6123-S AMS TALM WILB 01

6123‑S AMS TALM WILB O1

SSB 6123 - S AMD

BySenators Talmadge, Deccio and Fraser

WITHDRAWN 2/10/94

On page 10, line 6 after "section" insert "and section 7 of this act"

On page 10, line 20 after "section." delete "Any" and insert "Except for covenants authorized under section 7 of this act, any"

SSB 6123 - S Amd

By Senators Talmadge, Deccio and Fraser

On page 12, after line 22 insert the following:

"NEW SECTION. Sec. 7. A new section is added to chapter 70.105D RCW to read as follows:

(1) The attorney general, with the concurrence of the director, may enter a settlement agreement under the authority of RCW 70.105D.040(4) that includes a covenant not to sue without the reopener clause described by RCW 70.105D.040(4)(c), if the attorney general determines that:

(a) The agreement meets the requirements applicable to all settlement agreements under RCW 70.105D.040(4)(a);

(b) The agreement requires the persons entering the agreement to make payment into the site cleanup reserve account in an amount meeting the standards under subsection (3) of this section; and

(c) The director has provided his or her concurrence that the covenant not to sue is in the public interest, considering the factors in subsection (2) of this section.

(2) In making the public interest determination under subsection (1)(c) of this section, the director shall consider such factors as:

(a) The effectiveness and reliability of the remedial action, in light of the other alternative actions considered for the facility concerned;

(b) The nature of the risks remaining at the facility;

(d) The extent to which the actions provide a complete remedy, including a reduction in the hazardous nature of the substances at the facility;

(e) The extent to which the technology used is demonstrated to be effective;

(f) Whether the payment to the site cleanup reserve account would be sufficient to fund additional remedial actions that might eventually be necessary at the facility;

(g) Whether the remedial action will be carried out, in whole or in significant part, by the potentially liable persons entering the settlement agreement; and

(h) The size and proximity of populations that may be exposed to a future release of hazardous substances from the facility.

(3) The attorney general, with the assistance of the director, shall determine the amount of a monetary payment to be made to the site cleanup reserve account, which shall be made by the potentially liable persons entering a settlement agreement containing a covenant not to sue described under subsection (1) of this section. The amount shall be sufficient to cover the cost of periodically monitoring the facility to ensure maintenance of the remedy, and to cover the risk that future remedial action may be necessary at the facility. In determining the amount the attorney general shall consider:

(a) The completeness of the remedial action to be undertaken, and the degree to which the action encompasses permanent remedies that destroy the hazardous substances or otherwise treat or stabilize the substances to eliminate their hazardous nature;

(b) The potential future uses of the facility after cleanup;

(c) The current balance in the site cleanup reserve account in comparison to the total number of sites eligible for funding from the account for future remedial action that may become necessary.

(4) The attorney general, with the assistance of the director, shall develop by rule a payment schedule for determining the amount of payments to the site cleanup reserve account, to ensure consistency and fairness among all settlement agreements. The schedule may be revised from time to time to reflect new information regarding expenditures from the account in relation to payments into the account. The payment schedule may establish criteria to waive an amount for facility monitoring costs where, because of the size of the facility or the amount or toxicity of hazardous substances remaining at the facility after remedial action, it is not anticipated that periodic monitoring of the facility will be necessary. The schedule shall also establish criteria for the reduction or waiver of the fee, where the remedial action will employ cleanup technologies with a high degree of demonstrated effectiveness in complete remediation at sites with substantially similar circumstances to that addressed in the proposed settlement agreement.

(5) A covenant not to sue under subsection (1) of this section is subject to the satisfactory performance by such person of its obligations under the settlement agreement, and shall not take effect until the director certifies that remedial action has been completed in accordance with the requirements of this chapter and with the terms of the settlement agreement. The covenant shall not bar the state from taking actions necessary to protect members of the public from a health hazard, including, but not limited to, actions to prevent entrance upon the facility, or to enter the facility for the purpose of assessing the need for or for conducting remedial action at the facility. The covenant shall not bar the state from taking action against a person entering the settlement agreement regarding releases or potential releases at the facility known by the person at the time of entering the settlement agreement but not disclosed to the attorney general.

(6) The issuance of a covenant not to sue to a potentially liable person does not relieve or decrease any other person's liability to the state.

NEW SECTION. Sec. 8. A new section is added to chapter 70.105D RCW to read as follows:

The site cleanup reserve account is created in the state treasury. All payments made as a condition of a settlement agreement under section 7(1) of this act shall be deposited to the account. Money in the account shall be used solely for:

(1) Remedial action by the state to address releases or potential releases at or from facilities for which remedial action had previously been completed under the terms of a settlement agreement containing a covenant not to sue under section 7(1) of this act; and

(2) Periodically monitoring such facilities to determine whether further remedial action is necessary.

Money deposited in the account shall be administered by the department and is subject to legislative appropriation. All earnings from investment of balances in the site cleanup reserve account shall be credited to the account.

NEW SECTION. Sec. 9. (1) The pollution liability insurance agency shall conduct a study on insurance coverage for environmental remediation liability. The study shall include a review of: (a) The availability of policies for such coverage in all areas of the state, and the insurance firms offering such policies; (b) the prevailing policy coverage available, including types of liability covered, exclusions from coverage, and other significant policy limitations; (c) premium costs; (d) prevailing policy provisions and insurance industry practices regarding future liability of insureds at remediated hazardous waste sites; and (e) methods by which the risks to the state of costs for future cleanup at remediated site subject to settlements entered under section 7 of this act may be managed through obtaining private insurance coverage. The study shall include recommendations for legislative and administrative actions to assist in making affordable clean-up liability insurance available and reducing transactional costs associated with determining policy coverage and payments made under such policies.

(2) The department of ecology, office of the insurance commissioner, office of financial management, and the attorney general's office shall provide assistance to the agency in preparing the report. The agency shall also consult with insurance industry representatives as well as persons or businesses who are insured under such policies, may desire such insurance, or may be undertaking environmental cleanup.

(3) The report shall be submitted to the standing committees of the house of representatives and the senate with jurisdiction over environmental and insurance matters on or before December 1, 1994."