AN ACT Relating to the environment; amending RCW 70.105A.010, 70.105A.020, 36.58.100, 36.58.110, 36.58.120, and 36.58.140; adding a new section to chapter 43.21C RCW; adding a new section to chapter 36.58 RCW; adding new sections to chapter 70.105A RCW; adding a new chapter to Title 82 RCW; creating new sections; repealing RCW 70.105A.030, 70.105A.040, 70.105A.050, 70.105A.060, 70.105A.070, 70.105A.080, 70.105A.090, 70.105A.900, and 70.105A.905; prescribing penalties; making appropriations; and providing an effective date.

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

Sec. 1. Section 1, chapter 65, Laws of 1983 1st ex. sess. and RCW 70.105A.010 are each amended to read as follows:

PURPOSE. (1) It is the policy of the state of Washington to protect the public health and welfare of all its citizens against the dangers arising from the generation, transport, treatment, storage, and disposal of hazardous wastes and from releases or threatened releases of hazardous substances. In order to reach that policy objective, it is not only necessary to provide state government with broad powers of regulation, control, and removal of these hazardous wastes and substances, including the power to fashion and effectuate remedial directives, but it is imperative that adequate funds are also provided to carry out these powers in a vigorous manner. In the implementation of the provisions of this chapter, the state shall, when appropriate, cooperate with and support federal agencies in their implementation of counterpart federal hazardous waste and substances programs, while pursuing independent state actions whenever it appears they will provide more efficient ((or)) and effective alternative programs to achieve the policies and purposes of this chapter.

(2) The purposes of this chapter are, among others: (a) To supplement the powers already vested in the department of ecology relating to hazardous wastes and to releases or threatened releases of substances which are hazardous to the environment or public health, (b) to provide moneys necessary for the full, sufficient, and efficient implementation of the hazardous waste and substances regulation control and removal program of the state, (c) to encourage reduction of hazardous wastes through recycling and improvement of manufacturing processes, (d) to provide for the cleanup and restoration of those sites within the state at which improper disposal of hazardous waste has occurred, resulting in the potential for deleterious impacts on the health and welfare of the citizens of the state, as well as on the state's natural, environmental, and biological systems, (e) to provide for funding to study, plan, and undertake the rehabilitation, removal, and cleanup of hazardous waste deposited improperly at sites located within the state, ((~~and~~)) (f) to provide funds for matching purposes for participation in the federal Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended by Public Law 99-499, (g) to establish a mechanism to remedy releases and threatened releases of hazardous substances into the state's environment in an expeditious and cost-effective fashion, and (h) to provide flexibility to the department and potentially responsible parties in devising voluntary response action plans so that the public health and the environment are protected.

(3) In implementing this chapter the director shall be guided by the following priorities in descending order:

(a) Voluntary action undertaken by potentially responsible parties without resort to use of the toxics control account with or without the procedures of this chapter;

(b) Voluntary action undertaken by potentially responsible parties that may require a partial contribution from the toxics control account; and

Sec. 2. Section 2, chapter 65, Laws of 1983 1st ex. sess. and RCW 70.105A.020 are each amended to read as follows:

DEFINITIONS. As used in this chapter, the following terms have the meanings indicated unless the context clearly requires otherwise.

(1) "Cost-effective" means that in determining the appropriate level of cleanup the director first determines the appropriate level of environmental and health protection to be achieved and then selects a cost-efficient means of achieving that goal. Only after the director determines, by the selection of applicable or relevant and appropriate requirements, that adequate protection of human health and the environment will be achieved is it appropriate to consider cost-effectiveness;

(2) "Dangerous waste" shall have the same definition as set forth in RCW 70.105.010(5) and shall specifically include those wastes designated as dangerous by rules adopted pursuant to chapter 70.105 RCW;

((~~(2)~~)) (3) "Department" means the department of ecology;

(4) "Director" means the director of the department of ecology or the director's designee;

(5) "Disposal" means the discharge, deposit, injection, release, dumping, spilling, leaking, placing, or allowing to seep any hazardous substance into or on any land or water;

((~~(3)~~)) (6) "Extremely hazardous waste" shall have the same definition as set forth in RCW 70.105.010(6) and shall specifically include those wastes designated as extremely hazardous by rules adopted pursuant to chapter 70.105 RCW;

(7) "Facility" means (a) any building, structure, installation, equipment, pipe or pipeline (including any pipe into a sewer or publicly owned treatment works), well, pit, pond, lagoon, impoundment, ditch, landfill, storage container, motor vehicle, rolling stock, vessel or aircraft, or (b) any site or area where a hazardous substance, other than a consumer product in consumer use, has been deposited, stored, disposed of, or placed, or otherwise come to be located;

(8) "Generate" means any act or process which produces hazardous waste or first causes a hazardous waste to become subject to regulation;

((~~(4)~~)) (9) "Hazardous waste" means and includes all dangerous and extremely hazardous wastes;

(((5) "Person" means an individual, trust, firm, joint stock company, partnership, association, state, public or private or municipal corporation, commission, political subdivision of a state, interstate body, the federal government including any agency or officer thereof, and any Indian tribe or authorized tribal organization;

(6) "Identified site" means the same or geographically contiguous property, which may be divided by a public or private right of way, provided that access between the properties occurs at an intersection and crosses, as opposed to goes along, the right of way. Noncontiguous properties owned by the same person but connected by a right of way will be considered a single identified site if the person controls the right of way and can prevent public access;

(7) "Fee" means the annual hazardous waste control and elimination assessment fee imposed under RCW 70.105A.030 and the fee for treatment, storage, and disposal facilities imposed under RCW 70.105A.040;

(8) "Annual gross income" of a business means the value proceeding or accruing during a calendar year by reason of the transaction of the business or service engaged in and includes gross proceeds of sales, compensation for the rendition of services, gains realized from trading in stocks, bonds, or other evidences of indebtedness, interest, discount, rents, royalties, fees, commissions, dividends, and other emoluments however designated, all without any deduction on account of the cost of tangible property sold, the cost of materials used, labor costs, interest, discount, delivery costs, taxes, or any other expense whatsoever paid or accrued and without any deduction on account of losses; and

~~(9) "Generate" means any act or process which produces hazardous waste or first causes a hazardous waste to become subject to regulation.~~))

(10) "Hazardous substances" means:

(a) Hazardous wastes;

(b) All materials deemed hazardous substances according to section 101(14) of the federal comprehensive environmental response, compensation, and liability act of 1980 (42 U.S.C. Sec. 9601(14)) as amended by Public Law 99-499;

(d) Solid waste or its decomposition products that present a real and substantial threat to the public health or welfare or the environment;

(e) Any other substance or category of substances determined by the director by rule, to present a threat to the public health or welfare or the environment if released into the environment; or

(f) Substances containing both radioactive and hazardous wastes;

(11) "Local government" means a city, town, or county;

(12) "Local toxics control project" means a project of a local government to initiate a response action or a project of a fiscally distressed local government to plan, design, and construct a solid waste facility in compliance with chapter 70.95 RCW;

(13) "Natural resources" means land, water, air, fish, wildlife, or other such resources belonging to, managed by, within the jurisdiction of, or held in trust by the state, a subdivision of the state, municipal corporation, foreign government, or other public entity;

(14) "Owner or operator" means:

(a) In the case of a vessel, any person owning, operating, or chartering such vessel;

(b) Any person with any ownership interest in the facility or who exercises any control over the facility;

(d) The term does not include:

(i) An agency of the state or unit of local government which acquired ownership or control involuntarily through bankruptcy, tax delinquency, abandonment, or circumstances in which the government involuntarily acquires title. This exclusion does not apply to an agency of the state or unit of local government which has caused or contributed to the release or threatened release of a hazardous substance from the facility; or

(ii) A person who, without participating in the management of a vessel or facility, holds indicia of ownership primarily to protect the person's security interest in the vessel or facility;

(15) "Person" means an individual, trust, firm, joint stock company, partnership, association, state, public or private or municipal corporation, commission, political subdivision of a state, interstate body, the federal government including any agency or officer thereof, and any Indian tribe or authorized tribal organization;

(16) "Release" means any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, disposing or allowing to seep into the environment, including the abandonment or discarding of barrels, containers, or other closed receptacles containing any hazardous substance, pollutant or contaminant;

(17) "Remedy" or "remedial action" means those actions consistent with permanent remedy taken instead of, or in addition to, removal actions in the event of a release or threatened release of a hazardous substance into the environment to prevent or minimize the release of hazardous substances so that they do not migrate to cause substantial danger to present or future public health or welfare or the environment. The term includes, but is not limited to, such actions at the location of the release as storage, confinement, perimeter protection using dikes, trenches, or ditches, clay cover, neutralization, cleanup of released hazardous substances or contaminated materials, recycling or reuse, diversion, destruction, segregation of reactive wastes, dredging or excavations, repair or replacement of leaking containers, collection of leachate and runoff, on-site treatment or incineration, provision of alternative water supplies, and any monitoring reasonably required to assure that such actions protect the public health and welfare and the environment. The term includes the acquisition of property necessary to effect the action and the costs of permanent relocation of residents and businesses and community facilities where the director determines that, alone or in combination with other measures, such relocation is more cost-effective than and environmentally preferable to the transportation, storage, treatment, destruction, or secure disposition offsite of hazardous substances, or may otherwise be necessary to protect the public health or welfare;

(18) "Remove" or "removal" means:

(a) The cleanup or removal of a hazardous substance which has been released into the environment;

(b) Such actions as may be necessary in the event of the threat of a release of hazardous substances into the environment;

(c) Such actions as may be necessary to monitor, assess, and evaluate the release or threat of release of hazardous substances;

(d) The disposal of removed material; or

(e) The taking of such other actions as may be necessary to prevent, minimize, or mitigate damage to the public health or welfare or to the environment which may otherwise result from a release or threat of release of hazardous substance to the environment;

(19) "Reportable quantity" means that amount of a hazardous substance to be reported under this chapter as set by rule by the department;

(20) "Respond" or "response action" means remove, removal, remedy, or remedial action;

(21) "Response costs" or "costs of response" means all costs incurred in performing a response action, including the costs of indemnifying response action contractors, all other direct and indirect costs and interest attributable to the response action, and, where the response or response action is undertaken by the department, costs of departmental investigation, design, or feasibility study preceding such removal or action and any enforcement activities related thereto;

(22) "Response action contract" means any written contract or agreement entered into by a response action contractor to provide services relating to a response action with the department, or any responsible party carrying out a response action plan under section 8 of this 1987 act or complying with a regulatory order under section 14 of this 1987 act;

(23) "Response action contractor" means (a) any person who enters into a response action contract with respect to any release or threatened release of a hazardous substance, pollutant, or contaminant with a responsible party or the state to provide services relating to the response action, or (b) any person who is retained or hired by a person described in (a) of this subsection, or who enters into a contract with such person, to provide any services relating to a response action;

(24) "Threatened release" means the presence of hazardous substance such that a release is imminent unless a response action is taken.

NEW SECTION. Sec. 3. DEPARTMENT'S POWERS AND DUTIES. (1) The department may exercise the following powers in addition to any other powers granted by law:

(a) Remove and remedy releases, or threats of releases, of hazardous substances or otherwise mitigate such releases;

(b) Undertake all training, planning, inspecting, sampling, testing, investigating, surveying, analyzing, engineering, constructing, and operating which is necessary or appropriate to prepare for, obtain, and perform removal actions, response actions, cleanup actions, and enforcement actions involving releases or threatened releases of hazardous substances;

(d) Make contracts for professional services, technical services, or for construction. However, the director may expedite response to releases or threatened releases of hazardous substances by prequalifying contractors, as long as the prequalification is pursuant to a uniform system of rating bidders;

(e) Carry out all programs of the federal comprehensive environmental response, compensation, and liability act of 1980 as amended by Public Law 99-499. The power to participate in the programs under the federal act includes, but is not limited to, the power to agree to supply state matching funds, subject to legislative appropriation for removal or response actions, to assure site maintenance, to assure the availability of hazardous waste facilities, and to make such contracts or cooperative agreements with the federal government as may be necessary under the federal act;

(f) Participate in and carry out all programs of the federal resource conservation and recovery act, 42 U.S.C. Sec. 9601 et seq., as amended as of the effective date of this section, which are contemplated for state participation, implementation, or administration under that act; or

(g) Take other actions necessary to carry out the provisions of this chapter.

(2) The department shall: (a) To the greatest extent possible, when the director determines that federal funding would facilitate appropriate response action, apply to the federal government for funds to carry out the powers granted by this chapter and may receive and administer those funds, and (b) make best efforts to recover state moneys spent on response action, including administration, overhead, investigation, removal, remedial action, mitigation, any other fund expenditures, and damages.

(3) The department may adopt rules, under chapter 34.04 RCW, to carry out the provisions of this chapter.

NEW SECTION. Sec. 4. SCHEDULES. (1) The director shall maintain a list of all potential hazardous waste sites in the state at which the department has undertaken preliminary assessments, site inspections, other site studies, or response actions, or at which the department has knowledge of response action by potentially responsible parties.

(2) By September 30 of each year until 1998, the director shall submit a report to the appropriate standing committees of the legislature on hazardous waste cleanup activity in the state during the previous fiscal year. The report shall include at least the following:

(a) The sites where preliminary assessments or site inspections were undertaken or completed;

(b) The sites where studies related to potential response actions were undertaken or completed;

(c) The sites where response actions were undertaken or completed either by potentially responsible parties or by the department;

(d) The sites where the department has initiated enforcement actions, and the results of such enforcement actions; and

(e) An accounting of the toxics control account.

NEW SECTION. Sec. 5. RESPONSIBLE PARTIES‑-STANDARD OF LIABILITY. (1) Except as provided in subsection (4) of this section, the following persons are parties responsible for releases or threatened releases of hazardous substances at a facility: (a) The owner or operator of a facility, (b) any person who at the time of disposal of any hazardous substance, or any time since disposal, owned or operated any facility at which the hazardous substances were disposed, (c) any person who (i) owned or possessed hazardous substances and (ii) by contract, agreement, or otherwise arranged for disposal or treatment, or arranged with a transporter for transport for disposal or treatment of the hazardous substances, or otherwise generated hazardous wastes disposed of or treated at the facility, and (d) any person who (i) accepts or accepted any hazardous substances for transport to a disposal, treatment, or other facilities selected by such person from which there is a release or a threatened release of a hazardous substance, unless such disposal or treatment facility, at the time of disposal or treatment, had a permit issued pursuant to chapter 70.105 RCW, or (ii) so accepts such substances for transport where such transporter has reasonable grounds to believe that such facility is not operated in accordance with chapter 70.105 RCW, and the facility is not permitted under chapter 70.105 RCW.

(2) Except as otherwise provided in section 17 of this act, and notwithstanding any other provision or rule of law, any person who is responsible for a release or threatened release of a hazardous substance from a facility is strictly liable, jointly and severally, for the following costs and damages which result from the release or threatened release or to which the release or threatened release contributes:

(a) All response costs incurred by the state, a political subdivision of the state or the United States, including such costs incurred prior to the effective date of this section;

(b) All response costs incurred by any person; and

(c) All damages for any injury to, destruction of, or loss of natural resources, including the reasonable costs of assessing such injury, destruction, or loss.

(3) There shall be no liability under this section imposed on a person who can establish that the release of a hazardous substance for which he or she would be otherwise responsible was caused solely by:

(a) An act of God;

(b) An act of war; or

(c) An act or omission of a third party, including but not limited to a trespasser, other than an employee or agent, or any person asserting this defense to liability, if all due care is shown to have been exercised, considering the foreseeable acts or omissions of a third party by the person asserting this defense;

(4) The following persons shall not be responsible parties:

(a) Any person who is an owner, past owner, or purchaser of a facility who can establish by a preponderance of the evidence that at the time the facility was acquired such person had no reason to know that any hazardous substance which is the subject of the release or threatened release was disposed of on, in, or at the facility; and

(b) Any person who can establish by a preponderance of the evidence that the release of a hazardous substance attributable to such person, and the damages resulting from the release, were insignificant in comparison to both the quantity and toxicity of hazardous substances believed to have been contributed by other potentially responsible parties.

(5)(a) To establish that a person had no reason to know, as provided in subsection (4)(a) of this section, the defendant must have undertaken, at the time of acquisition, all appropriate inquiry into the previous ownership and uses of the property consistent with good commercial or customary practice in an effort to minimize liability. Any court interpreting this subsection shall take into account any specialized knowledge or experience on the part of the defendant, the relationship of the purchase price to the value of the property if uncontaminated, commonly known or reasonably ascertainable information about the property, the obviousness of the presence or likely presence of contamination at the property, and the ability to detect such contamination by appropriate inspection.

(b) Nothing in this subsection shall diminish the liability of any previous owner or operator of such facility who would otherwise be liable under this chapter. If the defendant obtained actual knowledge of the release or threatened release of a hazardous substance at such facility when the defendant owned the real property, and then subsequently transferred ownership of the property to another person without disclosing such knowledge, such defendant shall be treated as liable and no defense shall be available to such defendant under subsection (3)(c) of this section.

(c) Nothing in this subsection shall affect the liability under this chapter of a defendant who by any act or omission, caused or contributed to the release or threatened release of a hazardous substance which is the subject of the action relating to the facility.

NEW SECTION. Sec. 6. INVESTIGATIONS. (1) If there is a reasonable basis to believe there may be a release or threatened release of a hazardous substance, any officer, employee, or representative designated by the director may require, upon reasonable notice, information or documents relevant to that release or threatened release from a person who has or may have information relevant to (a) the identification, nature, and volume of materials generated, treated, stored, transported to, or disposed of at a facility and the dates thereof, (b) the nature or extent of a release or threatened release of a hazardous substance at or from a facility, (c) the identity of potentially responsible parties, or (d) information relating to the ability of a person to pay for or perform a response action. In addition, upon reasonable notice, the person shall either grant to appropriate representatives access at all reasonable times to inspect documents or records relating to such matters, or copy and furnish to the representatives all documents or records, at the option of the person. The department may, by subpoena, require the attendance and testimony of witnesses and the production of reports, papers, documents, answers to questions, and other information that the department deems necessary. In case of a refusal to obey a subpoena issued pursuant to this subsection, and served upon any person, the superior court for any district in which such person is found, resides, or transacts business shall, upon application by the department and after notice to such person, have jurisdiction to issue an order requiring such person to appear and give testimony before the department, or to appear and produce documents before the department, or both, and any failure to obey such order of the court may be punished by such court as contempt.

(2) Where there is a reasonable basis to believe there may be a release or threatened release of a hazardous substance, the department, its authorized employees, agents, or contractors, or the employees, agents, or contractors of a responsible party acting under an approved response action plan in order to determine the need for response to the release or the threat of release of hazardous substances may, upon reasonable notice, enter upon any real property, public or private, to conduct sampling, inspection, examination, and investigation directed at evaluating the release. In conducting the listed activities, the department or other person gaining access under this section shall take all feasible precautions to avoid disrupting the ongoing operation on the site. The department shall provide to the owner, or operator, or person in charge of the facility, if requested, a portion of each sample taken equal in volume or weight to the portion retained. If any analysis is made of such samples, a copy of the results of such analysis shall be furnished promptly to the owner, operator, or person in charge as well as to representatives of the public and other interested persons.

NEW SECTION. Sec. 7. NOTICE OF RESPONSIBILITY. (1) Before the department begins a remedial action, it shall:

(a) Investigate the site or require an investigation pursuant to section 6 of this act to determine to the extent possible:

(i) The identity of each potentially responsible party;

(ii) The type, nature, and volume of the hazardous substances generated, or transported by, or associated with each identified potentially responsible party and the date of disposal; and

(b) Notify interested persons, the public, and the identified potentially responsible parties with the results of the investigation and allow access to the information gathered by the department.

(2) This section shall not apply if the department acts pursuant to section 10(2) of this act.

NEW SECTION. Sec. 8. RESPONSE ACTION PLANS. (1) Any person may submit to the department a response action plan for response action at a facility where there has been a release or threatened release of hazardous substances.

(2) Any person or persons receiving notice under section 7 of this act shall have forty-five days to propose to the department a response action plan. In extraordinary cases, for good cause shown upon written application, the director may grant extensions of up to forty-five days. Such a plan must include a proposed budget for the response action, a binding schedule for completing the elements of the plan, and a commitment to complete all elements of the plan. Monitoring provisions shall also be provided unless the responsible parties provide clear and convincing evidence that monitoring provisions are not necessary. The plan may be part of a phased approach to investigation, removal, and remedial action. A request for a covenant not to sue pursuant to section 9 of this act of a scope commensurate with the proposed response action may accompany any plan involving remedial action.

(3) As part of the proposed response action plan, the persons submitting the plan may propose specific cleanup levels for each hazardous substance to which the plan responds.

(4) The department shall give notice of the proposed response action plan, cleanup levels proposed by the persons submitting the plan and the cleanup levels proposed by the department, and the results of the department's investigation to interested persons and the public. The notice shall include a brief analysis of the plan, the results of the investigation, and a statement of how additional information may be obtained. Public comment shall be accepted for a minimum of forty-five days from the date of notice.

(5) In each response action plan, the department shall set and incorporate the cleanup levels and such levels shall include:

(a) With respect to each hazardous substance, a cleanup level which at a minimum meets the substantive requirements of all applicable state and federal laws, regulations, rules, standards, and criteria;

(b) With respect to hazardous substances for which no applicable state or federal law, regulation, rule, standard, or criteria exists a cleanup level based on relevant and appropriate state and federal laws, regulations, rules, standards, and criteria;

(c) With respect to hazardous substances where persons submitting a plan demonstrate to the department by clear and convincing evidence that no applicable or relevant and appropriate standard exists, a cleanup level shall be established by the director that assures protection of human health and the environment;

(d) With respect to each hazardous substance, where persons submitting a plan demonstrate to the department by clear and convincing evidence that an alternative to cleanup levels established under (a) or (b) of this subsection would assure protection of human health and the environment, then the department may allow a deviation from those cleanup levels.

(6) In determining whether to approve, approve with conditions, or reject the plan, the director shall, at a minimum, consider and issue findings on the following factors:

(a) The extent to which the plan would meet the cleanup levels required in subsection (5) of this section;

(b) Whether the plan or alternatives to the plan would provide optimum protection of human health and the environment;

(d) The reliability of the proposed response action technology;

(e) The impact of the response actions on the quality of air, groundwater, and surface waters, including existing and potential future uses;

(f) The extent to which the plan includes adequate provisions for monitoring the effectiveness of the response action, both before and after certification of completion;

(g) The impact of the response actions on existing and potential land uses of the site and adjoining lands;

(h) The cost-effectiveness of the plan, including future maintenance and monitoring;

(i) Whether the proponents of the plan will fund fully the response action;

(j) The proponents' record of compliance with implementing past response action plans; and

(k) The extent to which use of federal funds would facilitate or hinder appropriate response action.

(7) Any accepted response action plan shall be implemented by consent order of the department or by consent decree issued by a court of competent jurisdiction.

(8) If the director rejects the plan or if any responsible party fails to submit a response action plan after being notified of its potential responsibility or fails to comply with any element of the plan, the responsible party or parties shall be liable for the reasonable and necessary costs of response incurred by the department. If such a failure by a responsible party is wilful, the responsible party shall be liable for up to three times such costs.

(9) Any responsible party who does not comply with an order issued pursuant to section 14 of this act shall be liable for up to three times the reasonable and necessary costs of response incurred by the department. (10) Upon payment of its share of costs pursuant to an approved response action plan, a potentially responsible party shall be liable only for its share of the costs of such plan. Such party shall not be liable for any claims for contribution by nonparticipating responsible parties concerning the action which is the subject of the approved plan.

(11) A participant in the plan may seek recovery of its costs that are above its proportionate share of costs from any responsible party not participating in the plan. If such nonparticipating responsible party (a) received a notice of responsibility under section 7(1)(a) of this act or had actual notice of the development of the plan, (b) had reason to believe it was a responsible party, and (c) is a nonpublic entity, it may be liable to the participants in the plan for up to three times such nonparticipants' proportionate costs.

NEW SECTION. Sec. 9. COVENANT NOT TO SUE. (1) At the time the director certifies that remedial action has been completed pursuant to section 11 of this act, the director shall provide any person who submitted a response action plan under section 8 of this act and who received approval for that plan, with a covenant not to sue concerning any liability to the state of Washington, including future liability, resulting from a release or threatened release of a hazardous substance for any portion of the remedial action:

(a) Which accomplishes treatment of hazardous substances so as to destroy, eliminate or permanently immobilize the hazardous constituents of such substances so that the substances, or any byproduct of the treatment or destruction process, no longer present any current or currently foreseeable future significant risk to public health or welfare or the environment; or

(b) When such destruction, elimination, or permanent immobilization is not practicable and the hazardous substances are transported off site to an approved hazardous waste disposal facility meeting the requirements of the federal resource conservation and recovery act, 42 U.S.C. Sec. 6924 and 6925, as amended as of the effective date of this section, and, if the substances are disposed of in this state, the rules of the department adopted pursuant to chapter 70.105 RCW for permanent disposal facilities; or

(c) When the remedial action has complied with the response action plan and the cleanup levels in the plan have been set only under section 8(5) (a) of this act.

(2) (a) At the time the director certifies that remedial action has been completed pursuant to section 11 of this act, the director may provide any person who submitted a response action plan under section 8 of this act and received approval of that plan, with a covenant not to sue concerning any liability to the state of Washington, including future liability, resulting from a release or threatened release of a hazardous substance for any portion of the remedial action which (i) has been completed in accordance with an approved response action plan, and (ii) has met the cleanup levels established under section 8(5) (b) or (c) of this act, and (iii) is determined by the director to be in the public interest.

(b) For the purpose of this subsection, "public interest" means that:

(i) The benefits from the expedition of the response action caused by the issuance of a covenant not to sue would exceed the potential future risk to the public health and fisc caused by such issuance;

(ii) The response action plan is based on attainment of performance standards based on objective criteria for releases of substances to, or the presence of substances in, land, air, or water;

(iii) Nonparticipating responsible parties or state funds are available to fund additional remedial actions which may be necessary at the site; and

(iv) The monitoring and maintenance proposed at the site will protect human health and the environment.

(3) At the time the director certifies that remedial action has been completed pursuant to section 11 of this act, the director may provide any person who submitted a response action plan under section 8 of this act and received approval of that plan, with a covenant not to sue concerning any liability to the state of Washington, including future liability, resulting from a release or threatened release of a hazardous substance for any portion of the remedial action where a cleanup level has been established under section 8(5) (d) of this act, if:

(a) The cleanup levels established pursuant to section 8(5) of this act have been met;

(b) the director has determined that issuing the covenant is in the public interest as defined in subsection (2)(b) of this section;

(c) Compliance with the otherwise applicable, relevant, or appropriate standards is technically impracticable from an engineering perspective; and

(d) The plan provides optimum protection of human health and the environment.

(4) The director shall give notice of a proposed covenant not to sue to interested persons and the public. The notice shall include a brief analysis of the covenant and indicate where additional information may be obtained. Public comment shall be accepted for a minimum of forty-five days from the date of notice. The notice may be given simultaneously with public notice required by sections 8 and 11 of this act.

(5) The issuance of a covenant not to sue at the time of certification of completion pursuant to section 11 of this act shall be committed to by the director at the time of approval of a response action plan pursuant to section 8 of this act. If new information is revealed while implementing an approved response action plan, the responsible parties and the department may amend the plan. If such new information reveals a significant quantity of a hazardous substance not previously identified in the approved plan as being present at the site, in an area of the site other than that described in the approved plan, or in quantities significantly greater than as described in the approved plan, then the plan shall be amended by following the process described beginning in section 8(3) of this act. A covenant not to sue may only be issued for those portions of remedial actions which have been approved by the department pursuant to section 8 of this act.

(6) Any covenant not to sue granted shall contain a provision that the covenant not to sue will continue only as long as the taxes imposed by sections 33 and 34 of this act are in effect.

(7) The decision to grant or deny a covenant under this section shall be reviewable under section 12 of this act.

(8) A person receiving a covenant not to sue under this chapter shall not be relieved of any liability owed to persons, other than the state of Washington, under any federal, state, or local law, including the common law.

NEW SECTION. Sec. 10. DEPARTMENT'S POWERS TO INITIATE RESPONSE ACTIONS. (1) If a responsible party fails to initiate a response action plan or fails to comply with an approved response action plan, the director shall take appropriate steps to assure that the necessary response actions are undertaken, and, if necessary, proceed with an action to recover the costs of response action from the responsible party or parties.

(2) If the director determines that: (a) An emergency exists that requires immediate action to protect human health or the environment, and (b) that the owner or operator is unwilling or unable to take such immediate action, the department, its authorized employees, agents, or contractors, or the employees, agents, or contractors of a responsible party acting under an approved response action plan may enter upon property, public or private, to take such response action as is necessary to abate the emergency.

(3) If the potentially responsible parties fail to implement a response action plan that has been approved pursuant to section 8 of this act, the director may determine, in accordance with the procedures set forth in this section, that action to respond to a release or threatened release of hazardous substances is necessary and that entry upon real property, public or private, is necessary to execute response action. Such entry may be made by the department, its authorized employees, agents, or contractors, or the employees, agents, or contractors of a responsible party acting under an approved response action plan. The director's determination shall be based upon inspection, study, or other data as may be available, shall be made in writing, and shall be available for public inspection and copying. The department shall supply the person owning, operating, or in charge of the property concerned, as well as all potentially responsible parties with: (a) A written document detailing the director's determination and the basis for the determination, (b) a notice that response action and entry upon property shall proceed in no fewer than sixty days, and (c) a request for a prompt response. The director shall confer with any party responding to receipt of service of the director's determination in order to accommodate that party's legitimate concerns while obtaining prompt and necessary response action.

(4) The department, with the assistance of the attorney general's office, may apply to superior court for an order authorizing entry upon real property to execute response action. The department's application shall: (a) State that the notice procedures required in this section have been carried out, (b) describe the property concerned, (c) describe the response action selected by the director, and (d) include a schedule identifying the dates response actions are planned. If, after a hearing, the superior court finds that the department's application and supporting materials establish that the department has made a reasonable attempt to accommodate any responding party's legitimate concerns, the superior court shall enter an order authorizing entry upon real property to execute response action.

(5) The following are not subject to review under chapter 43.21B or 34.04 RCW: (a) The director's determination that response action is necessary, that entry upon real property is necessary, or the basis for such decision; and (b) any response by the director to the responsible party's concerns.

(6) No common law writ, temporary restraining order, or preliminary or permanent injunction may issue to stay or delay response action deemed necessary by the director unless the superior court finds that the complainant lacks any adequate remedy at law.

(7) Prior to conducting a response action, the department shall:

(a) Prepare a proposed scope of work based on any investigation or study conducted by or for the department, the responsible parties, or others;

(b) Provide the identified responsible parties with notice of the proposed response action and an opportunity to comment on the scope of work proposed and provide similar notice and opportunity to comment to members of to the public that request notice. Unidentified responsible parties and other members of the public shall also be notified by publication consistent with chapter 65.16 RCW; and

(c) Prepare a final scope of work based on the comments received and any other study or investigation conducted by or for the department.

The proposed and final scope of work, and the basis for them as well as all comments received by the department shall constitute the record of decision of the department. No record of decision need be developed when an emergency exists and the department undertakes a response action to protect the public health or the environment.

(8) Where the department has developed a record of decision for a response action and the department has conducted the response action in accordance with such record, in any action brought to recover costs, the scope of work of the department shall be presumed reasonable and necessary unless demonstrated to be arbitrary and capricious.

(9) The attorney general, at the request of the director, may recover from any responsible party moneys expended by the department on response actions, including response actions undertaken prior to the effective date of this section. This shall include any damages caused by responsible parties and any other costs allowed to be recovered by this chapter. Such actions may be commenced in the superior court of Thurston county, in the superior court of the county where the facility is located, or other court of competent jurisdiction. The amounts recoverable shall include interest from the date costs were first incurred for any response action taken.

NEW SECTION. Sec. 11. CERTIFICATION OF COMPLETION OF REMEDIAL ACTIONS. (1) Response actions approved or conducted by the department under this chapter shall attain a degree of cleanup of hazardous substances which, at a minimum, assures protection of human health and the environment.

(2) Upon completion of an approved response action plan, the persons submitting the plan may apply for a certificate of completion from the department. The department shall provide notice of an application for certification of completion to interested persons and the public. The notice shall include a brief analysis of the application and indicate where additional information may be obtained. Public comment shall be accepted for a minimum of forty-five days from the date of the notice.

(3) The director shall grant or deny an application for certification of completion within ninety days of the application. If the director finds that all the provisions of the response action plan have been fully implemented, the director shall approve an application for certification of completion.

NEW SECTION. Sec. 12. REVIEW OF DECISIONS. (1) Within fifteen days of the director's disapproval or conditional acceptance of a response action plan pursuant to section 8 of this act, or at any time after approval of the plan, any potentially responsible party or combination of parties, which may be subject to the plan, may initiate an arbitration proceeding to resolve disputes concerning the plan or proposed plan. Within fifteen days after denial of certification of completion of remedial action under section 11 of this act, any party who applied for certification may initiate an arbitration proceeding to resolve disputes concerning the certification of completion of the remedial action.

(2) A person with interests not otherwise represented at an arbitration proceeding may request to intervene in the proceeding for the purpose of presenting information to the arbitration panel. The arbitration panel shall grant intervenor status if it finds that additional information would be useful and relevant in reaching a decision. An intervenor shall have full rights to participate in the proceeding and to appeal the arbitrator's decision but not to select an arbitrator.

(3) The department shall notify persons who commented on either the response action plan, the certification of completion, or the decision on a covenant not to sue when an arbitration has been initiated.

(4) An arbitration panel of three shall be chosen and convened by the parties to the dispute which may be done in accordance with the procedures of the American arbitration association. To the extent possible, at least two arbitrators shall have experience and expertise in response action techniques and the financial and environmental consequences of implementation of response action plans.

(5) The arbitrators shall: (a) Establish a time schedule for expedient resolution of the dispute, (b) allow for the presentation of both written and oral testimony and discovery procedures as deemed necessary to supplement the agency's administrative record, and (c) issue findings of fact and conclusions as part of the panel decision. Proceedings may be informal, and the parties need not adhere to the rules of evidence for superior court. The panel's decisions shall be based on findings and conclusions and shall be by majority vote. The decision of the department shall be upheld unless the party challenging such decision, or the intervenor, demonstrates by clear and convincing evidence that the decision of the department was incorrect or otherwise inconsistent with the provisions of this chapter. Costs, including reasonable expert and attorney's fees, of the arbitration shall be assessed by the arbitrators against each party in an amount reflecting the degree to which each party failed to prevail in its position in the decision of the arbitrators.

(6) If a responsible party or the department appeals the arbitration decision to the court and fails to improve its position, the court shall assess costs and attorney's fees of the defending parties against the party that appeals.

(7) For purposes of subsections (1) through (6) of this section "party" means the department or a responsible party initiating arbitration in accordance with subsection (1) of this section.

(8) There shall be no right to judicial review of the department's or arbitration panel's decision regarding acceptance, conditional acceptance, or rejection of a proposed response action plan or its completion; the certification of completion of a remedial action; or the grant or denial of a covenant not to sue except as provided in this section.

(9) Any person aggrieved: (a) By the acceptance, conditional acceptance, or rejection of a voluntary response action plan under section 8 of this act; (b) by the grant or denial of an application for certification of completion under section 11 of this act; or (c) by the grant or denial of covenant under section 9 of this act shall have a right to judicial review of the department's decision. Review shall be sought within sixty days of the final action of the department in the superior court for Thurston county. The appealing parties shall show by clear and convincing evidence that the rejection or acceptance of the plan or application for certification of completion or granting or denying the covenant was inconsistent with the purposes of this chapter. If a request for arbitration is made pursuant to subsection (1) of this section, direct appeals pursuant to this subsection shall be stayed until an arbitration decision is issued and court review shall then be limited to a review of the record of arbitration. Any appeal of an arbitration decision issued under this chapter shall be of the record of the arbitration decision only and there shall be no right to a trial de novo. The arbitrator's decision shall be upheld unless the court finds it to be arbitrary and capricious. Appeals shall be heard on the civil motion calendar and expedited to the maximum extent possible consistent with due process of law.

(10) Where the circumstances of a particular case indicate that a party to an unsuccessful suit has sought judicial review as a means of delay, the court may assess, as a penalty, any economic gain such party may have realized through such delay.

NEW SECTION. Sec. 13. NOTIFICATION/RETENTION OF RECORDS. (1) Any person (a) in charge of a vessel from which a reportable quantity of hazardous substance is released into or upon the waters of this state or adjoining shorelines; or (b) in charge of a vessel from which a reportable quantity of hazardous substance is released which may affect natural resources belonging to, pertaining to, or under the exclusive management authority of the state; or (c) in charge of a facility from which a reportable quantity of hazardous substance is released who fails to notify immediately the department as soon as he or she has knowledge of such release, or who knowingly submits a false or misleading notice shall, upon conviction, be fined not more than twenty-five thousand dollars, or imprisoned for not more than three years, or not more than five years in the case of a second or subsequent conviction, or both. Notification received pursuant to this section, or information obtained by the notification, shall not be used against any such person in any criminal case, except a prosecution for perjury or for giving a false statement.

(2) Beginning with the effective date of this section, for fifty years thereafter, or for fifty years after the date of establishment of a record, whichever is later, or at any such earlier time if a waiver is obtained from the department, it shall be unlawful for any person knowingly to destroy, mutilate, erase, dispose of, conceal, or otherwise render unavailable, unreadable, or falsify any records of the type which the department may by rule identify as necessary. Any person who violates this subsection shall, upon conviction, be fined not more than twenty-five thousand dollars or imprisoned not more than three years, or five years in the case of a second or subsequent conviction, or both.

NEW SECTION. Sec. 14. ENFORCEMENT. (1) Whenever, in the opinion of the director (a) a person is responsible for a release or threatened release of a hazardous substance; (b) that person has been notified of its potential responsibility pursuant to section 7 of this act; and (c) that person has not submitted or implemented a response action plan pursuant to section 8 of this act, the director may issue such order or directive as it deems appropriate under the circumstances, and serve the order on that person personally or by registered mail. Such an order is not appealable pursuant to chapter 43.21B RCW.

(2) Whenever the director determines an emergency exists that requires immediate action to protect human health or the environment, the director may (a) issue such order or directive as appropriate under the circumstances, without first giving notice or otherwise allowing response action as set forth in subsection (1) of this section; or (b) request the attorney general to secure such relief as may be necessary to abate such danger or threat, and the superior court of the district in which the threat occurs shall have jurisdiction to grant such relief as the public interest and the equities of the case may require.

NEW SECTION. Sec. 15. CIVIL PENALTIES. (1) Any person who violates any provision of an approved response action plan, or who fails to submit a proposed response action plan pursuant to section 8 of this act may be subject to a civil penalty of up to twenty-five thousand dollars per day for each day of violation. Each and every such violation shall be a separate and distinct offense, and in case of a continuing violation, every day's continuance shall be a separate offense. Every act of commission or omission which procures, aids, or abets in the violation shall be subject to such a penalty. The penalty shall be imposed and appealed pursuant to the provision of RCW 90.48.144.

(2) In determining the amount of any penalty assessed pursuant to this section, the director shall take into account the nature, circumstances, extent, and gravity of the violation or violations and, with respect to the violator, any prior history of such violations, the degree of culpability, economic benefit or savings, if any, resulting from the violation, and such other matters as justice may require.

(3) Any person against whom a civil penalty is assessed under this section may obtain review thereof before the pollution control hearings board by filing a notice of appeal within thirty days from the date of such order, and by simultaneously sending a copy of such notice by certified mail to the director.

(4) If any person fails to pay an assessment of a civil penalty after it has become a final and unappealable order, the director may request the attorney general to institute a civil action in Thurston County superior court or other appropriate court to collect the penalty, and such court shall have jurisdiction to hear and decide any such action.

NEW SECTION. Sec. 16. THIRD PARTY ACTIONS. (l) Any person aggrieved by an action or inactions of a potentially responsible party which may result in a release of a hazardous substance that presents an imminent and substantial endangerment to health or the environment may bring an action in superior court to compel the potentially responsible party to comply with the provisions of this chapter. Before any action may be brought, the person aggrieved shall mail by certified mail a notice of intent to sue to the director of the department, who shall be allowed thirty days to negotiate or mediate a resolution to the dispute before any action may be filed.

(2) Any person aggrieved by the release or threat of release of a hazardous substance may commence a civil action against any person who fails to comply with an approved response action plan to carry out a response action.

(3) Any person aggrieved who prevails in an action brought under this section shall be entitled to reasonable attorneys' fees and costs.

(4) Nothing in this chapter limits any existing right of a person to bring a legal action in the courts of this state relating to the release or threatened release of hazardous substances.

NEW SECTION. Sec. 17. RESPONSE ACTION CONTRACTOR LIABILITY. (1) A person who is a response action contractor, or a person employed by any public body who provides services relating to response action, and who is working within the scope of his employment with respect to any release or threatened release of a hazardous substance, pollutant, or contaminant from a facility shall not be liable under this chapter, under any other state or local law, or under common law to any person for injuries, costs, damages, expenses, or other liability, including, but not limited to, claims for indemnification or contribution, and claims by third parties for death, personal injury, illness, or loss of or damage to property or economic loss, that results from such release or threatened release. This subsection shall not apply in the case of a release that is caused by conduct of the response action contractor that is negligent, grossly negligent, or that constitutes intentional misconduct.

(2) Nothing in this section affects the liability of any person under any warranty under state law, or the liability of an employer who is a response action contractor to any employee of such employer under any provision of law.

(3) The director may agree to hold harmless and indemnify any response action contractor meeting the requirements of this section against any liability, including the expenses of litigation or settlement, for negligence arising out of the contractor's performance in carrying out response action activities under this chapter, unless the liability was caused by conduct of the contractor that was grossly negligent or that constituted intentional misconduct. Indemnification under this subsection shall apply only to response action contractor liability that results from a release of any hazardous substance, pollutant, or contaminant if the release arises out of response action activities. An indemnification agreement under this subsection shall include deductibles and shall place limits on the amount of indemnification to be made available.

(4) The exemption provided under subsection (1) of this section, and the authority of the director to offer indemnification under subsection (3) of this section shall not apply to any person covered by the provisions of section 5(1) of this act.

(5) A person retained or hired by a potentially responsible party shall be eligible for indemnification under subsection (3) of this section only if the director specifically approves the response action being implemented, and the retaining or hiring of such person.

NEW SECTION. Sec. 18. PRIORITY LIENS. (1) Any liability to the state under this chapter shall constitute a debt to the state. Any such debt shall constitute a lien, in favor of the state, on all real property and rights to such property which belongs to persons liable under this chapter and is subject to, or effected by, a removal or response action.

(2) The lien imposed by this section shall arise at the later of the following:

(a) The time costs are first incurred by the state with respect to a response action under this chapter; or

(b) The time that the person referred to in subsection (1) of this section is provided notice under section 7 of this act of potential responsibility.

(3) A statement of claim, describing the property subject to the lien, shall be filed in the appropriate office as designated by state law. Such lien shall continue until the liability for the costs have been satisfied. Any lien filed pursuant to this section shall have priority over any prior encumbrancer or levying creditor, and over any subsequent purchaser, encumbrancer, or creditor of the owner of the property subject to the lien.

NEW SECTION. Sec. 19. PROPERTY TRANSFER. (1) The owner of public or private nonresidential real property upon which a release of a reportable quantity of a hazardous substance has been found by the department to have occurred shall place a notice in the records of real property kept by the auditor of the county in which the property is located. The notice shall: (a) Identify the property; (b) identify the owner of the property, and the person causing the notice to appear; (c) state that a release of a hazardous substance occurred on the property; (d) state the date the release occurred; and (e) direct further inquiries to the department. The department shall maintain records that identify the response action taken and the hazardous substance or substances released for each response action that has been conducted or approved by the department. Any person injured by the failure of a property owner to comply with this section may recover damages for that injury by filing an action in superior court for the county in which the release occurred.

(2) Where any response action has been conducted or approved by the department with respect to any release or threatened release of a hazardous substance and the director has determined that the response action has been completed in accordance with section 11 of this act, the director shall declare in writing that the response action has been completed. The declaration shall be promptly filed with the records of real property kept by the auditor of the county in which the property is located and shall identify the property, the owner of the property, and the date the release occurred. The declaration shall also be provided to interested persons and the public.

(3) The owner of real property, whether public or private, transferring any right, title, or interest in said property shall provide, before recording the documents effecting said transfer, a written statement to his transferee describing any release of a reportable quantity of a hazardous substance which the owner knows to have occurred on the property being transferred. Unless otherwise agreed by seller and purchaser, any person injured by the failure of any owner of real property to provide the statement referred to in this subsection, or injured by the failure of an owner of real property to provide the statement referred to in this subsection before recording the documents effecting the transfer, shall have a right to recover damages for that injury by filing an action in superior court for the county where the release occurred.

NEW SECTION. Sec. 20. ASSISTANCE FOR PUBLIC PARTICIPATION. (1) If one hundred or more persons who may be adversely affected by the failure to undertake an adequate response action plan petition the department for assistance, the department may grant moneys from the fund established by section 23 of this act necessary to facilitate participation of a representative of those petitioning in the activities under this chapter.

(2) Grants may be made available to facilitate public participation in activities authorized by sections 8, 9, and 11 of this act.

(3) Grants may be made available to facilitate public participation in other activities under this chapter if, in the discretion of the department, such participation will expedite compliance with the purposes of this chapter.

(4) Grants shall not exceed fifty thousand dollars for any one site.

(5) The department shall implement this section in a manner that furthers public participation in the activities authorized by this chapter.

NEW SECTION. Sec. 21. A new section is added to chapter 43.21C RCW to read as follows:

SEPA EXEMPTION. The detailed statement and other procedural requirements of this chapter shall not be applicable to investigatory or response activities undertaken by the state or authorized or ordered by the state under chapter 70.105A RCW.

NEW SECTION. Sec. 22. EXEMPTION FROM PERMITS. Any person acting under an approved response action plan or the department undertaking a response action shall be exempt from the procedural and substantive requirements of state and local laws which would otherwise be applicable to such response action, including those requirements imposed by chapters 70.94, 70.105, 90.03, 90.44, 90.48, and 90.58 RCW.

NEW SECTION. Sec. 23. STATE TOXICS CONTROL ACCOUNT. (1) The state toxics control account is hereby created in the state treasury. Money in the account may only be used in a manner consistent with this chapter. Money deposited in the account shall be administered by the department and shall be subject to legislative appropriation. Money placed in the account shall include: (a) Tax receipts as provided in section 37 of this act; (b) costs of cleanup actions undertaken after the effective date of this section and recovered under this chapter or any other authority which allows such recovery; (c) penalties collected or recovered pursuant to this chapter; and (d) any other money appropriated to the account by the legislature. All earnings from investment of balances in the state toxics control account, except as provided in RCW 43.84.090, shall be credited to the account.

(2) Costs of cleanup actions undertaken prior to the effective date of this section and recovered under this chapter shall be deposited in the general fund. (3) Money in the account may be used to carry out the purposes of this chapter including, but not limited to, the following activities: Solid and hazardous waste planning, management, regulation, and enforcement; hazardous waste cleanup; technical assistance to local governments on solid and hazardous waste management practices; financial assistance for local toxics control projects; and water and health protection. The account shall also be used for response actions at sites where: (a) The director has certified the remedial action is complete in accordance with section 11 of this act; (b) subsequent to the certified completion, the director has determined that further response action is necessary; and (c) no responsible party is available to effect the response action or reimburse costs of a department response.

NEW SECTION. Sec. 24. APPROPRIATION TO THE DEPARTMENT OF ECOLOGY. There is hereby appropriated from the state toxics control account to the department of ecology an amount not to exceed thirty million seven hundred sixty-eight thousand dollars, or so much thereof as may be necessary, for the biennium ending June 30, 1989, to be allocated for the following purposes:

(1) Not to exceed twenty million three hundred thousand dollars to conduct response actions pursuant to this act including assistance for public participation as provided in section 20 of this act.

(2) Not to exceed five million eight hundred sixty-eight thousand dollars for the ongoing implementation of the hazardous waste regulatory program authorized by chapter 70.105 RCW including, but not limited to, activities to permit and inspect hazardous waste facilities and to provide technical assistance to local governments in accordance with RCW 70.105.170 and 70.105.255; and local planning grants as provided in RCW 70.105.220 and 70.105.235.

(3) Not to exceed four million one hundred thousand dollars for the solid waste management activities including, but not limited to: State and local solid waste enforcement; the development and dissemination of technical assistance information for local governments regarding proper management and disposal of solid waste in accordance with RCW 70.95.100 and 70.95.263(2); and local planning grants as provided in RCW 70.95.130.

(4) Not to exceed five hundred thousand dollars for agricultural waste management programs.

NEW SECTION. Sec. 25. APPROPRIATION TO THE DEPARTMENT OF COMMUNITY DEVELOPMENT. There is hereby appropriated from the state toxics control account to the department of community development for the biennium ending June 30, 1989, the sum of eight hundred twenty-one thousand dollars, or so much thereof as may be necessary to develop a hazardous materials incident response curriculum at the Washington state fire training center and provide such training to state and local emergency response personnel.

NEW SECTION. Sec. 26. APPROPRIATION TO THE DEPARTMENT OF SOCIAL AND HEALTH SERVICES. There is hereby appropriated from the state toxics control account to the department of social and health services an amount not to exceed one million five hundred eighteen thousand dollars, or so much thereof as may be necessary, for the biennium ending June 30, 1989, to be allocated for the following purposes:

(1) Not to exceed two hundred sixty-six thousand dollars to test public drinking water supplies for organic chemicals.

(2) Not to exceed six hundred sixty-eight thousand dollars to monitor drinking water supplies potentially affected by hazardous waste releases.

(3) Not to exceed five hundred eighty-four thousand dollars for health risk assessments, health monitoring activities, and health information services for communities surrounding a hazardous waste site.

NEW SECTION. Sec. 27. FINANCING LOCAL TOXICS CONTROL PROJECTS‑-LOANS. In order to aid the financing of local toxics control projects, the department may:

(1) Make grants or low-interest or interest-free loans to local governments from the state toxics control account or other funds and accounts for the purpose of assisting local governments to finance up to fifty percent of the eligible cost of local toxics control projects. The department may require such terms and conditions, and may charge such rates of interest on its loans as it deems necessary or convenient to carry out the purpose of this chapter. Money received from local governments in repayment of loans made under this section shall be paid into the state toxics control account for uses consistent with this chapter.

(2) Pledge money in the state toxics control account, or money to be received by the state toxics control account, to the repayment of all or a portion of the principal of, or interest on, obligations issued by local governments to finance local toxics control projects. The department shall not pledge the faith and credit or the taxing power of the state or any agency or subdivision thereof to the repayment of obligations issued by any local government.

(3) Create such subaccounts in the state toxics control account as the department deems necessary to carry out the purposes of this chapter.

(4) Provide a method for the allocation of financial assistance.

All local toxics control projects aided in whole or in part under the provisions of this chapter shall be put out for competitive bids. The competitive bids called for shall be administered in the same manner as all other public works projects put out for competitive bidding by the local governmental entity under this chapter.

NEW SECTION. Sec. 28. APPLICATION FOR FINANCIAL ASSISTANCE FOR LOCAL TOXICS CONTROL PROJECTS. To apply for financial assistance to initiate a response action the local government must have been notified by the department as a responsible party under section 7 of this act.

To apply for financial assistance for any other local toxics control project, a local government must qualify as fiscally distressed.

NEW SECTION. Sec. 29. CONDITIONS FOR FINANCIAL ASSISTANCE. (1) As a condition to any financial assistance under section 27 of this act, the department shall require that a county or city has prepared and is implementing programs in compliance with plans required by RCW 70.95.090 and 70.105.220, and is implementing programs to achieve compliance with the waste management priorities established in RCW 70.95.010 and 70.105.150. These programs shall include, to a degree commensurate with the county or city's population and funding capacity:

(a) Methods to increase waste reduction of solid wastes, such as effective variable can rates;

(b) Methods to achieve the recycling of solid wastes, including adequate collection programs for recyclable materials;

(d) Methods to implement collection programs for moderate risk wastes.

The programs shall be incorporated into either an approved solid waste management plan in accordance with RCW 70.95.090 or an approved local hazardous waste management plan in accordance with RCW 70.105.220.

(2) In addition to the requirements of subsection (1) of this section, the department shall request the local government to develop a long-term plan for financing solid or hazardous waste management and to use local revenue sources which are available for funding local toxics control projects pursuant to RCW 36.58.140.

NEW SECTION. Sec. 30. PRIORITY PROCESS FOR LOCAL TOXICS CONTROL PROJECTS. (1) The department shall develop a priority process for those local toxics control projects that comply with the requirements of section 29 of this act. The department shall consider at least the following factors in assigning a priority to a project:

(a) Whether the project is critical in nature and would affect the health and safety of a great number of citizens;

(b) The cost of the project compared to the amount of loan money available;

(d) Other criteria that the department considers advisable.

(2) Existing debt or financial obligations of local governments shall not be refinanced under this chapter.

(3) Before November 1 of each year, the department shall develop and submit to the ways and means committees and committees dealing with environmental issues of the senate and house of representatives a prioritized list of projects which are recommended for funding by the legislature. The list shall include, but not be limited to, a description of each project and recommended financial guarantee, the local government jurisdiction, demonstration of the jurisdiction's critical need for the project and documentation of local funds being used to finance the local toxics control project. The list shall also include measures of fiscal capacity for each jurisdiction recommended for financial assistance, pursuant to RCW 36.58.140.

(4) The department shall not sign contracts or otherwise financially obligate funds from the state toxics control account for local toxics control projects before the legislature has appropriated funds for a specific list of local toxics control projects. The legislature may remove projects from the list recommended by the department. The legislature shall not change the order of the priorities recommended for funding by the department.

NEW SECTION. Sec. 31. INTENT. It is the intent of this chapter to levy a tax on all hazardous substances sold, used, consumed, handled, or distributed within this state. It is the further intent of this chapter to impose the tax only once for each hazardous substance, but nothing in this chapter exempts any person taxable under any other law.

NEW SECTION. Sec. 32. DEFINITIONS. Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter.

(1) "Distributor" means (a) any person engaged in the business of selling hazardous substances in this state who brings, or causes to be brought, into this state from without the state any hazardous substance for sale, (b) any person who makes, manufactures, or fabricates hazardous substances in this state for sale in this state, and (c) any person engaged in the business of selling hazardous substances without this state who ships or transports hazardous substances to persons in this state.

(2) "Hazardous substance" means:

(a) All materials deemed hazardous substances according to section 101(14) of the federal comprehensive environmental response, compensation, and liability act of 1980 (42 U.S.C. Sec. 9601(14)) as amended by Public Law 99-499;

(b) Petroleum products; and

(c) Any other substance or category of substances determined by rule of the department of ecology to present a threat to the public health or welfare or the environment if released into the environment.

(3) "Petroleum product" means crude oil, plant condensate, lubricating oil, gasoline, aviation fuel, kerosene, diesel motor fuel, benzol, fuel oil, residual oil, liquefied or liquefiable gases such as butane, ethane, and propane, and every other product derived from the refining of crude oil. "Petroleum product" does not include natural gas.

(4) "Previously taxed hazardous substance" means:

(a) A hazardous substance in respect to which tax has been paid under this chapter and which has not been remanufactured or reprocessed in any manner (other than mere repackaging) since the tax was paid; or

(b) A petroleum product which has been refined from another petroleum product in respect to which a tax has been paid under this chapter.

(5) "Wholesale value" means the established price for which a manufacturer sells a hazardous substance to a distributor. If a hazardous substance is acquired by lease or by gift or is extracted, produced, or manufactured by the person using the substance or is sold under conditions wherein the purchase price does not represent the true wholesale value thereof, the wholesale value of the hazardous substance shall be determined as nearly as possible according to the wholesale selling price at the place of use of similar substances of like quality and character, in accordance with rules of the department.

(6) The definitions in chapters 82.04, 82.08, and 82.12 RCW apply to this chapter.

NEW SECTION. Sec. 33. SALES TAX IMPOSED. (1) A tax is imposed upon each sale, handling, or distribution of a hazardous substance in this state by a distributor at the rate of fifty- five one-hundredths of one percent multiplied by the wholesale value of the hazardous substance. The tax shall be imposed at the time the distributor (a) brings, or causes to be brought, into this state from without the state hazardous substances for sale, (b) makes, manufactures, or fabricates hazardous substances in this state for sale in this state, or (c) ships or transports hazardous substances to retailers in this state, to be sold by those retailers.

(2) The tax imposed in this section does not apply to successive sales, handlings, or distributions of previously taxed hazardous substances.

NEW SECTION. Sec. 34. USE TAX IMPOSED. (1) A tax is imposed upon each use of a hazardous substance at the rate provided in section 33 of this act multiplied by the wholesale value of the hazardous substance.

(2) The tax imposed in this section does not apply to the use of previously taxed hazardous substances.

NEW SECTION. Sec. 35. RECORDS. Every distributor shall keep complete and accurate records of hazardous substances held, purchased, sold, manufactured, brought in, or caused to be brought in from without the state. The records shall contain information required by the department, which may include but is not limited to the seller's name and address, the buyer's name and address, the date of sale, and all prices and discounts. All books, records, and other papers and documents required under this section shall be preserved for a period of at least five years after the date of the entries appearing in the records. The requirements of this section are in addition to the requirements of RCW 82.32.070.

NEW SECTION. Sec. 36. CREDITS FOR TAXES. Credit for taxes paid under this chapter shall be made, in accordance with rules of the department, for:

(1) Hazardous substances which are delivered outside this state by the seller or the seller's agents;

(2) Hazardous substances which are returned to the person who paid the tax on that hazardous substance under this chapter;

(3) Petroleum products which are exported for use outside this state as fuel, including fuel carried from this state in the fuel tank of any airplane, ship, truck, or other vehicle; and

(4) Hazardous substances which are destroyed by a distributor in a manner approved by the department of ecology.

NEW SECTION. Sec. 37. ADMINISTRATIVE PROVISIONS. Chapter 82.32 RCW applies to the taxes imposed in this chapter. Revenues from the taxes imposed in this chapter shall be deposited in the state toxics control account created in section 23 of this act.

NEW SECTION. Sec. 38. A new section is added to chapter 36.58 RCW to read as follows:

RECEIPT OF NOTICE AS POTENTIAL RESPONSIBLE PARTY‑-EVIDENCE. If any county, city, or town receives notice as a potential responsible party under section 7 of this act, the county, city, or town shall:

(1) Create and fund the operation of a solid waste disposal district as provided in this chapter; or

(2) Present to the department of ecology a comprehensive plan setting forth the manner in which the city, town, or county will fulfill its funding obligations under chapter 70.105A RCW.

Sec. 39. Section 1, chapter 175, Laws of 1982 and RCW 36.58.100 are each amended to read as follows:

SOLID WASTE DISPOSAL DISTRICT‑-AUTHORIZED‑-BOUNDARIES‑-POWERS‑-GOVERNING BODY. (1) The legislative authority of any county ((~~other than a class AA county~~)), or the council of any city or town, is authorized to establish ((~~one or more~~)) a solid waste disposal district((s)) within the county, city, or town for the purpose of providing and funding solid waste disposal services and solid waste disposal sites, as provided in this section. ((No solid waste disposal district may include any area within the corporate limits of a city or town unless the city or town governing body adopts a resolution approving inclusion of the area within its limits. The county legislative authority may modify the boundaries of the solid waste disposal district by the same procedure used to establish the district.)) A solid waste disposal district may be created to fund a disposal site or sites located within the district or to assist in funding, pursuant to interlocal agreement under chapter 39.34 RCW, a disposal site or sites operated by another establishing authority. Each solid waste disposal district shall develop and implement a comprehensive plan for funding all solid waste disposal sites within the district, entering into interlocal agreements under chapter 39.34 RCW when appropriate.

(2) A solid waste disposal district created by a county legislative authority shall include only that part of the county, whether incorporated or unincorporated, which is served by the solid waste disposal site or sites which will be funded by the district.

(3) A city or town council may create a solid waste disposal district to fund a solid waste disposal site or sites which serve the city or town.

(4) If a city or town is included in a solid waste disposal district, the district must include the entire city or town.

(5) A solid waste disposal district may be dissolved by the ((~~county legislative~~)) establishing authority after holding a hearing as provided in RCW 36.58.110.

(6) As used in RCW 36.58.100 through 36.58.150 the term ((~~"county" includes all counties other than class AA counties~~)) "establishing authority" means a legislative authority or council authorized to establish a solid waste disposal district under this section.

(7) A solid waste disposal district is a quasi-municipal corporation, an independent taxing "authority" within the meaning of Article VII, section 1 of the state Constitution, and a "taxing district" within the meaning of Article VII, section 2 of the state Constitution.

(8) A solid waste disposal district shall constitute a body corporate and shall possess all the usual powers of a corporation for public purposes as well as all other powers that may now or hereafter be specifically conferred by statute: PROVIDED, That a solid waste disposal district shall not have the power of eminent domain.

(9) The ((~~county legislative~~)) establishing authority shall be the governing body of a solid waste disposal district. The electors of a solid waste disposal district shall be all registered voters residing within the district.

Sec. 40. Section 2, chapter 175, Laws of 1982 and RCW 36.58.110 are each amended to read as follows:

SOLID WASTE DISPOSAL DISTRICT‑-ESTABLISHMENT, MODIFICATION, OR DISSOLUTION‑-HEARING‑-NOTICE. ((~~A county legislative~~)) An establishing authority proposing to establish a solid waste disposal district or to modify or dissolve an existing solid waste disposal district shall conduct a hearing at the time and place specified in a notice published at least once not less than ten days prior to the hearing in a newspaper of general circulation within the proposed solid waste disposal district. This notice shall be in addition to any other notice required by law to be published. Additional notice of such hearing may be given by mail, posting within the proposed solid waste disposal district, or in any manner local authorities deem necessary to notify affected persons. All hearings shall be public and the ((~~county legislative~~)) establishing authority shall hear objections from any person affected by the formation, modification, or dissolution of the solid waste disposal district and make such changes ((~~in the boundaries of the district or any other modifications that the county legislative~~)) as the establishing authority deems necessary.

Sec. 41. Section 3, chapter 175, Laws of 1982 and RCW 36.58.120 are each amended to read as follows:

SOLID WASTE DISPOSAL DISTRICT‑-ESTABLISHMENT‑-ORDINANCE. No solid waste disposal district shall be established ((~~within a county~~)) unless the ((~~county legislative~~)) establishing authority determines, following a hearing held pursuant to RCW 36.58.110, that it is in the public interest to form the district and the ((~~county legislative~~)) establishing authority adopts an ordinance creating the solid waste disposal district and establishing its boundaries.

Sec. 42. Section 5, chapter 175, Laws of 1982 and RCW 36.58.140 are each amended to read as follows:

SOLID WASTE DISPOSAL DISTRICT‑-EXCISE TAX‑-LIEN FOR DELINQUENT TAXES AND PENALTIES. A solid waste disposal district may levy and collect an excise tax on the privilege of living in or operating a business in a solid waste disposal taxing district sufficient to fund its solid waste disposal activities((~~: PROVIDED, That any property which is producing commercial garbage shall be exempt if the owner is providing regular collection and disposal~~)) including, but not limited to, costs for solid waste disposal operations, capital costs, monitoring costs, and any other costs incurred to carry out the purposes of this chapter and chapter 70.105A RCW. Any excise tax imposed under this section must be: (1) Imposed on all businesses in the district, including but not limited to publicly and privately owned utilities, except that the district may exempt any businesses which are not taxed under chapter 82.04 nor 82.16 RCW; and (2) imposed at a uniform rate for all taxable businesses.

Any revenues received under this section may be pledged for retirement of revenue bonds issued under RCW 36.58.150.

The excise tax shall be billed and collected by the establishing authority at times and in the manner fixed and determined by the ((~~solid waste disposal district~~)) establishing authority. Penalties for failure to pay the tax on time may be provided for. A solid waste disposal district shall have a lien for delinquent taxes and penalties, plus an interest rate equal to the interest rate for delinquent property taxes. The lien shall be attached to each parcel of property in the district that is occupied by the person so taxed and shall be superior to all other liens and encumbrances except liens for property taxes.

The solid waste disposal district shall periodically certify the delinquencies to the county treasurer at which time the lien shall be attached. The lien shall be foreclosed in the same manner as the foreclosure of real property taxes.

NEW SECTION. Sec. 43. SEVERABILITY. If any provision of this act or chapter 70.105A RCW 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. 44. LIBERAL CONSTRUCTION. This act and chapter 70.105A RCW are exempt from the rule of strict construction and shall be liberally construed to give full effect to the purposes for which they were enacted.

NEW SECTION. Sec. 45. CODIFICATION. (1) Sections 3 through 20, 22, 23, and 27 through 30 of this act shall be added to chapter 70.105A RCW.

(2) Sections 31 through 37 of this act shall constitute a new chapter in Title 82 RCW.

NEW SECTION. Sec. 46. SECTION CAPTIONS. Section captions as used in this act constitute no part of the law.

NEW SECTION. Sec. 47. REPEALERS. The following acts or parts of acts are each repealed:

(1) Section 3, chapter 65, Laws of 1983 1st ex. sess., section 129, chapter 7, Laws of 1985 and RCW 70.105A.030;

(2) Section 4, chapter 65, Laws of 1983 1st ex. sess. and RCW 70.105A.040;

(3) Section 5, chapter 65, Laws of 1983 1st ex. sess. and RCW 70.105A.050;

(4) Section 6, chapter 65, Laws of 1983 1st ex. sess. and RCW 70.105A.060;

(5) Section 7, chapter 65, Laws of 1983 1st ex. sess. and RCW 70.105A.070;

(6) Section 8, chapter 65, Laws of 1983 1st ex. sess. and RCW 70.105A.080;

(7) Section 13, chapter 65, Laws of 1983 1st ex. sess. and RCW 70.105A.090;

(8) Section 9, chapter 65, Laws of 1983 1st ex. sess. and RCW 70.105A.900; and

(9) Section 15, chapter 65, Laws of 1983 1st ex. sess. and RCW 70.105A.905.

NEW SECTION. Sec. 48. EFFECTIVE DATE. This act shall take effect .......... .