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                                         SUBSTITUTE SENATE BILL NO. 5389

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                                                            AS AMENDED BY THE HOUSE

                                                                            C 103 L 87

State of Washington                              50th Legislature                              1987 Regular Session

By Senate Committee on Parks and Ecology (originally sponsored by Senators Kreidler and Bluechel)

Read first time 2/05/87.

AN ACT Relating to noise control; and amending RCW 70.107.060 and 70.107.050.

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

        Sec. 1.  Section 6, chapter 183, Laws of 1974 ex. sess. and RCW 70.107.060 are each amended to read as follows:

          (1) Nothing in this chapter shall be construed to deny, abridge or alter alternative rights of action or remedies in equity or under common law or statutory law, criminal or civil.

          (2) Nothing in this chapter shall deny, abridge or alter any powers, duties and functions relating to noise abatement and control now or hereafter vested in any state agency, nor shall this chapter be construed as granting jurisdiction over the industrial safety and health of employees in work places of the state, as now or hereafter vested in the department of labor and industries.

          (3) ((No local government shall adopt resolutions, ordinances, rules or regulations concerned with the control of noise which shall be effective prior to adoption of maximum noise levels  and the rules adopted by the department pursuant to this chapter or January 31, 1975, whichever occurs sooner.  Such resolutions, ordinances, rules, or regulations must be consistent with RCW 70.107.060(4).

          (4))) Standards and other control measures adopted by the department under this chapter shall be exclusive except as hereinafter provided.  A local government may impose limits or control sources differing from those adopted or controlled by the department upon a finding that such requirements are necessitated by special  conditions.  ((No such noise limiting requirements of local government shall be valid unless first approved by the department.  If disapproved the local government may appeal the decision to the pollution control hearings board which shall decide the appeal on the basis of the provisions of this chapter, and the applicable regulations, together with such briefs, testimony, and oral argument as the hearings board in its discretion may require.  In the determination of whether to grant any such approval, the department shall give consideration to the reasonableness and practicability of compliance with particular attention to the situation of stationary sources, the noise producing operations of which are conducted at or near jurisdictional boundaries.))  Noise limiting requirements of local government which differ from those adopted or controlled by the department shall be invalid unless first approved by the department.  If the department of ecology fails to approve or disapprove standards submitted by local governmental jurisdictions within ninety days of submittal, such standards shall be deemed approved.  If disapproved, the local government may appeal the decision to the pollution control hearings board which shall decide the appeal on the basis of the provisions of this chapter, and the applicable regulations, together with such briefs, testimony, and oral argument as the hearings board in its discretion may require.  The department determination of whether to grant approval shall depend on the reasonableness and practicability of compliance.  Particular attention shall be given to stationary sources located near jurisdictional boundaries, and temporary noise producing operations which may operate across one or more jurisdictional boundaries.

          (((5))) (4) In carrying out the rule-making authority provided in this chapter, the department shall follow the procedures of the administrative procedure act, chapter 34.04 RCW, and shall take care that no rules adopted purport to exercise any powers preempted by the United States under federal law.

        Sec. 2.  Section 5, chapter 183, Laws of 1974 ex. sess. and RCW 70.107.050 are each amended to read as follows:

          (1) Any person who violates any rule adopted by the department under this chapter shall be subject to a civil penalty not to exceed one hundred dollars imposed by local government pursuant to this section.  An action under this section shall not preclude enforcement of any provisions of the local government noise ordinance.  ((All violations of this chapter shall be administered pursuant to the provisions of chapter 34.04 RCW, the state administrative procedure act.))

          Penalties shall become due and payable thirty days from the date of receipt of a notice of penalty unless within such time said notice is appealed in accordance with the administrative procedures of the local government, or if it has no such administrative appeal, to the pollution control hearings board pursuant to the provisions of chapter 43.21B RCW and procedural rules adopted thereunder.  In cases in which appeals are timely filed, penalties sustained by the local administrative agency or the pollution control hearings board shall become due and payable on the issuance of said agency or board's final order in the appeal.

          (2) Whenever penalties incurred pursuant to this section have become due and payable but remain unpaid, the attorney ((general shall, upon request of the director,)) for the local government may bring an action ((in the name of the state of Washington,)) in the superior court of ((Thurston county or in)) the county in which the violation occurred for recovery of penalties incurred.  In all such actions the procedures and rules of evidence shall be the same as in any other civil action.  ((All penalties recovered under this section shall be paid into the state treasury and credited to the general fund.))

                                                                                                                             Passed the Senate April 9, 1987.

                                                                                                                                       President of the Senate.

                                                                                                                          Passed the House March 27, 1987.

                                                                                                                                         Speaker of the House.