H-2721

AN ACT Relating to the establishment of voluntary programs creating environmental excellence program agreements; amending RCW 90.54.020; adding new sections to chapter 43.131 RCW; adding a new section to chapter 43.21A RCW; adding a new section to chapter 70.94 RCW; adding a new section to chapter 70.95 RCW; adding a new section to chapter 70.105 RCW; adding a new section to chapter 75.20 RCW; adding a new section to chapter 90.48 RCW; adding a new section to chapter 90.52 RCW; adding a new section to chapter 90.56 RCW; adding a new section to chapter 90.58 RCW; adding a new section to chapter 90.64 RCW; adding a new section to chapter 90.71 RCW; adding a new chapter to Title 43 RCW; and creating a new section.

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

NEW SECTION. Sec. 1. The purpose of this act is to create a voluntary program authorizing environmental excellence program agreements with persons regulated under the environmental laws of the state of Washington, by directing agencies of the state of Washington to solicit and support the development of agreements that use innovative environmental measures or strategies not otherwise recognized or allowed under existing laws and rules to achieve environmental results more effectively or efficiently.

Agencies shall encourage environmental excellence program agreements that favor or promote pollution prevention, source reduction, or improvements in practices that are transferable to other interested entities or that can achieve better overall environmental results than required by otherwise applicable rules and requirements.

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

(1) "Agency of the state of Washington" or "state, regional, or local agency" means an agency, board, department, authority, or commission that administers environmental laws.

(2) "Coordinating agency" means the state, regional, or local agency with the primary regulatory responsibility for the proposed environmental excellence program agreement. If multiple agencies have jurisdiction to administer state environmental laws affected by an environmental excellence agreement, the department of ecology shall designate or act as the coordinating agency.

(3) "Director" means the individual or body of individuals in whom the ultimate legal authority of an agency is vested by any provision of law. If the agency head is a body of individuals, a majority of those individuals constitutes the director.

(4) "Environmental laws" means chapters 43.21A, 70.94, 70.95, 70.105, 75.20, 90.48, 90.52, 90.56, 90.58, 90.64, and 90.71 RCW, and RCW 90.54.020 and rules adopted under those chapters and section. The term environmental laws as used in this chapter does not include any provision of the Revised Code of Washington, or of any municipal ordinance or enactment, that regulates the selection of a location for a new facility.

(5) "Facility" means a site of a business or municipal activity that is regulated under any of the provisions of the environmental laws.

(6) "Sponsor" means the owner or operator of a facility, including a municipality, subject to regulation under the environmental laws of the state of Washington, or an authorized representative of the owner or operator, that submits a proposal for an environmental excellence program agreement.

(7) "Stakeholder" means a person who has a direct interest in the proposed environmental excellence program agreement or who represents a public interest in the proposed environmental excellence program agreement. Stakeholders may include communities near the project, local or state governments, permittees, businesses, environmental and other public interest groups, or similar entities.

NEW SECTION. Sec. 3. (1) The director of a state, regional, or local agency may enter into an environmental excellence program agreement with any person regulated under the environmental laws of the state, even if one or more of the terms of the environmental excellence program agreement would be inconsistent with an otherwise applicable statute, rule, or environmental permit. The director of a state, regional, or local agency may enter into an environmental excellence program agreement only to the extent the state, regional, or local agency has jurisdiction to administer state environmental laws either directly or indirectly through the adoption of rules.

(2) Where a sponsor proposes an environmental excellence program agreement that would affect environmental requirements administered by more than one state, regional, or local agency, the coordinating agency shall take the lead in developing the environmental excellence program agreement with the sponsor and other agencies with jurisdiction. The environmental excellence program agreement must be signed by the director of each agency administering legal requirements affected by the agreement.

NEW SECTION. Sec. 4. (1) A sponsor may propose an environmental excellence program agreement. A trade association or other authorized representative of a sponsor or sponsors may propose a programmatic environmental excellence program agreement for multiple facilities.

(2) A sponsor must submit, at a minimum, the following information and other information that may be requested by the director or directors requested by the coordinating agency to sign the agreement:

(a) A statement that describes how the proposal is consistent with the purpose of this chapter and the project approval criteria in section 7 of this act;

(b)(i) For a site-specific proposal, a comprehensive description of the proposed environmental excellence project that includes the nature of the facility and the operations that will be affected, how the facility or operations will achieve results that represent environmental excellence, and the nature of the results anticipated; or

(ii) For a programmatic proposal, a comprehensive description of the proposed environmental excellence project that identifies the facilities and the operations that are expected to participate, how participating facilities or operations will achieve environmental results more effectively or efficiently, the nature of the results anticipated, and the method to identify and document the commitments made by individual participants;

(c) An environmental checklist, containing sufficient information to reasonably inform the public of the nature of the proposed environmental excellence program agreement, describing probable significant adverse environmental impacts and environmental benefits, expected from implementation of the proposal;

(d) A draft environmental excellence program agreement;

(e) A description of the stakeholder process as provided in section 5 of this act;

(f) A preliminary identification of the permit amendments or modifications that may be necessary to implement the proposed environmental excellence program agreement.

NEW SECTION. Sec. 5. (1) Stakeholder participation in and support for an environmental excellence program agreement is vital to the integrity of the environmental excellence program agreement and helps to form the decision whether an environmental excellence program agreement can be approved.

(2) A proposal for an environmental excellence program agreement shall include the sponsor's plan to identify and contact stakeholders, to advise stakeholders of the facts and nature of the project, and to request stakeholder participation and review during the development and implementation of the proposed environmental excellence program agreement. The plan shall include notice to the employees of the facility to be covered by public notice in the area of the covered facility, and such other measures as the directors who are to sign the agreement may reasonably require.

(3) The coordinating agency will identify any additional provisions for the stakeholder process that the director of the coordinating agency, in the director's sole discretion, considers appropriate to the success of the stakeholder process, and provide for notice to the United States environmental protection agency, or other responsible federal agency of each proposed environmental excellence program agreement that may affect legal requirements of any program administered by that agency.

NEW SECTION. Sec. 6. An environmental excellence program agreement must contain the following terms and conditions:

(1) A description of all legal requirements that are superseded or replaced by the environmental excellence program agreement;

(2) A description of all enforceable legal requirements different from those applicable in the absence of the environmental excellence program agreement;

(3) A description of the voluntary goals that are or will be adopted by the sponsor but which are not enforceable except through a termination or modification of the environmental excellence program agreement;

(4) A statement that the civil and criminal penalties for the violation of enforceable legal requirements described in subsection (2) of this section shall be the same as for the violation of the legal requirements that are superseded or replaced by the environmental excellence program agreement;

(5) A statement describing how the environmental excellence program agreement will achieve the purposes of this chapter;

(6) A statement describing how the environmental excellence program agreement will be implemented, including a list of steps and an implementation schedule;

(7) A statement that the proposed environmental excellence program agreement will not increase overall worker safety risks or impose unjust or disproportionate environmental impacts;

(8) A statement that the stakeholder plan was implemented in the development of the environmental excellence program agreement;

(9) A statement describing how any participating facility shall measure and demonstrate its compliance with the environmental excellence program agreement including, without limitation, a description of the methods to be used to monitor performance, criteria that represent acceptable performance, and the method of reporting performance to the public;

(10) A description of and plan for public participation in the implementation of the environmental excellence program agreement and for public access to information needed to assess the benefits of the environmental excellence program agreement and the sponsors compliance with the environmental excellence program agreement;

(11) A schedule of periodic performance review of the environmental excellence program agreement by the governor or the governor's designee;

(12) Provisions for voluntary and involuntary termination of the agreement;

(13) The duration of the environmental excellence program agreement and provisions for renewal;

(14) Statements approving the environmental excellence program agreement made by or on behalf of the governor and the sponsor;

(15) Additional terms as requested by the governor or the governor's designee and consistent with this chapter.

NEW SECTION. Sec. 7. An environmental excellence program agreement entered into under this chapter must achieve more effective or efficient environmental results. More effective environmental results are results that are better overall than those that would be achieved when compared to the legal requirements superseded or replaced by the agreement. More efficient environmental results are results that are achieved at reduced cost and are at least equivalent to the legal requirements superseded or replaced by the agreement. An environmental excellence agreement may not authorize a decrease in the overall environmental results achieved by the participating facility at the date on which the agreement is proposed by the sponsor.

NEW SECTION. Sec. 8. (1) The coordinating agency shall provide at least thirty days for public comment on a proposal to enter into or modify an environmental excellence program agreement. Before the start of the comment period, the coordinating agency shall prepare a proposed agreement, a public notice and a fact sheet. The fact sheet shall: (a) Briefly describe the principal facts and the significant factual, legal, methodological and policy questions considered by the directors signing the agreement, and the directors' proposed decisions; and (b) briefly describe how the proposed action meets the requirements of section 7 of this act.

(2) The coordinating agency shall publish notice of the proposed agreement in the Washington State Register and in a newspaper of general circulation in the vicinity of the facility or facilities covered by the proposed environmental excellence program agreement. The notice shall generally describe the agreement or modification; the facilities to be covered; summarize the changes in legal requirements that will result from the agreement; summarize the reasons for approving the agreement or modifications; identify an agency person to contact for additional information; state that the proposed agreement or modification and fact sheet are available on request; and state that comments may be submitted to the agency during the comment period. The coordinating agency may order a public informational meeting, or public hearing to receive oral comments, if the written comments during the comment period demonstrate considerable public interest in the proposed agreement.

(3) The coordinating agency shall prepare and make available a responsiveness summary indicating the agencies' actions taken in response to comments and the reasons for those actions.

(4) With respect to an environmental excellence program agreement that affects legal requirements adopted to comply with provisions of a federal regulatory program, the coordinating agency shall provide a copy of the environmental excellence program agreement, and a copy of the notice required by subsection (1) of this section, to the federal agency that is responsible for administering that program at least thirty days before entering into or modifying the environmental excellence program agreement, and shall afford the federal agency the opportunity to object to those terms of the environmental excellence program agreement or modification of an environmental excellence program agreement affecting the legal requirements. The directors of state, regional, or local agencies shall not enter into an environmental excellence program agreement or a modification of an environmental excellence program agreement containing terms affecting legal requirements adopted to comply with provisions of a federal regulatory program and to which the responsible federal agency objects.

NEW SECTION. Sec. 9. (1) Notwithstanding any other provision of law, any legal requirement under the environmental laws affected by an environmental excellence program agreement, including, without limitation, any standard, limitation, or order, shall be superseded in accordance with the terms of the environmental excellence program agreement. Legal requirements contained in a permit that are affected by an environmental excellence program agreement will continue to be enforceable until such time as the permit is revised in accordance with subsection (2) of this section. With respect to any other legal requirements, the legal requirements contained in the environmental excellence program agreement are effective as provided by the environmental excellence program agreement and the facility or facilities covered by an environmental excellence program agreement shall comply with the terms of the environmental excellence program agreement in lieu of the legal requirements that are superseded and replaced by the approved environmental excellence program agreement.

(2) Any permits affected by an environmental excellence program agreement shall be revised to conform to the environmental excellence program agreement by the agency with jurisdiction. The permit revisions will be completed within one hundred twenty days in accordance with otherwise applicable procedural requirements, including, where applicable, public notice and the opportunity for comment, and the opportunity for review and objection by federal agencies.

(3) Other than as revised as provided in an approved environmental excellence program agreement, any existing permit requirements remain in effect and are enforceable.

(4) A programmatic environmental excellence program agreement shall become effective for an individual facility when the owner or operator provides a commitment, satisfactory to the director or directors entering into the programmatic agreement, to comply with the agreement.

NEW SECTION. Sec. 10. (1) A decision by the directors of state, regional, or local agencies to approve a proposed environmental excellence program agreement, or to terminate or modify an approved environmental excellence program agreement, is subject to judicial review under RCW 34.05.570. For purposes of judicial review, the decision to approve, terminate, or modify an environmental excellence program agreement is subject to review in the superior court in the same manner as an agency rule. However, the decision shall be accorded substantial deference by the court. A decision not to enter into or modify an environmental excellence program agreement is within the sole discretion of the directors of the state, regional, or local agencies and is not subject to review.

(2) An appeal from a decision to approve, terminate, or modify a facility specific or a programmatic environmental excellence program agreement is not timely unless filed with the superior court and served on the parties to the environmental excellence program agreement within thirty days of the date on which the agreement is signed by the director. For an environmental excellence program agreement or modification signed by more than one director, there is only one appeal, and the time for appeal shall run from the last date on which the agreement or modification is signed by the director.

(3) An appeal from an application of a decision to approve, terminate, or modify a programmatic environmental excellence program agreement is not timely unless filed with the superior court and served on the directors signing the agreement, the sponsor, and the owner or operator of the specific facility within thirty days of the date a facility enters into the environmental excellence program by signing the agreement.

(4) Permit modifications or revisions are subject to review under otherwise applicable law.

NEW SECTION. Sec. 11. (1) A director of an agency may terminate an environmental excellence program agreement in whole or in part with respect to a legal requirement administered by that agency, if the director finds: (a) That after notice and a reasonable opportunity to cure, the covered facility is in violation of a material requirement of the agreement; or (b) that the facility has repeatedly violated any requirements of the agreement.

(2) A director of an agency terminating an environmental excellence program agreement in any respect shall provide each of the parties to the agreement with a written notice of that action specifying the extent to which the environmental excellence program agreement is to be terminated, the factual and legal basis for termination, and a description of the opportunity for judicial review of the decision to terminate the environmental excellence program agreement.

(3) If the director terminates less than the entire environmental excellence program agreement, the covered facility may elect to terminate the entire agreement.

NEW SECTION. Sec. 12. After a termination under section 11 of this act is final and no longer subject to judicial review, the sponsor has sixty days in which to apply for any permit or approval affected by any terminated portion of the environmental excellence program agreement. An application filed during the sixty‑day period shall be deemed a timely application for renewal of a permit under the terms of any applicable law. The terms and conditions of the environmental excellence program agreement and of permits issued will continue in effect until a final permit or approval is issued. If the sponsor fails to submit a timely or complete application, any affected permit or approval may be modified at any time that is consistent with applicable law.

NEW SECTION. Sec. 13. (1) The legal requirements contained in the environmental excellence program agreement in accordance with section 6(2) of this act are enforceable commitments of the facility covered by the agreement. Any violation of these legal requirements is subject to penalties and remedies to the same extent as the legal requirements that they superseded or replaced.

(2) The goals stated in the environmental excellence program agreement in accordance with section 6(3) of this act are voluntary commitments of the facility covered by the agreement. If the facility fails to meet these goals, it shall not be subject to any form of enforcement action, including penalties, orders, or any form of injunctive relief. The failure to meet these goals may be a basis on which to terminate or modify the environmental excellence program agreement as provided in section 11 of this act.

(3) Nothing in this chapter limits the authority of an agency, the attorney general, or a prosecuting attorney to initiate an enforcement action for violation of any applicable legal requirement. However, (a) no civil, criminal, or administrative action may be brought with respect to any legal requirement that is superseded or replaced under the terms of an environmental excellence program agreement; and (b) no criminal, civil, or administrative sanction or action may be instituted or imposed for failure to meet any identified environmental excellence and innovation goal identified as an unenforceable target or plan in an environmental excellence program agreement.

(4) This chapter does not create any new authority for citizen suits, and does not alter or amend other statutory provisions authorizing citizen suits.

NEW SECTION. Sec. 14. An environmental excellence program agreement may contain a reduced fee schedule with respect to a program applicable to the covered facility or facilities.

NEW SECTION. Sec. 15. A decision to approve an environmental excellence program agreement is not subject to the requirements of the state environmental policy act, chapter 43.21C RCW, including the requirement to prepare an environmental impact statement under RCW 43.21C.031. However, the consideration of a proposed environmental excellence program agreement by the governor or the governor's designee will integrate an assessment of environmental impacts.

NEW SECTION. Sec. 16. Any state, regional, or local agency administering programs under an environmental law may adopt rules to implement this chapter.

NEW SECTION. Sec. 17. The director of the department of ecology shall appoint an advisory committee to review the effectiveness of the environmental excellence program agreement program and to make a recommendation to the legislature concerning the continuation, termination, or modification of the program. The committee shall be composed of one representative each from two state agencies, two representatives of the regulated community, and two representatives of environmental organizations. The committee must submit a report and its recommendation to the legislature not later than October 31, 2001. The department of ecology shall provide the advisory committee with such support as they may require.

NEW SECTION. Sec. 18. (1) Agencies authorized to enter into environmental excellence program agreements may assess and collect a fee to recover the costs of processing environmental excellence program agreement proposals. The amount of the fee may not exceed the direct and indirect costs of processing the environmental excellence program agreement proposal. Processing includes, but is not limited to: Working with the sponsor to develop the agreement, meeting with stakeholder groups, conducting public meetings and hearings, and preparing a record of the decision to enter into or modify an agreement.

(2) Agencies assessing fees shall graduate the initial fees for processing an environmental excellence program agreement proposal to account for the size of the business and to make the environmental excellence program agreement program more available to small businesses. An agency may exercise its discretion to waive all or any part of the fees.

(3) Sponsors may voluntarily contribute funds to the administration of an agency's environmental excellence program agreement program.

NEW SECTION. Sec. 19. A new section is added to chapter 43.131 RCW to read as follows:

The authority of a director to enter into a new environmental excellence program agreement program shall be terminated June 30, 2002, as provided in section 20 of this act. Environmental excellence program agreements entered into before June 30, 2002, shall remain in force and effect subject to the terms of the agreements.

NEW SECTION. Sec. 20. A new section is added to chapter 43.131 RCW to read as follows:

The following acts or parts of acts, as now existing or hereafter amended, are each repealed, effective June 30, 2003:

(1) 1997 c . . . s 1 (section 1 of this act);

(2) RCW 43.--.--- and 1997 c . . . s 2 (section 2 of this act);

(3) RCW 43.--.--- and 1997 c . . . s 3 (section 3 of this act);

(4) RCW 43.--.--- and 1997 c . . . s 4 (section 4 of this act);

(5) RCW 43.--.--- and 1997 c . . . s 5 (section 5 of this act);

(6) RCW 43.--.--- and 1997 c . . . s 6 (section 6 of this act);

(7) RCW 43.--.--- and 1997 c . . . s 7 (section 7 of this act);

(8) RCW 43.--.--- and 1997 c . . . s 8 (section 8 of this act);

(9) RCW 43.--.--- and 1997 c . . . s 9 (section 9 of this act);

(10) RCW 43.--.--- and 1997 c . . . s 10 (section 10 of this act);

(11) RCW 43.--.--- and 1997 c . . . s 11 (section 11 of this act);

(12) RCW 43.--.--- and 1997 c . . . s 12 (section 12 of this act);

(13) RCW 43.--.--- and 1997 c . . . s 13 (section 13 of this act);

(14) RCW 43.--.--- and 1997 c . . . s 14 (section 14 of this act);

(15) RCW 43.--.--- and 1997 c . . . s 15 (section 15 of this act);

(16) RCW 43.--.--- and 1997 c . . . s 16 (section 16 of this act);

(17) RCW 43.--.--- and 1997 c . . . s 17 (section 17 of this act); and

(18) RCW 43.--.--- and 1997 c . . . s 18 (section 18 of this act).

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

Notwithstanding any other provision of law, or any legal requirement under this chapter, including any standard, limitation, or order is superseded and replaced in accordance with the terms and provisions of an approved environmental excellence program agreement, entered into under chapter 43.‑- RCW (sections 2 through 18 of this act).

NEW SECTION. Sec. 22. A new section is added to chapter 70.94 RCW to read as follows:

NEW SECTION. Sec. 23. A new section is added to chapter 70.95 RCW to read as follows:

NEW SECTION. Sec. 24. A new section is added to chapter 70.105 RCW to read as follows:

NEW SECTION. Sec. 25. A new section is added to chapter 75.20 RCW to read as follows:

NEW SECTION. Sec. 26. A new section is added to chapter 90.48 RCW to read as follows:

NEW SECTION. Sec. 27. A new section is added to chapter 90.52 RCW to read as follows:

NEW SECTION. Sec. 28. A new section is added to chapter 90.56 RCW to read as follows:

NEW SECTION. Sec. 29. A new section is added to chapter 90.58 RCW to read as follows:

NEW SECTION. Sec. 30. A new section is added to chapter 90.64 RCW to read as follows:

NEW SECTION. Sec. 31. A new section is added to chapter 90.71 RCW to read as follows:

Sec. 32. RCW 90.54.020 and 1989 c 348 s 1 are each amended to read as follows:

Utilization and management of the waters of the state shall be guided by the following general declaration of fundamentals:

(1) Uses of water for domestic, stock watering, industrial, commercial, agricultural, irrigation, hydroelectric power production, mining, fish and wildlife maintenance and enhancement, recreational, and thermal power production purposes, and preservation of environmental and aesthetic values, and all other uses compatible with the enjoyment of the public waters of the state, are declared to be beneficial.

(2) Allocation of waters among potential uses and users shall be based generally on the securing of the maximum net benefits for the people of the state. Maximum net benefits shall constitute total benefits less costs including opportunities lost.

(3) The quality of the natural environment shall be protected and, where possible, enhanced as follows:

(a) Perennial rivers and streams of the state shall be retained with base flows necessary to provide for preservation of wildlife, fish, scenic, aesthetic and other environmental values, and navigational values. Lakes and ponds shall be retained substantially in their natural condition. Withdrawals of water which would conflict therewith shall be authorized only in those situations where it is clear that overriding considerations of the public interest will be served.

(b) Waters of the state shall be of high quality. Regardless of the quality of the waters of the state, all wastes and other materials and substances proposed for entry into said waters shall be provided with all known, available, and reasonable methods of treatment prior to entry. Notwithstanding that standards of quality established for the waters of the state would not be violated, wastes and other materials and substances shall not be allowed to enter such waters which will reduce the existing quality thereof, except in those situations where it is clear that overriding considerations of the public interest will be served. Technology-based effluent limitations or standards for discharges for municipal water treatment plants located on the Chehalis, Columbia, Cowlitz, Lewis, or Skagit river shall be adjusted to reflect credit for substances removed from the plant intake water if:

(i) The municipality demonstrates that the intake water is drawn from the same body of water into which the discharge is made; and

(ii) The municipality demonstrates that no violation of receiving water quality standards or appreciable environmental degradation will result.

(4) Adequate and safe supplies of water shall be preserved and protected in potable condition to satisfy human domestic needs.

(5) Multiple-purpose impoundment structures are to be preferred over single-purpose structures. Due regard shall be given to means and methods for protection of fishery resources in the planning for and construction of water impoundment structures and other artificial obstructions.

(6) Federal, state, and local governments, individuals, corporations, groups and other entities shall be encouraged to carry out practices of conservation as they relate to the use of the waters of the state. In addition to traditional development approaches, improved water use efficiency and conservation shall be emphasized in the management of the state's water resources and in some cases will be a potential new source of water with which to meet future needs throughout the state.

(7) Development of water supply systems, whether publicly or privately owned, which provide water to the public generally in regional areas within the state shall be encouraged. Development of water supply systems for multiple domestic use which will not serve the public generally shall be discouraged where water supplies are available from water systems serving the public.

(8) Full recognition shall be given in the administration of water allocation and use programs to the natural interrelationships of surface and ground waters.

(9) Expressions of the public interest will be sought at all stages of water planning and allocation discussions.

(10) Water management programs, including but not limited to, water quality, flood control, drainage, erosion control and storm runoff are deemed to be in the public interest.

(11) Notwithstanding any other provision of law, or any legal requirement under this section, including any standard, limitation, rule, or order is superseded and replaced in accordance with the terms and provisions of an approved environmental excellence program agreement, entered into under chapter 43.‑- RCW (sections 2 through 18 of this act).

NEW SECTION. Sec. 33. Sections 2 through 18 of this act constitute a new chapter in Title 43 RCW.