CLEAN AIR AGENCY
Exempt from preproposal statement of inquiry under RCW 70.94.141(1).
Title of Rule and Other Identifying Information: Amend Regulation I, Section 3.11 (Civil Penalties) and 3.25 (Federal Regulation Reference Date).
Hearing Location(s): Puget Sound Clean Air Agency, 110 Union Street, Suite 500, Seattle, WA 98101, on September 22, 2005, at 9:15 a.m.
Date of Intended Adoption: September 22, 2005.
Submit Written Comments to: Lynn Sykes, Puget Sound Clean Air Agency, 110 Union Street, Suite 500, Seattle, WA 98101, e-mail firstname.lastname@example.org, fax (206) 343-7522, by September 21, 2005.
Assistance for Persons with Disabilities: Contact Agency Receptionist, (206) 689-4010, by September 15, 2005, TTY (800) 833-6388 or (800) 833-6385 (Braille).
Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: To adjust the maximum civil penalty amount for inflation, to clarify civil penalty mitigation requests, and to update the federal regulation reference date in order to remain current.
Reasons Supporting Proposal: Without the adjustment for inflation, the maximum civil penalty amount would effectively decrease each year. For the civil penalty mitigation request, it was unclear whether thirty days from the date of the notice excluded weekends or holidays, or how the agency would document the receipt date. The federal regulation reference date needs to be kept current.
Statutory Authority for Adoption: Chapter 70.94 RCW.
Statute Being Implemented: RCW 70.94.141.
Rule is not necessitated by federal law, federal or state court decision.
Agency Comments or Recommendations, if any, as to Statutory Language, Implementation, Enforcement, and Fiscal Matters: The state implementation plan will be updated to reflect these amendments.
Name of Proponent: Puget Sound Clean Air Agency, governmental.
Name of Agency Personnel Responsible for Drafting: Lynn Sykes, 110 Union Street, #500, Seattle, WA 98101, (206) 689-4067; Implementation and Enforcement: Jim Nolan, 110 Union Street, #500, Seattle, WA 98101, (206) 689-4053.
No small business economic impact statement has been prepared under chapter 19.85 RCW. The agency is not subject to the small business economic impact provision of the Administrative Procedure Act.
A cost-benefit analysis is not required under RCW 34.05.328. RCW 34.05.328 does not apply to local air agencies, per RCW 70.94.141.
July 29, 2005
Director - ComplianceAMENDATORY SECTION
REGULATION I SECTION 3.11 CIVIL PENALTIES
(a) Any person who violates any of the provisions of chapter 70.94 RCW or any of the rules or regulations in force pursuant thereto, may incur a civil penalty in an amount not to exceed ((
$14,300.00)) $14,686.00 per day for each
(b) Any person who fails to take action as specified by
an order issued pursuant to chapter 70.94 RCW or Regulations
I, II, and III of the Puget Sound Clean Air Agency shall be
liable for a civil penalty of not more than ((
$14,686.00 for each day of continued noncompliance.
(c) Within 30 days ((
after receipt)) of the date of a
Notice and Order of Civil Penalty, the person incurring the
penalty may apply in writing to the Control Officer for the
remission or mitigation of the penalty. To be considered
timely, a mitigation request must be actually received by the
Agency, during regular office hours, within 30 days of the
date of a Notice and Order of Civil Penalty. This time period
shall be calculated by excluding the first day and including
the last, unless the last day is a Saturday, Sunday, or legal
holiday, and then it is excluded and the next succeeding day
that is not a Saturday, Sunday, or legal holiday is included.
The date stamped by the Agency on the mitigation request is
prima facie evidence of the date the Agency received the
Any such)) A mitigation request must contain the
(1) The name, mailing address, telephone number, and telefacsimile number (if available) of the party requesting mitigation;
(2) A copy of the Notice and Order of Civil Penalty involved;
(3) A short and plain statement showing the grounds upon which the party requesting mitigation considers such order to be unjust or unlawful;
(4) A clear and concise statement of facts upon which the party requesting mitigation relies to sustain his or her grounds for mitigation;
(5) The relief sought, including the specific nature and extent; and
(6) A statement that the party requesting mitigation has read the mitigation request and believes the contents to be true, followed by the party's signature.
Upon receipt of the application, t)) The Control
Officer shall remit or mitigate the penalty only upon a
demonstration by the requestor of extraordinary circumstances
such as the presence of information or factors not considered
in setting the original penalty.
(d))) (e) Any civil penalty may also be appealed to the
Pollution Control Hearings Board pursuant to chapter 43.21B RCW and chapter 371-08 WAC. (( if the)) An appeal (( is)) must
be filed with the Hearings Board and served on the Agency
within 30 days (( after receipt by the person penalized of the
notice imposing the penalty or 30 days after receipt)) of the
date of the Notice and Order of Civil Penalty or the notice of
disposition on the application for relief from penalty.
(e))) (f) A civil penalty shall become due and payable
on the later of:
(1) 30 days after receipt of the notice imposing the penalty;
(2) 30 days after receipt of the notice of disposition on application for relief from penalty, if such application is made; or
(3) 30 days after receipt of the notice of decision of the Hearings Board if the penalty is appealed.
(f))) (g) If the amount of the civil penalty is not
paid to the Agency within 30 days after it becomes due and
payable, the Agency may bring action to recover the penalty in
King County Superior Court or in the superior court of any
county in which the violator does business. In these actions,
the procedures and rules of evidence shall be the same as in
an ordinary civil action.
(g))) (h) Civil penalties incurred but not paid shall
accrue interest beginning on the 91st day following the date
that the penalty becomes due and payable, at the highest rate
allowed by RCW 19.52.020 on the date that the penalty becomes
due and payable. If violations or penalties are appealed,
interest shall not begin to accrue until the 31st day
following final resolution of the appeal.
(h))) (i) To secure the penalty incurred under this
section, the Agency shall have a lien on any vessel used or
operated in violation of Regulations I, II, and III which
shall be enforced as provided in RCW 60.36.050.
REGULATION I SECTION 3.25 FEDERAL REGULATION REFERENCE DATE
Whenever federal regulations are referenced in Regulation I, II, or III, the effective date shall be July 1, ((