BILL REQ. #:  Z-0195.3 

Read first time 01/31/2003.   Referred to Committee on Natural Resources, Energy & Water.

     AN ACT Relating to determining the appeals period for certain environmental appeals; amending RCW 43.21B.001, 43.21B.190, 43.21B.230, and 43.21B.300; reenacting and amending RCW 43.21B.310; and adding a new section to chapter 43.21B RCW.

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

Sec. 1   RCW 43.21B.001 and 1987 c 109 s 4 are each amended to read as follows:
     ((As used in)) The definitions in this section apply throughout this chapter((,)) unless the context clearly requires otherwise.
     (1) "Aggrieved party" means a party with standing to appeal, including all parties of record.
     (2) "Date of receipt" means:
     (a) Three business days after the date of mailing; or
     (b) The date of actual receipt, when the actual receipt date can be proven by a preponderance of the evidence. The date of actual receipt, however, may not exceed forty-five days from the date of mailing.
     (3) "Department" means the department of ecology((, and)).
     (4) "Director" means the director of ecology.
     (5) "Parties of record" means parties to the agency proceeding as defined in RCW 34.05.010(12), and also includes any person who participated in the agency administrative review process by providing oral or written comment to the agency.

Sec. 2   RCW 43.21B.190 and 1995 c 382 s 4 are each amended to read as follows:
     ((Within thirty days)) After the final decision and order of the hearings board ((upon such an appeal)) has been ((communicated to)) received by the ((interested)) parties, ((such interested)) any party aggrieved by the decision and order of the hearings board may appeal to the superior court within thirty days from the date of receipt of the final decision and order.

Sec. 3   RCW 43.21B.230 and 1997 c 125 s 2 are each amended to read as follows:
     Consistent with RCW 43.21B.110, any person having received notice of ((a)) denial of a petition, a notice of determination, or notice of ((or)) an order made by the department may appeal to the hearings board, within thirty days from the date of receipt of the notice of such denial, order, or determination ((is posted in the United States mail, properly addressed, postage prepaid, to)) by the appealing party. Aggrieved parties who do not qualify as parties of record as defined in RCW 43.21B.001 are not entitled to notice under this section. The appeal shall be perfected by serving a copy of the notice of appeal upon the department or air pollution authority established pursuant to chapter 70.94 RCW, as the case may be, within the time specified herein and by filing the original thereof with proof of service with the clerk of the hearings board.

Sec. 4   RCW 43.21B.300 and 2001 c 36 s 2 are each amended to read as follows:
     (1) Any civil penalty provided in RCW 18.104.155, 70.94.431, 70.105.080, 70.107.050, 88.46.090, 90.03.600, 90.48.144, 90.56.310, and 90.56.330 shall be imposed by a notice in writing, either by certified mail with return receipt requested or by personal service, to the person incurring the penalty from the department or the local air authority, describing the violation with reasonable particularity. Within ((fifteen)) thirty days after the notice is received, the person incurring the penalty may apply in writing to the department or the authority for the remission or mitigation of the penalty. Upon receipt of the application, the department or authority may remit or mitigate the penalty upon whatever terms the department or the authority in its discretion deems proper. The department or the authority may ascertain the facts regarding all such applications in such reasonable manner and under such rules as it may deem proper and shall remit or mitigate the penalty only upon a demonstration of extraordinary circumstances such as the presence of information or factors not considered in setting the original penalty.
     (2) Any penalty imposed under this section may be appealed to the pollution control hearings board in accordance with this chapter if the appeal is filed with the hearings board and served on the department or authority thirty days after the date of receipt by the person penalized of the notice imposing the penalty or thirty days after the date of receipt of the notice of disposition of the application for relief from penalty.
     (3) A penalty shall become due and payable on the later of:
     (a) Thirty days after receipt of the notice imposing the penalty;
     (b) Thirty days after receipt of the notice of disposition on application for relief from penalty, if such an application is made; or
     (c) Thirty days after receipt of the notice of decision of the hearings board if the penalty is appealed.
     (4) If the amount of any penalty is not paid to the department within thirty days after it becomes due and payable, the attorney general, upon request of the department, shall bring an action in the name of the state of Washington in the superior court of Thurston county, or of any county in which the violator does business, to recover the penalty. If the amount of the penalty is not paid to the authority within thirty days after it becomes due and payable, the authority may bring an action to recover the penalty in the superior court of the county of the authority's main office or 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.
     (5) All penalties recovered shall be paid into the state treasury and credited to the general fund except those penalties imposed pursuant to RCW 18.104.155, which shall be credited to the reclamation account as provided in RCW 18.104.155(7), RCW 70.94.431, the disposition of which shall be governed by that provision, RCW 70.105.080, which shall be credited to the hazardous waste control and elimination account, created by RCW 70.105.180, and RCW 90.56.330, which shall be credited to the coastal protection fund created by RCW 90.48.390.

Sec. 5   RCW 43.21B.310 and 2001 c 220 s 4 and 2001 c 36 s 3 are each reenacted and amended to read as follows:
     (1) Except as provided in RCW 90.03.210(2), any order issued by the department or local air authority pursuant to RCW 70.94.211, 70.94.332, 70.105.095, 43.27A.190, 86.16.020, 88.46.070, or 90.48.120(2) or any provision enacted after July 26, 1987, or any permit, certificate, or license issued by the department may be appealed to the pollution control hearings board if the appeal is filed with the board and served on the department or authority within thirty days after the date of receipt of the order. Except as provided under chapter 70.105D RCW and RCW 90.03.210(2), this is the exclusive means of appeal of such an order. Aggrieved parties who do not qualify as parties of record as defined in RCW 43.21B.001 are not entitled to notice under this section.
     (2) The department or the authority in its discretion may stay the effectiveness of an order during the pendency of such an appeal.
     (3) At any time during the pendency of an appeal of such an order to the board, the appellant may apply pursuant to RCW 43.21B.320 to the hearings board for a stay of the order or for the removal thereof.
     (4) Any appeal must contain the following in accordance with the rules of the hearings board:
     (a) The appellant's name and address;
     (b) The date and docket number of the order, permit, or license appealed;
     (c) A description of the substance of the order, permit, or license that is the subject of the appeal;
     (d) A clear, separate, and concise statement of every error alleged to have been committed;
     (e) A clear and concise statement of facts upon which the requester relies to sustain his or her statements of error; and
     (f) A statement setting forth the relief sought.
     (5) Upon failure to comply with any final order of the department, the attorney general, on request of the department, may bring an action in the superior court of the county where the violation occurred or the potential violation is about to occur to obtain such relief as necessary, including injunctive relief, to insure compliance with the order. The air authorities may bring similar actions to enforce their orders.
     (6) An appealable decision or order shall be identified as such and shall contain a conspicuous notice to the recipient that it may be appealed only by filing an appeal with the hearings board and serving it on the department within thirty days of the date of receipt.

NEW SECTION.  Sec. 6   A new section is added to chapter 43.21B RCW to read as follows:
     (1) Any aggrieved party, not qualifying as a party of record, who has not received notice of denial of a petition, a notice of determination, a regulatory or nonregulatory order, a permit decision, or a penalty issued by the department or air authority may appeal, within thirty days of the date the notice of petition denial, notice of determination, order, permit decision, or penalty is posted on the department's or local air authority's internet site. Any appeal taken shall be in compliance with RCW 43.21B.310(4).
     (2) Any notice posted on the department's or local air authority's internet site pursuant to subsection (1) of this section must include the date the notice was posted on the site, and state that any appeal by an aggrieved party who is not a party of record must be filed within thirty days of the date the notice is posted on the internet site.
     (3) This section does not require the department or local air authority to post the notices listed in subsection (1) of this section on their internet site.