BILL REQ. #:  Z-0522.3 

Read first time 01/17/14.   Referred to Committee on Environment.

     AN ACT Relating to making technical corrections to various environmental statutes of the department of ecology and the pollution control hearings board; amending RCW 70.93.090, 70.94.037, 70.95.290, 70.95C.220, 70.95I.080, 70.105.160, 70.105.180, 70.105.210, 70.105.220, 88.46.030, and 90.56.310; reenacting and amending RCW 43.21B.300 and 70.95E.010; and repealing RCW 70.94.505, 70.95C.250, 88.46.062, 88.46.063, 88.46.921, and 88.46.926.

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

Sec. 1   RCW 43.21B.300 and 2010 c 210 s 12 and 2010 c 84 s 4 are each reenacted and amended to read as follows:
     (1) Any civil penalty provided in RCW 18.104.155, 70.94.431, 70.95.315, 70.105.080, 70.107.050, 88.46.090, 90.03.600, 90.46.270, 90.48.144, 90.56.310, 90.56.330, and 90.64.102 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. For penalties issued by local air authorities, within thirty days after the notice is received, the person incurring the penalty may apply in writing to the authority for the remission or mitigation of the penalty. Upon receipt of the application, the authority may remit or mitigate the penalty upon whatever terms the authority in its discretion deems proper. 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 by a local air authority 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 by a local air authority 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)) state toxics control account created by RCW ((70.105.180)) 70.105D.070, 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. 2   RCW 70.93.090 and 1998 c 257 s 4 are each amended to read as follows:
     The department shall ((design and the director shall)) adopt by rule ((or regulation one or more types of litter receptacles which are reasonably uniform as to size, shape, capacity and color, for wide and extensive distribution throughout the public places of this state. Each such litter receptacle shall bear an anti-litter symbol as designed and adopted by the department. In addition,)) locations for the placement of litter receptacles. All litter receptacles shall be designed to attract attention and to encourage the depositing of litter.
     Litter receptacles ((of the uniform design)) shall be placed along the public highways of this state and at all parks, campgrounds, trailer parks, drive-in restaurants, gasoline service stations, tavern parking lots, shopping centers, grocery store parking lots, parking lots of major industrial firms, marinas, boat launching areas, boat moorage and fueling stations, public and private piers, beaches and bathing areas, and such other public places within this state as specified by rule or regulation of the director adopted pursuant to chapter 34.05 RCW. The number of such receptacles required to be placed as specified ((herein)) in this section shall be determined by a formula related to the need for such receptacles.
     It shall be the responsibility of any person owning or operating any establishment or public place in which litter receptacles ((of the uniform design)) are required by this section to procure and place such receptacles at their own expense on the premises in accord with rules and regulations adopted by the department.
     Any person, other than a political subdivision, government agency, or municipality, who fails to place such litter receptacles on the premises in the numbers required by rule or regulation of the department, violating the provisions of this section or rules or regulations adopted thereunder shall be subject to a fine of ten dollars for each day of violation.

Sec. 3   RCW 70.94.037 and 1991 c 199 s 219 are each amended to read as follows:
     In areas subject to a state implementation plan, no state agency, metropolitan planning organization, or local government shall approve or fund a transportation plan, program, or project within or that affects a nonattainment area unless a determination has been made that the plan, program, or project conforms with the state implementation plan for air quality as required by the federal clean air act. Conformity determination shall be made by the state or local government or metropolitan planning organization administering or developing the plan, program, or project. ((No later than eighteen months after May 15, 1991,)) The director of the department ((of ecology)) and the secretary of transportation, in consultation with other state, regional, and local agencies as appropriate, shall adopt by rule criteria and guidance for demonstrating and assuring conformity of plans, programs, and projects that are wholly or partially federally funded. A project with a scope that is limited to preservation or maintenance, or both, shall be exempted from a conformity determination requirement.

Sec. 4   RCW 70.95.290 and 1988 c 184 s 3 are each amended to read as follows:
     (1) The evaluation of the solid waste stream required in RCW 70.95.280 shall include the following elements:
     (a) The department shall determine which management method for each category of solid waste will have the least environmental impact; and
     (b) The department shall evaluate the costs of various management options for each category of solid waste, including a review of market availability, and shall take into consideration the economic impact on affected parties;
     (c) Based on the results of (a) and (b) of this subsection, the department shall determine the best management for each category of solid waste. Different management methods for the same categories of waste may be developed for different parts of the state.
     (2) The department shall give priority to evaluating categories of solid waste that, in relation to other categories of solid waste, comprise a large volume of the solid waste stream or present a high potential of harm to human health. ((At a minimum the following categories of waste shall be evaluated:
     (a) By January 1, 1989, yard waste and other biodegradable materials, paper products, disposable diapers, and batteries; and
     (b) By January 1, 1990, metals, glass, plastics, styrofoam or rigid lightweight cellular polystyrene, and tires.))

Sec. 5   RCW 70.95C.220 and 2005 c 274 s 338 are each amended to read as follows:
     (1) The department may review a plan, executive summary, or an annual progress report to determine whether the plan, executive summary, or annual progress report is adequate pursuant to the rules developed under this section and with the provisions of RCW 70.95C.200. In determining the adequacy of any plan, executive summary, or annual progress report, the department shall base its determination solely on whether the plan, executive summary, or annual progress report is complete and prepared in accordance with the provisions of RCW 70.95C.200.
     (2) Plans developed under RCW 70.95C.200 shall be retained at the facility of the hazardous substance user or hazardous waste generator preparing a plan. The plan is not a public record under the public records act, chapter 42.56 RCW. A user or generator required to prepare a plan shall permit the director or a representative of the director to review the plan to determine its adequacy. No visit made by the director or a representative of the director to a facility for the purposes of this subsection may be regarded as an inspection or investigation, and no notices or citations may be issued, nor any civil penalty assessed, upon such a visit.
     (3) If a hazardous substance user or hazardous waste generator fails to complete an adequate plan, executive summary, or annual progress report, the department shall notify the user or generator of the inadequacy, identifying specific deficiencies. For the purposes of this section, a deficiency may include failure to develop a plan, failure to submit an executive summary pursuant to the schedule provided in RCW 70.95C.200(5), and failure to submit an annual progress report pursuant to the rules developed under RCW 70.95C.200(6). The department shall specify a reasonable time frame, of not less than ninety days, within which the user or generator shall complete a modified plan, executive summary, or annual progress report addressing the specified deficiencies.
     (4) If the department determines that a modified plan, executive summary, or annual progress report is inadequate, the department may, within its discretion, either require further modification or enter an order pursuant to subsection (5)(a) of this section.
     (5)(a) If, after having received a list of specified deficiencies from the department, a hazardous substance user or hazardous waste generator required to prepare a plan fails to complete modification of a plan, executive summary, or annual progress report within the time period specified by the department, the department may enter an order pursuant to chapter 34.05 RCW finding the user or generator not in compliance with the requirements of RCW 70.95C.200. When the order is final, the department shall ((notify the department of revenue to)) charge a penalty fee. The penalty fee shall be the greater of one thousand dollars or three times the amount of the user's or generator's previous year's fee, in addition to the current year's fee. If no fee was assessed the previous year, the penalty shall be the greater of one thousand dollars or three times the amount of the current year's fee. The penalty assessed under this subsection shall be collected each year after the year for which the penalty was assessed until an adequate plan or executive summary is completed.
     (b) If a hazardous substance user or hazardous waste generator required to prepare a plan fails to complete an adequate plan, executive summary, or annual progress report after the department has levied against the user or generator the penalty provided in (a) of this subsection, the user or generator shall be required to pay a surcharge to the department whenever the user or generator disposes of a hazardous waste at any hazardous waste incinerator or hazardous waste landfill facility located in Washington state, until a plan, executive summary, or annual progress report is completed and determined to be adequate by the department. The surcharge shall be equal to three times the fee charged for disposal. The department shall furnish the incinerator and landfill facilities in this state with a list of environmental protection agency/state identification numbers of the hazardous waste generators that are not in compliance with the requirements of RCW 70.95C.200.

Sec. 6   RCW 70.95E.010 and 1995 c 207 s 1 are each reenacted and amended to read as follows:
     ((As used in this chapter, the following terms have the meanings indicated)) The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.
     (1) "Dangerous waste" ((shall have the same definition as set forth)) has the same meaning as "dangerous wastes" as defined in RCW 70.105.010(((5))) and ((shall)) includes those wastes designated as dangerous by rules adopted pursuant to chapter 70.105 RCW.
     (2) "Department" means the department of ecology.
     (3) "EPA/state identification number" means the number assigned by the EPA (environmental protection agency) or by the department ((of ecology)) to each generator and/or transporter and treatment, storage, and/or disposal facility.
     (4) "Extremely hazardous waste" ((shall have the same definition as set forth)) has the same meaning as the term is defined in RCW 70.105.010(((6))) and shall specifically include those wastes designated as extremely hazardous by rules adopted pursuant to chapter 70.105 RCW.
     (5) "Fee" means the annual fees imposed under this chapter.
     (6) "Generate" means any act or process which produces hazardous waste or first causes a hazardous waste to become subject to regulation.
     (7) "Hazardous waste" means and includes all dangerous and extremely hazardous wastes but for the purposes of this chapter excludes all radioactive wastes or substances composed of both radioactive and hazardous components.
     (8) "Hazardous waste generator" means all persons whose primary business activities are identified by the department to generate any quantity of hazardous waste in the calendar year for which the fee is imposed.
     (9) "Person" means an individual, trust, firm, joint stock company, partnership, association, state, public or private or municipal corporation, commission, political subdivision of a state, interstate body, the federal government including any agency or officer thereof, and any Indian tribe or authorized tribal organization.
     (10) "Price deflator" means the figures reported by the United States department of commerce bureau of economic analysis((,)) on the table for "Implicit Price Deflator for Gross ((National)) Domestic Product." ((for "Government Purchases of Goods and Services,")) If one is available, the department must use a price deflator for "State and Local Government." If a "State and Local Government" figure is not included on the table, the department must use a price deflator figure applicable to general government.
     (11) "Recycled for beneficial use" means the use of hazardous waste, either before or after reclamation, as a substitute for a commercial product or raw material, but does not include: (a) Use constituting disposal; (b) incineration; or (c) use as a fuel.
     (12) "Waste generation site" means any geographical area that has been assigned an EPA/state identification number.

Sec. 7   RCW 70.95I.080 and 1986 c 37 s 1 are each amended to read as follows:
     ((By January 1, 1987, the state fire protection board, in cooperation with)) The department ((of ecology,)) shall ((develop)) maintain, as necessary, a statewide standard for the placement of above-ground tanks to collect used oil from private individuals for recycling purposes.

Sec. 8   RCW 70.105.160 and 2010 1st sp.s. c 7 s 89 are each amended to read as follows:
     The department shall conduct a study to determine the best management practices for categories of waste for the priority waste management methods established in RCW 70.105.150, with due consideration in the course of the study to sound environmental management and available technology. As an element of the study, the department shall review methods that will help achieve the priority of RCW 70.105.150(1)(a), waste reduction. Before issuing any proposed rules, the department shall conduct public hearings regarding the best management practices for the various waste categories studied by the department. After conducting the study, the department shall prepare new rules or modify existing rules as appropriate to promote implementation of the priorities established in RCW 70.105.150 for management practices which assure use of sound environmental management techniques and available technology. The preliminary study shall be completed by July 1, 1986, and the rules shall be adopted by July 1, 1987.
     The studies shall be updated at least once every five years. The funding for these studies shall be from the ((hazardous waste control and elimination)) state toxics control account, subject to legislative appropriation.

Sec. 9   RCW 70.105.180 and 1985 c 57 s 70 are each amended to read as follows:
     All fines and penalties collected under this chapter shall be deposited in the ((hazardous waste control and elimination)) state toxics control account((, which is hereby created in the state treasury. Moneys in the account collected from fines and penalties shall be expended exclusively by the department of ecology for the purposes of chapter 70, Laws of 1983 1st ex. sess., subject to legislative appropriation. Other sources of funds deposited in this account may also be used for the purposes of chapter 70, Laws of 1983 1st ex. sess. All earnings of investments of balances in the hazardous waste control and elimination account shall be credited to the general fund)).

Sec. 10   RCW 70.105.210 and 1989 1st ex.s. c 13 s 2 are each amended to read as follows:
     ((By May 31, 1990,)) The department shall ((develop and adopt)) maintain criteria for the siting of hazardous waste management facilities. These criteria will be part of the state hazardous waste management plan as described in RCW 70.105.200. To the extent practical, these criteria shall be designed to minimize the short-term and long-term risks and costs that may result from hazardous waste management facilities. These criteria may vary by type of facilities and may consider natural site characteristics and engineered protection. Criteria may be established for:
     (1) Geology;
     (2) Surface and groundwater hydrology;
     (3) Soils;
     (4) Flooding;
     (5) Climatic factors;
     (6) Unique or endangered flora and fauna;
     (7) Transportation routes;
     (8) Site access;
     (9) Buffer zones;
     (10) Availability of utilities and public services;
     (11) Compatibility with existing uses of land;
     (12) Shorelines and wetlands;
     (13) Sole-source aquifers;
     (14) Natural hazards; and
     (15) Other factors as determined by the department.

Sec. 11   RCW 70.105.220 and 1992 c 17 s 1 are each amended to read as follows:
     (1) Each local government, or combination of contiguous local governments, is directed to prepare a local hazardous waste plan which shall be based on state guidelines and include the following elements:
     (a) A plan or program to manage moderate-risk wastes that are generated or otherwise present within the jurisdiction. This element shall include an assessment of the quantities, types, generators, and fate of moderate-risk wastes in the jurisdiction. The purpose of this element is to develop a system of managing moderate-risk waste, appropriate to each local area, to ensure protection of the environment and public health;
     (b) A plan or program to provide for ongoing public involvement and public education in regard to the management of moderate-risk waste. This element shall provide information regarding:
     (i) The potential hazards to human health and the environment resulting from improper use and disposal of the waste; and
     (ii) Proper methods of handling, reducing, recycling, and disposing of the waste;
     (c) An inventory of all existing generators of hazardous waste and facilities managing hazardous waste within the jurisdiction. This inventory shall be based on data provided by the department;
     (d) A description of the public involvement process used in developing the plan;
     (e) A description of the eligible zones designated in accordance with RCW 70.105.225. However, the requirement to designate eligible zones shall not be considered part of the local hazardous waste planning requirements; and
     (f) Other elements as deemed appropriate by local government.
     (2) To the maximum extent practicable, the local hazardous waste plan shall be coordinated with other hazardous materials-related plans and policies in the jurisdiction.
     (3) Local governments shall coordinate with those persons involved in providing privately owned hazardous and moderate-risk waste facilities and services as follows: If a local government determines that a moderate-risk waste will be or is adequately managed by one or more privately owned facilities or services at a reasonable price, the local government shall take actions to encourage the use of that private facility or service. Actions taken by a local government under this subsection may include, but are not limited to, restricting or prohibiting the land disposal of a moderate-risk waste at any transfer station or land disposal facility within its jurisdiction.
     (4)(a) The department shall prepare and maintain guidelines for the development of local hazardous waste plans. The guidelines shall be prepared and maintained in consultation with local governments ((and shall be completed by December 31, 1986)). The guidelines shall include a list of substances identified as hazardous household substances.
     (b) ((In preparing the guidelines under (a) of this subsection, the department shall review and assess information on pilot projects that have been conducted for moderate-risk waste management.)) The department shall encourage ((additional)) pilot projects for moderate risk waste management as needed to provide information to improve and update the guidelines.
     (5) The department shall consult with retailers, trade associations, public interest groups, and appropriate units of local government to encourage the development of voluntary public education programs on the proper handling of hazardous household substances.
     (6) ((Local hazardous waste plans shall be completed and submitted to the department no later than June 30, 1990.)) Local governments may from time to time amend the local plan.
     (7) Each local government, or combination of contiguous local governments, shall submit its local hazardous waste plan or amendments thereto to the department. The department shall approve or disapprove local hazardous waste plans or amendments ((by December 31, 1990, or)) within ninety days of submission((, whichever is later)). The department shall approve a local hazardous waste plan if it determines that the plan is consistent with this chapter and the guidelines under subsection (4) of this section. If approval is denied, the department shall submit its objections to the local government within ninety days of submission. ((However, for plans submitted between January 1, 1990, and June 30, 1990, the department shall have one hundred eighty days to submit its objections.)) No local government is eligible for grants under RCW 70.105.235 for implementing a local hazardous waste plan unless the plan for that jurisdiction has been approved by the department.
     (8) Each local government, or combination of contiguous local governments, shall implement the local hazardous waste plan for its jurisdiction ((by December 31, 1991)).
     (9) The department may waive the specific requirements of this section for any local government if such local government demonstrates to the satisfaction of the department that the objectives of the planning requirements have been met.

Sec. 12   RCW 88.46.030 and 2000 c 69 s 3 are each amended to read as follows:
     (1) All tank vessels entering the navigable waters of the state shall be subject to inspection to assure that they comply with all applicable federal and state standards.
     (2) The department shall review the tank vessel inspection programs conducted by the United States coast guard and other federal agencies to determine if the programs as actually operated by those agencies provide the best achievable protection to the waters of the state. If the department determines that the tank vessel inspection programs conducted by these agencies are not adequate to protect the state's waters, it shall ((adopt rules for a state tank vessel inspection program. The department shall adopt rules providing for a random review of individual tank vessel inspections conducted by federal agencies. The department may accept a tank vessel inspection report issued by another state if that state's tank vessel inspection program is determined by the department to be at least as protective of the public health and the environment as the program adopted by the department.
     (3) The state tank vessel inspection program shall ensure that all tank vessels entering state waters are inspected at least annually. To the maximum extent feasible, the state program shall consist of the monitoring of existing tank vessel inspection programs conducted by the federal government. The department shall)) consult with the coast guard regarding the tank vessel inspection program. Any tank vessel inspection conducted pursuant to this section shall be performed during the vessel's scheduled stay in port.
     (((4))) (3) Any violation of coast guard or other federal regulations uncovered during a state tank vessel inspection shall be immediately reported to the appropriate agency.

Sec. 13   RCW 90.56.310 and 2000 c 69 s 34 are each amended to read as follows:
     (1) Except as provided in subsection (3) of this section, it shall be unlawful:
     (a) For the owner or operator to operate an onshore or offshore facility without an approved contingency plan as required under RCW 90.56.210, a spill prevention plan required by RCW 90.56.200, or financial responsibility in compliance with chapter 88.40 RCW and the federal oil pollution act of 1990; or
     (b) For the owner or operator of an onshore or offshore facility to transfer cargo or passengers to or from a covered vessel that does not have an approved contingency plan or an approved prevention plan required under chapter 88.46 RCW or financial responsibility in compliance with chapter 88.40 RCW and the federal oil pollution act of 1990.
     (2) The department may assess a civil penalty under RCW 43.21B.300 of up to one hundred thousand dollars against any person who is in violation of this section. Each day that a facility or person is in violation of this section shall be considered a separate violation.
     (3) It shall not be unlawful for a facility or other person to operate or accept cargo or passengers from a covered vessel if:
     (a) A contingency plan, a prevention plan, or financial responsibility is not required for the facility; or
     (b) A contingency and prevention plan has been submitted to the department as required by this chapter and rules adopted by the department and the department is reviewing the plan and has not denied approval.
     (4) Any person may rely on a copy of the statement issued by the department pursuant to RCW 90.56.210(7) as evidence that the facility has an approved contingency plan and the statement issued pursuant to RCW 90.56.200(4) as evidence that the facility has an approved spill prevention plan. Any person may rely on a copy of the statement issued by the ((office of marine safety, or its successor agency, the)) department, pursuant to RCW 88.46.060 as evidence that the vessel has an approved contingency plan and the statement issued pursuant to RCW 88.46.040 as evidence that the vessel has an approved prevention plan.

NEW SECTION.  Sec. 14   The following acts or parts of acts are each repealed:
     (1) RCW 70.94.505 (Woodsmoke emissions -- Work group) and 2007 c 339 s 3;
     (2) RCW 70.95C.250 (Multimedia permit pilot program -- Air, water, hazardous waste management) and 1998 c 245 s 134 & 1994 c 248 s 1;
     (3) RCW 88.46.062 (Nonprofit corporation providing contingency plan -- Findings -- Termination of maritime commission) and 1995 c 148 s 1;
     (4) RCW 88.46.063 (Nonprofit corporation providing contingency plan -- Transfer of functions and assets from maritime commission) and 1995 c 148 s 2;
     (5) RCW 88.46.921 (Office of marine safety abolished) and 1991 c 200 s 430; and
     (6) RCW 88.46.926 (Apportionments of budgeted funds) and 1991 c 200 s 435.