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AGO 1988 No. 25 - October 31, 1988
AGO Opinion Header Image
Ken Eikenberry | 1981-1992 | Attorney General of Washington

INITIATIVE AND REFERENDUM ‑- INITIATIVE 97 AND ALTERNATIVE MEASURE 97B ‑- AUTHORITY OF LEGISLATURE TO AMEND INITIATIVES ‑- DEPARTMENT OF ECOLOGY ‑- UNDERGROUND STORAGE TANKS 

1.         If Initiative 97 (relating to cleanup of hazardous waste spills) is approved by the voters in the November 1988 election, the Legislature would still be free to enact certain portions of House Bill 1967 (a 1988 bill dealing with regulation of underground storage tanks and cleanup of petroleum spills) without requiring approval of at least two-thirds of the members of both houses of the Legislature, but certain other provisions of House Bill 1967 would constitute "amendments" to the initiative measure and could not properly be enacted by the 1989 Legislature without the extraordinary majority required by the state constitution for amendments to initiative measures. 

2.         If Alternative Measure 97B (also relating to cleanup of hazardous waste spills) is approved by the voters in the November 1988 election, the Legislature would be free to enact House Bill 1967 without requiring approval of at least two-thirds of the members of both houses of the Legislature. 

3.         If either Initiative 97 or Alternative Measure 97B is approved by the voters in the November 1988 election, the Legislature's enactment within two years of some or all of the provisions of House Bill 1967 would not constitute an unconstitutional repeal of either initiative measure. 

                                                              - - - - - - - - - - - - - 

                                                                October 31, 1988 

Honorable Nancy Rust
State Representative
1st Legislative District
18747 Ridgefield Road N.W.
Seattle, WA 98177 

Cite as:  AGO 1988 No. 25                                                                                                                

 Dear Representative Rust:

             By letter previously acknowledged, you requested our opinion on two questions we have paraphrased as follows:

              [[Orig. Op. Page 2]]

             (1) If either Initiative 97 or Alternative Measure 97B (both relating to cleanup of hazardous waste spills) is approved by the voters in the November 1988 general election, would the Legislature's enactment of any or all of the provisions in House Bill 1967 (a bill originally proposed in 1988 that would deal with the regulation of underground storage tanks and the cleanup of petroleum spills) during the subsequent two years constitute an amendment to either initiative, requiring such subsequent legislative enactment to be approved by at least two-thirds of the members of both houses of the Legislature?

             (2) If either Initiative 97 or Alternative Measure 97B is approved by the voters in the November 1988 general election, would the Legislature's enactment of any or all of the provisions in House Bill 1967 during the subsequent two years constitute an unconstitutional repeal of either or both initiatives?

             We answer your first question as set forth in the background and analysis below.  We answer your second question in the negative.

                                                                 BACKGROUND

            Your questions require us to discuss, at the outset, two proposed measures on the November 1988 general election ballot, Initiative 97 and Alternative Measure 97B, and House Bill 1967, 50th Legislature (1988).  Due to the length of each of these measures, a comprehensive discussion of all the features of each is neither feasible nor appropriate here.  What follows is a general overview of the three measures, with an emphasis on the specific features of each that are relevant to your question, especially those features relating to the cleanup or prevention or petroleum spills.

                                                                    1.  Initiative 97

            Initiative 97 has been proposed by the people for submission to the voters on the November 1988 general election ballot.  It is popularly known as the "Superfund Initiative".

             Initiative 97 establishes a comprehensive program for the cleanup of damage caused by "releases" (spills, disposal, etc.) of hazardous substances and for taking appropriate action to prevent threatened releases of hazardous substances.  Generally speaking, the initiative places liability for the costs of cleanup and other remedial actions upon the owner or operator of the offending hazardous substance facility.  See Initiative 97, § 4.  However, the initiative grants the State Department of Ecology broad investigatory, remedial, and settlement powers to  [[Orig. Op. Page 3]] effectuate the initiative's goals.  Seeid., § 3.  The Department may, with the agreement of the Attorney General, settle any claim against a potentially liable person.  Seeid., § 4(4).  Furthermore, as part of such settlement, the Department may expend public monies from a state toxics control account to help pay for cleanup or other remedial costs.  Seeid., § 7(2).  The state toxics control account (which may be used for a variety of other purposes as well) is to be funded, in part, by a "pollution tax" levied on the first possession of hazardous substances, including petroleum products, with certain exceptions not relevant here.  Seeid., §§ 7(1), 8-12.

             Except with regard to the pollution tax just mentioned, Initiative 97 does not cover petroleum as comprehensively as it does other hazardous substances.  Specifically, although section 2(5)(d) defines "hazardous substance" as including petroleum and petroleum products, section 2(5) also contains the following limitation:

                         The term hazardous substance does not include any of the following when contained in an underground storage tank from which there is not a release:  Crude oil or any fraction thereof or petroleum, if the tank is in compliance with all applicable federal, state, and local law.

 In other words, the initiative's provisions relating to the cleanup of hazardous substance spills apply to petroleum.  However, the initiative's provisions relating to the prevention of possible hazardous substance spills do not apply to petroleum, if the petroleum is stored in underground tanks that comply with applicable laws.  Hence, the initiative does not regulate underground storage petroleum tanks.  It does prescribe a method for cleaning up spills, however, and also prescribes which persons and which monies shall be relied upon to pay the costs associated with such cleanup.

                                                          2.  Alternative Measure 97B

            Alternative Measure 97B (chapter 112, Laws of 1988) is the Legislature's alternative version of the the "Superfund Initiative", which also will be presented to the voters on the November 1988 general election ballot.  See Const. art. 2, § 1(a).  In most  [[Orig. Op. Page 4]] respects it is similar to Initiative 97, and it contains the same general provisions set forth on pages 2-3 of this opinion.1/

              See Alternative Measure 97B, §§ 3, 4, 7.

             Alternative Measure 97B also treats petroleum differently from other hazardous substances.  The petroleum limitation in Alternative Measure 97B, however, is quite different from that in Initiative 97.  Section 5 of Alternative Measure 97B states:

                         (1) Petroleum, including crude oil or any fraction thereof, is covered only by the provisions of subsection (2) of this section and section 11(2) of this act, and by no other provisions of this chapter, unless:

                         (a) It is an extremely hazardous waste under chapter 70.105 RCW; or

                         (b) It is a hazardous substance under [another cited section] of this act.

                         (2) The department may investigate, respond to, and order or initiate cleanup of spills, leaks, or discharges covered only by this subsection.  The department may recover its costs incurred in exercising its powers under this section and any natural resource  [[Orig. Op. Page 5]] damages caused by the releases from any person owning or controlling the material released, or from any person otherwise responsible for the releases, and the persons are strictly liable, jointly and severally, for such costs and damages.

                         (3) This section expires on July 1, 1990, unless before that date legislation is enacted into law providing a comprehensive cleanup program for releases of petroleum (including crude oil or any fraction thereof) from storage tanks and specific funding sources for the program.

 Section 11(2), referred to in section 5(1) above, permits entry upon real property under certain circumstances where a release of hazardous substances has occurred or is threatened.

             Reading these sections together, the petroleum limitation in Alternative Measure 97B thus allows the Department of Ecology to enter upon real property to prevent releases or threatened releases of petroleum and to recover the costs of cleanup or other remedial actions from the persons responsible for the releases.  Alternative Measure 97B does not presently provide for any state funding to pay all or part of these costs.2/

             However, it does envision the possibility that the Legislature will enact a comprehensive petroleum cleanup program and provide "specific funding sources" for such a program prior to July 1, 1990.  Thus, unlike Initiative 97, the legislative alternative expressly contemplates that a new system for funding the cleanup of petroleum spills may be established in the 1989 or 1990 legislative sessions.

                                                                3.  House Bill 1967

            House Bill 1967, 50th Legislature (1988), was considered by the Legislature in the 1988 regular session.  Although the measure died in committee, portions or all of it may be enacted in the 1989 session.3/

             The bill is a comprehensive measure aimed at the prevention and cleanup of petroleum spills.

              [[Orig. Op. Page 6]]

             Specifically, House Bill 1967 would accomplish the following primary goals:  (1) give the Department of Ecology authority to adopt regulations for underground petroleum storage tanks including performance standards and monitoring requirements;4/

             (2) give the Department authority to enter upon real property and to inspect and conduct tests of underground petroleum storage tanks to remedy current or threatened petroleum spills;5/

             (3) require storage tank owners and operators to establish financial responsibility of (a) at least $100,000 to cover the costs of corrective action (e.g., cleanup costs) that may arise out of any future petroleum spill, and (b) at least $300,000 to cover bodily injury and property damage to third parties that may arise out of any such future petroleum spill;6/

             (4) establish a "risk retention pool", funded partly by legislative appropriations and partly by premium payments, through which storage tank owners and operators may purchase insurance to cover liability from petroleum spills up to the amounts set forth above;7/

             (5) establish an "underground storage tank fund", funded by legislative appropriations, by registration fees imposed upon owners of underground petroleum storage tanks, and by other sources, which fund would be used primarily to cover liability from petroleum spills in excess of the amounts set forth above;8/

             and (6) impose a .2% excise tax on petroleum products for a period of 90 days if the balance in the underground storage tank fund falls below $500,000.9/

                                                                      ANALYSIS

Question 1

             Your first question is whether the Legislature may enact all or part of House Bill 1967 during the next legislative session, without having to obtain the two-thirds vote in each house that would be necessary to "amend" an initiative measure‑-assuming, of course, that either Initiative 97 or Alternative Measure 97B is approved by the voters in November 1988.  To answer your question, we first turn to the law governing the amendment of initiative measures.

              [[Orig. Op. Page 7]]

 A.        General Principles Governing Amendments to Initiative Measures

             Your question directly concerns the meaning and application of article 2, section 41 (amendment 26) of the Washington Constitution.  This provision states in part:

             No act, law or bill approved by a majority of the electors voting thereon [i.e., no initiative or referendum measure approved by the voters] shall be amended or repealed by the legislature within a period of two years following such enactment:  Provided,That any such act, law or bill may be amended within two years after such enactment at any regular or special session of the legislature by a vote of two-thirds of all the members elected to each house . . . . (Emphasis added.)

      Thus, if House Bill 1967 "amends" either Initiative 97 or Alternative Measure 97B, then the bill may become effective within two years of either measure's passage only if the bill is passed by a two-thirds vote in each house of the Legislature.

             Whether an act amends a prior initiative measure depends on the purpose and effect of the act, rather than its form.  An act may be an amendment even though it does not purport to be or is not identified as such on its face.  SeeWeyerhaeuser Co. v. King Cy., 91 Wn.2d 721, 731, 592 P.2d 1108 (1979);Gruen v. State Tax Comm'n, 35 Wn.2d 1, 24, 211 P.2d 651 (1949).  Thus, the fact that House Bill 1967 does not expressly amend either Initiative 97 or Alternative Measure 97B is not determinative.

             Article 2, section 41 (amendment 26) does not define the word "amend".  Therefore, the word must be given its usual and ordinary meaning.  State ex rel. O'Connell v. Meyers, 51 Wn.2d 454, 462-63, 319 P.2d 828 (1957).  InMeyers, the court adopted the following dictionary definition of the word "amend":  "[T]o alter (as a bill or resolution) formally by some addition, taking away, or modification . . . ."  51 Wn.2d at 462-64.  InFranchise Tax Bd. v. Cory, 80 Cal. App. 3d 772, 776, 145 Cal. Rptr. 819, 822 (1978), the court offered a similar definition of "amendment":  "[A]ny change of the scope or effect of an existing statute, whether by addition, omission, or substitution of provisions . . . ."  It is important to note the difference between an "amendment" and a "supplemental act".  An amendment creates an alteration or change of an existing law.  A supplemental act, on the other hand, simply "supplies a deficiency, adds to, extends or completes that which is already in existence, without changing or modifying the original."  Staples v. Bishop, 225 Ark. 936, 286 S.W.2d 505, 507 (1956).  (Emphasis added.)  Thus, the Legislature may validly enact new legislation that deals with the same general subject matter as a  [[Orig. Op. Page 8]] prior initiative so long as the essential purpose and effect of the prior initiative is not altered.  Such new legislation would not be considered an amendment for purposes of article 2, section 41 (amendment 26) of the Washington Constitution.  SeeAjax v. Gregory, 177 Wash. 465, 471-73, 32 P.2d 560 (1934).

             The following specific examples illustrate these principles.  InAjax, the voters approved an initiative that repealed the prior prohibition on liquor sales.  The Legislature subsequently passed a new law regulating liquor sales.  The court held that this legislation was not an amendment of the initiative.  Though the legislation dealt with the same general subject matter, it neither conflicted with nor changed the purpose and effect of the initiative.  As the court noted, when the people legalized liquor sales, "they did not intend to say, that for a period of two years, we want liquor sold by any person at any time, at any place, to anyone, except minors, without qualification, regulation, or restraint."  Ajax, 177 Wash. at 473.

             Similarly, inStaples v. Bishop, Ark. 286 S.W.2d 505 (1956), the voters of Arkansas approved an initiative that made it a misdemeanor for owners of certain animals to allow their animals to run at large on the public highways.  The Legislature subsequently passed a measure providing for impoundment and public sale of animals found running at large.  The fact that the purpose of the latter act was to more effectively enforce the initiative did not make it an amendment, since the initiative was neither altered nor changed.  There was no conflict between the two measures, no attempt to frustrate the purpose of the initiative.  The Legislature merely had enacted supplemental legislation on the same general subject as was covered by the initiative.  Staples, 286 S.W.2d at 506-07.  Likewise, inMatthews v. State, 83 Nev. 266, 428 P.2d 371 (1967), the court held that a legislative act imposing a 1% sales and use tax for the support of public education was not an unconstitutional amendment of a prior initiative imposing a separate 2% sales and use tax for the general fund.

 On the other hand, legislation that does alter, change, or conflict with a prior initiative or referendum will be deemed an amendment.  Thus, in AGO 57-58 No. 175 (copy enclosed), we concluded that where the voters had approved a referendum to provide funds for construction of buildings at state operated institutions, a subsequent legislative act authorizing the use of these same funds for construction of other buildings would constitute an amendment of the referendum.  Such an act clearly would alter and conflict with the initiative's original intent.  Similarly, inFranchise Tax Bd. v. Cory, 80 Cal. App. 3d 772, 145 Cal. Rptr. 819 (1978), the court held that an initiative creating a franchise tax board to audit financial reports of candidates for public office was unconstitutionally amended by subsequent  [[Orig. Op. Page 9]] legislation that significantly restricted the manner in which the board could conduct its audits.

             In summary, courts construing the word "amend" have consistently looked to the purpose and effect of newly enacted legislation to see whether it alters or otherwise frustrates the intent of a prior initiative or referendum.  With this in mind, we now turn to a discussion of whether House Bill 1967 would amend all or part of either Initiative 97 or Alternative Measure 97B.

 B.  Would House Bill 1967 Amend Initiative 97?

             The pertinent provisions of House Bill 1967 are set forth at pages 5-6 of this opinion.  For our purposes, these provisions may be grouped into two classifications.  First, the bill would grant the Department of Ecology broad authority to regulate underground storage tanks to prevent threatened releases of petroleum.  This includes setting performance standards and monitoring requirements, and conducting appropriate tests and inspections of underground tanks.  Second, the bill would establish a risk retention pool and underground tank storage fund to pay for the costs of cleaning up petroleum spills.

             We conclude that the provisions of House Bill 1967 in the first classification would not constitute an amendment of Initiative 97.  The provisions in the second classification would, however, constitute such an "amendment", and hence would require approval by a two-thirds vote in each house of the Legislature if enacted within two years of the initiative's passage.

             (1)Regulation of storage tanks

             Our first conclusion is mandated by the language of Initiative 97.  While the initiative generally deals with prevention and cleanup of "hazardous substance" spills, section 2(5) contains the following express limitation (quoted previously and repeated here for ease of reference):

                         The term hazardous substance does not include any of the following when contained in an underground storage tank from which there is not a release:  Crude oil or any fraction thereof or petroleum, if the tank is in compliance with all applicable federal, state, and local law.

             Thus, Initiative 97 does not purport to place any new restrictions or controls on the operation of underground storage tanks to prevent petroleum releases.  On the other hand, nothing in Initiative 97 indicates an intent to prohibit future regulation of this matter.  Indeed, section 2(5) expressly  [[Orig. Op. Page 10]] indicates that all tanks shall be "in compliance with all applicable . . . state . . . law."  We thus believe that new legislation regulating underground storage tanks, or providing for the testing and inspection of tanks to prevent petroleum releases, would not be an "amendment" to the initiative, but instead would be simply a "supplemental act" on the same general subject covered by the initiative.  SeeStaples v. Bishop,supra;Ajax v. Gregory, supra.  The purpose and effect of Initiative 97 would be neither altered nor frustrated by additional regulation in an area that the initiative plainly has left open to regulation.

             (2)Funding of petroleum spill cleanup

             We view the remaining provisions of House Bill 1967 differently.  These provisions deal with the costs of cleaning up petroleum spills‑-a subject that is treated in a different manner by Initiative 97.

             The initiative generally places the costs of petroleum spill cleanup on the persons responsible for such spills.  In other words, the polluter is to pay for his or her pollution.  If, in a given case, the Department of Ecology and the Attorney General agree to a settlement, then and only then may state funding be used to help defray all or part of the cleanup costs.10/

             Initiative 97 does not provide for state funding of petroleum spill cleanup in any other instance.

             House Bill 1967 takes an entirely different approach.  Through the establishment of a risk retention pool and an underground storage tank fund, the bill provides an insurance system for the owners of underground petroleum storage tanks.  State monies, premium payments, and tax revenues would be combined to pay the costs of cleaning up petroleum spills, as well as the costs of bodily injury and property damage caused by such spills.

             We believe that the cleanup provisions of House Bill 1967 clearly would be amendments to Initiative 97.  These provisions would fundamentally alter the way in which petroleum spill cleanup is funded.  The approach of the initiative, under which the responsible parties generally pay the costs of cleanup, would be abandoned in favor of an insurance‑type arrangement, under which the costs are spread through a risk retention pool and  [[Orig. Op. Page 11]] state funding is much more freely available.  The initiative's purpose and effect would be both altered and, to a certain extent, frustrated by these changes.  SeeFranchise Tax Bd. v. Cory, supra; AGO 57-58 No. 175, supra.

 C.  Would House Bill 1967 Amend Alternative Measure 97B?

             We conclude that none of the provisions of House Bill 1967 (neither those pertaining to the regulation of underground storage tanks to prevent petroleum releases nor those pertaining to the funding of petroleum spill cleanup) would constitute amendments to Alternative Measure 97B.

             Our conclusion is mandated by the language of Alternative Measure 97B, and particularly by the petroleum limitation set forth in section 5.  This section (quoted previously and repeated here for ease of reference) provides:

                         (1) Petroleum, including crude oil or any fraction thereof, is covered only by the provisions of subsection (2) of this section and section 11(2) of this act, and by no other provisions of this chapter, unless:

                         (a) It is an extremely hazardous waste under chapter 70.105 RCW; or

                         (b) It is a hazardous substance under [another cited section] of this act.

                         (2) The department may investigate, respond to, and order or initiate cleanup of spills, leaks, or discharges covered only by this subsection.  The department may recover its costs incurred in exercising its powers under this section and any natural resource damages caused by the releases from any person owning or controlling the material released, or from any person otherwise responsible for the releases, and the persons are strictly liable, jointly and severally, for such costs and damages.

                         (3) This section expires on July 1, 1990, unless before that date legislation is enacted into law providing a comprehensive cleanup program for releases of petroleum (including crude oil or any fraction thereof) from storage tanks and specific funding sources for the program.

              [[Orig. Op. Page 12]]

             (1)Regulation of underground storage tanks

             Alternative Measure 97B does not address the regulation of underground petroleum storage tanks.  It simply grants the Department of Ecology authority to investigate and order cleanup of petroleum spills and to recover the costs and damages thereby incurred from the responsible parties.  As with Initiative 97, however, nothing in Alternative Measure 97B indicates any intent to preempt future regulation of storage tanks.  Nor would the purpose and effect of the initiative be altered or frustrated by the additional regulatory provisions in House Bill 1967.  We therefore conclude that such provisions would be simply "supplemental acts", and not "amendments" to Alternative Measure 97B.  SeeStaples v. Bishop, supra.

            (2)Funding of petroleum spill cleanup

             This is the area in which Alternative Measure 97B differs from Initiative 97.  As we have indicated above, Initiative 97 contains a method for funding petroleum spill cleanup that is quite different from the method contained in House Bill 1967.  In contrast, Alternative Measure 97B not only allows for new methods of funding such cleanups, but expressly anticipates that prior to July 1, 1990, "a comprehensive cleanup program for releases of petroleum . . . from storage tanks and specific funding sources for the program" may be enacted.  Thus, we think new legislation in this area clearly would not be an "amendment" to Alternative Measure 97B.  Neither the initiative's purpose nor its effect would be altered or frustrated by such supplemental legislation.  SeeStaples, supra; Ajax, supra; Matthews, supra.  Rather, such legislation would be entirely consistent with the initiative's expressed intent.

 Question 2

             Your second question, repeated here for ease of reference, asks:

             If either Initiative 97 or Alternative Measure 97B is approved by the voters in the November 1988 general election, would the Legislature's enactment of any or all of the provisions in House Bill 1967 during the subsequent two years constitute an unconstitutional repeal of either or both initiatives?

 We conclude that as to both Initiative 97 and Alternative Measure 97B, the answer is "no".

             Article 2, section 41 (amendment 26) of the Washington Constitution states that the Legislature shall not "repeal" any initiative within two years of the initiative's passage.  At the same time, however, it permits amendments to an initiative within  [[Orig. Op. Page 13]] two years so long as the amendments receive a two-thirds vote by both houses of the Legislature.  Thus, if an addition or change to an initiative properly can be characterized as an "amendment", it will not be subject to the constitutional restriction against repealing initiatives.

             The controlling case on this question is State ex rel. O'Connell v. Meyers, 51 Wn.2d 454, 319 P.2d 828 (1957).  At issue there was the question of legislative redistricting.  The voters had approved ann initiative under which legislative districts would be established by using the census tract as the unit of population.  Less than seven months later, the Legislature established by statute an entirely new method of redistricting using the election precinct as the unit of population.  Even though this effectively destroyed the intent of the initiative, the court by a 5-4 vote held that the statute was simply an amendment to the initiative, not an unconstitutional repeal.

             In its majority opinion, the Meyers court gave an extremely expansive meaning to the word "amendment":

                         In Webster's New International Dictionary (2d ed.), the word "amend" (when used in a parliamentary sense) is defined as follows:

                         ". . . to alter (as a bill or resolution) formally by some addition, taking away, or modification; as, to amend an appropriation bill.  The changes that may be made in amending a bill or resolution are practically limited only to those that do not bring in a subject different from the original."

                        . . .

                         "A proposition may be amended, in parliamentary phraseology, not only by an alteration which carries out and effects the purpose of the mover, but also by one which entirely destroys that purpose, or which even makes the proposition express a sense the very reverse of that intended by the mover."

                         InWade v. Tacoma, 4 Wash. 85, 29 Pac. 983 (1892), in construing the scope of an amendment, we said:  "The amendment may effectually supplant or destroy the original charter and institute a new policy altogether."

                        . . .

                         Giving the word "amend" its usual and ordinary meaning as set out in Webster's Dictionary, and its meaning as given by this court and other jurisdictions,  [[Orig. Op. Page 14]] we must hold that the people, by granting to the legislature the right to amend, authorized it to change the law completely, within the realm of the subject matter contained in the act.

 Meyers, 51 Wn.2d at 462-64.  We are mindful that Meyers was decided 30 years ago by a bare majority of the court, and that its result is to characterize nearly any alteration of an initiative as an amendment rather than a repeal, unless the initiative is explicitly legislated out of existence.  SeeMeyers, 51 Wn.2d at 478-82 (Weaver, J., dissenting).  TheMeyers result also has been criticized by other courts.  See, e.g.,Warren v. Thomas, 568 P.2d 400, 403-04 (Alaska 1977).  Nevertheless, it remains the law of this state.

             ApplyingMeyers to your question, we conclude that none of the provisions in House Bill 1967 would constitute a repeal of either Initiative 97 or Alternative Measure 97B.  The Legislature has the power to enact these provisions during the 1989 legislative session, subject to the two-thirds requirement for amendments, so long as the initiative is not formally repealed.

             In summary, we conclude:  (1) if Initiative 97 is approved by the voters in the November 1988 general election, then enactment in 1989 of those portions of House Bill 1967 pertaining to the funding of petroleum spill cleanups would constitute an amendment to Initiative 97 and thus would require approval by two-thirds of the members of both houses of the Legislature; (2) if Alternative Measure 97B is approved by the voters instead, then enactment of House Bill 1967, or any portion of it, would not constitute an amendment to Alternative Measure 97B; and (3) if either initiative measure is approved by the voters, then enactment of House Bill 1967, or any portion of it, would not constitute a repeal of either initiative measure.

             We trust the foregoing shall be of assistance to you.

 Very truly yours,
KENNETH O. EIKENBERRY
Attorney General

GREGORY J. TRAUTMAN
Assistant Attorney General

                                                         ***   FOOTNOTES   ***

 1/By way of background, Initiative 97 and Alternative Measure 97B do differ in several of their particulars.  Among the differences are:  (1) Initiative 97 would tax petroleum to be exported out of state, while Alternative Measure 97B would not,see Alternative Measure 97B, § 47(3)(e); (2) Initiative 97 would impose a tax of .7% of the wholesale value of the hazardous substance, while Alternative Measure 97B would impose a .8% tax, compare Initiative 97, § 10(1) with Alternative Measure 97B, § 46(1); (3) Alternative Measure 97B allows the Department of Ecology to independently arrange settlements for hazardous substance cleanups, while Initiative 97 would require the approval of the Attorney General in all settlements,compare Initiative 97, § 4(4) with Alternative Measure 97B, § 7(1); (4) Alternative Measure 97B provides greater protection from liability for contractors who agree to provide cleanup or other remedial services,see Alternative Measure 97B, § 10; and (5) Alternative Measure 97B is more lengthy and provides for certain programs not provided for in Initiative 97, such as pesticide waste disposal, household waste disposal, and business assistance.  See, e.g., Alternative Measure 97B, §§ 18-20.  These differences between the two initiative measures, while worthy of mention, are not directly relevant to the question posed in your letter.

 2/Section 7(7) of Alternative Measure 97B, which allows for public funding of hazardous substance cleanup, is not applicable to petroleum spills.

 3/Your opinion request makes clear that you wish us to address the possibility of the Legislature enacting part or all of the original House Bill 1967.  We note that the House Committee on Environmental Affairs, the committee to which the bill was referred, passed out a substitute version of the bill.  Substitute House Bill 1967, 50th Legislature (1988).  Because of the nature of your opinion request, our response is limited to an analysis of the provisions of the original bill only.

 4/See House Bill 1967, 50th Legislature (1988), § 4(1).

 5/Seeid., § 4(2).

 6/Seeid., § 5(1), (2).

 7/Seeid., §§ 11, 12.

 8/Seeid., §§ 6(2), (4), 7(1)(b).

 9/Seeid., § 6(5).

 10/The Director of the Department of Ecology also must find that state funding will achieve both a substantially more expeditious or enhanced cleanup than would otherwise occur and the prevention or mitigation of unfair economic hardship.  Initiative 97, §§ 4(4), 7(2)(xi).

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