BP BHEAD INT S [atlas:bill]

AN ACT Relating to wastewater pollution prevention and control, and imposing mandatory minimum penalties upon chronic or significant water quality violators; amending RCW 70.95C.200, 70.95C.220, 90.48.140, and 43.21B.300; adding new sections to chapter 90.48 RCW; creating a new section; and prescribing penalties.

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

NEW SECTION. Sec. 1. The legislature finds that pollution prevention should be the first priority in a hierarchy for reducing pollution and managing wastes, and to achieve environmental stewardship for society. The legislature also finds that pollution prevention is necessary to achieve the federal goal of zero discharge of pollutants into navigable waters.

The legislature further finds that mandatory minimum penalties for chronic or significant violators of wastewater discharge permits is an effective tool for bringing violators into compliance with their permits and encouraging voluntary compliance by all permit holders. The legislature also finds that mandatory minimum penalties for chronic and significant violators reduces the overall cost to the taxpayers of Washington of ensuring compliance with wastewater discharge permits.

Sec. 2. RCW 70.95C.200 and 1991 c 319 s 314 are each amended to read as follows:

(1) Each hazardous waste generator who generates more than two thousand six hundred forty pounds of hazardous waste per year and each hazardous substance user, except for those facilities that are primarily permitted treatment, storage, and disposal facilities or recycling facilities, shall prepare a plan for the voluntary reduction of the use of hazardous substances and the generation of hazardous wastes. Hazardous waste generated and recycled for beneficial use, including initial amount of hazardous substances introduced into a process and subsequently recycled for beneficial use, shall not be used in the calculation of hazardous waste generated for purposes of this section. The department may develop reporting requirements, consistent with existing reporting, to establish recycling for beneficial use under this section. Used oil to be rerefined or burned for energy or heat recovery shall not be used in the calculation of hazardous wastes generated for purposes of this section, and is not required to be addressed by plans prepared under this section. A person with multiple interrelated facilities where the processes in the facilities are substantially similar, may prepare a single plan covering one or more of those facilities.

(2) Each user or generator required to write a plan ((~~is encouraged to~~)) shall advise its employees of the planning process and solicit comments or suggestions from its employees on hazardous substance use and waste reduction options.

(3) The department shall adopt by April 1, 1991, rules for preparation of plans. The rules shall require the plan to address the following options, according to the following order of priorities: Hazardous substance use reduction, waste reduction, recycling, and treatment. In the planning process, first consideration shall be given to hazardous substance use reduction and waste reduction options. Consideration shall be given next to recycling options. Recycling options may be considered only after hazardous substance use reduction options and waste reduction options have been thoroughly researched and shown to be inappropriate. Treatment options may be considered only after hazardous substance use reduction, waste reduction, and recycling options have been thoroughly researched and shown to be inappropriate. Documentation of the research shall be available to the department upon request. The rules shall also require the plans to discuss the hazardous substance use reduction, waste reduction, and closed loop recycling options separately from other recycling and treatment options. All plans shall be written in conformance with the format prescribed in the rules adopted under this section. The rules shall require the plans to include, but not be limited to:

(a) A written policy articulating management and corporate support for the plan and a commitment to implementing planned activities and achieving established goals;

(b) The plan scope and objectives;

(c) Analysis of current hazardous substance use and hazardous waste generation, and a description of current hazardous substance use reduction, waste reduction, recycling, and treatment activities;

(d) An identification of further hazardous substance use reduction, waste reduction, recycling, and treatment opportunities, and an analysis of the amount of hazardous substance use reduction and waste reduction that would be achieved, and the costs. The analysis of options shall demonstrate that the priorities provided for in this section have been followed;

(e) A selection of options to be implemented in accordance with the priorities established in this section;

(f) An analysis of impediments to implementing the options. Impediments that shall be considered acceptable include, but are not limited to: Adverse impacts on product quality, legal or contractual obligations, economic practicality, and technical feasibility;

(g) A written policy stating that in implementing the selected options, whenever technically and economically practicable, risks will not be shifted from one part of a process, environmental media, or product to another;

(h) Specific performance goals in each of the following categories, expressed in numeric terms:

(i) Hazardous substances to be reduced or eliminated from use;

(ii) Wastes to be reduced or eliminated through waste reduction techniques;

(iii) Materials or wastes to be recycled; and

(iv) Wastes to be treated;

If the establishment of numeric performance goals is not practicable, the performance goals shall include a clearly stated list of objectives designed to lead to the establishment of numeric goals as soon as is practicable. Goals shall be set for a five-year period from the first reporting date, and shall include the earliest date practicable to achieve the national goal of zero discharge of pollutants to waterways if the plan is for a wastewater discharger permitted under chapter 90.48 RCW, regardless of whether the zero discharge date is beyond the five-year period from the first reporting date or if the zero discharge date will occur after the expiration of the permit in which the plan will be incorporated. A plan submitted by a wastewater discharger permitted under chapter 90.48 RCW whose permit includes toxic effluent limits shall include yearly toxic effluent reduction goals represented by specific percent reductions per year per toxic effluent parameter;

(i) A description of how the wastes that are not recycled or treated and the residues from recycling and treatment processes are managed may be included in the plan;

(j) Hazardous substance use and hazardous waste accounting systems that identify hazardous substance use and waste management costs and factor in liability, compliance, and oversight costs;

(k) A financial description of the plan;

(l) Personnel training and employee involvement programs;

(m) A five-year plan implementation schedule;

(n) Documentation of hazardous substance use reduction and waste reduction efforts completed before or in progress at the time of the first reporting date; ((~~and~~))

(o) An executive summary of the plan, which shall include, but not be limited to:

(i) The information required by (c), (e), (h), and (n) of this subsection; and

(ii) A summary of the information required by (d) and (f) of this subsection;

(p) Timelines that include milestones that reflect the earliest practicable dates for meeting the performance goals or list of objectives established in (h) of this subsection; and

(q) A cost analysis using full-cost accounting and standard measures of profitability. The analysis shall include a discussion of all of the following:

(i) The reduction in operating costs caused by using less raw materials and conserving energy;

(ii) The savings from the reduced need for pollution control and treatment equipment and monitoring;

(iii) The savings from reduced exposures to hazardous wastes and chemicals among the work force and community;

(iv) The reduced costs for compliance with waste transportation, storage, and disposal rules;

(v) Improved public image from taking positive steps toward the community's waste problems;

(vi) Revenues from the recovery and sale of reusable wastes;

(vii) Reduced liabilities through the elimination of wastes;

(viii) Avoided costs of actions required for potential accidental releases or cleanup of contaminated sites;

(ix) Additional operating and capital costs resulting from changes in industrial processes, plant operations, and modifications of equipment.

(4) Upon completion of a plan, the owner, chief executive officer, or other person with the authority to commit management to the plan shall sign and submit an executive summary of the plan to the department.

(5) Plans shall be completed and executive summaries submitted in accordance with the following schedule:

(a) Hazardous waste generators who generated more than fifty thousand pounds of hazardous waste in calendar year 1991 and hazardous substance users who were required to report in 1991, by September 1, 1992;

(b) Hazardous waste generators who generated between seven thousand and fifty thousand pounds of hazardous waste in calendar year 1992 and hazardous substance users who were required to report for the first time in 1992, by September 1, 1993;

(c) Hazardous waste generators who generated between two thousand six hundred forty and seven thousand pounds of hazardous waste in 1993 and hazardous substance users who were required to report for the first time in 1993, by September 1, 1994;

(d) Hazardous waste generators who have not been required to complete a plan on or prior to September 1, 1994, must complete a plan by September 1 of the year following the first year that they generate more than two thousand six hundred forty pounds of hazardous waste; and

(e) Hazardous substance users who have not been required to complete a plan on or prior to September 1, 1994, must complete a plan by September 1 of the year following the first year that they are required to report under section 313 of Title III of the Superfund Amendments and Reauthorization Act.

(6) Annual progress reports, including a description of the progress made toward achieving the specific performance goals established in the plan, shall be prepared and submitted to the department in accordance with rules developed under this section. Upon the request of two or more users or generators belonging to similar industrial classifications, the department may aggregate data contained in their annual progress reports for the purpose of developing a public record.

(7) Every five years, each plan shall be updated, and a new executive summary shall be submitted to the department.

Sec. 3. RCW 70.95C.220 and 1990 c 114 s 8 are each amended to read as follows:

(1) The department may review a plan, executive summary, or an annual progress report to determine whether the plan, executive summary, or annual progress report is adequate pursuant to the rules developed under this section and with the provisions of RCW 70.95C.200. Plans, executive summaries, and progress reports for facilities subject to a wastewater discharge permit issued under chapter 90.48 RCW shall be reviewed by the department. In determining the adequacy of any plan, executive summary, or annual progress report, the department shall base its determination solely on whether the plan, executive summary, or annual progress report is complete and prepared in accordance with the provisions of RCW 70.95C.200.

(2) Plans developed under RCW 70.95C.200 shall be retained at the facility of the hazardous substance user or hazardous waste generator preparing a plan. The plan is not a public record under the public disclosure laws of the state of Washington contained in chapter 42.17 RCW. A user or generator required to prepare a plan shall permit the director or a representative of the director to review the plan to determine its adequacy. No visit made by the director or a representative of the director to a facility for the purposes of this subsection may be regarded as an inspection or investigation, and no notices or citations may be issued, nor any civil penalty assessed, upon such a visit.

(3) If a hazardous substance user or hazardous waste generator fails to complete an adequate plan, executive summary, or annual progress report, the department shall notify the user or generator of the inadequacy, identifying specific deficiencies. For the purposes of this section, a deficiency may include failure to develop a plan, failure to submit an executive summary pursuant to the schedule provided in RCW 70.95C.200(5), and failure to submit an annual progress report pursuant to the rules developed under RCW 70.95C.200(6). The department shall specify a reasonable time frame, of not less than ninety days, within which the user or generator shall complete a modified plan, executive summary, or annual progress report addressing the specified deficiencies.

(4) If the department determines that a modified plan, executive summary, or annual progress report is inadequate, the department may, within its discretion, either require further modification or enter an order pursuant to subsection (5)(a) of this section.

(5)(a) If, after having received a list of specified deficiencies from the department, a hazardous substance user or hazardous waste generator required to prepare a plan fails to complete modification of a plan, executive summary, or annual progress report within the time period specified by the department, the department may enter an order pursuant to chapter 34.05 RCW finding the user or generator not in compliance with the requirements of RCW 70.95C.200. When the order is final, the department shall notify the department of revenue to charge a penalty fee. The penalty fee shall be the greater of one thousand dollars or three times the amount of the user's or generator's previous year's fee, in addition to the current year's fee. If no fee was assessed the previous year, the penalty shall be the greater of one thousand dollars or three times the amount of the current year's fee. The penalty assessed under this subsection shall be collected each year after the year for which the penalty was assessed until an adequate plan or executive summary is completed.

(b) If a hazardous substance user or hazardous waste generator required to prepare a plan fails to complete an adequate plan, executive summary, or annual progress report after the department has levied against the user or generator the penalty provided in (a) of this subsection, the user or generator shall be required to pay a surcharge to the department whenever the user or generator disposes of a hazardous waste at any hazardous waste incinerator or hazardous waste landfill facility located in Washington state, until a plan, executive summary, or annual progress report is completed and determined to be adequate by the department. The surcharge shall be equal to three times the fee charged for disposal. The department shall furnish the incinerator and landfill facilities in this state with a list of environmental protection agency/state identification numbers of the hazardous waste generators that are not in compliance with the requirements of RCW 70.95C.200.

(6) Any hazardous waste generator that is the holder of a wastewater discharge permit issued under chapter 90.48 RCW and that is required to submit plans under this chapter before the effective date of this section may use completed elements of its existing plan in preparing the plan required in this chapter. Any such generator shall not be required to conduct new analyses of completed elements of its plan before the time when the generator would be required to submit a new plan under the provisions of this chapter that were in force before the effective date of this section.

NEW SECTION. Sec. 4. A new section is added to chapter 90.48 RCW to read as follows:

(1) Notwithstanding the provisions of RCW 43.05.060 through 43.05.080 and in addition to any penalty provided by law, the department shall assess a minimum mandatory civil penalty of no less than five thousand dollars for each violation to a holder of a wastewater discharge permit issued under this chapter, if the permit holder is in chronic or significant noncompliance with its permit.

(2) The following definitions apply for the purposes of this section only:

(a) "Chronic or significant noncompliance" means:

(i) Discharges of forty percent or more above the conventional pollutant limit listed in the permit two or more times in any one hundred eighty-day period; or

(ii) Discharges of twenty percent or more above the toxic pollutant limit listed in the permit two or more times in any one hundred eighty-day period; or

(iii) Exceeding any pollutant limit listed in the permit by any amount four or more times in any one hundred eighty-day period;

(b) "Conventional pollutant" means a pollutant listed as a conventional pollutant under 33 U.S.C. Sec. 1314(a)(4) as it existed on the effective date of this section;

(c) "Toxic pollutant" means a pollutant listed as a toxic pollutant pursuant to 33 U.S.C. Sec. 1317(a) as it existed on the effective date of this section.

(3) There is no liability under this section if the discharge is caused solely by any one or combination of the following:

(a) An act of war;

(b) An unanticipated grave natural disaster or other natural phenomenon of an exceptional, inevitable, or irresistible character, the effects of which could not have been prevented or avoided by the exercise of due care or foresight;

(c) Negligence on the part of the state, the United States, or any department or agency of the state or the United States, however, this subsection (3) shall not be interpreted to provide the state, the United States, or any department or agency of the state or United States a defense to liability for any discharge caused by its own negligence;

(d) An intentional act of a third party, the effects of which could not have been prevented or avoided by the exercise of due care or foresight; or

(e) Any other circumstance or event that causes the discharge despite the exercise of every reasonable precaution to prevent or mitigate the discharge.

NEW SECTION. Sec. 5. A new section is added to chapter 90.48 RCW to read as follows:

The department shall provide the public current information on penalties imposed and other enforcement actions taken under this chapter for at least the preceding twelve months, and shall update the information at least monthly. The information shall be made available in paper copy as well as electronically.

NEW SECTION. Sec. 6. A new section is added to chapter 90.48 RCW to read as follows:

(1) Not later than July 1, 2001, the department shall adopt by rule a methodology for calculating the economic benefits or savings accruing to a discharger as a result of any violation of an effluent limitation in a permit issued under this chapter.

(2) Following adoption of the rule, an administrative or civil penalty imposed under the authority of this chapter shall not be less than the amount calculated under the rule. This section shall not be construed to mean that a penalty may not be assessed at a level greater than the amount calculated under the rule.

Sec. 7. RCW 90.48.140 and 1992 c 73 s 26 are each amended to read as follows:

Any person found guilty of willfully violating any of the provisions of this chapter or chapter 90.56 RCW, or any final written orders or directive of the department or a court in pursuance thereof shall be deemed guilty of a crime, and upon conviction thereof shall be punished by a fine of up to ((~~ten~~)) twenty thousand dollars and costs of prosecution, or by imprisonment in the county jail for not more than ((~~one year~~)) two years, or by both such fine and imprisonment in the discretion of the court. Each day upon which a willful violation of the provisions of this chapter or chapter 90.56 RCW occurs may be deemed a separate and additional violation.

Sec. 8. RCW 43.21B.300 and 1993 c 387 s 23 are each amended to read as follows:

(1) Any civil penalty provided in RCW 18.104.155, 70.94.431, 70.105.080, 70.107.050, 88.46.090, 90.03.600, 90.48.144, 90.56.310, and 90.56.330 shall be imposed by a notice in writing, either by certified mail with return receipt requested or by personal service, to the person incurring the penalty from the department, the administrator of the office of marine safety, or the local air authority, describing the violation with reasonable particularity. Within fifteen days after the notice is received, the person incurring the penalty may apply in writing to the department, the administrator, or the authority for the remission or mitigation of the penalty. Upon receipt of the application, the department, the administrator, or authority may remit or mitigate the penalty upon whatever terms the department, the administrator, or the authority in its discretion deems proper. The department or the authority may ascertain the facts regarding all such applications in such reasonable manner and under such rules as it may deem proper and shall remit or mitigate the penalty only upon a demonstration of extraordinary circumstances such as the presence of information or factors not considered in setting the original penalty.

(2) Any penalty imposed under this section may be appealed to the pollution control hearings board in accordance with this chapter if the appeal is filed with the hearings board and served on the department, the administrator, or authority thirty days after receipt by the person penalized of the notice imposing the penalty or thirty days after receipt of the notice of disposition of the application for relief from penalty.

(3) A penalty shall become due and payable on the later of:

(a) Thirty days after receipt of the notice imposing the penalty;

(b) Thirty days after receipt of the notice of disposition on application for relief from penalty, if such an application is made; or

(4) If the amount of any penalty is not paid to the department or the administrator within thirty days after it becomes due and payable, the attorney general, upon request of the department or the administrator, shall bring an action in the name of the state of Washington in the superior court of Thurston county, or of any county in which the violator does business, to recover the penalty. If the amount of the penalty is not paid to the authority within thirty days after it becomes due and payable, the authority may bring an action to recover the penalty in the superior court of the county of the authority's main office or of any county in which the violator does business. In these actions, the procedures and rules of evidence shall be the same as in an ordinary civil action.

(5) All penalties recovered shall be paid into the state treasury and credited to the general fund except those penalties imposed pursuant to RCW 18.104.155, which shall be credited to the reclamation account as provided in RCW 18.104.155(7), RCW 70.94.431, the disposition of which shall be governed by that provision, RCW 70.105.080, which shall be credited to the hazardous waste control and elimination account, created by RCW 70.105.180, ((~~and~~)) RCW 90.56.330, 90.48.144, and sections 4 and 5 of this act, which shall be credited to the coastal protection fund created by RCW 90.48.390.