AN ACT Relating to the handling of hazardous waste; adding a new chapter to Title 49 RCW; prescribing penalties; and providing an effective date.

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

NEW SECTION. Sec. 1. The legislature finds that workers at hazardous waste sites are exposed to unique hazards because of highly toxic materials that may exist on these sites and that employees at hazardous waste sites are subject to physical injury because of the serious safety hazards that may exist at such sites.

NEW SECTION. Sec. 2. Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter.

(1) "Director" means the director of labor and industries, or his or her designated representative.

(2) "Department" means the department of labor and industries.

(3) "Employer" means any person, firm, corporation, partnership, business trust, legal representative, or other business entity which engages in any business, industry, profession, or activity in this state and employs one or more employees or who contracts with one or more persons, the essence of which is the personal labor of such person or persons and includes the state, counties, cities, and all municipal corporations, public corporations, political subdivisions of the state, and charitable organizations: PROVIDED, That any person, partnership, or business entity not having employees, and who is covered by the industrial insurance act shall be considered both an employer and an employee.

(4) "Employee" means an employee of an employer who is employed in the business of his or her employer whether by way of manual labor or otherwise and every person in this state who is engaged in the employment of or who is working under an independent contract the essence of which is his or her personal labor for an employer under this chapter whether by way of manual labor or otherwise.

(5) "Person" means any individual, partnership, firm, association, corporation, sole proprietorship, or the state of Washington or its political subdivisions.

(6) "Hazardous waste project" means all hazardous waste operations conducted under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as defined in 40 CFR Part 300, and similar operations conducted by permit under the Resource Conservation and Recovery Act of 1976, the emergency response to any incidents involving the release of hazardous substances, and operations on sites that have been designated for cleanup by state or local governmental authorities or that are being cleaned up voluntarily.

(7) "Site safety and health officer" means an individual certified by the department under section 7 of this act to verify compliance with safety and health requirements.

(8) "Certified hazardous waste project worker" means an individual who is certified by the department under section 7 of this act to work on hazardous waste projects.

(9) "Licensed hazardous waste contractor" means any person who is licensed by the department under section 8 of this act and contracts to perform any excavation, cleanup, packaging, removal, or disposal of hazardous waste on a hazardous waste project.

NEW SECTION. Sec. 3. (1) Any person who engages in any construction, renovation, remodeling, maintenance, repair, demolition, or clean-up project that may disturb hazardous material shall make a reasonable effort, using practices approved by the department, to determine whether the proposed project will disturb or release any hazardous material. A reasonable effort to determine whether the proposed project will disturb or release any hazardous material is not required if the person assumes that hazardous material will be disturbed by a project and takes the minimum precautions required by all applicable federal and state requirements.

(2) Except as provided in section 10 of this act, a written report describing compliance with subsection (1) of this section shall be included as part of the written notice of the hazardous waste project required in section 9 of this act. A copy of the written report shall be given to the employee representative of any employees who may be exposed to any hazardous materials. A copy shall be posted by the employer, as prescribed by the department, in a place that is easily accessible to such employees.

NEW SECTION. Sec. 4. Any person who begins any hazardous waste project without first making an inspection effort as required by the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, or providing the notification required in section 9 of this act shall, after notice from the department and a hearing, be subject to the suspension or revocation of the license or certification to engage in hazardous waste projects.

NEW SECTION. Sec. 5. (1) Any employer who violates any provision of this chapter or any rule adopted under this chapter shall, after notice from the department and a hearing, be subject to the following penalties:

(a) For a first offense:

(i) A fine of up to five thousand dollars; and

(ii) The suspension or revocation of the license to engage in hazardous waste projects.

(b) For a second offense:

(i) A fine of up to ten thousand dollars; and

(ii) The automatic revocation of the license to engage in hazardous waste projects.

(2) The department may deny, suspend, or revoke a certificate or license, in accordance with chapter 34.04 RCW, for failure of the holder to comply with any requirement of this chapter, or any rule adopted under this chapter, or applicable health and safety standards and regulations. In addition to action taken under section 4 of this act, the department may suspend or revoke any certificate or license issued under this chapter upon the following grounds:

(a) The certificate or license was obtained through error or fraud; or

(b) The holder of the certificate or license is judged to be incompetent, after notice and hearing, to carry out the work for which the certificate or license was issued.

Before any certificate or license may be suspended or revoked, the holder of the certificate or license shall be given written notice of the department's intention to do so, mailed by registered mail, return receipt requested, to the holder's last known address, and shall give the holder the opportunity to request a hearing before the department. At such hearing, the department and the holder shall have the opportunity to produce witnesses and give testimony. The hearing shall be conducted in accordance with chapter 34.04 RCW.

NEW SECTION. Sec. 6. A safety meeting shall be held for all hazardous waste projects prior to the implementation of the projects, and weekly for the duration of the project. All hazardous waste projects that will be started that week at the same location shall be discussed. The meeting shall include representatives of the owner or contracting entity, the licensed hazardous waste contractor, the employer, the employees of the licensed hazardous waste contractor or other employer, including the certified hazardous waste project workers, and the employee representative. It shall include a discussion of the contractor's and employer's safety program and such means, methods, devices, processes, practices, conditions, or operations the employer and contractor intend to use in providing a safe work environment. Minutes shall be kept of each safety meeting and shall include the date of the meeting, the names of the individuals in attendance, and the issues discussed. One copy of the meeting minutes shall be kept on file by the employer, one copy shall be given to the employees' representative, and one copy shall be posted by the employer, as prescribed by the department, in a place that is easily accessible to employees.

NEW SECTION. Sec. 7. (1) (a) No employee or other individual is eligible to do work governed by this chapter unless certified by the department. To qualify for a hazardous waste worker's certificate, the applicant shall:

(i) Successfully complete a training course of at least eighty hours of initial instruction off the site, provided or approved by the department, on the health and safety aspects of the removal, disposal, packaging, and cleanup of hazardous waste including, but not limited to, the federal and state standards regarding protective clothing, respirator use, disposal, air monitoring, cleaning, and decontamination; and

(ii) Successfully complete three days of actual field experience under the direct supervision of a trained, experienced supervisor.

(b) On-site management personnel and supervisors directly responsible for, or who supervise employees engaged in, hazardous waste projects shall be subject to the requirements for a hazardous waste worker's certificate. Additionally, they shall be required to complete eight additional hours of specialized training on such topics as, but not limited to, the employer's safety and health programs and the associated employee training programs.

(c) Site safety and health officers shall be subject to the requirements for a hazardous waste worker's certificate. Additionally, they shall be located on the hazardous waste project site, be responsible to the employer, and have the authority and knowledge necessary to implement the site safety and health plan and to verify compliance with applicable safety and health requirements.

(d) Training course requirements shall be satisfied by successful completion of an in-state course provided or approved by the department or an out-of-state course that meets the criteria established by the department.

(e) All applicants must pass an examination in the type of certification sought, which shall be administered by the department. Applicants shall also meet any additional qualifications as may be established by the department by rule for the type of certification sought.

(f) These requirements are intended to represent the minimum requirements for certification and shall not preclude contractors or employers from providing additional education or training.

(g) The department shall require the successful completion of eight hours of refresher training annually, provided or approved by the department, for continued certification.

(2) Each person certified under this chapter shall display, upon the request of an authorized representative of the department, valid identification issued by the department that shows certification.

NEW SECTION. Sec. 8. Before working on a hazardous waste project, a contractor shall obtain a hazardous waste contractor's license from the department and shall have in its employ at least one certified site safety and health officer who is responsible for supervising the hazardous waste project undertaken by the contractor and for assuring compliance with all federal and state laws and regulations regarding hazardous materials. The contractor shall apply for license renewal annually.

NEW SECTION. Sec. 9. (1) No person may assign any employee, contract with any individual or person, or allow any individual or person, to remove, excavate, dispose of, package, or clean up hazardous waste unless such activity is performed by a certified hazardous waste worker under the direction and supervision of an on-site certified site safety and health officer.

(2) The department shall require persons undertaking hazardous waste projects to provide written notice to the department before the commencement of the project, except as provided in section 10 of this act. The notice shall include a written description containing such information as the department requires by rule, including the written report required under section 3 of this act. The department shall establish by rule the procedure by which a person will be considered to have met the prenotification requirement.

(3) The department shall, after consultation with the state fire protection policy board, establish policies and procedures by rule for municipal fire departments and fire districts that are required to respond to hazardous material spills.

NEW SECTION. Sec. 10. Prenotification to the department under section 9 of this act, including submission of the report in section 3 of this act, shall not be required for projects that are defined as emergencies by the rules adopted by the department. Emergency projects that disturb any hazardous material shall be reported to the department within three working days after the commencement of the project. The employees and the employee representative shall be notified of the emergency as soon as possible by the person undertaking the emergency project.

NEW SECTION. Sec. 11. All property owners and employers shall make a reasonable effort, using practices approved by the department, to identify all areas that contain hazardous material and maintain records which catalog the location of the identified hazardous materials. Copies of these records shall be made available, on request, to the department, the employees, and the employee representative.

NEW SECTION. Sec. 12. (1) The department shall adopt rules, in accordance with chapters 34.04 and 49.17 RCW, to enforce and administer this chapter.

(2) The department shall prescribe fees for the issuance and renewal of certificates and licenses, including recertification, and the development and administration of examinations.

NEW SECTION. Sec. 13. The hazardous material account is hereby established in the state treasury. All fees collected under this chapter shall be deposited in the account. Moneys in the account shall be spent only for costs incurred by the department in the administration and enforcement of this chapter. Disbursements from the account shall not be appropriated, but shall be disbursed on authorization of the director or the director's designee.

NEW SECTION. Sec. 14. Any employee who notifies the department of any activity that the employee reasonably believes to be in violation of this chapter or any rule adopted under this chapter or who participates in any proceeding related to this chapter shall have the same rights and protection against discharge or discrimination as are afforded to employees under RCW 49.17.160.

NEW SECTION. Sec. 15. Sections 1 through 14 of this act shall constitute a new chapter in Title 49 RCW.

NEW SECTION. Sec. 16. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.

NEW SECTION. Sec. 17. This act shall take effect January 1, 1989. The director of labor and industries may immediately take such steps as are necessary to ensure this act is implemented on its effective date.