BILL REQ. #:  S-0765.1 

Read first time 01/23/2007.   Referred to Committee on Consumer Protection & Housing.

     AN ACT Relating to environmental noise abatement; amending RCW 46.09.120, 46.09.190, 70.107.060, 70.107.050, 70.107.020, and 46.09.020; adding new sections to chapter 70.107 RCW; adding a new section to chapter 46.09 RCW; and prescribing penalties.

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

Sec. 1   RCW 46.09.120 and 2006 c 212 s 3 are each amended to read as follows:
     (1) Except as provided in subsection (4) of this section, it is a traffic infraction for any person to operate any nonhighway vehicle:
     (a) In such a manner as to endanger the property of another;
     (b) On lands not owned by the operator or owner of the nonhighway vehicle without a lighted headlight and taillight between the hours of dusk and dawn, or when otherwise required for the safety of others regardless of ownership;
     (c) On lands not owned by the operator or owner of the nonhighway vehicle without an adequate braking device or when otherwise required for the safety of others regardless of ownership;
     (d) Without a spark arrester approved by the department of natural resources;
     (e) Without an adequate, and operating, muffling device which effectively limits vehicle noise to no more than ((eighty-six decibels on the "A" scale at fifty feet as measured by the Society of Automotive Engineers (SAE) test procedure J 331a, except that a maximum noise level of one hundred and five)) ninety-six decibels on the "A" scale at a distance of twenty inches from the exhaust outlet ((shall be an acceptable substitute in lieu of)) measured consistent with the Society of Automotive Engineers test procedure J ((331a)) 1287 when measured:
     (i) At a forty-five degree angle at a distance of twenty inches from the exhaust outlet;
     (ii) With the vehicle stationary and the engine running at a steady speed equal to one-half of the manufacturer's maximum allowable ("red line") engine speed or where the manufacturer's maximum allowable engine speed is not known the test speed in revolutions per minute calculated as sixty percent of the speed at which maximum horsepower is developed; and
     (iii) With the microphone placed ten inches from the side of the vehicle, one-half way between the lowest part of the vehicle body and the ground plane, and in the same lateral plane as the rearmost exhaust outlet where the outlet of the exhaust pipe is under the vehicle;
     (f) On lands not owned by the operator or owner of the nonhighway vehicle upon the shoulder or inside bank or slope of any nonhighway road or highway, or upon the median of any divided highway;
     (g) On lands not owned by the operator or owner of the nonhighway vehicle in any area or in such a manner so as to unreasonably expose the underlying soil, or to create an erosion condition, or to injure, damage, or destroy trees, growing crops, or other vegetation;
     (h) On lands not owned by the operator or owner of the nonhighway vehicle or on any nonhighway road or trail, when these are restricted to pedestrian or animal travel;
     (i) On any public lands in violation of rules and regulations of the agency administering such lands; ((and))
     (j) On a private nonhighway road in violation of RCW 46.09.115(3); and
     (k) In such a manner where the noise created by the engine of the nonhighway vehicle is plainly audible inside or immediately adjacent to a residence.
     (2) It is a misdemeanor for any person to operate any nonhighway vehicle while under the influence of intoxicating liquor or a controlled substance.
     (3)(a) Except for an off-road vehicle equipped with seat belts and roll bars or an enclosed passenger compartment, it is a traffic infraction for any person to operate or ride an off-road vehicle on a nonhighway road without wearing upon his or her head a motorcycle helmet fastened securely while in motion. For purposes of this section, "motorcycle helmet" has the same meaning as provided in RCW 46.37.530.
     (b) Subsection (3)(a) of this section does not apply to an off-road vehicle operator operating on his or her own land.
     (c) Subsection (3)(a) of this section does not apply to an off-road vehicle operator operating on agricultural lands owned or leased by the off-road vehicle operator or the operator's employer.
     (4) It is not a traffic infraction to operate an off-road vehicle on a street, road, or highway as authorized under RCW 46.09.180.
     (5) For violations of subsection (1)(k) of this section only, the violator shall be subject to a penalty of not less than one hundred dollars per violation for a first violation. Subsequent violations of subsection (1)(k) of this section by the same person shall result in a penalty of not less than twice the penalty assessed for the previous violation, up to a maximum single penalty of eight hundred dollars.

Sec. 2   RCW 46.09.190 and 1979 ex.s. c 136 s 42 are each amended to read as follows:
     (1) Except as provided in RCW 46.09.120(2) and 46.09.130 ((as now or hereafter amended)), violation of the provisions of this chapter is a traffic infraction for which, except as provided in RCW 46.09.120(5), a penalty of not less than twenty-five dollars may be imposed.
     (2) In addition to the penalties provided in subsection (1) of this section, the owner and/or the operator of any nonhighway vehicle shall be liable for any damage to property including damage to trees, shrubs, or growing crops injured as the result of travel by the nonhighway vehicle. The owner of such property may recover from the person responsible three times the amount of damage.

Sec. 3   RCW 70.107.060 and 1987 c 103 s 1 are each amended to read as follows:
     (1) Nothing in this chapter shall be construed to deny, abridge or alter alternative rights of action or remedies in equity or under common law or statutory law, criminal or civil.
     (2) Nothing in this chapter shall deny, abridge or alter any powers, duties and functions relating to noise abatement and control now or hereafter vested in any state agency, nor shall this chapter be construed as granting jurisdiction over the industrial safety and health of employees in work places of the state, as now or hereafter vested in the department of labor and industries.
     (3) Standards and other control measures adopted by the department under this chapter shall be exclusive except as ((hereinafter)) otherwise provided in this section.
     (4)(a) A local government may impose limits or control sources differing from those adopted or controlled by the department upon a finding that such requirements are necessitated by special conditions. Local governments are encouraged to impose narrative standards as an alternative to decibel limits if it is determined by the local government that narrative standards ease the enforcement of noise control by local law enforcement officers.
     (b) Noise limiting requirements of local government which differ from those adopted or controlled by the department shall be invalid unless first approved by the department. If the department of ecology fails to approve or disapprove standards submitted by local governmental jurisdictions within ninety days of submittal, such standards shall be deemed approved. If disapproved, the local government may appeal the decision to the pollution control hearings board which shall decide the appeal on the basis of the provisions of this chapter, and the applicable regulations, together with such briefs, testimony, and oral argument as the hearings board in its discretion may require. The department determination of whether to grant approval shall depend on the reasonableness and practicability of compliance. Particular attention shall be given to stationary sources located near jurisdictional boundaries, and temporary noise producing operations which may operate across one or more jurisdictional boundaries.
     (((4))) (5) In carrying out the rule-making authority provided in this chapter, the department shall follow the procedures of the administrative procedure act, chapter 34.05 RCW, and shall take care that no rules adopted purport to exercise any powers preempted by the United States under federal law.

Sec. 4   RCW 70.107.050 and 1987 c 103 s 2 are each amended to read as follows:
     (1)(a) Any person who violates any rule adopted by the department under this chapter shall be subject to a civil penalty not to exceed one hundred dollars per violation for the first violation, which shall be imposed by local government pursuant to this section. ((An action under this section shall not preclude enforcement of any provisions of the local government noise ordinance.)) For each subsequent violation, the penalty imposed shall be twice the penalty assessed for the subsequent violation, up to a maximum of eight hundred dollars for any one violation.
     (b) Penalties shall become due and payable thirty days from the date of receipt of a notice of penalty unless within such time said notice is appealed in accordance with the administrative procedures of the local government, or if it has no such administrative appeal, to the pollution control hearings board pursuant to the provisions of chapter 43.21B RCW and procedural rules adopted thereunder. In cases in which appeals are timely filed, penalties sustained by the local administrative agency or the pollution control hearings board shall become due and payable on the issuance of said agency or board's final order in the appeal.
     (c) An action under this section shall not preclude enforcement of any provisions of the local government noise ordinance.
     (2) Whenever penalties incurred pursuant to this section have become due and payable but remain unpaid, the attorney for the local government may bring an action in the superior court of the county in which the violation occurred for recovery of penalties incurred. In all such actions the procedures and rules of evidence shall be the same as in any other civil action.

NEW SECTION.  Sec. 5   A new section is added to chapter 70.107 RCW to read as follows:
     (1) It is a violation of this chapter to operate a nonhighway vehicle in such a manner where the noise created by the engine of the nonhighway vehicle is plainly audible inside or immediately adjacent to a residence.
     (2) A person found to have violated this section shall be subject to a penalty of not less than one hundred dollars per violation for a first violation. Subsequent violations of this section by the same person shall result in a penalty of not less than twice the penalty assessed for the previous violation, up to a maximum single penalty of eight hundred dollars.

NEW SECTION.  Sec. 6   A new section is added to chapter 70.107 RCW to read as follows:
     (1) Except as otherwise provided by this section, no person shall cause or permit noise to intrude into the property of another person with noise that exceeds the maximum permissible noise levels set under this chapter.
     (2)(a) Noise from the combined activities of the starting, servicing, idling, revving, testing, or use for ingress or egress to allow sale or repair of a vehicle may be allowed as a duration exemption without violating subsection (1) of this section.
     (b) To qualify for the duration exemption permitted by this section, any noise emitted:
     (i) Must not exceed the decibel limits established under this chapter by more than ten decibels; and
     (ii) May not occur for more than five minutes in any one twenty-four hour period between the hours of 7:00 a.m. and 10:00 p.m. If there is more than one vehicle involved, the five minute limitation applies to all vehicles combined.
     (3) This section preempts any duration exemptions adopted under RCW 70.107.030(2)(b) that exist now or in the future as applied to the operation of nonhighway vehicles in residential areas.

NEW SECTION.  Sec. 7   A new section is added to chapter 70.107 RCW to read as follows:
     A party who brings an action to enjoin the use of nonhighway vehicles being operated in a manner that is in violation of this chapter or of any other noise laws, rules, or ordinances, or to recover damages associated with the use of a nonhighway vehicle being operated in a manner that is in violation of this chapter or of any other noise laws, rules, or ordinances, is entitled to recover costs and attorneys' fees pursuant to Title 4 RCW.

NEW SECTION.  Sec. 8   A new section is added to chapter 46.09 RCW to read as follows:
     A party who brings an action to enjoin the use of nonhighway vehicles being operated in a manner that is in violation of RCW 46.09.120(1)(k) or of any other noise laws, rules, or ordinances, or to recover damages associated with the use of a nonhighway vehicle being operated in a manner that is in violation of this chapter or of any other noise laws, rules, or ordinances, is entitled to recover costs and attorneys' fees pursuant to Title 4 RCW.

Sec. 9   RCW 70.107.020 and 1974 ex.s. c 183 s 2 are each amended to read as follows:
     ((As used in)) The definitions in this section apply throughout this chapter((,)) and rules adopted under this chapter unless the context clearly ((indicates)) requires otherwise((:)).
     (1) "Department" means the department of ecology.
     (2) "Director" means director of the department of ecology.
     (3) "Duration exemption" means the length of time by which a numeric noise standard may be temporarily exceeded for a specified purpose.
     (4) "Local government" means county or city government or any combination of the two.
     (((4))) (5) "Noise" means the intensity, duration, and character of sounds from any and all sources.
     (((5))) (6) "Nonhighway vehicle" has the same meaning as provided in RCW 46.09.020.
     (7) "Person" means any individual, corporation, partnership, association, governmental body, state, or other entity whatsoever.
     (8) "Residential uses" and "residential areas" means any areas with homes, regardless of the underlying local zoning for the land. The term includes, but is not limited to, residences on a farm or a forest parcel, and residences within an area zoned for commercial or industrial uses. If the underlying local zoning for the land is not residential, then the area considered a residential use includes a one hundred foot radius around the actual residence.

Sec. 10   RCW 46.09.020 and 2004 c 105 s 1 are each amended to read as follows:
     The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.
     (1) "Advisory committee" means the nonhighway and off-road vehicle activities advisory committee established in RCW 46.09.280.
     (2) "Committee" means the interagency committee for outdoor recreation established in RCW 79A.25.110.
     (3) "Dealer" means a person, partnership, association, or corporation engaged in the business of selling off-road vehicles at wholesale or retail in this state.
     (4) "Department" means the department of licensing.
     (5) "Highway," for the purpose of this chapter only, means the entire width between the boundary lines of every roadway publicly maintained by the state department of transportation or any county or city with funding from the motor vehicle fund. A highway is generally capable of travel by a conventional two-wheel drive passenger automobile during most of the year and in use by such vehicles.
     (6) "Motorized vehicle" means a vehicle that derives motive power from an internal combustion engine.
     (7) "Nonhighway road" means any road owned or managed by a public agency or any private road for which the owner has granted an easement for public use for which appropriations from the motor vehicle fund were not used for (a) original construction or reconstruction in the last twenty-five years; or (b) maintenance in the last four years.
     (8) "Nonhighway road recreation facilities" means recreational facilities that are adjacent to, or accessed by, a nonhighway road and intended primarily for nonhighway road recreational users.
     (9) "Nonhighway road recreational user" means a person whose purpose for consuming fuel on a nonhighway road or off-road is primarily for nonhighway road recreational purposes, including, but not limited to, hunting, fishing, camping, sightseeing, wildlife viewing, picnicking, driving for pleasure, kayaking/canoeing, and gathering berries, firewood, mushrooms, and other natural products.
     (10) "Nonhighway vehicle" means any motorized vehicle including an ORV when used for recreational purposes on nonhighway roads, trails, or a variety of other natural terrain.
     Nonhighway vehicle does not include:
     (a) Any vehicle designed primarily for travel on, over, or in the water;
     (b) Snowmobiles or any military vehicles; or
     (c) Any vehicle eligible for a motor vehicle fuel tax exemption or rebate under chapter 82.36 RCW while an exemption or rebate is claimed. This exemption includes but is not limited to farm, construction, and logging vehicles.
     (11) "Nonmotorized recreational facilities" means recreational trails and facilities that are adjacent to, or accessed by, a nonhighway road and intended primarily for nonmotorized recreational users.
     (12) "Nonmotorized recreational user" means a person whose purpose for consuming fuel on a nonhighway road or off-road is primarily for nonmotorized recreational purposes including, but not limited to, walking, hiking, backpacking, climbing, cross-country skiing, snowshoeing, mountain biking, horseback riding, and pack animal activities.
     (13) "Off-road vehicle" or "ORV" means any nonstreet licensed vehicle when used for recreational purposes on nonhighway roads, trails, or a variety of other natural terrain. Such vehicles include, but are not limited to, all-terrain vehicles, motorcycles, four-wheel drive vehicles, and dune buggies.
     (14) "Operator" means each person who operates, or is in physical control of, any nonhighway vehicle.
     (15) "Organized competitive event" means any competition, advertised in advance through written notice to organized clubs or published in local newspapers, sponsored by recognized clubs, and conducted at a predetermined time and place.
     (16) "ORV recreation facilities" include, but are not limited to, ORV trails, trailheads, campgrounds, ORV sports parks, and ORV use areas, designated for ORV use by the managing authority that are intended primarily for ORV recreational users.
     (17) "ORV recreational user" means a person whose purpose for consuming fuel on nonhighway roads or off-road is primarily for ORV recreational purposes, including but not limited to riding an all-terrain vehicle, motorcycling, or driving a four-wheel drive vehicle or dune buggy.
     (18) "ORV ((sport[s])) sports park" means a facility designed to accommodate competitive ORV recreational uses including, but not limited to, motocross racing, four-wheel drive competitions, and flat track racing. Use of ORV sports parks can be competitive or noncompetitive in nature.
     (19) "ORV trail" means a multiple-use corridor designated by the managing authority and maintained for recreational use by motorized vehicles.
     (20) "ORV use permit" means a permit issued for operation of an off-road vehicle under this chapter.
     (21) "Owner" means the person other than the lienholder, having an interest in or title to a nonhighway vehicle, and entitled to the use or possession thereof.
     (22) "Person" means any individual, firm, partnership, association, or corporation.
     (23) "Residence" has the same meaning as "residential area" in RCW 70.107.020.