishment of a new air contaminant source. The determination, under subsection (1) of this section, of whether a proposed construction, installation, or establishment will be in accord with this chapter and the applicable ordinances, resolutions, rules, and regulations adopted pursuant thereto shall include a determination of whether the operation of the new air contaminant source at the location proposed will cause any ambient air quality standard to be exceeded.

(3) Nothing in this section shall be construed to authorize the department of ecology or board to require the use of emission control equipment or other equipment, machinery, or devices of any particular type, from any particular supplier, or produced by any particular manufacturer.

(4) Any features, machines, and devices constituting parts of or called for by plans, specifications, or other information submitted pursuant to subsection (1) hereof shall be maintained in good working order.

(5) The absence of an ordinance, resolution, rule, or regulation, or the failure to issue an order pursuant to this section shall not relieve any person from his obligation to comply with any emission control requirements or with any other provision of law.

NEW SECTION. Sec. 3. A new section is added to chapter 70.94 RCW to read as follows:

(1) The department of ecology or board of any authority may require toxic emission control plans and such information as it deems necessary in order to determine that the operation of an air contaminant source is in accordance with this chapter and the applicable ordinances, resolutions, rules, and regulations adopted pursuant to this chapter. If on the basis of such information the department or board determines that the air contaminant source is in compliance with this chapter and the applicable ordinances, resolutions, rules, and regulations adopted under this chapter, the department or board may authorize, through issuing a permit, the operation of the air contaminant source and may require in the permit such conditions of operation and maintenance, monitoring, emission limitations, and accidental release prevention measures as are reasonably necessary to assure continuous compliance with this chapter and the provisions adopted under this chapter. The department or board shall provide notice to the public of its intention to issue a permit under this section, allowing at least twenty days for public comment prior to making a final permit determination. Further, the department or the board may require the submission of plans and information, as part of a periodic permit review, to be accompanied by a fee and shall determine a fee schedule. The proceeds from these fees shall not exceed the costs of administering the review and inspection program. If on the basis of information provided as required under this section, the department or board determines that the continued operation of the existing air contaminant source will not be in accordance with this chapter or the applicable ordinances, resolutions, rules, and regulations adopted under this chapter, or will not provide all known available and reasonable means of emission control, or will not provide preventive measures to avoid the accidental release of toxic air contaminants or plans for protecting public health in the case of an emergency or accidental release, it may issue a temporary permit, suspend or revoke the permit, or take other actions as provided by this chapter.

(2) For the purposes of this section, "air contaminant source" means any source from which any air contaminant is emitted into the atmosphere.

Sec. 4. Section 60, chapter 238, Laws of 1967 and RCW 70.94.425 are each amended to read as follows:

Notwithstanding the existence or use of any other remedy, whenever any person has engaged in, or is about to engage in, any acts or practices which constitute or will constitute a violation of any provision of this chapter, or any rule, regulation, permit, or order issued thereunder, the governing body or board or the state board, after notice to such person and an opportunity to comply, may petition the superior court of the county wherein the violation is alleged to be occurring or to have occurred for a restraining order or a temporary or permanent injunction or another appropriate order.

Sec. 5. Section 61, chapter 238, Laws of 1967 as last amended by section 1, chapter 255, Laws of 1984 and RCW 70.94.430 are each amended to read as follows:

Any person who violates any of the provisions of this chapter, or any permit, ordinance, resolution, rule, or regulation in force pursuant thereto shall be guilty of a misdemeanor and upon conviction thereof shall be punished by a fine of not more than one thousand dollars, or by imprisonment for not more than ninety days, or by both fine and imprisonment for each separate violation.

Any person who wilfully violates any of the provisions of this chapter or any permit, ordinance, resolution, rule, or regulation in force pursuant thereto shall be guilty of a gross misdemeanor. Upon conviction the offender shall be punished by a fine of not less than one hundred dollars for each offense or by imprisonment for a term of not more than one year or by both fine and imprisonment.

In case of a continuing violation, whether or not wilfully committed, each day's continuance shall be a separate and distinct violation.

Sec. 6. Section 53, chapter 168, Laws of 1969 ex. sess. as last amended by section 2, chapter 255, Laws of 1984 and RCW 70.94.431 are each amended to read as follows:

(1) In addition to or as an alternate to any other penalty provided by law, any person who violates any of the provisions of this chapter ((~~70.94 RCW~~)), any permit issued under this chapter, or any of the rules and regulations of the department or the board shall incur a penalty in the form of a fine in an amount not to exceed one thousand dollars per day for each violation. Each such violation shall be a separate and distinct offense, and in case of a continuing violation, each day's continuance shall be a separate and distinct violation. For the purposes of this subsection, the maximum daily fine imposed by a local board for violations of standards by a specific emissions unit is one thousand dollars.

(2) Further, the person is subject to a fine of up to five thousand dollars to be levied by the director of the department of ecology if requested by the board of a local authority or if the director determines that the penalty is needed for effective enforcement of this chapter. A local board shall not make such a request until notice of violation and compliance order procedures have been exhausted, if such procedures are applicable. For the purposes of this subsection, the maximum daily fine imposed by the department of ecology for violations of standards by a specific emissions unit is five thousand dollars.

(3) Each act of commission or omission which procures, aids or abets in the violation shall be considered a violation under the provisions of this section and subject to the same penalty. Except as provided in subsection (4) of this section, the penalty shall become due and payable when the person incurring the same receives a notice in writing from the director or his designee or the control officer of the authority or his designee describing the violation with reasonable particularity and advising such person that the penalty is due unless a request is made for a hearing to the hearings board as provided for in chapter 43.21B RCW. When a request is made for a hearing, the penalty shall become due and payable only upon completion of all review proceedings and the issuance of a final order affirming the penalty in whole or part. If the amount of such penalty is not paid to the department or the board within thirty days after it becomes due and payable, and a request for a hearing has not been made, the attorney general, upon the request of the director or his designee, or the attorney for the local authority, upon request of the board or control officer, shall bring an action to recover such penalty in the superior court of the county in which the violation occurred. All penalties recovered under this section by the state board shall be paid into the state treasury and credited to the general fund or, if recovered by the authority, fifty percent shall be paid into the treasury of the authority and credited to its funds and fifty percent shall be distributed to the cities, towns and counties within the authority, on a pro rata basis, as each contributes to support the authority pursuant to RCW 70.94.093. If a prior penalty for the same violation has been paid to a local authority, the penalty imposed under subsection (2) of this section shall be reduced by the amount of the payment. Notwithstanding any other provisions of this chapter, no penalty may be levied for the violation of any opacity standard in an amount exceeding four hundred dollars per day.

(4) If a penalty is levied under subsection (2) of this section, the director or the director's authorized delegate may, upon written application therefor received within fifteen days after the notice imposing any penalty is received by the person incurring the penalty, and when deemed in the best interest to carry out the purposes of this chapter, remit or mitigate any penalty provided in this section upon such terms as the director in the director's discretion deems proper, and may ascertain the facts upon all such applications in such manner and under such regulations as the director deems proper. The mitigation shall not affect or reduce the penalty imposed by the local board. Any person incurring any penalty under this section may appeal the same to the hearings board as provided in chapter 43.21B RCW. Appeals shall be filed within thirty days of receipt of notice imposing any penalty unless an application for remission or mitigation is made to the department. When an application for remission or mitigation is made, appeals shall be filed within thirty days of receipt of notice from the director or the director's authorized delegate setting forth the disposition of the application. Any penalty imposed under this section shall become due and payable thirty days after receipt of a notice imposing the same unless application for remission or mitigation is made or an appeal is filed. When an application for remission or mitigation is made, any penalty incurred under this section shall become due and payable thirty days after receipt of notice setting forth the disposition of the application unless an appeal is filed from the disposition. Whenever an appeal of any penalty incurred under this section is filed, the penalty shall become due and payable only upon completion of all review proceedings and the issuance of a final order confirming the penalty in whole or in part. 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 the request of the director, 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 may do business, to recover the penalty. In all such actions the procedure and rules of evidence shall be the same as for an ordinary civil action except as otherwise provided in this chapter.

To secure the penalty incurred under this section, the state or the authority shall have a lien on any vessel used or operated in violation of this chapter which shall be enforced as provided in RCW 60.36.050.

In all actions brought in the superior court for the recovery of penalties hereunder, the procedure and rules of evidence shall be the same as in an ordinary civil action.