SENATE BILL REPORT

SB 6288

This analysis was prepared by non-partisan legislative staff for the use of legislative members in their deliberations. This analysis is not a part of the legislation nor does it constitute a statement of legislative intent.

Background: The Water Pollution Control Act (WPCA) provides the Department of Ecology (Ecology) with the jurisdiction to control and prevent pollution in fresh, surface, underground, and marine waters of the state. Under the WPCA, discharging any organic or inorganic matter that causes or tends to cause water pollution is prohibited.

Whenever, in the opinion of Ecology, a person violates or creates a substantial potential to violate the WPCA or the Oil and Hazardous Substance Spill Prevention and Response laws, or fails to control pollution from being discharged or to be discharged into any waters of the state, Ecology must notify the person of its determination. A person receiving notice has 30 days to file with Ecology a report stating actions taken or actions that will be taken to comply with the determination. Ecology may issue an order or directive, without first providing notice, when it determines immediate action is needed to meet the purposes of WPCA or Oil and Hazardous Substance Spill Prevention and Response laws.

There has been ongoing litigation, Joseph Lemire v Ecology, regarding Ecology's application of the WPCA with respect to the pollution prevention purpose of the WPCA. Ecology issued an order requiring Lemire to come into compliance with the WPCA, which was appealed to the Pollution Control Hearings Board (PCHB). The PCHB concluded that the order was within Ecology's statutory authority. The decision by the PCHB was appealed to superior court, where Ecology's order was invalidated, and the court held that the order was unsubstantiated by the record and effected an unconstitutional taking. Ecology then appealed to the Washington State Supreme Court. The Supreme Court reinstated the PCHB decision and reversed the superior court decision.