WSR 03-23-136

PROPOSED RULES

DEPARTMENT OF AGRICULTURE


[ Filed November 19, 2003, 11:06 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: Chapters 90.64 and 34.05 RCW.

Statute Being Implemented: Chapter 90.64 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 371-08 WAC and must be served on and handled by the Department of 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: Dannie McQueen, Olympia, Washington, (360) 902-1809; Implementation and Enforcement: Nora Mena, Olympia, Washington, (360) 902-1982.

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, Natural Resources Building, 2nd Floor 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, TDD (360) 902-1996.

Submit Written Comments to: Dannie McQueen, P.O. Box 42560, Olympia, WA 98504-2560, dmcqueen@agr.wa.gov, fax (360) 902-2092, by 5:00 p.m. on January 5, 2004.

Date of Intended Adoption: January 5, 2004.

November 18, 2003

Kathryn Kravit-Smith

Assistant Director

OTS-6766.1


NEW SECTION
WAC 16-08-003   Declaration of purpose and applicability.   This chapter sets forth the rules of procedure that are applicable to adjudicative proceedings before the department. Because civil penalties and orders issued by the department pursuant to chapters 90.64 and 90.48 RCW in the livestock nutrient management program are appealable only to the pollution control hearings board (PCHB) under chapter 43.21B RCW and chapter 371-08 WAC, this chapter is not applicable to those proceedings.

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NEW SECTION
WAC 16-08-004   Livestock nutrient management program (LNMP) appeals.   (1) All appeals of civil penalties and orders issued by the department in the livestock nutrient management program shall be filed with the PCHB at the environmental hearings office and shall be served on the department of agriculture pursuant to RCW 43.21B.230 and 43.21B.300, and WAC 371-08-335 and 371-08-345.

(2) Pursuant to WAC 371-08-306, when referring to appeals related to civil penalties and orders issued by the department of agriculture in the livestock nutrient management program, all references to "department" in both chapters 43.21B RCW and 371-08 WAC shall mean department of agriculture; all references to "director" shall mean director of agriculture.

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