AN ACT Relating to storage tanks; adding a new chapter to Title 90 RCW; creating a new section; prescribing penalties; and making appropriations.

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

NEW SECTION. Sec. 1. It is the intent of this chapter that the department of ecology establish a program to implement the requirements for the underground storage of petroleum adopted under subchapter IX of the federal resource conservation and recovery act. This program shall be designed and maintained to be no less stringent than federal rules adopted under the federal act and to provide for adequate enforcement of those requirements. The department of ecology shall take into account, upon request of local jurisdictions, conditions of local areas of greater environmental sensitivity than other less-sensitive areas when developing and implementing rules and may adopt rules more stringent than the federal rules in response to such conditions. This chapter shall preempt all local laws, ordinances, and regulations pertaining to the underground storage of petroleum other than any applicable local building permit procedures for underground storage tank installations. This chapter shall be construed to be consistent with chapter 19.27 RCW. It is the further intent of this chapter to provide a comprehensive cleanup program for releases of petroleum, including crude oil or any fraction of crude oil, from underground storage tanks, to provide specific funding sources for the program as described in chapter 70.105B RCW, and to provide for a study of programs that may be necessary to address releases of petroleum from other storage tanks.

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

(1) "Advisory group" means the underground storage tank advisory group established in section 19 of this act.

(2) "Closure" means the permanent removal of petroleum from an underground storage tank in accordance with a department-approved plan that protects human health and the environment and minimizes or eliminates the need for further maintenance and ensures that the removal, disposal, neutralization, or reuse of the materials that were stored in the tank is accomplished in an appropriate manner.

(3) "Corrective action" means those actions as may be reasonably necessary to protect human health and the environment in the event of an unauthorized release of petroleum from an underground storage tank. "Corrective action" includes actions necessary to monitor, assess, and evaluate an unauthorized release. The term "corrective action" does not include the repair or replacement of an underground storage tank or associated equipment.

(4) "Department" means the department of ecology.

(5) "Director" means the director of the department.

(6) "Existing tank system" and "new tank system" shall have the same meaning as defined under the federal regulations.

(7) "Federal act" means the federal resource conservation and recovery act, as amended (42 U.S.C. Sec. 6901, et seq.).

(8) "Federal regulations" means the regulations adopted by the United States environmental protection agency pursuant to sections 9002 and 9003 of the federal act (42 U.S.C. Secs. 6991a and 6991b).

(9) "Fund" means the Washington petroleum underground storage tank fund.

(10) "Guarantor" means any person, including the fund or the risk retention pool, other than the owner or operator, who provides evidence of financial responsibility for an owner or operator under section 5 of this act.

(11) "Occurrence" means an accident, including continuous or repeated exposure to conditions, that results in an unauthorized release from an underground storage tank.

(12) "Operator" means any person in control of, or having responsibility for, the daily operation of an underground storage tank.

(13) "Owner" means (a) in the case of an underground storage tank in use on November 8, 1984, or brought into use after that date, any person who owns an underground storage tank used for the storage, use, or dispensing of petroleum, and (b) in the case of an underground storage tank in use before November 8, 1984, but no longer in use on that date, any person who owned such tank immediately before the discontinuation of its use. "Owner" does not include any person who, without participating in the management of an underground storage tank, holds indicia of ownership primarily to protect the owner's security interest in the tank.

(14) "Person" means any individual, trust, firm, joint stock company, corporation (including a government corporation), partnership, association, consortium, joint venture, commercial entity, state, municipality, commission, political subdivision of a state, interstate body, the federal government, or any department or agency of the federal government.

(15) "Petroleum" means crude oil, or any fraction thereof, which is liquid at standard conditions of temperature and pressure, which means at sixty degrees Fahrenheit and 14.7 pounds per square inch absolute and includes gasoline, kerosene, heating oils, and diesel fuels.

(16) "Release" means any spilling, leaking, emitting, discharging, escaping, leaching, or disposing from an underground storage tank into the ground water, surface water, or subsurface soils. "Release" does not include any release authorized or permitted pursuant to state or federal law.

(17) "Risk retention pool" means the Washington state petroleum underground storage tank risk retention pool account.

(18) "Tank" means a stationary device, designed to contain an accumulation of petroleum, that is constructed primarily of nonearthen materials such as wood, concrete, steel, or plastic that provides structural support.

(19) "Unauthorized release" means any release of petroleum that does not conform to the provisions of this chapter, unless the release was authorized or permitted by the department or the federal government.

(20) "Underground storage tank" means any one or a combination of tanks, including underground pipes connected thereto, that is used to contain an accumulation of petroleum (and that is or are considered an underground storage tank or tanks that is or are part of a petroleum tank system as defined in federal regulations), and the volume of which (including the volume of the underground pipes connected thereto) is ten percent or more beneath the surface of the ground. Unless specifically provided for elsewhere in this chapter, "underground storage tank" does not include any of the following:

(a) A farm or residential tank of one thousand one hundred gallons or less capacity used for storing motor fuel for noncommercial purposes;

(b) A tank used for storing heating oil for consumptive use on the premises where stored;

(d) A pipeline facility including gathering lines (i) regulated under the federal natural gas pipeline safety act of 1968 (49 U.S.C. App. Sec. 1671 et seq.) or the federal hazardous liquid pipeline safety act of 1979 (49 U.S.C. App. Sec. 2001 et seq.); or (ii) that is an intrastate pipeline facility regulated under state laws comparable to the provision of law referred to in (d)(i) of this subsection;

(e) A surface impoundment, pit, pond, or lagoon;

(f) A storm water or wastewater collection system;

(g) A flow-through process tank;

(h) A liquid trap or associated gathering lines directly related to oil or gas production and gathering operations;

(i) A storage tank situated in an underground area, such as a basement, cellar, mine-working, drift shaft, or tunnel, if the storage tank is situated upon or above the surface of the floor; or

(j) A hydraulic lift used to raise motor vehicles from the surface if and as provided by federal rules.

The term "underground storage tank" does not include any above-ground pipes connected to any tank which is described in (a) through (j) of this subsection. Unless the context requires otherwise and except as provided in this chapter and any rules adopted by the department pursuant to this chapter, the definitions contained in the federal regulations shall apply to the terms in this subsection.

NEW SECTION. Sec. 3. (1) A registration fee shall be paid initially on the date one hundred eighty days after the effective date of this section and yearly thereafter by each person who provides or who has provided notification to the department pursuant to section 103(c) of the federal act. In the first year, payment shall be due two hundred ten days after the effective date of this section. Each year on the anniversary date of the effective date of this section, the department shall establish by rule the amount of the registration fees required to be paid pursuant to this section. The amount shall be set at a level sufficient to pay the reasonable and necessary costs incurred in administering and enforcing this chapter and to maintain sufficient amounts in the fund for all of its uses. The rate established by the department shall not exceed seventy-five dollars per tank per year. The initial level of registration fees required shall be set at the maximum level.

(2) For the purpose of establishing the level of registration fees required to be paid under this section, the department shall adjust the level so that the fund balance during that year may be maintained at a level not to exceed five million dollars.

(3) Fees collected by the department under this section shall be deposited in the fund established pursuant to section 6 of this act.

(4) A person is no longer required to pay the fees described in this section for an underground storage tank after the tank has been closed in accordance with the department-approved plan, or, if corrective action is required, after the tank has been closed and corrective action has been completed.

(5) No registration fees may be levied by any political subdivision on the ownership or operation of an underground storage tank.

NEW SECTION. Sec. 4. (1) Within one year after the effective date of this section, the department shall adopt rules regarding requirements for underground storage tanks containing petroleum, consistent with but no less stringent than federal regulations adopted under section 6991b of the federal act. The department shall periodically update these rules as necessary to conform to the federal regulations. These rules shall apply to all underground storage tanks regulated under this chapter and shall supercede and preempt all laws, ordinances, and regulations of any political subdivision which would govern underground storage tanks. The requirements shall be adopted to address existing tank systems and new tank systems and include requirements for the following:

(a) Maintaining a leak detection system, an inventory control system together with tank testing, or a comparable system or method designed to identify releases in a manner consistent with the protection of human health and the environment;

(b) Maintaining records of any monitoring or leak detection system or inventory control system or tank testing system;

(d) Taking corrective action in response to a release from an underground storage tank;

(e) Closure of tanks to prevent future releases of petroleum into the environment;

(f) Standards of performance for new underground storage tanks; and

(g) Preventing the delivery of petroleum to tanks not in compliance with section 3 of this act that do not comply with rules or requirements established by this chapter.

(2) The department may certify persons to inspect, test, and undertake corrective actions.

(3) The department may adopt rules that take into account the various classes or categories of tanks to be regulated in accordance with this section.

(4) Upon request of any local jurisdiction, the department may adopt rules, pursuant to subsection (1) of this section, that take into account the environmental sensitivity of the area in which the underground storage tanks to be regulated are found.

(5) When developing rules under this section, the department shall place responsibility on the site operator for requirements concerning maintenance of inventory records and periodically inspecting accessible portions of the petroleum handling facility.

(6) An owner shall not require an operator:

(a) To assume any portion of the owner's cost of compliance with this chapter;

(b) To acquire insurance or evidence of financial responsibility from any specific source or in an amount above that required under this chapter or name the owner as an additional insured as a means of avoiding the owner's own duty to obtain evidence of financial responsibility; or

(c) To maintain a conduct or take an action that exceeds those established or deemed sufficient by the department to protect the public adequately from an existing or future unauthorized release of petroleum.

NEW SECTION. Sec. 5. (1) Within twelve months of the availability of participation in the risk retention pool, an owner or operator of an underground storage tank containing petroleum shall demonstrate financial responsibility in accordance with the requirements of this section for corrective action and compensation of third parties for bodily injury and property damage caused by sudden and nonsudden accidental releases arising from operating an underground storage tank. The requirements of this section shall not apply to any city, county, municipality, public port, school district, the state or subdivision of the state or any department or agency thereof, or the federal government.

(2) The department shall adopt rules for methods to maintain evidence of financial responsibility as required in subsection (1) of this section that are consistent with but no less stringent than the federal regulations. Rules adopted by the department under this section shall require maintenance of a level of financial responsibility for corrective action in the amount of not less than one hundred thousand dollars per occurrence, and for compensating third parties for bodily injury and property damage in an amount of not less than three hundred thousand dollars per occurrence, in cases of accidental releases arising from operating an underground storage tank containing petroleum. Financial responsibility may be established in accordance with rules adopted by the department by any one of or any combination of the following methods:

(a) Commercial or private insurance;

(b) Guarantee;

(d) Letter of credit;

(e) Qualification as a self-insurer;

(f) Coverage by the risk retention pool established pursuant to section 11 of this act; or

(g) Other considerations or means of indemnification as the department may allow consistent with minimum federal requirements.

(3) If the owner or operator is in bankruptcy, reorganization, or arrangement pursuant to the federal bankruptcy code or where jurisdiction cannot be obtained with reasonable diligence over an owner or operator likely to be solvent at the time of judgment, any claim arising from conduct for which evidence of financial responsibility must be provided under this section may be asserted directly against the guarantor providing evidence of financial responsibility. In the case of an action under this subsection, the guarantor may invoke all rights and defenses that would have been available to the owner or operator if any action had been brought against the owner or operator by the claimant and that would have been available to the guarantor if an action had been brought against the guarantor by the owner or operator.

(4) The total liability of any guarantor is limited to the aggregate amount which the guarantor has provided as evidence of financial responsibility to the owner or operator under this section. This section does not limit any other state or federal statutory, contractual, or common law liability of a guarantor to its owners or operators, including but not limited to the liability of such guarantor for bad faith in negotiating or failing to negotiate the settlement of any claim. This section shall not be construed to diminish the liability of any person under section 107 or 111 of the federal comprehensive environmental response, compensation, and liability act of 1980 or other applicable laws.

(5) The fund shall provide financial responsibility in excess of the amounts provided in subsection (3) of this section for corrective action and for compensation of third parties for bodily injury and property damage arising from the operation of an underground storage tank containing petroleum.

(6) Unless the department requires the owner or operator to demonstrate financial responsibility for a longer period based upon a reasonable belief that an unauthorized release may have occurred that has not been addressed properly by the owner or operator, an owner or operator is not required to demonstrate financial responsibility pursuant to this section for an underground storage tank after the tank has been closed and either before the effective date of this section and in compliance with the uniform fire code, or after the effective date of this section and in accordance with a department-approved plan or, if corrective action is required, after the tank has been properly closed and corrective action has been completed. The department shall notify the owner or operator in writing of the reason to believe that such a release may have occurred.

NEW SECTION. Sec. 6. (1) In addition to the definition provided under section 2(20) of this act, for the purposes of this section, the term underground storage tank shall also include a tank used for storing heating oil for consumptive use on the premises where stored.

(2) The Washington petroleum underground storage tank fund is hereby established in the custody of the state treasurer. The fund shall be subject to legislative appropriation. The fund shall be used by the department for costs incurred in:

(a) Administering and enforcing this chapter; and

(b) Contracting for or guaranteeing payment of costs of corrective action and compensating third parties for bodily injury and property damage arising from the operation of an underground storage tank containing petroleum.

All expenses, costs, and judgments recovered pursuant to this chapter and all moneys received as reimbursement in accordance with applicable provisions of the federal act shall be deposited in the fund. Interest earned on the fund shall be credited to the fund.

(3) The fund shall be maintained as a separate account. Moneys in the fund may only be spent in a manner consistent with this chapter. An accounting of moneys received and disbursed shall be kept and furnished, upon request, to the governor or the legislature.

(4) The fund shall contain:

(a) All funds appropriated or authorized by the legislature;

(b) All fees collected pursuant to section 3 of this act;

(d) Any money recovered by the fund pursuant to section 15 of this act;

(e) Any money received from the federal government pursuant to relevant provisions of the federal act; and

(f) Any fines or penalties collected pursuant to section 18 of this act.

(5) If the balance in the fund falls below five hundred thousand dollars, the department may impose a two-tenths of one percent fee on petroleum products for a period of ninety days, to be collected by the department of revenue. The department of revenue shall give persons responsible for paying the fee at least ninety days' advance notice of the fee-collecting period. The fee shall be called a superfund surcharge and shall be applied to products defined in RCW 82.22.020(2) and not exempt under RCW 82.22.040. Chapter 82.32 RCW applies to the surcharge imposed in this subsection. The due dates, reporting periods, and return requirements applicable to chapter 82.04 RCW apply equally to the surcharge in this subsection for the periods in which the surcharge is imposed.

NEW SECTION. Sec. 7. (1) The department may expend moneys in the fund for the following purposes:

(a) To pay for reasonable and necessary costs incurred by the department in taking or contracting for corrective action pursuant to section 17 of this act;

(b) Either to pay any claims for reimbursement or to obligate moneys for direct payment for reasonable and necessary costs incurred in taking corrective action or compensating third parties for bodily injury and property damage for any release of petroleum from an underground storage tank as provided in section 9 of this act, which costs are in excess of: (i) The levels of financial responsibility required to be demonstrated pursuant to section 5 of this act; or (ii) in the case of a tank used for storing heating oil for consumptive use on the premises where stored, five hundred dollars;

(c) To pay for reasonable and necessary costs of corrective action for any release of petroleum from an underground storage tank if the owner or operator of the tank concerned cannot be found within ninety days or such shorter period as may be necessary to protect health and the environment, or if such owner or operator is incapable of carrying out corrective action properly and if such owner or operator is subject to corrective action regulations;

(d) To pay for the state's share of costs of corrective action with respect to any release of petroleum from an underground storage tank undertaken under a cooperative agreement with the administrator of the United States environmental protection agency, in accordance with the provisions of section 9003(h)(7)(B) of the federal act (42 U.S.C. Sec. 9661b(h)(7)(B)); and

(e) To pay administrative costs and costs of enforcement of this chapter, except that the amounts available for such purposes shall not exceed one million six hundred thousand dollars per year.

(2) Before expenditure of any funds for corrective action specified in subsection (1)(b) of this section which are in excess of the levels of financial responsibility required to be demonstrated pursuant to the federal regulations, the department shall, to the extent practicable, attempt to secure or obtain such funds as may be available for such purposes pursuant to sections 9003(h)(2)(C) and 9003(h)(7) of the federal act (42 U.S.C. Secs. 9661b(h)(2)(C) and 9661b(h)(7)) in lieu of expenditure of funds pursuant to this chapter. This subsection shall not prevent the department from expending any funds available under this chapter if such federal funds are determined to be unavailable.

(3) In administering the fund and processing claims pursuant to this chapter, the department shall obligate moneys for expenditure in the order in which claims are finally determined or costs are incurred without regard to any other priority.

NEW SECTION. Sec. 8. The department shall prescribe appropriate forms and procedures for claims for reimbursement or guarantee of payment for costs of corrective action or compensation for bodily injury or property damage filed pursuant to this chapter that shall include, at a minimum, the following:

(1) A provision requiring the claimant to make a sworn verification of the claim to the best of the claimant's knowledge;

(2) A full description, supported by appropriate evidence from governmental agencies, of the unauthorized release of petroleum from an underground storage tank claimed to be the subject of the corrective action performed pursuant to section 5 of this act or of the bodily injury or property damage resulting from such release; and

(3) Certification by the claimant of all costs incurred in undertaking corrective action or compensating third parties for bodily injury or property damage.

NEW SECTION. Sec. 9. (1) An owner or operator of an underground storage tank containing petroleum, other than a city, county, municipality, public port, school district, the state or subdivision of the state or any department or agency thereof, or the federal government or any department or agency thereof that certifies to the department that it has a net worth of less than twenty million dollars may apply to the fund for:

(a) Reimbursement or guarantee of payment of costs incurred which are greater than one hundred thousand dollars or such level of financial responsibility for corrective action as is required to be demonstrated pursuant to section 5 of this act, whichever is greater, to perform corrective action pursuant to rules adopted by the department under section 4 of this act; or

(b) Reimbursement or guarantee of payment to a third party for compensation for bodily injury or property damage in amounts greater than either three hundred thousand dollars or the level of financial responsibility for compensation that is required to be demonstrated pursuant to section 5 of this act, whichever is greater.

(2) A person who has failed to comply with the rules concerning financial responsibility adopted pursuant to section 5 of this act or who has failed to pay any fees required by this chapter is ineligible to file a claim pursuant to this section.

(3) The department shall issue all decisions made on a claim filed pursuant to subsection (1) of this section in writing, with notification to all appropriate parties, within sixty days after submission of the claim unless all parties to the claim agree in writing to an extension of time. The decision of the department is a final agency action for the purpose of judicial review of the decision, in accordance with chapter 34.04 RCW, by any party to the proceedings resulting in the decision.

(4) Nothing in this chapter requires a person to pursue a claim against the fund before seeking any other remedy.

NEW SECTION. Sec. 10. (1) Except as provided in this subsection and consistent with section 7(3) of this act, payment for any claim by the department pursuant to this subsection shall not otherwise be withheld pending any final determinations required to be made pursuant to subsection (2) of this section. A claim specified in section 9(1)(a) of this act may be paid if the department makes the following findings:

(a) There has been an unauthorized release of petroleum from an underground storage tank;

(b) The claimant is required to undertake or contract for corrective action pursuant to rules of the department;

(c) The claimant is required to demonstrate evidence of financial responsibility for costs of corrective action pursuant to section 5 of this act;

(d) The claimant is not ineligible under subsection (2) of this section; and

(e) The claimant has properly certified that the costs of corrective action are reasonable and necessary.

(2) Except as provided in this subsection and consistent with section 7(3) of this act, payment for any claim by the department pursuant to this subsection shall not otherwise be withheld pending any final determinations required to be made pursuant to subsection (1) of this section. A claim specified in section 9(1)(b) of this act may be paid if the department makes the following findings:

(a) There has been an unauthorized release of petroleum from an underground storage tank;

(b) The claimant has certified that the claim of bodily injury or property damage caused by the unauthorized release is the subject of a legally binding contract of settlement or a court-approved settlement between the parties concerned or is the subject of a valid final court order establishing a judgment against the owner or operator of the underground storage tank;

(c) The claimant is required to demonstrate evidence of financial responsibility for compensation of bodily injury or property damage if required by section 5 of this act;

(d) The claimant is not ineligible under this subsection; and

(e) The claimant has properly certified that the terms of the legally binding contract of settlement or court-approved settlement or valid final court order in (b) of this subsection are reasonable and necessary.

(3) If the department has paid out of the fund for any costs of corrective action or compensation of third parties for bodily injury or property damage, the department shall not pay any other claim out of the fund for the same costs.

(4) Any claim filed against the fund pursuant to this chapter may be paid only from the fund. This chapter does not authorize the payment by the state of any additional amount with respect to any claim out of any source other than the fund.

NEW SECTION. Sec. 11. (1) The Washington state petroleum underground storage tank risk retention pool account is hereby established in the custody of the state treasurer. Interest earned on moneys deposited in the risk retention pool shall be credited to the risk retention pool. The risk retention pool shall be administered by the director of the department and the insurance commission and shall not be subject to legislative appropriation.

(2) In addition to any other moneys appropriated by the legislature, the following items shall be deposited in the risk retention pool:

(a) Any premiums collected from participants in the risk retention pool; and

(b) Any interest earned upon money deposited in the risk retention pool.

NEW SECTION. Sec. 12. (1) Participation in the risk retention pool shall be granted if the owner or operator of an underground storage tank containing petroleum provides written evidence to the administrators of the risk retention pool that:

(a) The owner or operator has made a good faith effort to obtain financial assurance, pursuant to rules adopted by the department pursuant to section 5 of this act, from known providers of financial assurance for owners or operators of underground storage tanks containing petroleum in Washington;

(b) The owner or operator is otherwise in compliance with all applicable requirements regarding underground storage tanks containing petroleum; and

(2) The risk retention pool shall be available to provide coverage for financial responsibility on behalf of the participants up to the minimum levels of financial responsibility required pursuant to section 5 of this act.

NEW SECTION. Sec. 13. (1) In addition to the definition under section 2(20) of this act, for the purposes of this section, the term "underground storage tank" also includes multiples of tanks connected together and used as one tank.

(2) The administrators of the risk retention pool shall establish terms, conditions, and procedures for the administration of the risk retention pool consistent with those found in commercial insurance coverage and relevant provisions of state law. The terms and conditions shall also include a provision that the owner or operator pays the first five thousand dollars. The advisory group established under section 19 of this act shall provide counsel to the department regarding the issues described in this subsection.

(3) Participants in the risk retention pool shall pay annual premiums in the amount of three hundred twenty-five dollars per underground storage tank. The premiums shall be reviewed by the advisory group on the anniversary date of availability and the advisory group shall advise the department of the level necessary to assure the pool balance at a sufficient level not to exceed four hundred dollars per tank. The level shall be considered sufficient if the pool balance is maintained at five million dollars. Payment of such premiums shall be made in advance of the period covered.

(4) In the event that funds in the risk retention pool are exhausted during the life of the risk retention pool, the department shall transfer the funds necessary to meet the financial requirements of the risk retention pool from the fund established in section 6 of this act.

(5) This section shall terminate seven years from the effective date of this section unless the advisory group advises the department that requirements of financial responsibility required under this chapter and federal regulations are not reasonably available to substantially all owners and operators as provided in section 5 of this act.

NEW SECTION. Sec. 14. (1) The department shall develop rules to prescribe the payment of claims against the risk retention pool.

(2) Within seventy-two hours of receiving written notice of the need for corrective action, the corrective action plan, and corrective action plan costs from an owner or operator participating in the risk retention pool, written notice to suspend the corrective action pending approval shall be received by the owner or operator from the department.

(3) The department shall pay claims against the risk retention pool within thirty days of the department receiving written notice of completion of the corrective action plan.

(4) No payment may be made from the risk retention pool to any owner or operator in violation of section 18(3) of this act.

NEW SECTION. Sec. 15. (1) Any costs incurred and payable from the fund, or risk retention pool if applicable, shall be recovered by the attorney general, upon request of the director, from the owner or operator of the underground storage tank that released the petroleum and that is the subject of the corrective action or compensation for bodily injury or property damage for which such costs were incurred as specified in section 9 of this act if the owner or operator:

(a) Has not complied with the financial responsibility rules adopted pursuant to section 5 of this act;

(b) Has not paid any fees required by this chapter; or

(c) Has, by any act or omission, wilfully and intentionally violated any rules adopted by the department pursuant to section 4 of this act regarding repair or replacement of tanks or leak detection.

(2) The amount of costs determined pursuant to this section shall be recoverable in a civil action. This section does not deprive a party of any defense the party may have.

(3) Moneys recovered by the attorney general or the director pursuant to this section shall be deposited in the fund.

(4) Upon motion and sufficient showing by any party, the court shall join to the action any person who may be liable for costs or expenditures of the type recoverable pursuant to this section.

(5) No indemnification, hold harmless, conveyance, or similar agreement may be effective to transfer any liability for costs recoverable under this section. The entry of judgment against any party to the action does not bar any future action by the fund against any person who is later discovered to be potentially liable for costs paid from the fund.

(6) This section does not affect or modify the obligations or liabilities of any person under any other provision of state or federal law, including common law, for damages, injury, or loss resulting from an unauthorized release of petroleum or for corrective action or the costs of corrective action. This section shall not be construed as authorizing recovery for costs of corrective action resulting from any release authorized or permitted pursuant to state or federal law.

NEW SECTION. Sec. 16. (1) In addition to the meaning of the term provided under section 2(20) of this act, for the purposes of this section, the term "underground storage tank" also includes:

(a) A farm tank of any capacity used for storing motor fuel not for resale; and

(b) A tank used for storing heating oil for consumptive use on the premises where stored.

(2) For the purpose of enforcing this chapter, any owner or operator of an underground storage tank shall, upon request of any officer, employee, or representative of the department designated by the director, furnish information relating to such tanks, their associated equipment, and their contents, and permit such officer at all reasonable times to have access to and copy all records required under this chapter relating to the underground storage tanks. If, on the basis of information available to the department, there is a reasonable basis to believe that a violation or potential violation of this chapter may occur, is occurring, or has occurred, such officers, employees, or representatives are authorized for purposes of enforcing this chapter:

(a) To enter at reasonable times any establishment or other place where an underground storage tank is located;

(b) To inspect and obtain samples of petroleum contained in such tank; and

(c) To conduct or require the owner to conduct monitoring or testing of the underground tank, associated equipment, or immediately surrounding soils, air, surface water, or ground water.

(3) Each inspection shall be commenced and completed with reasonable promptness. If the officer, employee, or representative obtains any samples before leaving the premises, he or she shall give the owner or operator a receipt describing the sample obtained and, if requested, a portion or each such sample equal in volume or weight to the portion retained. If any analysis is made of the samples, a copy of the results of the analysis shall be furnished promptly to the owner or operator.

(4) Any records, reports, or information obtained from any person pursuant to this chapter shall be available to the public, except upon a showing satisfactory to the director by any person that records, reports, or information, or a particular part thereof, to which the director or any officer, employee, or representative thereof has access pursuant to this chapter if made public, would divulge information entitled to protection under 18 U.S.C. Sec. 1905, such information or particular portion thereof shall be considered confidential in accordance with the purposes of that section except that such record, report, document, or information may be disclosed to other officers, employees, or authorized representatives of the state or the United States responsible for carrying out this chapter or the federal act, or when relevant to any proceedings under this chapter or the federal act.

(5) In submitting information pursuant to this chapter, a person required to provide the information may:

(a) Designate the information which the person believes is entitled to protection under this section; and

(b) Submit the designated information separately from other data submitted under this section. A designation under this subsection shall be made in writing and in such manner as the director may prescribe.

(6) To the maximum extent practicable, in lieu of inspections conducted pursuant to subsection (7) of this section, the department shall allow owners or operators to submit information, on a regular basis, contained in records required to be maintained pursuant to rules adopted pursuant to section 4 of this act or contained in any audits or assessments voluntarily conducted at the owner's or operator's facility that are sufficient to allow the department to determine whether the tank or tanks are in compliance with the requirements of this chapter.

(7) The department may inspect underground storage tanks, consistent with the provisions of this section, according to a schedule established so as to determine whether the tank or tanks comply with the requirements of this chapter. When establishing an inspection schedule, the department shall, to the extent practicable, minimize the department's costs associated with administrative and enforcement responsibilities under this chapter. The department may consider the following factors in establishing a schedule under this subsection:

(a) The age of the underground storage tank or tanks and whether the tanks are constructed and installed in accordance with new tank performance standards adopted under section 4 of this act;

(b) The compliance history of the owner or operator of the tank;

(d) Other factors.

NEW SECTION. Sec. 17. (1) If the director has reason to believe that a violation of this chapter or any rule of the department has occurred, the director shall attempt to remedy it by conference, conciliation, or persuasion. In case of failure of such conference, conciliation, or persuasion to correct or remedy a violation in a timely manner, the director may issue an order directed to the violator or violators or the director may make application to the superior court of the county in which the violative act or practice has been or is about to be engaged in for an order enjoining the act or practice, or for an order requiring compliance with this chapter, the rules, or the order.

(2) All hearings on and review of contested matters, orders, and any other enforcement actions under this chapter shall be provided and conducted in accordance with the administrative procedure act, chapter 34.04 RCW.

(3) If an owner or operator fails or refuses to take corrective action pursuant to subsection (1) of this section the department may initiate or contract for corrective action as may be reasonably necessary to protect human health and the environment. The department may undertake or contract for corrective action necessary to remedy or prevent an emergency resulting from fire or explosion or the threat of an imminent fire or explosion caused by the unauthorized release of petroleum from an underground storage tank unless a responsible party is taking action properly and in a timely fashion to abate the emergency.

(4) In response to any unauthorized release of petroleum from an underground storage tank used for storing heating oil for consumptive use on the premises where stored, the department may undertake or contract for corrective action as may be reasonably necessary to protect human health and the environment.

NEW SECTION. Sec. 18. (1) An owner who knowingly submits false information or fails to notify the department pursuant to section 3 of this act or rules adopted under it, shall be subject to a civil penalty not to exceed ten thousand dollars for each tank for which notification is not given or false information is submitted.

(2) Any owner or operator of an underground storage tank who fails to comply with any of the requirements of this chapter, other than section 3 of this act, or rules adopted under this chapter shall be subject to a civil penalty not to exceed ten thousand dollars for each tank for each day of violation.

(3) If a violator fails to comply with an order under section 17 of this act within a reasonable time specified in the order, the violator shall be liable for a civil penalty of not more than twenty-five thousand dollars for each day of continued noncompliance.

(4) A person not subject to 18 U.S.C. Sec. 1905 who knowingly and wilfully divulges or discloses any information entitled to protection under section 16 of this act shall, upon conviction, be subject to a fine of not more than five thousand dollars or imprisonment not to exceed one year, or both.

(5) In determining the civil penalty imposed pursuant to subsection (1) or (2) of this section, the court shall consider all relevant circumstances including, but not limited to, the extent of harm or potential harm caused by the violation, the nature and duration of the violation, the number of past violations, and any corrective action taken by the owner or operator.

(6) No penalty may be imposed under this section if the owner or operator has already been penalized for the same violation under the federal act.

(7) Penalties may not be levied under this chapter for a violation that has previously been subjected to a penalty under chapter 70.105B RCW.

NEW SECTION. Sec. 19. (1) The director shall establish an underground storage tank advisory group to advise the department in its efforts to develop rules pursuant to sections 4 and 5 of this act, including requirements for financial responsibility.

(2) The advisory group shall consist of eleven members, including a chairperson representing the department, and ten at-large members. The advisory group shall consist of persons from the following areas of interest:

(a) One member representing environmental protection and conservation organizations;

(b) One member representing major petroleum companies;

(d) One member representing gasoline retailers;

(e) One member representing fuel oil retailers;

(f) One member who is an insurance underwriter;

(g) One member who is a certified hydrogeologist;

(h) One member representing the general business community;

(i) One member representing the public; and

(j) One member representing local government.

(3) The members shall be appointed by the director. Each member shall be, by professional training or experience and attainment, qualified to analyze and interpret matters pertaining to underground storage tanks and the various issues associated with underground storage tanks.

(4) The members shall serve for staggered terms of from three to four years and without compensation for their services as members of the advisory group.

(5) The advisory group shall have the power, duty, and responsibility to:

(a) Serve as a working forum for the exchange of views, concerns, ideas, information, and recommendations relating to the development of rules for underground storage tanks; and

(b) Advise the department on the establishment of the state's underground storage tank program and any rules necessary to carry out the provisions of this chapter.

(6) The advisory group shall receive staff support from the department and deliver a written and oral report to the legislature on an annual basis.

(7) Advise the department as provided in section 13(2) of this act.

NEW SECTION. Sec. 20. The department may adopt such rules as are necessary to meet the requirements for the state to obtain authority to administer its own underground storage tank program under 42 U.S.C. Sec. 6901 et seq. and the regulations thereunder. The department is further authorized to adopt rules in accordance with this chapter.

NEW SECTION. Sec. 21. (1) Within one year after the effective date of this section, the department shall adopt rules defining the terms "above-ground storage tank" for purposes of this section and such other terms as require definition under this section. "Above-ground storage tank" shall not include barrels or drums commonly used for the transportation and temporary storage of petroleum.

(2) Within one year after the effective date of this section and with the advice of the underground storage tank advisory group, the department shall prepare and submit to the legislature a report containing the following information:

(a) An inventory of the number of above-ground tanks containing petroleum in existence in this state, their sizes, location, types, and the products stored therein;

(b) An analysis of current practices and requirements applicable to above-ground storage tanks containing petroleum, including an examination of any causes of releases from such tanks and appropriate response; and

(c) Recommendations for a cleanup program, if necessary to protect health and the environment, along with proposals as to appropriate funding sources other than those established pursuant to sections 1 through 20 of this act.

(3) The report by this section shall consider the experience of the department in implementing the provisions of sections 1 through 20 of this act.

NEW SECTION. Sec. 22. (1) The sum of two hundred thousand dollars, or as much thereof as may be necessary, is appropriated for the biennium ending June 30, 1989, from the general fund to the Washington petroleum underground storage tank fund for the purposes of this act.

(2) The sum of one hundred fifty thousand dollars, or as much thereof as may be necessary, is appropriated for the biennium ending June 30, 1989, from the general fund to the risk retention pool account for initial administrative costs and expenses associated with the risk retention pool account.

NEW SECTION. Sec. 23. Sections 1 through 20 of this act shall constitute a new chapter in Title 90 RCW.

NEW SECTION. Sec. 24. 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.