BILL REQ. #:  S-4084.1 

Read first time 01/25/08.   Referred to Committee on Water, Energy & Telecommunications.

     AN ACT Relating to citizen enforcement of health and environmental laws; adding a new chapter to Title 4 RCW; and prescribing penalties.

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

NEW SECTION.  Sec. 1   (1) The legislature finds that:
     (a) Each person has an interest in the protection of the state's environmental quality, including air, water, land, and other natural resources, and an interest in the protection of human health from environmental pollutants;
     (b) It is in the public's interest to enable persons to act as citizens' attorney general in seeking enforcement of environmental quality, land use, and environmental health standards when governmental authorities charged with the primary responsibility for enforcement do not institute or maintain effective actions; and
     (c) It is therefore, the purpose of this act to provide an adequate civil remedy through citizen causes of action to enforce environmental quality, land use, and environmental health standards.
     (2) The legislature further finds that under chapter 353, Laws of 2007, the legislature created a temporary delay in amending or adopting provisions of certain critical area ordinances, and set out duties and requirements for the William D. Ruckelshaus center to seek progress in resolving, harmonizing, and advancing commonly held environmental protection and agricultural viability goals. The legislature fully expects these efforts to be successful and to address mechanisms to assure compliance with the planning and regulatory requirements relating to such critical areas ordinances. For these reasons, this act does not in any manner affect the existing legal venues or mechanisms to enforce compliance with planning or regulatory requirements relating to critical areas ordinances which are intended to be addressed in the future by the legislature upon completion of the review conducted under chapter 353, Laws of 2007.

NEW SECTION.  Sec. 2   The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.
     (1) "Citizen" means any person or persons.
     (2) "Person" means an individual, corporation, partnership, association, state, commission, or other government entity.
     (3) "Environmental or public health standard or requirement" means:      (a) Any condition placed in or on the issuance of any permit or authorization under chapter 43.21C RCW;
     (b) Any prohibition or requirement adopted under chapter 36.70A or 90.58 RCW or other zoning or land use law if the prohibition or requirement has been enacted or adopted for the purpose of protecting sensitive areas, natural resources or human health;
     (c) The requirement to have a permit or authorization, to submit an application for a permit or authorization, to comply with any condition or requirement of a permit or authorization, or to comply with any prohibition, requirement, or order adopted under:
     (i) Chapter 77.55 RCW, hydraulic projects;
     (ii) Chapter 76.09 RCW, the forest practices act;
     (iii) Chapter 90.48 RCW, water pollution control;
     (iv) Chapter 70.95 RCW, solid waste;
     (v) Chapter 70.105 RCW, the hazardous waste management act;
     (vi) Chapter 90.76 RCW, underground storage tanks;
     (vii) Chapter 15.58 RCW, the Washington pesticide control act;
     (viii) Chapter 70.94 RCW, the Washington clean air act;
     (ix) Chapters 90.03, 90.44, and 90.14 RCW, surface and ground water permits, change certificates, and water rights abandonment and relinquishment actions;
     (x) Chapters 58.17, 36.70, 35A.63, and 35.63 RCW, platting and zoning authority for counties and cities;
     (xi) Chapter 77.57 RCW, fishways, flows, and screening;
     (d) A requirement to adopt, revise, or review a plan or to adopt development regulations by a city or county under chapter 36.70A RCW, except for the adoption or revision of critical areas ordinances on agricultural resource lands.

NEW SECTION.  Sec. 3   (1) Except as provided in subsection (2) of this section, any citizen may commence a civil action on his or her own behalf against any person who is alleged to have violated an environmental or public health standard or requirement, or an order issued by a governmental agency with respect to such a standard or requirement, if there is evidence of more than one day or instance of violation. Such civil action may be brought in the superior court for the county in which the alleged violation occurred or as otherwise provided in chapter 4.12 RCW or RCW 36.01.050. The superior court shall have jurisdiction to enforce the environmental or public health standard or requirement or order, to grant other injunctive relief as justice may require, to assess civil penalties consistent with subsection (5) of this section, and to award costs of litigation, including reasonable attorneys' and expert witness' fees consistent with subsection (6) of this section.
     (2) No action may be commenced under subsection (1) of this section:
     (a) Prior to sixty days after the plaintiff has given notice by certified mail or personal service of the violation; or
     (b) If an agency with authority to enforce the standard or requirement alleged to be violated has commenced and is diligently prosecuting an administrative or in-court action, if that action:
     (i) Has resulted or will result in a cessation of all alleged violations;
     (ii) Has resulted or may result in assessment of a monetary penalty in an amount greater than the violator's economic benefit from the violations;
     (iii) Involves or involved a significant opportunity for public participation; and
     (iv) Was commenced before the commencement of an action under subsection (1) of this section.
     (3) Notice under this section shall be by certified mail or personal service:
     (a) To the alleged violator of the standard or requirement;
     (b) To the state attorney general;
     (c) To the agency with primary responsibility for enforcement of the standard or requirement;
     (d) Specific enough to allow the alleged violator to identify the actions, conduct, or circumstances that will be the subject of the action; and
     (e) Considered served on the postmark date or date of actual service, whichever is earlier.
     (4) An action under subsection (1) of this section may be brought immediately upon giving notice only if the violations present a risk of immediate and substantial endangerment to human health or the environment.
     (5) The court, upon finding violation of an environmental or public health standard or requirement, shall assess a civil penalty against the violator in an amount not to exceed ten thousand dollars per violation per day of violation unless justice so requires. In determining an appropriate penalty, the court shall consider the seriousness of the violations, any good faith efforts or lack of good faith efforts to, the duration of the violations, the economic benefit of the violations to the violator, and such other matters as justice may require. Unless injustice would result, the court shall assess a civil penalty greater than the economic benefit of the violations to the violator. Civil penalties assessed under this section shall be deposited as provided by the statutes upon which the violation is based.
     (6) Unless injustice would result, the court, in issuing any final order in any action brought under this section, shall award costs of litigation, including reasonable attorneys' and expert witness' fees, to a prevailing or substantially prevailing party, payable by the opposing party or parties.
     (7) This section does not restrict any right which any person or class of persons may have under any statute or common law to seek enforcement of any standard or requirement or to seek any other relief.

NEW SECTION.  Sec. 4   This chapter does not alter or diminish any legal obligation otherwise required in common law or by statute or rule, and nothing in this chapter creates or enlarges any defense in any action to enforce such legal obligation. Penalties and sanctions imposed under this chapter are in addition to any penalties or sanctions otherwise prescribed by law. This chapter does not impose any additional liability upon any local government for failure to enforce any violation subject to this chapter.

NEW SECTION.  Sec. 5   Sections 1 through 4 of this act constitute a new chapter in Title 4 RCW.