WSR 03-23-126

PROPOSED RULES

ENVIRONMENTAL HEARINGS OFFICE


[ Filed November 19, 2003, 9:36 a.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 03-20-121.

Title of Rule: Livestock nutrient management program procedural rules.

Purpose: Explains that while an appeal of other agency enforcement action is to the director of agriculture, an appeal of any Department of Agriculture action in the livestock nutrient management program is under the jurisdiction of the Pollution Control Hearings Board (PCHB).

Statutory Authority for Adoption: Chapter 43.21B RCW.

Statute Being Implemented: Chapter 43.21B RCW.

Summary: Appeals of LNMP orders and penalties cannot be appealed using the procedural rules in chapter 16-08 WAC, instead they can only be appealed to the PCHB under chapters 43.21B RCW and chapter 371-08 WAC and must be served on and handled by the Department Agriculture rather than the Department of Ecology.

Reasons Supporting Proposal: The proposed rule clarifies the process of how appeals under the statute will be processed.

Name of Agency Personnel Responsible for Drafting: Eric Z. Lucas, Lacey, Washington, (360) 459-6327; Implementation and Enforcement: Robyn Bryant, Lacey, Washington, (360) 459-6327.

Name of Proponent: Pollution Control Hearings Board, governmental.

Agency Comments or Recommendations, if any, as to Statutory Language, Implementation, Enforcement, and Fiscal Matters: Proposed rule pursuant to the 2003 legislature passing ESSB 5889 transferring the livestock nutrient management program to the Department of Agriculture.

Rule is not necessitated by federal law, federal or state court decision.

Explanation of Rule, its Purpose, and Anticipated Effects: The 2003 legislature passed ESSB 5889 transferring the livestock nutrient management program (LNMP) to the Washington State Department of Agriculture (WSDA). WSDA has the authority to take immediate corrective action and formal, regulatory enforcement action for violations of chapters 90.64 and 90.48 RCW. While an appeal of other agency enforcement action is to the director of WSDA, an appeal of any WSDA action in the LNMP is under the jurisdiction of the Pollution Control Hearings Board (PCHB). Permanent rules will clarify that appeals of LNMP orders and penalties cannot be appealed using the procedural rules in chapter 16-08 WAC, but instead can only be appealed to the PCHB under chapters 43.21B RCW and 371-08 WAC and must be served on and handled by WSDA rather than the Department of Ecology.

Proposal does not change existing rules.

No small business economic impact statement has been prepared under chapter 19.85 RCW. The proposed rule is procedural in nature and does not place new requirements on those it may affect.

RCW 34.05.328 does not apply to this rule adoption. The Department of Agriculture is not a named agency in RCW 34.05.328.

Hearing Location: Department of Agriculture, Conference Room 205, 1111 Washington Street S.E., Olympia, WA 98504-2560, on December 30, 2003, at 1:30 p.m.

Assistance for Persons with Disabilities: Contact Jodi Jones by December 15, 2003.

Submit Written Comments to: Eric Z. Lucas, P.O. Box 40903, Lacey, WA 98504-0903, EricL@eho.wa.gov, fax (360) 438-7699, by 5:00 p.m. on January 5, 2004.

Date of Intended Adoption: January 5, 2004.

Eric Z. Lucas

AAJ/Rules Coordinator

OTS-6605.1


NEW SECTION
WAC 371-08-306   Livestock nutrient management program (LNMP).   As used in this chapter, and chapter 43.21B RCW, when referring to appeals related to civil penalties and orders issued by the department of agriculture, under the LNMP, pursuant to chapters 90.48 and 90.64 RCW, the following terms shall have the following meaning:

(1) "Department" means the department of agriculture.

(2) "Director" means the director of the department of agriculture.

[]


AMENDATORY SECTION(Amending WSR 96-15-003, filed 7/3/96, effective 8/3/96)

WAC 371-08-315   Membership, function and jurisdiction.   (1) Members. The board is composed of three members appointed by the governor, with the advice and consent of the senate, for a term of six years. The members are to be qualified by experience or training in pertinent matters pertaining to the environment, and at least one member shall be a lawyer, and not more than two members shall be of the same political party.

(2) Function and jurisdiction. The function of this board is to provide an expeditious and efficient disposition of appeals from the decisions and orders of the department of agriculture pursuant to chapters 90.48 and 90.64 RCW, the department of ecology, from the decisions of air pollution control authorities established pursuant to chapter 70.94 RCW, and from the decisions of local health departments, when such orders and decisions concern matters within the jurisdiction of the board as provided in RCW 43.21B.110:

(a) Civil penalties imposed pursuant to RCW 18.104.155, 70.94.431, 70.105.080, 70.105.095, 70.107.050, 86.16.081, 88.46.090, 90.03.600, 90.48.144, 90.56.310, 90.56.320, 90.56.330 ((and)), 90.58.560 and chapter 90.64 RCW.

(b) Orders issued pursuant to RCW 18.104.043, 18.104.060, 18.104.065, 43.27A.190, 70.94.211, 70.94.332, 70.105.095, 70.107.060, 88.46.070, 90.14.130, 90.14.190 ((and)), 90.48.120 and chapter 90.64 RCW.

(c) The issuance, modification, termination or denial of any permit certificate or license by the department of ecology or any air pollution control authority.

(d) Decisions of local health departments regarding the grant or denial of solid waste permits or of biosolid permits pursuant to chapter 70.95 RCW.

(e) Disputes between the department and the governing bodies of local governments regarding local planning requirements under RCW 70.105.220 and zone designation under RCW 70.105.225, pursuant to RCW 70.105.250.

(f) Any other decision by the department of ecology, the administrator of marine safety or an air pollution control authority which pursuant to law must be decided as an adjudicative proceeding under chapter 34.05 RCW.

(3) This section is intended to be general and informational only, and failure herein to list matters over which the board has jurisdiction at law shall not constitute any waiver or withdrawal whatsoever from such jurisdiction.

[Statutory Authority: RCW 43.21B.170. 96-15-003, 371-08-315, filed 7/3/96, effective 8/3/96.]

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