SB1405 - 572R

Be it enacted by the Legislature of the State of Arizona:

Section 1. Section 49-264, Arizona Revised Statutes, is amended to read:

START_STATUTE49-264. Private right of action; citizen suits; right to intervene

A. Except as provided in subsection B of this section, a person that has an interest that is or may be adversely affected by a violation of this chapter or a rule adopted or an order issued by the department pursuant to this chapter may commence a civil action in superior court on the person's own behalf against:

1. A person, this state or a political subdivision of this state alleging a violation of this chapter or an order, permit, standard, rule or discharge limitation adopted or issued pursuant to this chapter. The court has jurisdiction to enforce this chapter or an order, permit, standard, rule or discharge limitation adopted or issued pursuant to this chapter and to apply any appropriate civil penalty pursuant to section 49-262.

2. The director alleging a failure of the director to perform an act or duty under this chapter that is not discretionary with the director. The court shall have jurisdiction to order the director to perform the act or duty.

B. No An action may not be commenced in any either of the following cases:

1. Before one hundred twenty sixty days after the plaintiff has given notice of the alleged violation to the director and to an alleged violator.

2. If after conducting an investigation the director determines within one hundred twenty days after receiving notice of the alleged violation from the plaintiff that no violation has occurred, or the director had determined before receiving the notice of the alleged violation that the violation had not occurred.

3. If the department has issued and is diligently processing a notice of violation or an order or has commenced and is diligently prosecuting a civil action in the superior court to require compliance with the provision, order, permit, standard, rule or discharge limitation.

4. 2. If the attorney general or county attorney has commenced and is diligently prosecuting a civil action in the superior court to require compliance with the provision, this CHAPTER OR the order, permit, standard, rule or discharge limitation.

5. If the director is diligently pursuing the violation under another state or federal environmental law.

C. In an action commenced under this section:

1. The director, if not a party, may intervene as a matter of right.

2. The plaintiff has the burden of proof.

D. The court, in issuing a final order in an action brought under this section, may:

1. Award costs of litigation, including reasonable attorney and expert witness fees, to any party that substantially prevails if the court DETERMINES it is appropriate and, in addition, to the DEFENDANT in the case of a frivolous action.

2. Provide for injunctive or other equitable relief or assess civil penalties that could have been assessed under section 49-262. Any monies collected as civil penalties shall be deposited, pursuant to sections 35-146 and 35-147, in the water quality assurance revolving fund established by section 49-282.

E. this section shall be construed in a manner consistent with 33 United States code section 1365 and with judicial interpretations of that section.

E. F. A person that is or may be adversely affected by a violation of any requirement of the underground injection control permit program established pursuant to article 3.3 of this chapter may intervene as a matter of right in any pending state civil or administrative enforcement action. A person's right to intervene is limited as follows:

1. A person may intervene only if the person is adversely affected by the violation that is named in the state's action.

2. A person may intervene only for purposes of obtaining the following remedies for the state:

(a) A temporary restraining order.

(b) Injunctive relief.

(d) Any combination of the penalties prescribed in this paragraph.END_STATUTE

Sec. 2. Section 49-282, Arizona Revised Statutes, is amended to read:

START_STATUTE49-282. Water quality assurance revolving fund

A. The water quality assurance revolving fund is established to be administered by the director. The fund consists of monies from the following sources:

1. Monies appropriated by the legislature.

2. Fertilizer license fees allocated under section 3-272, subsection B, paragraph 2.

3. Pesticide registration fees allocated under section 3-351, subsection D, paragraph 2.

4. The tax on water use pursuant to section 42-5302.

5. Water quality assurance fees collected under section 45-616.

6. Industrial discharge registration fees collected under section 49-209.

7. Hazardous waste facility registration fees collected under section 49-929.

8. Hazardous waste resource recovery facility registration fees collected under section 49-930.

9. Monies recovered from responsible parties as remedial action costs.

10. Monies received as costs for a review of remedial actions at the request of a person other than this state.

11. Monies received from the collection of corporate income taxes under title 43, chapter 11, article 2 as prescribed by subsection B of this section.

12. Prospective purchaser or prospective remediator agreement fees collected under section 49-285.01.

13. civil Penalties collected pursuant to section 49-264.

B. The water quality assurance revolving fund shall be assured of an annual funding amount of $18,000,000. At the beginning of each fiscal year, the state treasurer shall transfer the sum of $15,000,000 to the water quality assurance revolving fund from the corporate income tax as collected pursuant to title 43, chapter 11, article 2. As custodian of the fund, the director shall certify to the governor, the state treasurer, the president of the senate and the speaker of the house of representatives at the end of that fiscal year the amount of monies deposited in the water quality assurance revolving fund pursuant to subsection A, paragraphs 1 through 8 of this section. At the end of the fiscal year the state treasurer shall adjust the $15,000,000 transfer of corporate income tax so that, when combined with monies deposited in the fund during that fiscal year pursuant to subsection A, paragraphs 1 through 8 of this section, the fund receives $18,000,000 each fiscal year. This adjustment shall occur as part of the year-end book closing process for that fiscal year. If sufficient monies from the corporate income tax are not available to make any necessary upward adjustments as part of the year-end book closing, the state treasurer shall transfer the monies necessary to achieve the $18,000,000 funding level from the transaction privilege and severance tax clearing account pursuant to section 42-5029, subsection D, paragraph 4, to the water quality assurance revolving fund. Any transfers prescribed by this subsection shall not be deducted from the net proceeds distributed pursuant to section 43-206.

C. At the beginning of each fiscal year, the director of environmental quality shall contract with the department of water resources for the transfer of up to $800,000 from the water quality assurance revolving fund to the Arizona water quality fund established by section 45-618 for support services for the water quality assurance revolving fund program. The support services provided for the water quality assurance revolving fund program shall be determined by the director of water resources in consultation with the director of environmental quality.

D. Monies in the fund are exempt from lapsing under section 35-190. Interest earned on monies in the fund shall be credited to the fund.

E. Monies from the water quality assurance revolving fund shall be used for the following purposes:

1. To provide state matching monies or to meet such other obligations as are prescribed by section 104 of CERCLA.

2. For all reasonable and necessary costs to implement this article, including:

(a) Taking remedial actions.

(b) Conducting investigations of an area to determine if a release or a threatened release of a hazardous substance exists.

(d) Identifying and investigating potentially responsible parties and allocating liability among the responsible parties.

(e) Funding orphan shares.

(f) Participating in the allocation process, administrative appeals and court actions.

(g) Funding the community advisory boards and other community involvement activities.

(h) Remediating pollutants if necessary to remediate a hazardous substance.

3. For the reasonable and necessary costs of monitoring, assessing, identifying, locating and evaluating the degradation, destruction, loss of or threat to the waters of the state resulting from a release of a hazardous substance to the environment.

4. For the reasonable and necessary costs of administering the fund.

5. For the reasonable and necessary costs of administering the industrial discharge registration program under section 49-209.

6. For the costs of the water quality monitoring program described in section 49-225.

7. For compliance monitoring, investigation and enforcement activities pertaining to generating, transporting, treating, storing and disposing of hazardous waste. The amount to be used pursuant to chapter 5 of this title is limited to the amount received in the prior fiscal year from the hazardous waste facility registration fee.

8. For emergency response use as prescribed in section 49-282.02.

9. For all reasonable and necessary costs of the preparation and execution of prospective purchaser or prospective remediator agreements.

10. For all reasonable and necessary costs of the voluntary remediation program.

11. To reimburse a political subdivision of this state for its reasonable, necessary and cost-effective remedial action costs incurred in response to a release or threat of a release of a hazardous substance or pollutants that presents an immediate and substantial endangerment to the public health or the environment. The political subdivision is not eligible for reimbursement until it has taken all reasonable efforts to obtain reimbursement from the responsible party and the federal government. Not more than $250,000 may be spent from the fund for this purpose in any fiscal year.

12. For all reasonable and necessary costs incurred by the department pursuant to section 49-282.04 and the department of water resources pursuant to section 45-605 for well inspections, remedial actions and review and approval of well construction necessary to prevent vertical cross-contamination. The director of environmental quality and the director of water resources shall enter into an agreement for the transfer of these costs.

13. For actions that are taken pursuant to section 49-282.03 before the selection of a remedy.

14. For the reasonable and necessary costs of the conveyance, use or discharge of water remediated as part of a remedy under this article.

15. For the reasonable and necessary costs incurred by the department of health services at the request of the director of environmental quality to assess and evaluate the effect of a release or threatened release of hazardous substances to the public health or welfare and the environment. The director of environmental quality and the director of the department of health services shall enter into an agreement for the transfer of these costs. The assessment and evaluation by the department of health services may include:

(a) Performing health effect studies and risk assessments.

(b) Evaluating and calculating cleanup standards.

16. For the reasonable and necessary costs incurred by the department of law to provide legal services at the request of the director of environmental quality.

17. For the reasonable and necessary costs of contracting for the goods and services to enable the director to implement this article.

18. For remediation demonstration projects that use bioremediation or other alternative technologies. The department may not use more than $500,000 in a fiscal year pursuant to this paragraph.

F. Any political subdivision of this state that uses, used or may use waters of the state for drinking water purposes or any state agency, regardless of whether the political subdivision or state agency is a responsible party, may apply to the director for monies from the fund to be used for remedial action. An application to the fund for remedial action costs shall not be treated as an admission that a political subdivision or an agency of this state is a responsible party, but a political subdivision or a state agency that is a responsible party is liable for remedial action costs in the same manner, including reimbursement of the fund, as any other responsible party. The political subdivision shall commit a local matching amount at least equal to the amount sought from the fund.

G. The director of environmental quality shall prepare and submit a budget for the water quality assurance revolving fund program and the director of water resources shall prepare and submit a budget for the Arizona water quality fund with the departments' budgets that are required pursuant to section 35-111. The committees on appropriations of the house of representatives and the senate shall review the water quality assurance revolving fund budget and the Arizona water quality fund budget to ensure that the departments' expenditures are made in accordance with the legislature's intent and that the departments are making adequate progress toward accomplishing that intent. END_STATUTE

Sec. 3. Section 49-407, Arizona Revised Statutes, is amended to read:

START_STATUTE49-407. Private right of action; citizen suits; right to intervene

A. Except as provided in subsection B of this section, a person having that has an interest which that is or may be adversely affected may commence a civil action in superior court on his the person's own behalf against:

1. A person, this state or a political subdivision of this state alleging a violation of this article or article 2 of this chapter or an order, permit, standard, rule or emission limitation adopted or issued pursuant to this article or article 2 of this chapter. The court has jurisdiction to enforce this article or article 2 of this chapter or an order, permit, standard, rule or emission limitation adopted or issued pursuant to this article or article 2 of this chapter and to apply any appropriate civil penalty pursuant to section 49-463.

2. The director alleging a failure of the director to perform an act or duty under this article or article 2 of this chapter that is not discretionary with the director. The court has jurisdiction to order the director to perform the act or duty.

B. No An action may not be commenced in any either of the following cases:

1. Before sixty days after the plaintiff has given notice of the alleged violation to the director and to an alleged violator.

2. If the director determines no violation has occurred, or if the director has initiated an administrative enforcement action by issuing a warning letter, notice of violation or issuing an order.

3. 2. If the attorney general or county attorney has commenced and is diligently prosecuting a civil action in the superior court to require compliance with the provision, this article or ARTICLE 2 of this chapter or the order, permit, standard, rule or emission limitation.

C. In an action commenced under this section:

1. The director, if not a party, may intervene as a matter of right.

2. The plaintiff has the burden of proof.

D. The court, in issuing a final order in an action brought under this section, may:

1. Award costs of litigation, including reasonable attorney and expert witness fees, to any party that substantially prevails if the court determines it is appropriate and, in addition, to the defendant in the case of a frivolous action.

2. Provide for injunctive or other equitable relief under section 49-462 or assess civil penalties that could have been assessed under section 49-463. Any monies collected as civil penalties shall be deposited, pursuant to sections 35-146 and 35-147, in the air quality fund established by section 49-551.

E. This section shall be construed in a manner consistent with 42 United States code section 7604 and with judicial interpretations of that section. END_STATUTE

Sec. 4. Section 49-551, Arizona Revised Statutes, is amended to read:

START_STATUTE49-551. Air quality fee; air quality fund; purpose

A. Every person who is required to register a motor vehicle in this state pursuant to section 28-2153 shall pay, in addition to the registration fee, an annual air quality fee at the time of vehicle registration of $1.50. Unless and until the United States environmental protection agency grants a waiver for diesel fuel pursuant to section 211(c)(4) of the clean air act, every person who is required to register a diesel powered motor vehicle in this state with a declared gross weight as defined in section 28-5431 of more than eight thousand five hundred pounds and every person who is subject to an apportioned fee for diesel powered motor vehicles collected pursuant to title 28, chapter 7, articles 7 and 8 shall pay an additional apportioned diesel fee of $10.

B. The registering officer shall collect the fees and immediately deposit, pursuant to sections 35-146 and 35-147, the air quality fees in the air quality fund established by subsection C of this section and shall deposit the diesel fees in the voluntary vehicle repair program fund established pursuant to section 49-558.02.

C. The air quality fund is established consisting of monies received pursuant to this section, gifts, grants and donations, civil penalties collected pursuant to section 49-407 and monies appropriated by the legislature. The department of environmental quality shall administer the fund. Monies in the fund are exempt from the provisions of section 35-190 relating to the lapsing of appropriations. Interest earned on monies in the fund shall be credited to the fund. Monies in the air quality fund shall be used, subject to legislative appropriation, for:

1. Air quality research, experiments and programs conducted by or for the department for the purpose of bringing area A or area B into or maintaining area A or area B in attainment status, improving air quality in areas of this state outside area A or area B and reducing emissions of particulate matter, carbon monoxide, oxides of nitrogen, volatile organic compounds and hazardous air pollutants throughout the this state.

2. Monitoring visible air pollution and developing and implementing programs to reduce emissions of pollutants that contribute to visible air pollution in counties with a population of four hundred thousand persons or more.

3. Developing and adopting rules in compliance with sections 49-426.03, 49-426.04, 49-426.05 and 49-426.06.

D. The department of environmental quality shall transfer $400,000 from the air quality fund to the department of administration for the purposes prescribed by section 49-588 in eight installments in each of the first eight months of a fiscal year.

E. This section does not apply to an electrically powered golf cart or an electrically powered vehicle. END_STATUTE