S-3594.2  _______________________________________________

                         SENATE BILL 6410

          _______________________________________________

State of Washington      56th Legislature     2000 Regular Session

By Senators Spanel, Gardner, Brown, Franklin, Haugen, Bauer, Shin, B. Sheldon, Fraser, Kline, Costa, Eide, Fairley, Patterson, Rasmussen, Kohl‑Welles, McAuliffe, Jacobsen, Prentice, Thibaudeau and Goings

Read first time 01/14/2000.  Referred to Committee on Energy, Technology & Telecommunications.

Adopting interim measures concerning the siting of pipelines and other energy facilities.

    AN ACT Relating to siting of pipelines and other energy facilities; amending RCW 80.50.010, 80.50.040, 80.50.060, 80.50.071, 80.50.090, 80.50.105, and 80.50.110; reenacting and amending RCW 80.50.150; adding new sections to chapter 80.50 RCW; creating a new section; providing an effective date; and declaring an emergency.

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

NEW SECTION. Sec. 1.  The intent of this act is to adopt interim measures concerning the siting of pipelines and other energy facilities by the Washington state energy facility site evaluation council.  The legislature finds that these measures are necessary to protect the public and the environment pending a complete review of the current siting process for energy facilities.

    Sec. 2.  RCW 80.50.010 and 1996 c 4 s 1 are each amended to read as follows:

    The legislature finds that the present and predicted growth in energy demands in the state of Washington requires the development of a procedure for the selection and utilization of sites for energy facilities and the identification of a state position with respect to each proposed site.  The legislature recognizes that the selection of sites will have a significant impact upon the health, safety, and welfare of the population, the location and growth of industry, the ability to protect the environment, and the use of the natural resources of the state.

    It is the policy of the state of Washington to recognize the pressing need for increased energy facilities, and to ensure through available and reasonable methods, that the location and operation of such facilities will produce minimal adverse effects on the environment, ecology of the land and its wildlife, and the ecology of state waters and their aquatic life.

    It is the intent to seek courses of action that will balance the increasing demands for energy facility location and operation in conjunction with the broad interests of the public.  Such action will be based on these premises:

    (1) To assure Washington state citizens that the need for such facilities within the state is established prior to beginning the siting process.

(2) To assure, where applicable, operational safeguards are at least as stringent as the criteria established by the federal government and are technically sufficient for their welfare and protection.

    (((2))) (3) To assure that local siting and land use standards are considered in the siting process, and that local franchise agreements are not preempted in the process.

(4) To preserve and protect the quality of the environment; to enhance the public's opportunity to enjoy the esthetic and recreational benefits of the air, water and land resources; to promote air cleanliness; and to pursue beneficial changes in the environment.

    (((3))) (5) To assure that applicants provide funding for the local government participation in the siting process and the cost of the associated environmental studies.

(6) To provide abundant energy at reasonable cost.

    (((4))) (7) To avoid costs of complete site restoration and demolition of improvements and infrastructure at unfinished nuclear energy sites, and to use unfinished nuclear energy facilities for public uses, including economic development, under the regulatory and management control of local governments and port districts.

    Sec. 3.  RCW 80.50.040 and 1990 c 12 s 4 are each amended to read as follows:

    The council shall have the following powers:

    (1) To adopt, promulgate, amend, or rescind suitable rules and regulations, pursuant to chapter 34.05 RCW, to carry out the provisions of this chapter, and the policies and practices of the council in connection therewith;

    (2) To develop and apply environmental and ecological guidelines in relation to the type, design, location, construction, and operational conditions of certification of energy facilities subject to this chapter;

    (3) To establish rules of practice for the conduct of public hearings pursuant to the provisions of the Administrative Procedure Act, as found in chapter 34.05 RCW;

    (4) To prescribe the form, content, and necessary supporting documentation for site certification;

    (5) To receive applications for energy facility locations and to investigate the sufficiency thereof;

    (6) To make and contract, when applicable, for independent studies of sites proposed by the applicant;

    (7) To conduct hearings on the proposed location of the energy facilities;

    (8) To prepare written reports to the governor which shall include:  (a) A statement indicating whether the application is in compliance with the council's guidelines, (b) criteria specific to the site and transmission line routing, (c) a council recommendation as to the disposition of the application, and (d) a draft certification agreement when the council recommends approval of the application;

    (9) To prescribe the means for monitoring of the effects arising from the construction and the operation of energy facilities to assure continued compliance with terms of certification and/or permits issued by the council pursuant to chapter 90.48 RCW or subsection (12) of this section:  PROVIDED, That any on-site inspection required by the council shall be performed by other state agencies pursuant to interagency agreement:  PROVIDED FURTHER, That the council shall retain authority for determining compliance relative to monitoring;

    (10) To integrate its site evaluation activity with activities of federal agencies having jurisdiction in such matters to avoid unnecessary duplication;

    (11) To present state concerns and interests to other states, regional organizations, and the federal government on the location, construction, and operation of any energy facility which may affect the environment, health, or safety of the citizens of the state of Washington;

    (12) To issue permits in compliance with applicable provisions of the federally approved state implementation plan adopted in accordance with the Federal Clean Air Act, as ((now existing or hereafter amended)) it exists on January 1, 2000, for the new construction, reconstruction, or enlargement or operation of energy facilities:  PROVIDED, That such permits shall become effective only if the governor approves an application for certification and executes a certification agreement pursuant to this chapter:  AND PROVIDED FURTHER, That all such permits be conditioned upon compliance with all provisions of the federally approved state implementation plan which apply to energy facilities covered within the provisions of this chapter; and

    (13) To serve as an interagency coordinating body for energy-related issues.

NEW SECTION. Sec. 4.  A new section is added to chapter 80.50 RCW to read as follows:

    The council shall adopt rules which describe the process for determining whether the energy facility is needed within the state.  The process must include an opportunity for public participation.

NEW SECTION. Sec. 5.  A new section is added to chapter 80.50 RCW to read as follows:

    Once the council determines that the applicant has demonstrated the facility is needed within the state, the council may begin an informal proceeding to determine whether the project is consistent with the state environmental policy act under chapter 43.21C RCW.

    Sec. 6.  RCW 80.50.060 and 1977 ex.s. c 371 s 5 are each amended to read as follows:

    (1) The provisions of this chapter shall apply to the construction of energy facilities which includes the new construction of energy facilities and the reconstruction or enlargement of existing energy facilities where the net increase in physical capacity or dimensions resulting from such reconstruction or enlargement meets or exceeds those capacities or dimensions set forth in RCW 80.50.020 (7) and (((17), as now or hereafter amended)) (14).  No construction of such energy facilities may be undertaken, except as otherwise provided in this chapter, ((after July 15, 1977,)) without first obtaining certification in the manner provided in this chapter.

    (2) The provisions of this chapter shall not apply to normal maintenance and repairs which do not increase the capacity or dimensions beyond those set forth in RCW 80.50.020 (7) and (((17), as now or hereafter amended)) (14).

    (3) Applications for certification of energy facilities made ((prior to July 15, 1977 shall continue to be governed by the applicable provisions of law in effect on the day immediately preceding July 15, 1977 with the exceptions of RCW 80.50.190 and 80.50.071 which shall apply to such prior applications and to site certifications prospectively from July 15, 1977)) after January 1, 2000, and prior to August 1, 2001, shall vest to any standards or requirements in effect on August 1, 2001, or upon the issuance of a certificate by the council, whichever comes first.

    (4) Applications for certification shall be upon forms prescribed by the council and shall be supported by such information and technical studies as the council may require.

    Sec. 7.  RCW 80.50.071 and 1977 ex.s. c 371 s 16 are each amended to read as follows:

    (1) The council shall receive all applications for energy facility site certification.  The following fees or charges for application processing or certification monitoring shall be paid by the applicant or certificate holder:

    (a) A fee of twenty-five thousand dollars for each proposed site, to be applied toward the cost of the independent consultant study authorized in this subsection, shall accompany the application and shall be a condition precedent to any further consideration or action on the application by the council.  The council shall commission its own independent consultant study to measure the consequences of the proposed energy facility on the environment for each site application.  The council shall direct the consultant to study any matter which it deems essential to an adequate appraisal of the site.  The full cost of the study shall be paid by the applicant:  PROVIDED, That said costs exceeding a total of the twenty-five thousand dollars paid pursuant to subsection (1)(a) of this section shall be payable ((subject to)) by the applicant ((giving prior approval to such excess amount)) as provided in this section.

    (b)(i) Each applicant shall, in addition to the costs of the independent consultant provided by subsection (1)(a) of this section, pay such reasonable costs as are actually and necessarily incurred by the council in processing the application.  Such costs shall include, but are not limited to, costs of a hearing examiner, a court reporter, additional staff salaries, wages and employee benefits, goods and services, travel expenses within the state and miscellaneous expenses, as arise directly from processing such application.

(ii) Each applicant shall, at the time of application submission, deposit twenty thousand dollars, or such lesser amount as may be specified by council rule, to cover costs provided for by subsection (1)(b)(i) of this section.  Reasonable and necessary costs of the council directly attributable to application processing shall be charged against such deposit.

(iii) The council shall submit to each applicant a statement of such expenditures actually made during the preceding calendar quarter which shall be in sufficient detail to explain such expenditures.  The applicant shall pay the state treasurer the amount of such statement to restore the total amount on deposit to the originally established level:  PROVIDED, That such applicant may, at the request of the council, increase the amount of funds on deposit to cover anticipated expenses during peak periods of application processing.  Any funds remaining unexpended at the conclusion of application processing shall be refunded to the applicant, or at the applicant's option, credited against required deposits of certificate holders.

    (c)(i) Each certificate holder shall pay such reasonable costs as are actually and necessarily incurred by the council for inspection and determination of compliance by the certificate holder with the terms of the certification relative to monitoring the effects of construction and operation of the facility.

(ii) Each certificate holder, within thirty days of execution of the site certification agreement, shall deposit twenty thousand dollars, or such other amount as may be specified by council rule, to cover costs provided for by subsection (1)(c)(i) of this section.  Reasonable and necessary costs of the council directly attributable to inspection and determination of compliance by the certificate holder with the terms of the certification relative to monitoring the effects of construction and operation of the facility shall be charged against such deposit.

(iii) The council shall submit to each certificate holder a statement of such expenditures actually made during the preceding calendar quarter which shall be in sufficient detail to explain such expenditures.  The certificate holder shall pay the state treasurer the amount of such statement to restore the total amount on deposit to the originally established level:  PROVIDED, That if the actual, reasonable, and necessary expenditures for inspection and determination of compliance in the preceding calendar quarter have exceeded the amount of funds on deposit, such excess costs shall be paid by the certificate holder.

(d) A fee of twenty-five thousand dollars, or such greater amount that may be specified by council rule, for each county in which the facility will be sited.  The fee shall accompany the application and shall be a condition precedent to any further consideration or action on the application by the council.  The fee shall be applied toward the cost of the county's independent environmental studies and the county's actual cost of participating in the council's proceedings.  The fee shall be deposited with the state treasurer and dispersed upon the request of the council after its approval of the county's billings.

    (2) If an applicant or certificate holder fails to provide the initial deposit, or if subsequently required payments are not received within thirty days following receipt of the statement from the council, the council may (a) in the case of the applicant, suspend processing of the application until payment is received; or (b) in the case of a certificate holder, suspend the certification.

    (3) All payments required of the applicant or certificate holder under this section are to be made to the state treasurer who shall make payments as instructed by the council from the funds submitted.  All such funds shall be subject to state auditing procedures.  Any unexpended portions thereof shall be returned to the applicant or certificate holder.

    Sec. 8.  RCW 80.50.090 and 1989 c 175 s 173 are each amended to read as follows:

    (1) The council shall conduct a public hearing in the county of the proposed site within sixty days of receipt of an application for site certification:  PROVIDED, That the place of such public hearing shall be as close as practical to the proposed site.

    (2) The council must determine at the initial public hearing whether ((or not)):  (a) The facility is needed within the state and county; and (b) the proposed site is consistent and in compliance with county or regional land use plans or zoning ordinances.  If it is determined that the proposed site does conform with existing land use plans or zoning ordinances in effect as of the date of the application, the county or regional planning authority shall not thereafter change such land use plans or zoning ordinances so as to affect the proposed site.

    (3) Prior to the issuance of a council recommendation to the governor under RCW 80.50.100 a public hearing, conducted as an adjudicative proceeding under chapter 34.05 RCW, the Administrative Procedure Act, shall be held.  At such public hearing any person shall be entitled to be heard in support of or in opposition to the application for certification.

    (4) Additional public hearings shall be held as deemed appropriate by the council in the exercise of its functions under this chapter.

    Sec. 9.  RCW 80.50.105 and 1991 c 200 s 1112 are each amended to read as follows:

    In making its recommendations to the governor under this chapter regarding an application that includes transmission facilities for petroleum products, the council shall give ((appropriate)) great weight to city or county facility siting and land use standards ((adopted for the protection of sole source aquifers)).

    Sec. 10.  RCW 80.50.110 and 1975-'76 2nd ex.s. c 108 s 37 are each amended to read as follows:

    (1) If any provision of this chapter is in conflict with any other provision, limitation, or restriction which is now in effect under any other law of this state, or any rule or regulation promulgated thereunder, this chapter shall govern and control and such other law or rule or regulation promulgated thereunder shall be deemed superseded for the purposes of this chapter.

    (2) The state hereby preempts, with the exception of local franchise agreements, the regulation and certification of the location, construction, and operational conditions of certification of the energy facilities included under RCW 80.50.060 ((as now or hereafter amended)).

    Sec. 11.  RCW 80.50.150 and 1979 ex.s. c 254 s 2 and 1979 c 41 s 1 are each reenacted and amended to read as follows:

    (1) The courts are authorized to grant such restraining orders, and such temporary and permanent injunctive relief as is necessary to secure compliance with this chapter and/or with a site certification agreement issued pursuant to this chapter or a National Pollutant Discharge Elimination System (hereafter in this section, NPDES) permit issued by the council pursuant to chapter 90.48 RCW or any permit issued pursuant to RCW 80.50.040(14).  The court may assess civil penalties in an amount not less than one thousand dollars per day nor more than twenty-five thousand dollars per day for each day of construction or operation in material violation of this chapter, or in material violation of any site certification agreement issued pursuant to this chapter, or in violation of any NPDES permit issued by the council pursuant to chapter 90.48 RCW, or in violation of any permit issued pursuant to RCW 80.50.040(14).  The court may charge the expenses of an enforcement action relating to a site certification agreement under this section, including, but not limited to, expenses incurred for legal services and expert testimony, against any person found to be in material violation of the provisions of such certification:  PROVIDED, That the expenses of a person found not to be in material violation of the provisions of such certification, including, but not limited to, expenses incurred for legal services and expert testimony, may be charged against the person or persons bringing an enforcement action or other action under this section.

    (2) Wilful violation of any provision of this chapter shall be a gross misdemeanor.

    (3) Wilful or criminally negligent, as defined in RCW ((9A.08.010[(1)](d))) 9A.08.010(1)(d), violation of any provision of an NPDES permit issued by the council pursuant to chapter 90.48 RCW or any permit issued by the council pursuant to RCW 80.50.040(14) or any emission standards promulgated by the council in order to implement the Federal Clean Air Act and the state implementation plan with respect to energy facilities under the jurisdiction provisions of this chapter shall be deemed a crime, and upon conviction thereof shall be punished by a fine of up to twenty-five thousand dollars per day and costs of prosecution.  Any violation of this subsection shall be a gross misdemeanor.

    (4) Any person knowingly making any false statement, representation, or certification in any document in any NPDES form, notice, or report required by an NPDES permit or in any form, notice, or report required for or by any permit issued pursuant to RCW ((80.50.090(14))) 80.50.040(14) shall be deemed guilty of a crime, and upon conviction thereof shall be punished by a fine of up to ten thousand dollars and costs of prosecution.

    (5) Every person who violates the provisions of certificates and permits issued or administered by the council shall incur, in addition to any other penalty as provided by law, a penalty in an amount of up to five thousand dollars a day for every such 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 and be deemed to be a separate and distinct violation.  Every act of commission or omission which procures, aids, or abets in the violation shall be considered a violation under the provisions of this section and subject to the penalty provided in this section.  The penalty provided in this section 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 same from the council describing such violation with reasonable particularity.  The council may, upon written application therefor received within fifteen days after notice imposing any penalty is received by the person incurring the penalty, and when deemed in the best interest to carry out the purposes of this chapter, remit or mitigate any penalty provided in this section upon such terms as the council shall deem proper, and shall have authority to ascertain the facts upon all such applications in such manner and under such regulations as it may deem proper.  Any person incurring any penalty under this section may appeal the same to the council.  Such appeals shall be filed within thirty days of receipt of notice imposing any penalty unless an application for remission or mitigation is made to the council.  When an application for remission or mitigation is made, such appeals shall be filed within thirty days of receipt of notice from the council setting forth the disposition of the application.  Any penalty imposed under this section shall become due and payable thirty days after receipt of a notice imposing the same unless application for remission or mitigation is made or an appeal is filed.  When an application for remission or mitigation is made, any penalty incurred hereunder shall become due and payable thirty days after receipt of notice setting forth the disposition of the application unless an appeal is filed from such disposition.  Whenever an appeal of any penalty incurred hereunder is filed, the penalty shall become due and payable only upon completion of all review proceedings and the issuance of a final order confirming the penalty in whole or in part.  If the amount of any penalty is not paid to the council within thirty days after it becomes due and payable, the attorney general, upon the request of the council, 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 such violator may do business, to recover such penalty.  In all such actions the procedure and rules of evidence shall be the same as an ordinary civil action except as otherwise provided in this chapter.  All penalties recovered under this section shall be paid into the state treasury and credited to the general fund.

    (6) Civil proceedings to enforce this chapter may be brought by the attorney general or the prosecuting attorney of any county affected by the violation on his own motion or at the request of the council.  Criminal proceedings to enforce this chapter may be brought by the prosecuting attorney of any county affected by the violation on his own motion or at the request of the council.

    (7) The remedies and penalties in this section, both civil and criminal, shall be cumulative and shall be in addition to any other penalties and remedies available at law, or in equity, to any person.

NEW SECTION. Sec. 12.  Sections 1 through 5 and 7 through 11 of this act take effect July 1, 2000.

NEW SECTION. Sec. 13.  Section 6 of this act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect immediately.

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