AN ACT Relating to hazardous waste cleanup; amending RCW 70.--.--- (Initiative Measure No. 97); and adding new sections to chapter 70.-- RCW.

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

NEW SECTION. Sec. 1. (1) Any liability to the state under this chapter constitutes a debt to the state. Any such debt constitutes a lien, in favor of the state, on all real property on which the remedial action was conducted.

(2) The lien imposed by this section arises at the time costs are first incurred by the state with respect to a remedial action under this chapter.

(3) The department shall file a statement of claim, describing the property subject to the lien, in the auditor's office of the county in which the real property is located. The lien continues until the liability for the costs have been satisfied. Any lien filed pursuant to this section shall be subject to the rights of any purchaser, holder of a security interest, or judgment lien creditor whose interest is perfected in accordance with law before notice of the state lien is filed.

NEW SECTION. Sec. 2. (1) The director of the department of ecology shall arrange for the collection of hazardous substances confiscated by law enforcement agencies pursuant to chapter 69.50 RCW or may provide financial assistance to law enforcement agencies for the disposal of such substances.

(2) The director of the department of ecology may adopt rules to allow the department to take possession and dispose of hazardous substances confiscated by law enforcement agencies under chapter 69.50 RCW.

(3) Any person convicted of a crime under chapter 69.50 RCW involving hazardous substances confiscated by a law enforcement agency may upon conviction, be assessed by the sentencing court with the costs of the disposal. Any money collected pursuant to this subsection shall not be subject to deposit in the public safety and education account. The department of ecology may seek reimbursement for the department's contributions to the cost of disposal from the moneys collected from such convicted person.

NEW SECTION. Sec. 3. If a potentially liable person commits fraud on the department or another potentially liable person in a proposed settlement agreement, in a request for a covenant not to sue, or in an application for a certificate of completion, then any limitation on liability or covenant not to sue otherwise provided is void, and the injured person, including the state of Washington, may recover actual damages sustained and a civil penalty of up to ten thousand dollars.

NEW SECTION. Sec. 4. (1) Before conducting a remedial action, the department may:

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

(b) Provide the identified potentially liable persons and members of the public with notice of the proposed remedial action and an opportunity to comment on the scope of work proposed;

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

(2) The proposed and final scope of work and the basis for them as well as all comments received by the department constitute the record of decision of the department.

(3) Where the department has developed a record of decision for a remedial action and the department has conducted the remedial action in accordance with the 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.

NEW SECTION. Sec. 5. (1) Upon completion of all remedial actions called for in a settlement agreement, the parties to the agreement 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.

(2) The director shall grant or deny an application for certification of completion within ninety days of the application. If the director finds that the remedial action has been fully implemented, the director shall approve an application for certification of completion.

NEW SECTION. Sec. 6. Any person with respect to the release or threatened release of used motor oil collected by the person for recycling, if the oil (1) is not mixed with any other hazardous substance; and (2) is collected, stored, and maintained by the person in compliance with all federal and state laws and without negligence. Unless the person has reason to believe the contrary, it shall be presumed that used motor oil that has been removed from a vehicle by the owner and delivered to the person for recycling has not been mixed with any other hazardous substance.

NEW SECTION. Sec. 7. (1) A person who is a remedial action contractor, or a person employed by any public body who provides services relating to remedial action, and who is working within the scope of the person's employment with respect to any release or threatened release of a hazardous substance from a facility, is not 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 result from the release or threatened release. This subsection does not apply in the case of a release or threatened release that is caused by conduct of the remedial 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 remedial action contractor to any employee of such employer under any provision of law.

(3) The director may agree to hold harmless and indemnify any remedial action contractor meeting the requirements of this section against any liability, including the expenses of litigation or settlement, or negligence arising out of the contractor's performance in carrying out remedial 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 applies only to remedial action contractor liability that results from a release or threatened release of a hazardous substance if the release arises out of remedial 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 do not apply to any person liable under RCW 70.--.---(1) (section 4(1), chapter 2, Laws of 1989).

(5) A person retained or hired by a potentially liable person is eligible for consideration for indemnification under subsection (3) of this section only if the remedial action is being implemented under an approved settlement agreement.

Sec. 8. Section 3, chapter 2, Laws of 1989 and RCW 70.--.--- (Initiative Measure No. 97) are each amended to read as follows:

(1) The department may exercise the following powers in addition to any other powers granted by law:

(a) Investigate, provide for investigating, or require potentially liable persons to investigate any releases or threatened releases of hazardous substances, including but not limited to inspecting, sampling, or testing to determine the nature or extent of any release or threatened release. If there is a reasonable basis to believe that a release or threatened release of a hazardous substance may exist, the department's authorized employees, agents, or contractors may enter upon any property and conduct investigations. The department shall give reasonable notice before entering property unless an emergency prevents such notice. The department may by subpoena require the attendance or testimony of witnesses and the production of documents or other information that the department deems necessary;

(b) Conduct, provide for conducting, or require potentially liable persons to conduct remedial actions (including investigations under (a) of this subsection) to remedy releases or threatened releases of hazardous substances. In carrying out such powers, the department's authorized employees, agents, or contractors may enter upon property. The department shall give reasonable notice before entering property unless an emergency prevents such notice. In conducting, providing for, or requiring remedial action, the department shall give preference to permanent solutions to the maximum extent practicable and shall provide for or require adequate monitoring to ensure the effectiveness of the remedial action;

(c) ((~~Indemnify contractors retained by the department for carrying out investigations and remedial actions, but not for any contractor's reckless or wilful misconduct;~~

~~(d)~~)) Carry out all state programs authorized under the federal cleanup law and the federal resource, conservation, and recovery act, 42 U.S.C. Sec. 6901 et seq., as amended;

((~~(e)~~)) (d) Classify substances as hazardous substances for purposes of RCW 70.--.---(5) (section 2(5), chapter 2, Laws of 1989) and classify substances and products as hazardous substances for purposes of RCW 82.--.---(1) (section 9(1), chapter 2, Laws of 1989); and

((~~(f)~~)) (e) Take any other actions necessary to carry out the provisions of this chapter, including the power to adopt rules under chapter ((~~34.04~~)) 34.05 RCW.

(2) The department shall immediately implement all provisions of this chapter to the maximum extent practicable, including investigative and remedial actions where appropriate. The department, within nine months after March 1, 1989, shall adopt, and thereafter enforce, rules under chapter ((~~34.04~~)) 34.05 RCW to:

(a) Provide for public participation, including at least (i) the establishment of regional citizen's advisory committees, (ii) public notice of the development of investigative plans or remedial plans for releases or threatened releases, and (iii) concurrent public notice of all compliance orders, enforcement orders, or notices of violation;

(b) Establish a hazard ranking system for hazardous waste sites;

(c) Establish reasonable deadlines not to exceed ninety days for initiating an investigation of a hazardous waste site after the department receives information that the site may pose a threat to human health or the environment and other reasonable deadlines for remedying releases or threatened releases at the site; and

(d) Publish and periodically update minimum cleanup standards for remedial actions at least as stringent as the cleanup standards under section 121 of the federal cleanup law, 42 U.S.C. Sec. 9621, and at least as stringent as all applicable state and federal laws, including health-based standards under state and federal law.

(3) Before November 1st of each even-numbered year, the department shall develop, with public notice and hearing, and submit to the ways and means and appropriate standing environmental committees of the senate and house of representatives a ranked list of projects and expenditures recommended for appropriation from both the state and local toxics control accounts. The department shall also provide the legislature and the public each year with an accounting of the department's activities supported by appropriations from the state toxics control account, including a list of known hazardous waste sites and their hazard rankings, actions taken and planned at each site, how the department is meeting its top two management priorities under RCW 70.105.150, and all funds expended under this chapter.

(4) The department shall establish a scientific advisory board to render advice to the department with respect to the hazard ranking system, cleanup standards, remedial actions, deadlines for remedial actions, monitoring, the classification of substances as hazardous substances for purposes of RCW 70.--.---(5) (section 2(5), chapter 2, Laws of 1989) and the classification of substances or products as hazardous substances for purposes of RCW 82.--.---(1) (section 9(1), chapter 2, Laws of 1989). The board shall consist of five independent members to serve staggered three-year terms. No members may be employees of the department. Members shall be reimbursed for travel expenses as provided in RCW 43.03.050 and 43.03.060.

(5) The department shall establish a program to identify potential hazardous waste sites and to encourage persons to provide information about hazardous waste sites.

NEW SECTION. Sec. 9. The department of ecology shall contract with a nonprofit organization to establish a "pollution prevention pays" program for the purpose of promoting hazardous waste reduction and recycling. The program shall provide technical assistance to businesses that generate hazardous waste, which shall consist of: (1) A library and bibliography of literature detailing methods of waste reduction and recycling, including an in-house data base consisting of case studies, program publications, and contacts; (2) a waste reduction and recycling hotline; (3) onsite consultations for generators of hazardous wastes; and (4) an educational outreach program.

NEW SECTION. Sec. 10. The director of the department of agriculture may adopt rules to allow the department of agriculture to take possession and dispose of canceled, suspended, or otherwise unusable pesticides held by persons regulated under chapter 17.21 RCW. For the purposes of this section, the department may become licensed as a hazardous waste generator.

The director of agriculture shall develop the necessary administrative structure to implement a pesticide waste disposal program. Issues to be addressed shall include, but are not limited to: Collection site acquisition, liability and insurance, transportation to the collection site and to ultimate disposal sites, licensure and regulatory compliance, volume of material to be disposed of, education as to legal use as an alternative to disposal, container disposal, and analysis of unknown presumed pesticide. In implementing the provisions of this section, the department of agriculture may charge fees of persons disposing of pesticide wastes to offset wholly or partially the program authorized by this section.

NEW SECTION. Sec. 11. (1) The owner of public or private nonresidential real property upon which a release of a significant 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 remedial action taken and the hazardous substance or substances released for each remedial action that has been conducted or approved by the department. Any person with an interest in the property, 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 the department has discovered the release of a significant quantity of a hazardous substance following an inspection of the facility, the department shall place a notice having the contents of the notice referred to in subsection (1) of this section in the records of real property kept by the auditor of the county in which the property is located.

(3) Any certification of completion issued in accordance with section 5 of this act 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, the date of issuance of the certificate, and the date the release occurred.

(4) Before selling any right, title, or interest in real property, whether public or private, the seller of the property shall provide a written statement to the purchaser describing any release of a significant quantity of a hazardous substance that the seller knows to have occurred during the prior twenty years on the property to be sold. Unless otherwise expressly agreed by seller and purchaser, any purchaser injured by failure of a seller of real property to provide the statement as required in this subsection may recover damages for that injury by filing an action in superior court for the county in which the property is located.

(5) The department shall determine by rule, consistent with the purposes of this chapter, which releases are subject to the reporting and notification requirements under subsections (1), (2), and (4) of this section. This rule shall limit required reporting under this section to those releases that are of a magnitude that would cause a significant adverse impact to human health or the environment.

NEW SECTION. Sec. 12. Sections 1 through 7 and 9 through 11 of this act are added to chapter 70.-- RCW (sections 1 through 7, chapter 2, Laws of 1989).