HOUSE BILL REPORT
E2SHB 434
BYHouse Committee on Ways & Means (originally sponsored by Representatives Unsoeld, May, Rust, Walker, Pruitt, Hine, Leonard, Winsley, Lux and Todd; by request of Department of Ecology)
Providing for procedures to protect the public from hazardous substances.
House Committe on Environmental Affairs
Majority Report: The substitute bill be substituted therefor and the substitute bill do pass. (13)
Signed by Representatives Rust, Chair; Valle, Vice Chair; Allen, Ferguson, Jesernig, Lux, May, Pruitt, Schoon, D. Sommers, Sprenkle, Unsoeld and Walker.
House Staff:Susan Gulick (786-7116)
Rereferred House Committee on Ways & Means/Appropriations
Majority Report: The second substitute bill be substituted therefor and the second substitute bill do pass. (23)
Signed by Representatives Grimm, Chair; Allen, Appelwick, Basich, Belcher, Braddock, Brekke, Ebersole, Hine, Holland, Locke, Madsen, McMullen, Niemi, Peery, Rust, Sayan, Silver, H. Sommers, Sprenkle, Taylor, Valle and Winsley.
Minority Report: Do not pass. (6)
Signed by Representatives Fuhrman, McLean, Nealey, Schoon, L. Smith and B. Williams.
House Staff: Nancy Stevenson (786-7137)
AS PASSED HOUSE MARCH 19, 1987
BACKGROUND:
In 1980, with the passage of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), a $1.6 billion "Superfund" was established by Congress to fund hazardous waste cleanup in the nation. This money was to be used through 1985 to clean up contaminated sites. CERCLA directed the U.S. Environmental Protection Agency (EPA) to develop a list of the worst sites in the nation which are then eligible for federal funding. CERCLA was reauthorized in 1986 and provides $8.5 billion to be used for cleanup over the next five years.
CERCLA requires states to pay 10 percent of the cost of cleaning up private sites on the federal list and 50 percent of the costs of cleaning up public sites on the list. The "Superfund" finances the remainder of the cleanup costs, and is reimbursed when costs are recovered from responsible parties. The state is not required to pay to clean up federal sites.
In Washington, over 500 sites have been identified as potential hazardous waste sites. Twenty-eight sites have been placed on the federal list and are therefore eligible for federal funding; the rest are not. In addition, there are approximately 350-750 sites on the Hanford reservation that contain hazardous wastes that are subject to CERCLA requirements.
The state is responsible for enforcing cleanup of all sites that are not on the federal list, with the exception of federal sites. Although persons who disposed of the wastes are responsible for the cost of the cleanup, there are many sites where it is impossible to identify all, or sometimes any, of the contributing parties.
Currently the Department of Ecology's costs for conducting or enforcing cleanup actions state sites and the matching funds required by the federal law are borne by the general fund.
In addition to cleaning up sites, the state is also responsible for the ongoing regulation of hazardous wastes. Under the Hazardous Waste Management Act, the Department of Ecology is directed to regulate the production, transportation, storage, treatment and disposal of hazardous wastes.
In order to fund both the hazardous waste regulatory program and a state cleanup program, and to provide adequate authority for the Department of Ecology to enforce cleanup actions, the legislature passed the Hazardous Waste Fee Act in 1983. This act imposes fees on all persons who generate, treat, store or dispose of hazardous wastes. This fund has been inadequate to cover the costs of the regulatory program. The unfunded portion of the regulatory program and all cleanup costs are currently funded by the general fund.
The Hazardous Waste Fee Act provides some authority for the Department of Ecology to conduct and enforce cleanup actions, but the department claims the authority is not adequate to ensure safe and efficient cleanups in the state.
SUMMARY:
The Department of Ecology is required to maintain a list of all potential hazardous waste sites in the state and provide annual reports to the legislature on cleanup actions taken.
Persons who generate waste, transport waste, or who own or operate a hazardous waste facility are responsible for proper handling of the waste. If these wastes are released into the environment, these persons are subject to strict, joint and several liability for the costs of cleanup. Persons who both sell hazardous substances and prepare instructions for the use of the hazardous substances may also be subject to the liability provisions if the hazardous substances cause environmental contamination when used in accordance with the instructions. Innocent purchasers of property or persons who contributed an insignificant amount of waste to the problem are exempt from the liability provisions.
If the department suspects a site is contaminated, it may undertake an investigation, and is given the authority to enter onto the site and require access to necessary information.
After the investigation, the department will notify persons who may be responsible for the contamination. Persons receiving notice of potential responsibility have 45 days to prepare a response action plan for cleanup. The plan will include monitoring provisions and will identify the level of cleanup that must be obtained. The plan may also include a request for a covenant not to sue. Public notice and comment opportunities are provided. The department must base its decision on whether to accept or reject a plan on specified criteria. If the responsible parties fail to submit a plan or if an unacceptable plan is submitted, they are liable for the costs incurred by the department in cleaning up the site. If the failure is willful, or if the responsible parties fail to comply with an enforcement order, the responsible parties are liable for up to three times the cost of cleanup.
When the responsible parties have implemented the response action plan, they may apply to the department for certification of completion. The department will accept public comment on the application for 90 days. If the plan has been fully implemented the department will issue a certification of completion.
When the department certifies that a cleanup is complete, the department must grant a requested covenant not to sue for any portion of a cleanup that 1) destroys or eliminates the hazardous substances; 2) transports hazardous substances to an approved disposal facility or 3) meets the express standards of applicable state and federal laws.
If the department finds the issuance of a covenant not to sue would be in the public interest, the department may issue a covenant not to sue when 1) the cleanup standard is based on relevant and appropriate state and federal laws; 2) the department sets a standard on a case by case basis because no standards exist, or 3) there has been a deviation or variance from existing standards. A covenant not to sue may only be issued when a deviation is granted if the department finds that issuing a deviation provides optimum protection of human health and the environment, and that meeting existing standards is technically impractical from an engineering perspective.
A covenant not to sue will limit the responsible parties' future liability to the state. If the department grants a covenant not to sue to the responsible parties and later finds that the site needs additional cleanup, the state may be liable for some of those costs. A covenant not to sue will apply only to those hazardous substances and those areas specifically identified in the plan. It is presumed that the tax imposed by the bill will provide sufficient revenue to cover costs of additional cleanups by the state. The covenants not to sue will only continue for as long as the tax imposed by this act remains in effect.
If responsible parties fail to undertake cleanup activities, the department is required to take actions to ensure the site is cleaned up.
The decisions of the department regarding acceptance of response action plans, issuance of covenants not to sue, or certification of completion are subject to review. Responsible parties have the option of either arbitration or judicial review. Third parties may, in certain circumstances, intervene in arbitration proceedings or file lawsuits.
Any person who 1) fails to notify the department of a release of a hazardous substance, or 2) fails to retain required documents is subject to criminal penalties, including a fine of up to $25,000 and/or imprisonment of up to three years, or five years for repeated violations.
The department may issue orders to enforce the requirements of this act. Civil penalties may be issued for up to $25,000 for violations of the chapter.
A lien will be imposed on the property of responsible parties who owe a debt to the state for cleanup costs. The lien will take priority over any other lien on the property.
An owner of nonresidential property that has been contaminated by hazardous substances must place a notice of this occurrence in the county auditor's records. This information must be supplied to any potential purchaser of the property.
If 100 or more persons petition the department, the department may grant them money to assist them in providing comments on decisions regarding response action plans, covenants not to sue, or certifications of completion. Grants may not exceed $50,000 for any one site. The department must implement this provision in a manner that furthers public participation.
Actions taken under this chapter are exempt from the provisions of the State Environmental Policy Act and from permits required by other environmental laws.
The state Toxics Control Account is created. The account will consist of funds from penalties, costs recovered from responsible parties, and an excise tax of .55 percent on the first sale of hazardous substances in the state. The money may be used for 1) solid and hazardous waste planning, management, regulation, and enforcement; 2) hazardous waste cleanup; 3) technical assistance to local governments on solid and hazardous waste management practices; 4) financial assistance for local toxics control projects; and 5) water and health protection. A portion of the money will be placed in a reserve account to cover future costs of cleanup after a covenant not to sue is granted.
The tax applies to the wholesale value of the hazardous substance and is imposed when the distributor 1) brings hazardous substances into the state for sale; 2) manufactures hazardous substances for sale, or; 3) ships hazardous substances to be sold by retailers.
Credits are allowed when the hazardous substances are: 1) delivered outside the state; 2) returned to the person who paid the tax; and, 3) destroyed by a distributor in a manner approved by the department. Further, a credit for taxes paid on fuels exported from the state is allowed.
If a county or city is identified as a responsible party, it must create a solid waste disposal district or present to the Department of Ecology a comprehensive plan indicating the manner in which the city, town or county will fulfill its funding obligations. The current solid waste disposal district option to collect a business and occupation tax is expanded to apply equally to all businesses.
Local governments may apply for financial assistance from the toxics control account.
Appropriation: $30,768,000 to the Department of Ecology; $1,518,000 to the Department of Social and Health Services; and $821,000 to the Department of Community Development from the State Toxics Control Account.
Fiscal Note: Attached.
Effective Date:The bill takes effect on July 1, 1987.
House Committee ‑ Testified For: (Environmental Affairs) Department of Ecology; Association of Counties; Ian MacGowan.
Substitute: (Ways & Means/Appropriations) Representative Unsoeld; Andrea Beatty Riniker, Director Department of Ecology; Jim Metcalf, Association of Counties; Kathleen Collins, Association of Cities; Ken Lockee, Thurston County Fire District; Kurt Thomson, Boeing; Betty Tabbutt, Washington Environmental Council; Bruce Wishart, Sierra Club; Jim Rambo, Washington State Fire Chiefs and Ken Walkington, Lacey, Fire District 3.
House Committee - Testified Against: (Environmental Affairs) Washington Environmental Council.
Substitute: (Ways & Means/Appropriations) Ray Newbry, Pacific Power and Light Company and Jack Doyle, Washington Independent Telephone Association.
House Committee - Testimony For: (Environmental Affairs) There is a need to deal with both cleanup and prevention of hazardous waste problems. This bill provides an efficient method for cleanup and adequate funding. Industry needs certainty that a covenant not to sue will be granted if a cleanup is successful.
Substitute: (Ways & Means/Appropriations) Need an adequately funded solid and hazardous waste program. Need hazardous material incident response training. Industry wants to get sites clean up yet, wants accountability on how the Department of Ecology spends cleanup dollars.
House Committee - Testimony Against: (Environmental Affairs) Although there is a strong need for hazardous waste cleanup legislation, this bill provides too large of a carrot for industry at the expense of the public. Industry needs incentives, but the financial, environmental and human health risks associated with the incentives in this bill are unacceptably high. Industry could get a full release from liability for partial cleanups.
Substitute: (Ways & Means/Appropriations) Do not want a utility tax.