BILL REQ. #:  S-0435.4 

Read first time 01/18/2007.   Referred to Committee on Water, Energy & Telecommunications.

     AN ACT Relating to hazardous waste releases and cleanup at other sites requiring twenty or more years to remediate; adding new sections to chapter 70.105 RCW; creating new sections; and declaring an emergency.

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

NEW SECTION.  Sec. 1   (1) The legislature finds that:
     (a) The department of ecology has clear authority, allowable under federal law, to require enforceable schedules for the removal and treatment of all hazardous wastes to the extent practicable, including mixed wastes, stored in underground tanks, as well as cleanup of the leaks and releases from the tanks to the extent practicable;
     (b) Advisory boards at toxic cleanup and noncompliant sites are valuable to the state in providing a vehicle for public input to the department of ecology and the sites;
     (c) One such board, the Hanford advisory board, is a product of several years of negotiations resulting in a forum bringing all stakeholders to the table, and provides significant assistance to the state in exercising its responsibility to oversee cleanup of the Hanford nuclear reservation. Changes to the Hanford advisory board would be detrimental to the state of Washington;
     (d) There is compelling evidence as set forth in an August 2006 petition signed by more than twenty members and alternates of the Hanford advisory board that the board's continued existence is threatened by proposals from the United States department of energy to revise the board's charter and potentially damage this forum that brings disparate parties together for mutually beneficial dialogue;
     (e) Advice number 13 from the Hanford advisory board dated February 3, 1995, recommends that additional waste not be added to a site not in compliance with state environmental laws, and this advice has not been followed by site managers;
     (f) Advice number 2 from the Hanford advisory board dated July 1994 recommends that disposal facilities on the Hanford nuclear reservation should be reserved for waste from the site and not accept off-site waste. This advice has not been followed;
     (g) Advice numbers 170 and 153 from the Hanford advisory board dated 2005 and 2003, among others, recommends that waste not be buried in unlined burial grounds, and waste in unlined burial trenches should be characterized and retrieved. This advice also has not been followed; and
     (h) Advice number 192 from the Hanford advisory board dated September 2006 recommends a mandate of one hundred percent treatment capacity for all wastes and that storage tanks be emptied to the extent practicable. This advice also has not been followed.
     (2) Therefore, it is the purpose of this act and the policy of the state of Washington to ensure cleanup and compliance at sites at which hazardous wastes have seriously contaminated the environment and where ongoing violations of chapter 70.105D RCW are projected to take more than twenty years to complete the cleanup and compliance. It is further the purpose of this act to ensure public involvement in the cleanup of these sites.
     (3) It is further the policy of the state to ensure cleanup and compliance at these sites before permitting the addition of more waste that is not generated from the cleanup of the site, and which may add to long-term cumulative impacts to health and the environment, until the hazardous waste on-site has been cleaned up and is stored, treated, or disposed of in compliance with all state and federal laws.
     (4) It is further the policy of the state to discontinue the use of, and ensure characterization and remediation of, unlined trenches where hazardous wastes have been disposed. These policies must guide state action for approval of plans, permits, orders, or agreements under the federal facility compliance act of 1992 (42 U.S.C. Sec. 6961 et seq.). It is not the intent of this act to interfere with the transportation, manufacturing, storage, or use of any hazardous substance necessary for medical research, medical treatment, manufacturing or industrial processes, or national defense.
     (5) This act applies to all sites with releases of hazardous waste as defined in section 2 of this act that are not in compliance with state or federal hazardous waste laws, including but not limited to the Hanford nuclear reservation. This act does not expand the scope of hazardous waste regulated under chapter 70.105 RCW or the level at which hazardous wastes are regulated.

NEW SECTION.  Sec. 2   A new section is added to chapter 70.105 RCW to read as follows:
     The definitions in this section apply throughout sections 1 through 5 of this act unless the context clearly requires otherwise. Terms not defined in this section have the same meaning as defined in RCW 70.105.010.
     (1) "Department" means the department of ecology.
     (2) "Federal resource conservation and recovery act" means the federal resource conservation and recovery act (42 U.S.C. Sec. 6901 et seq.).
     (3) "Hanford" means the geographic area comprising the Hanford nuclear reservation, owned and operated by the United States department of energy or any successor federal agency.
     (4) "Hazardous waste" includes all dangerous and extremely hazardous waste. "Hazardous waste" also includes solid wastes composed of both radioactive and hazardous components having the characteristics of dangerous waste including, but not limited to, being carcinogenic, mutagenic, or teratogenic, to the fullest extent authorized for state regulation under the federal resource conservation and recovery act and the federal facility compliance act of 1992 (42 U.S.C. Sec. 6961 et seq.). "Hazardous waste" does not include source, special nuclear, or byproduct material as defined by the atomic energy act of 1954 (42 U.S.C. Sec. 2011 et seq.) except to the extent authorized by federal law.
     (5) "Site" means the contiguous geographic area under the same ownership, lease, or operation where a hazardous waste facility or units are located, or where there has been a release of hazardous substances. In the event of a release of hazardous substances, "site" includes any area, or body of surface or ground water, where a hazardous substance has been deposited, stored, disposed of, placed, migrated to, or otherwise come to be located.

NEW SECTION.  Sec. 3   A new section is added to chapter 70.105 RCW to read as follows:
     (1) Permits issued under this chapter must provide for the operation and funding of a broadly representative advisory board at any site or facility at which all of the following apply:
     (a) There has been a release of hazardous substances at levels exceeding relevant state standards for remedial or corrective action under this chapter or chapter 70.105D RCW;
     (b) There are substantial violations of storage, treatment, and disposal requirements under this chapter or the federal resource conservation and recovery act; and
     (c) The department estimates that it will require more than a total of twenty years to remediate and bring the site into compliance with this chapter.
     (2) The advisory board must include:
     (a) Seven representatives of elected local governing bodies;
     (b) One representative of local business interests, the representative having no financial interest in the site;
     (c) Five representatives of local workers who are not in management positions, at least two of whom must represent recognized labor unions when present in the remediation workforce;
     (d) One representative of local environmental interests;
     (e) Five representatives of regional citizen, environmental, and public interest organizations with an active interest in cleanup of the site, drawn from and nominated by those regional organizations;
     (f) One local representative of public health organizations;
     (g) One regional representative of public health organizations;
     (h) Three representatives of tribal governments, no two of which may be members from the same tribe;
     (i) Two representatives of any adjacent state potentially affected by reason of being downstream of a release, one of whom must represent the broad interests of the citizens of such a state and one of whom may be selected by that state's governor; and
     (j) Up to four at large representatives who have expressed a general interest in cleanup issues at the site and who might otherwise contribute to ethnic, racial, or gender diversity on the board. These at large representatives should be selected to bring additional leadership skills and technical, economic, and hazardous waste expertise to the board. Other, nonvoting ex officio members may also be appointed as necessary.
     (3) If such an independent advisory board exists for a site or sites on the effective date of this section, that board will be deemed to fulfill the requirements of this act and must be maintained under a charter agreed to by the department in its present form as a requirement of any permit under this chapter for the site. To meet the criteria of independence: (a) The advisory board must be able to address relevant issues as selected by board members with advice of the department without limitation by a permittee, potentially liable party under chapter 70.105D RCW, or other entity; (b) the representatives of the entities described as composing the board must be selected by those entities, unless an individual's participation violates applicable standards for conflicts of interest; and (c) adequate funding to meet the duties of the board as described in this chapter is ensured. If any provision of the charter is contrary to state law, the department shall inform the board and provide a reasonable period for the charter to be amended to eliminate any inconsistency with state law. If an advisory board for a site or sites does not exist on the effective date of this section, the department shall provide for the selection and initial formation of the board.
     (4) Permits issued under this chapter for such a site or facility must specify that the advisory board be continued with adequate funding, provided by the owner or operator of the site, to perform its chartered functions until final closure or certification of the completion of remedial or corrective action.
     (5) The department shall request the advisory board created or maintained under this section to advise the department on procedural and substantive matters necessary for informed public involvement and comment. The department shall provide the board a reasonable opportunity to comment upon a proposed remedial, corrective, or closure regulatory action by the department, and the department shall consider and respond to timely comments from the board before making a decision.
     (6) Within the charges assessed under RCW 70.105.280, the department shall include the reasonable costs for public involvement. Public involvement opportunities must be provided for all permits for federal and for nonfederal facilities. Relevant public involvement costs include those for programs administered by the department under the model toxics control act, chapter 70.105D RCW. The charges must not discriminate against federal functions, must be based on a fair approximation of use of the regulatory system, and must be structured to produce revenues that will not exceed the total cost to the state of the benefits to be supplied by the public involvement.

NEW SECTION.  Sec. 4   A new section is added to chapter 70.105 RCW to read as follows:
     (1) Facilities storing hazardous waste in underground tanks from which there have been releases, or storing wastes in violation of storage and treatment requirements under this chapter or the federal resource conservation and recovery act, must be closed in compliance with the requirements of this section. Permits issued under this chapter governing the retrieval, treatment, and disposal of hazardous waste in underground storage tanks must require retrieval of hazardous wastes from the tanks, and characterization and removal and remediation of releases, to the maximum extent practicable. Retrieval from single shell tanks must be placed on an enforceable schedule designed to prevent releases and reduce other risks from noncompliant storage. The department may issue a permit relating to the closure of waste management units containing tank systems consisting of one or more interconnected tanks in which hazardous wastes were previously or are currently stored only after the department considers the cumulative impacts of all tank residuals and leaks from such systems at the site under chapter 43.21C RCW. Permit actions may not be taken to close individual tanks, or which may prevent the retrieval of residual hazardous wastes remaining in a tank, in any element of the tank system, or in the soil due to leaks from the tank system, prior to compliance with this section and determination of the quantity, nature, and potential impacts from the residuals or releases. The department shall require all potentially effective and practicable actions to be taken to characterize and remediate releases and potential releases prior to authorizing use of a landfill closure, as defined by the department in rules implementing this chapter, for underground hazardous waste tank systems. The department may require research and development of technologies for characterization or retrieval under this section.
     (2) The department shall adopt a plan to treat and dispose of one hundred percent of the hazardous waste retrieved from underground storage tanks. The department shall incorporate into permits for the facility or site an enforceable schedule for constructing, or obtaining the services of, treatment facilities on a timeline sufficient to ensure that the waste will be treated when retrieved from the tanks.

NEW SECTION.  Sec. 5   A new section is added to chapter 70.105 RCW to read as follows:
     (1) Permits under this chapter are required and conditioned under this section for sites or facilities meeting the following criteria:
     (a) A release of hazardous waste has occurred and it is estimated that it will take twenty or more years to remediate following the best available science;
     (b) The release, or the cumulative impact of all hazardous waste releases at the site, are projected by the department to have the potential to exceed surface or ground water standards established under federal or state laws, including but not limited to maximum concentration limits, or to exceed cleanup standards adopted to protect human health or the environment under RCW 70.105D.030; and
     (c) The site contains units or facilities that are in substantial noncompliance with the requirements of this chapter or any order or agreement under this chapter or chapter 70.105D RCW. Evidence of substantial noncompliance includes, but is not limited to: Storage of hazardous wastes without treatment capacity in excess of relevant time limitations; storage of hazardous wastes in unlined soil trenches without characterization and appropriate retrieval and treatment; storage of hazardous wastes in single shell or other noncompliant tanks or units; failure to empty storage vessels in compliance with this chapter; or failure to plan for or respond to emergencies or to report releases.
     (2) For facilities and sites meeting the criteria of subsection (1) of this section, the department shall not issue a permit, or modify any existing permit, to allow for the treatment, storage, or disposal of any additional hazardous wastes not generated at the site or facility as part of a remedial or corrective action, except as allowed under subsection (3) of this section, until:
     (a) The site or facility is in full compliance with the requirements of this chapter, the rules adopted under this chapter and the federal resource conservation and recovery act, for obtaining and maintaining a closure permit for any facility or unit from which a release of hazardous substances has occurred or is threatened to occur, after characterization and corrective action;
     (b) The department has issued a formal determination that no further remedial action is necessary to remedy such a release under chapter 70.105D RCW;
     (c) Cumulative impacts from the facility and from other units and releases at the site have been determined and a risk budget adopted for the facility, which ensures that the cumulative impacts and health risks, including cancer risk from all carcinogenic releases, will not exceed relevant standards under chapter 70.105D RCW or other laws; and
     (d) The department has formally determined that the noncompliant conditions no longer exist at the site or facility and that the site or facility remains in substantial compliance with all relevant orders or agreements.
     (3) The department may permit treatment capacity at sites subject to the limitations of this section to be utilized for remediation or cleanup wastes from other sites, consistent with a site treatment plan approved by the department under the federal resource conservation and recovery act, provided that the department determines, after public notice and comment and consideration of impacts and alternatives in an environmental impact statement prepared under chapter 43.21C RCW, that use of the capacity will not:
     (a) Significantly increase any emissions, discharges, risks, or consequences of potential accidents;
     (b) Result in permanent disposal of off-site wastes in the soil at the site when the disposal would otherwise violate this section;
     (c) Be stored in excess of any applicable time limits or any applicable requirement;
     (d) Decrease funding for cleanup and corrective actions at the site; or
     (e) Result in delay of treatment or remediation of wastes at the site.
     (4) The department shall ensure that permits require discontinuing the use of, and require characterization and remediation of, unlined trenches where hazardous wastes have been disposed. The department shall order any site owner or operator utilizing landfills or burial grounds containing unlined soil trenches in which hazardous wastes are reasonably believed by the department to have been disposed to:
     (a) Cease disposal of all hazardous or solid wastes in unlined soil trenches, to the extent that the department is not preempted from regulation of such wastes by the atomic energy act of 1954 (42 U.S.C. Sec. 2011 et seq.) or other federal law, and provided that such an order does not interfere with obligations of the state under the Northwest interstate compact for low-level radioactive waste management;
     (b) Initiate an investigation to provide the department with an inventory, based on actual characterization of trenches, of all hazardous wastes disposed in unlined trenches;
     (c) Initiate an investigation of releases or potential releases of any hazardous substances from unlined trenches;
     (d) Prepare a plan for waste retrieval, treatment, closure, and monitoring for the unlined soil trenches; and
     (e) Install within two years and maintain a ground water and soil column monitoring system that is in compliance with all requirements of this chapter and the federal resource conservation and recovery act.

NEW SECTION.  Sec. 6   The provisions of this act are to be liberally construed to effectuate the policies and purposes of this act. In the event of conflict between the provisions of this act and any other act, the provisions of this act shall govern.

NEW SECTION.  Sec. 7   If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.

NEW SECTION.  Sec. 8   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.