BILL REQ. #:  S-1394.1 

READ FIRST TIME 02/01/07.   

     AN ACT Relating to underground storage tanks; amending RCW 90.76.005, 90.76.010, 90.76.020, 90.76.050, 90.76.070, 90.76.080, 90.76.090, 90.76.110, 43.21B.300, 43.131.393, and 43.131.394; and repealing RCW 90.76.120.

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

Sec. 1   RCW 90.76.005 and 1989 c 346 s 1 are each amended to read as follows:
     The legislature finds that leaking underground storage tanks containing petroleum and other regulated substances pose a serious threat to human health and the environment. To address this threat, the legislature intends for the department of ecology to establish an underground storage tank program designed, operated, and enforced in a manner that, at a minimum, meets the requirements for delegation of the federal underground storage tank program of the resource conservation and recovery act of 1976, as amended (42 U.S.C. Sec. 6901, et seq.). The legislature intends that statewide requirements for underground storage tanks adopted by the department be consistent with and no less stringent than the ((objectives outlined)) requirements in the federal regulations and the underground storage tank compliance act of 2005 (42 U.S.C. Sec. 15801 et seq., Energy Policy Act of 2005, P.L. 109-58, Title XV, subtitle B).
     The legislature further finds that certain areas of the state possess physical characteristics that make them especially vulnerable to threats from leaking underground storage tanks and that in these environmentally sensitive areas, local requirements more stringent than the statewide requirements may apply.

Sec. 2   RCW 90.76.010 and 1998 c 155 s 1 are each amended to read as follows:
     Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter.
     (1) "Department" means the department of ecology.
     (2) "Director" means the director of the department.
     (3) "Facility compliance tag" means a marker, constructed of metal, plastic, or other durable material, that clearly identifies all qualifying underground storage tanks on the particular site for which it is issued.
     (4) "Federal act" means the federal resource conservation and recovery act, as amended (42 U.S.C. Sec. 6901, et seq.).
     (5) "Federal regulations" means the underground storage tanks regulations (40 C.F.R. Secs. 280 and 281) adopted by the United States environmental protection agency under the federal act.
     (6) "License" means the master business license underground storage tank endorsement issued by the department of licensing.
     (7) "Underground storage tank compliance act of 2005" means Title XV and subtitle B of P.L. 109-58 (42 U.S.C. Sec. 15801 et seq.) which have amended the federal resource conservation and recovery act's subtitle I.
     (8) "Underground storage tank system" means an underground storage tank, connected underground piping, underground ancillary equipment, and containment system, if any.
     Except as provided in this section and any rules adopted by the department under this chapter, the definitions contained in the federal regulations apply to the terms in this chapter.

Sec. 3   RCW 90.76.020 and 1998 c 155 s 2 are each amended to read as follows:
     (1) The department shall adopt rules establishing requirements for all underground storage tanks that are regulated under the federal act, taking into account the various classes or categories of tanks to be regulated. The rules must be consistent with and no less stringent than the federal regulations and the underground storage tank compliance act of 2005 and consist of requirements for the following:
     (a) New underground storage tank system design, construction, installation, and notification;
     (b) Upgrading existing underground storage tank systems;
     (c) General operating requirements;
     (d) Release detection;
     (e) Release reporting;
     (f) Out-of-service underground storage tank systems and closure; ((and))
     (g) Financial responsibility for underground storage tanks containing regulated substances; and
     (h) Ground water protection measures, including secondary containment and monitoring for installation or replacement of all underground storage tank systems or components, such as tanks and piping, installed after July 1, 2007, and under dispenser spill containment for installation or replacement of all dispenser systems installed after July 1, 2007.
     (2) The department shall adopt rules:
     (a) Establishing physical site criteria to be used in designating local environmentally sensitive areas;
     (b) Establishing procedures for local government application for this designation; and
     (c) Establishing procedures for local government adoption and department approval of rules more stringent than the statewide standards in these designated areas.
     (3) The department shall establish by rule an administrative and enforcement program that is consistent with and no less stringent than the program required under the federal regulations in the areas of:
     (a) Compliance monitoring, including procedures for recordkeeping and a program for systematic inspections;
     (b) Enforcement;
     (c) Public participation; ((and))
     (d) Information sharing;
     (e) Owner and operator training; and
     (f) Delivery prohibition for underground storage tank systems or facilities that are determined by the department to be ineligible to receive regulated substances.
     (4) The department shall establish a program that provides for the annual licensing of underground storage tanks. The license shall take the form of a tank endorsement on the facility's annual master business license issued by the department of licensing. A tank is not eligible for a license unless the owner or operator can demonstrate compliance with the requirements of this chapter and the annual tank fees have been remitted. The department may revoke a tank license if a facility is not in compliance with this chapter, or any rules adopted under this chapter. The master business license shall be displayed by the tank owner or operator in a location clearly identifiable.
     (5)(a) The department shall issue a one-time "facility compliance tag" to ((correspond with the December 22, 1998, underground storage tank compliance deadline for corrosion, spill, and overfill protection. Facility compliance tags may only be issued for)) underground storage tank facilities that have installed the equipment required to meet corrosion protection, spill prevention, ((and)) overfill ((protection standards that are required by December 22, 1998, and at the time of tag issuance)) prevention, leak detection standards, have demonstrated financial responsibility, and have paid annual tank fees. The facility shall continue to maintain compliance with corrosion protection, spill prevention, ((and)) overfill ((protection)) prevention and leak detection standards, ((and)) financial responsibility, and have remitted annual tank fees to display a facility compliance tag. The facility compliance tag shall be displayed on or near the fire emergency shutoff device, or in the absence of such a device in close proximity to the fill pipes and clearly identifiable to persons delivering regulated substance to underground storage tanks.
     (b) The department may revoke a facility compliance tag if a facility is not in compliance with the requirements ((needed to obtain or display the tag)) of this chapter, or any rules adopted under this chapter.
     (6) The department may place a red tag on a tank at a facility if the department determines that the owner or operator is not in compliance with this chapter or the rules adopted under this chapter regarding the compliance requirements related to that tank. Removal of a red tag without authorization from the department is a violation of this chapter.
     (7) The department may establish programs to certify persons who install or decommission underground storage tank systems or conduct inspections, testing, closure, cathodic protection, interior tank lining, corrective action, site assessments, or other activities required under this chapter. Certification programs shall be designed to ensure that each certification will be effective in all jurisdictions of the state.
     (((7))) (8) When adopting rules under this chapter, the department shall consult with the state building code council to ensure coordination with the building and fire codes adopted under chapter 19.27 RCW.

Sec. 4   RCW 90.76.050 and 1998 c 155 s 4 are each amended to read as follows:
     (1) ((Between June 11, 1998, and December 22, 1998, persons delivering regulated substances to underground storage tanks shall not deliver to facilities that do not have an underground storage tank license. This subsection expires December 22, 1998.
     (2) After December 22, 1998,)) A person((s)) delivering regulated substances to underground storage tanks shall not deliver or deposit regulated substances to underground storage tanks or facilities that do not have a facility compliance tag displayed as required in RCW 90.76.020(5)(a). Additionally, a person delivering regulated substances to underground storage tanks shall not deliver or deposit regulated substances to an individual underground storage tank on which the department has placed a red tag under RCW 90.76.020(6).
     (2) An owner or operator of an underground storage tank system or facility shall not accept delivery or deposit of regulated substances to that underground storage tank system or facility, if the system does not have a facility compliance tag displayed as required in RCW 90.76.020(5)(a). Additionally, an owner or operator of an underground storage tank system or facility shall not accept delivery or deposit of regulated substances to an individual underground storage tank on which the department has placed a red tag under RCW 90.76.020(6).
     (3) A supplier shall not refuse to deliver regulated substances to an underground storage tank regulated under this chapter on the basis of its potential to leak contents where the facility ((is either tagged)) displays a valid facility compliance tag as required in this chapter ((or is in compliance with federal underground storage tank regulations and any state or local regulations then in effect)), and the department has not placed a red tag on the underground storage tank. This section does not apply to a supplier who does not directly transfer a regulated substance into an underground storage tank.

Sec. 5   RCW 90.76.070 and 1989 c 346 s 8 are each amended to read as follows:
     The director may seek appropriate injunctive or other judicial relief by filing an action in Thurston county superior court or issue such order as the director deems appropriate to:
     (1) Enjoin any threatened or continuing violation of this chapter or rules adopted under this chapter;
     (2) Restrain immediately and effectively a person from engaging in unauthorized activity that results in a violation of any requirement of this chapter or rules adopted under this chapter and is endangering or causing damage to public health or the environment;
     (3) Require compliance with requests for information, access, testing, or monitoring under RCW 90.76.060; or
     (4) Assess and recover civil penalties authorized under RCW 90.76.080.

Sec. 6   RCW 90.76.080 and 1995 c 403 s 639 are each amended to read as follows:
     (1) ((Except as provided in RCW 43.05.060 through 43.05.080 and 43.05.150,)) A person who fails to notify the department pursuant to tank notification requirements or who submits false information is subject to a civil penalty not to exceed five thousand dollars per violation.
     (2) ((Except as provided in RCW 43.05.060 through 43.05.080 and 43.05.150,)) A person who violates this chapter or rules adopted under this chapter is subject to a civil penalty not to exceed five thousand dollars for each tank per day of violation.
     (3) A person incurring a penalty under this chapter or rules adopted under this chapter may apply to the department in writing for the remission or mitigation of the penalty as set out in RCW 43.21B.300. A person also may appeal a penalty directly to the pollution control hearings board in accordance with RCW 43.21B.300.

Sec. 7   RCW 90.76.090 and 1998 c 155 s 6 are each amended to read as follows:
     (1) An annual tank fee of one hundred twenty dollars per tank is effective ((from)) July 1, ((1998, to June 30, 1999)) 2007, to June 30, 2008. An annual tank fee of one hundred forty dollars per tank is effective from July 1, 2008, to June 30, 2009. Effective July 1, 2009, the annual tank fee will increase up to one hundred sixty dollars per tank unless the department has received sufficient additional federal grant funding to offset the increased cost of implementation of the underground storage tank compliance act of 2005 (Title XV, Subtitle B of the energy policy act of 2005). Annually, beginning on July 1, ((1999)) 2010, and upon a finding by the department that a fee increase is necessary, the previous tank fee amount may be increased up to the fiscal growth factor for the next year. The fiscal growth factor is calculated by the office of financial management under RCW 43.135.025 for the upcoming biennium. The department shall use the fiscal growth factor to calculate the fee for the next year and shall publish the new fee by March 1st before the year for which the new fee is effective. The new tank fee is effective from July 1st to June 30th of every year. The tank fee shall be paid by every person who:
     (a) Owns an underground storage tank located in this state; and
     (b) Was required to provide notification to the department under the federal act.
     This fee is not required of persons who have (i) permanently closed their tanks, and (ii) if required, have completed corrective action in accordance with the rules adopted under this chapter.
     (2) The department may authorize the imposition of additional annual local tank fees in environmentally sensitive areas designated under RCW 90.76.040. Annual local tank fees may not exceed fifty percent of the annual state tank fee.
     (3) State and local tank fees collected under this section shall be deposited in the account established under RCW 90.76.100.
     (4) Other than the annual local tank fee authorized for environmentally sensitive areas, no local government may levy an annual tank fee on the ownership or operation of an underground storage tank.

Sec. 8   RCW 90.76.110 and 1991 c 83 s 1 are each amended to read as follows:
     (1) Except as provided in RCW 90.76.040 and subsections (2), (3), (4), and (5) of this section, the rules adopted under this chapter supersede and preempt any state or local underground storage tank law, ordinance, or resolution governing any aspect of regulation covered by the rules adopted under this chapter.
     (2) Provisions of the ((uniform)) international fire code adopted under chapter 19.27 RCW, which are not more stringent than, and do not directly conflict with, rules adopted under this chapter are not superseded or preempted.
     (3) Local laws, ordinances, and resolutions pertaining to local authority to take immediate action in response to a release of a regulated substance are not superseded or preempted.
     (4) City, town, or county underground storage tank ordinances that are more stringent than the federal regulations and the uniform codes adopted under chapter 19.27 RCW and that ((are)) were in effect on or before November 1, 1988, are not superseded or preempted. ((A city, town, or county with an ordinance that meets these criteria shall notify the department of the existence of that ordinance by July 1, 1989.))
     (5) Local laws, ordinances, and resolutions pertaining to permits and fees for the use of underground storage tanks in street right of ways that were in existence prior to July 1, 1990, are not superseded or preempted.

Sec. 9   RCW 43.21B.300 and 2004 c 204 s 4 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 and chapter 90.76 RCW 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 or the local air authority, describing the violation with reasonable particularity. Within thirty days after the notice is received, the person incurring the penalty may apply in writing to the department or the authority for the remission or mitigation of the penalty. Upon receipt of the application, the department or authority may remit or mitigate the penalty upon whatever terms the department 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 or authority thirty days after the date of receipt by the person penalized of the notice imposing the penalty or thirty days after the date of 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
     (c) Thirty days after receipt of the notice of decision of the hearings board if the penalty is appealed.
     (4) If the amount of any penalty is not paid to the department within thirty days after it becomes due and payable, the attorney general, upon request of the department, 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, which shall be credited to the coastal protection fund created by RCW 90.48.390, and RCW 90.76.080, which shall be credited to the underground storage tank account created by RCW 90.76.100.

Sec. 10   RCW 43.131.393 and 1998 c 155 s 7 are each amended to read as follows:
     The underground storage tank program shall be terminated on July 1, ((2009)) 2019, as provided in RCW 43.131.394.

Sec. 11   RCW 43.131.394 and 1998 c 155 s 8 are each amended to read as follows:
     The following acts or parts of acts, as now existing or hereafter amended, are each repealed, effective July 1, ((2010)) 2020:
     (1) RCW 90.76.005 and 2006 c ... s 1 (section 1 of this act) & 1989 c 346 s 1;
     (2) RCW 90.76.010 and 2006 c ... s 2 (section 2 of this act), 1998 c 155 s 1, & 1989 c 346 s 2;
     (3) RCW 90.76.020 and 2006 c ... s 3 (section 3 of this act), 1998 c 155 s 2, & 1989 c 346 s 3;
     (4) RCW 90.76.040 and 1998 c 155 s 3 & 1989 c 346 s 5;
     (5) RCW 90.76.050 and 2006 c ... s 4 (section 4 of this act), 1998 c 155 s 4, & 1989 c 346 s 6;
     (6) RCW 90.76.060 and 1998 c 155 s 5 & 1989 c 346 s 7;
     (7) RCW 90.76.070 and 2006 c ... s 5 (section 5 of this act) & 1989 c 346 s 8;
     (8) RCW 90.76.080 and 2006 c ... s 6 (section 6 of this act), 1995 c 403 s 639, & 1989 c 346 s 9;
     (9) RCW 90.76.090 and 2006 c ... s 7 (section 7 of this act), 1998 c 155 s 6, & 1989 c 346 s 10;
     (10) RCW 90.76.100 and 1991 sp.s. c 13 s 72 & 1989 c 346 s 11;
     (11) RCW 90.76.110 and 2006 c ... s 8 (section 8 of this act), 1991 c 83 s 1, & 1989 c 346 s 12;
     (12) ((RCW 90.76.120 and 1989 c 346 s 13;
     (13))) RCW 90.76.900 and 1989 c 346 s 15;
     (((14))) (13) RCW 90.76.901 and 1989 c 346 s 14; and
     (((15))) (14) RCW 90.76.902 and 1989 c 346 s 18.

NEW SECTION.  Sec. 12   RCW 90.76.120 (Annual report) and 1989 c 346 s 13 are each repealed.