WSR 12-19-035

PERMANENT RULES

DEPARTMENT OF

NATURAL RESOURCES

[ Filed September 12, 2012, 11:40 a.m. , effective October 13, 2012 ]


Effective Date of Rule: Thirty-one days after filing.

Purpose: The 2010 legislature approved SHB 2935, natural resources reform bill, which made the pollution control hearings board the primary forum for administrative review of many agency environmental and land use decision[s] and abolished most internal agency hearings. The department of natural resources (DNR) has completed the expedited rule making CR-105 process which brings DNR's rules into conformity with the approved RCW.

The approved CR-105 amends WAC language related to: (1) Derelict and abandoned vessel provisions, (2) surface mining decisions and penalties, (3) forest practices BAP decisions, and (4) DNR adjudicative proceedings except where specifically retained by statute. The CR-103P completes the approval process for amending chapter 332-08 WAC related to internal agency hearings.

The approved expedited rule making CR-105 for WAC amendments removed deleted RCW language and inserted the clarification to move proceedings to the pollution control hearings board.

Citation of Existing Rules Affected by this Order: Amending chapter 332-08 WAC.

Statutory Authority for Adoption: The 2010 legislature approved the natural resources reform bill establishing the pollution control hearings board as the forum for most internal agency hearings [chapter 210, Laws of 2010].

Adopted under notice filed as WSR 12-06-028 on March 1, 2012.

Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 8, Repealed 26.

Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 0, Repealed 0.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 0, Repealed 0.

Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 0, Repealed 0.

Date Adopted: May 8, 2012.

Peter Goldmark

Commissioner of

Public Lands

OTS-4153.2


AMENDATORY SECTION(Amending WSR 08-16-095, filed 8/5/08, effective 9/5/08)

WAC 332-08-101   Applicability to department actions under the Derelict and Abandoned Vessel Act, chapter 79.100 RCW.   When is this chapter applicable to department actions relating to the Derelict and Abandoned Vessel Act? This chapter applies when a challenge to the action of a state agency acting as an authorized public entity is filed with the ((department)) pollution control hearings board under the Derelict and Abandoned Vessel Act as provided in RCW 79.100.120 (2)(a).

[Statutory Authority: RCW 34.05.220. 08-16-095, 332-08-101, filed 8/5/08, effective 9/5/08.]


AMENDATORY SECTION(Amending WSR 08-16-095, filed 8/5/08, effective 9/5/08)

WAC 332-08-111   Derelict and abandoned vessel -- Appeal deadline.   When must my appeal be filed? ((An application for an adjudicative proceeding)) A notice of appeal regarding an agency action under chapter 79.100 RCW ((can)) may be filed with the ((department as soon as the department issues its notice of its intent)) pollution control hearings board upon receipt of the department's notice of intent to take custody of a vessel, but the ((application)) notice of appeal must be filed no later than ((twenty)) thirty days after the date the authorized public entity took custody of the vessel, or if the vessel was redeemed before the authorized public entity took custody, no later than ((twenty)) thirty days after the date of redemption.

[Statutory Authority: RCW 34.05.220. 08-16-095, 332-08-111, filed 8/5/08, effective 9/5/08.]


AMENDATORY SECTION(Amending WSR 08-16-095, filed 8/5/08, effective 9/5/08)

WAC 332-08-121   Derelict and abandoned vessel -- Filing location ((and presiding officer)).   (((1))) Where must my appeal be filed? ((An application for adjudicative proceeding concerning a decision to take temporary possession or custody of a vessel or the amount owed to an authorized public entity under chapter 79.100 RCW must be filed at the following address:


Department of Natural Resources

Aquatic Resources Division

Derelict Vessel Removal Program

P.O. Box 47027

Olympia, WA 98504-7027


(2) Who may serve as the presiding officer? Adjudicative proceedings governed by subsection (1) of this section will be initially decided through the office of administrative hearings unless the commissioner of public lands decides that he/she will enter a decision.
)) A notice of appeal concerning a decision to take temporary possession or custody of a vessel or the amount owed to an authorized public entity under chapter 79.100 RCW must be filed with the pollution control hearings board and served on the department at the following addresses:


Pollution Control Hearings Board
Physical Address:
1111 Israel Road S.W., Suite 301
Tumwater, WA 98501
Mailing Address:
P.O. Box 40903
Olympia, WA 98504-0903
Department of Natural Resources
Aquatic Resources Division
Derelict Vessel Removal Program
P.O. Box 47027
Olympia, WA 98504-7027

[Statutory Authority: RCW 34.05.220. 08-16-095, 332-08-121, filed 8/5/08, effective 9/5/08.]


AMENDATORY SECTION(Amending WSR 08-16-095, filed 8/5/08, effective 9/5/08)

WAC 332-08-201   Applicability to department actions under forest practices laws and rules.   When is this chapter applicable to the department's forest practices actions? This chapter applies to challenges of notices to comply that the department issues under chapter 76.09 RCW (Forest Practices Act) and chapter 222-46 WAC. These challenges are initially reviewed through brief adjudicative proceedings (BAPs). Other department actions regarding forest practices, including appeals from department BAP actions on notices to comply, are generally subject to review by the ((forest practices appeals)) pollution control hearings board under chapter ((223-08)) 371-08 WAC.

[Statutory Authority: RCW 34.05.220. 08-16-095, 332-08-201, filed 8/5/08, effective 9/5/08.]


AMENDATORY SECTION(Amending WSR 08-16-095, filed 8/5/08, effective 9/5/08)

WAC 332-08-265   Forest practices -- Appeal of BAP decision.   (1) How do I administratively appeal a BAP decision? The operator, forest land owner, or timber owner subject to a final order of the department on a forest practices notice to comply may, within thirty days from the date of ((the)) receipt of such final order, appeal to the ((forest practices appeals)) pollution control hearings board.

(2) Who reviews the BAP decision? The ((forest practices appeals)) pollution control hearings board will conduct the review. The provisions of chapter ((223-08)) 371-08 WAC govern such appeals.

[Statutory Authority: RCW 34.05.220. 08-16-095, 332-08-265, filed 8/5/08, effective 9/5/08.]


AMENDATORY SECTION(Amending WSR 08-16-095, filed 8/5/08, effective 9/5/08)

WAC 332-08-401   Applicability to department actions under surface mining laws and rules.   When is this chapter applicable to department determinations relating to the Surface Mining Act, chapter 78.44 RCW? This chapter applies when a challenge is filed with the pollution control hearings board against a department determination made under the Surface Mining Act, chapter 78.44 RCW.

[Statutory Authority: RCW 34.05.220. 08-16-095, 332-08-401, filed 8/5/08, effective 9/5/08.]


AMENDATORY SECTION(Amending WSR 08-16-095, filed 8/5/08, effective 9/5/08)

WAC 332-08-415   Surface mining -- Appeal deadline.   When must my appeal be filed? ((Time limits for filing applications for adjudicative proceedings regarding department determinations under the Surface Mining Act, chapter 78.44 RCW, are as follows:

(1) Concerning approval or disapproval of a new or revised reclamation permit, a new, modified, or revised reclamation plan, or reclamation permit transfer - filed within thirty days of the department's determination;

(2) Concerning a civil penalty - served on the department and filed with the pollution control hearings board within thirty days of the date the applicant receives the civil penalty notice, or within thirty days of the date the applicant receives the department's notice of disposition of a timely application for remission or mitigation of the civil penalty under WAC 332-18-05007. The pollution control hearings board's practice and procedure rules govern these proceedings;

(3) Concerning a stop work order to rectify deficiencies, an emergency notice and order to rectify deficiencies or emergency order to suspend surface mining, a suspension order, a cancellation of a permit, an order to submit performance security, or any other appealable surface mining determination - filed within thirty days of the date of the department's service of the order or notice.)) A notice of appeal regarding a department under chapter 78.44 RCW may be filed with the pollution control hearings board within thirty days from the date of receipt of the decision being appealed.

[Statutory Authority: RCW 34.05.220. 08-16-095, 332-08-415, filed 8/5/08, effective 9/5/08.]


AMENDATORY SECTION(Amending WSR 08-16-095, filed 8/5/08, effective 9/5/08)

WAC 332-08-421   Surface mining -- Filing location ((and presiding officer)).   Where must my appeal be filed? Applications for adjudicative proceedings relating to surface mining must be filed ((at the location identified below for each of the issues listed below:

(1) Civil penalty.

(a) File with:


Pollution Control Hearings Board

4224 6th Avenue S.E., Building 2, Rowe Six

P.O. Box 40903

Lacey, WA 98504-0903


(b) And serve:


Assistant Division Manager

Division of Geology and Earth Resources

Department of Natural Resources

P.O. Box 47007

Olympia, WA 98504-7007


(c) Who considers my appeal? The pollution control hearings board will consider properly filed appeals and enter the final decision on appeals of department civil penalties. Chapter 371-08 WAC will govern the proceedings conducted by the pollution control hearings board, except that the burden of proof and standard of proof will be as provided in this chapter.

(2) Where must my appeal of other department surface mining actions be filed? All other surface mining related determinations including requests for brief adjudicative proceedings governed by WAC 332-08-445:

(a) File with:


Assistant Division Manager

Division of Geology and Earth Resources

Department of Natural Resources

P.O. Box 47007

Olympia, WA 98504-7007


(b) Who considers my appeal? Adjudicative proceedings governed by this subsection will be initially decided through the office of administrative hearings unless subject to a brief adjudicative proceeding through WAC 332-08-445 or the commissioner of public lands decides that he/she will enter a decision.
)) with the pollution control hearings board and served on the department at the following addresses:


Pollution Control Hearings Board
Physical Address:
1111 Israel Road S.W., Suite 301
Tumwater, WA 98501
Mailing Address:
P.O. Box 40903
Olympia, WA 98504-0903
Department of Natural Resources
Division on Geology and Earth Resources
P.O. Box 47007
Olympia, WA 98504-7007

[Statutory Authority: RCW 34.05.220. 08-16-095, 332-08-421, filed 8/5/08, effective 9/5/08.]


REPEALER

     The following sections of the Washington Administrative Code are repealed:
WAC 332-08-102 Derelict and abandoned vessel -- Contents of appeal.
WAC 332-08-135 Derelict and abandoned vessel -- Burden of proof.
WAC 332-08-145 Derelict and abandoned vessel -- Summary judgment.
WAC 332-08-155 Derelict and abandoned vessel -- Administrative review of initial orders.
WAC 332-08-165 Derelict and abandoned vessel -- Petition for reconsideration of a final order.
WAC 332-08-411 Surface mining -- Contents of appeal.
WAC 332-08-425 Surface mining -- Burden of proof.
WAC 332-08-431 Surface mining -- Summary judgment.
WAC 332-08-435 Surface mining -- Administrative review of initial orders.
WAC 332-08-441 Surface mining -- Petition for reconsideration of final order.
WAC 332-08-442 Surface mining -- Appeal procedures for stop work orders.
WAC 332-08-443 Surface mining -- Appeal procedures for emergency orders.
WAC 332-08-445 Surface mining -- Availability of brief adjudicative proceedings (BAPs).
WAC 332-08-451 Surface mining -- BAP presiding officer.
WAC 332-08-455 Surface mining -- Conversion of BAP to formal adjudicative proceeding.
WAC 332-08-461 Surface mining -- BAP scheduling.
WAC 332-08-465 Surface mining -- Timing of a BAP decision.
WAC 332-08-471 Surface mining -- Appeal of BAP decision and reviewing officer.
WAC 332-08-501 Applicability to other department actions.
WAC 332-08-511 Other department actions -- Contents of appeal.
WAC 332-08-521 Other department actions -- Appeal deadline.
WAC 332-08-531 Other department actions -- Filing location and presiding officer.
WAC 332-08-541 Other department actions -- Burden of proof.
WAC 332-08-555 Other department actions -- May the parties move for summary judgment on some or all issues?
WAC 332-08-575 Other department actions -- Administrative review of initial orders.
WAC 332-08-585 Other department actions -- Petition for reconsideration of a final order.