HOUSE BILL REPORT

SB 5427

As Amended by the House

BYSenators Kreidler and Bluechel; by request of Attorney General

Adopting an ecology procedures simplification act.

House Committe on Environmental Affairs

Majority Report:  Do pass with amendments.  (14)

      Signed by Representatives Rust, Chair; Valle, Vice Chair; Allen, Brekke, Ferguson, Jesernig, Lux, May, Pruitt, Schoon, D. Sommers, Sprenkle, Unsoeld and Walker.

House Staff:Bonnie Austin (786-7107)

AS PASSED HOUSE MARCH 27, 1987

BACKGROUND:

Current statutory and administrative procedures for the different bodies of law under the jurisdiction of the Department of Ecology (Ecology) are not uniform.  Procedural differences exist between the laws relating to water resources, air pollution, hazardous waste, noise pollution, general water pollution, and water pollution by oil.

For instance, the provisions relating to civil penalties under the air pollution statute do not provide for an in-house mitigation process by Ecology, as do the water pollution, water resources, and hazardous waste laws.

Collection actions for water pollution, water resources, and hazardous waste penalties may be brought in either Thurston County superior court or in the county in which the violator does business.  However, air pollution penalty collection actions may only be brought in the county in which the violation occurred.

Regulatory orders, permits and licenses issued by Ecology are the primary means of administrative enforcement of environmental laws.  Existing statutes conflict on how such orders, permits and licenses are appealed.  Some regulatory orders are reviewed directly by superior court, some are subject to Administrative Procedures Act-type hearings, and others are reviewed by the pollution control hearing board.

SUMMARY:

BILL AS AMENDED:  Current provisions of the law relating to water resources, air pollution, hazardous waste, noise pollution, general water pollution, and water pollution by oil are made procedurally uniform.

Any person incurring a civil penalty under these laws may apply for a mitigation of the penalty.  Mitigation is at the discretion of Department of Ecology (Ecology) upon a showing of extraordinary circumstances, such as the presence of information not considered in setting the original penalty.

Collection actions for penalties under all of these statutes may be brought either in Thurston County superior court or in the court of any county in which the violator does business.

Any order, permit, certificate, or license issued by Ecology may be appealed to the Pollution Control Hearing Board (hearings board).  Any 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 to the hearings board.

Provisions relating to stays of administrative orders or decisions are modified and an exclusive means of staying an order is established. The appellant requesting the stay must demonstrate either a likelihood of success on the merits or irreparable harm.  If the appellant meets this burden, the burden shifts to Ecology to show either (a) a substantial probability of success on the merits, or (b) a likelihood of success on the merits and an overriding public interest which justifies denial of the stay. A grant or denial of a stay order may be appealed by any aggrieved person pending the decision on the merits by the hearings board, and the superior court shall provide an expedited review.

The hearings board shall develop procedures for summary procedures consistent with the rules of civil procedure for superior court on summary judgment.

The hearings board has jurisdiction over all civil penalties, orders, decisions, permits, certificates, and licenses granted, denied, or imposed by Ecology or any air authority, including decisions of local health departments regarding the grant or denial of a solid waste permit.

References to obsolete agencies are deleted.

By January 1, 1988, Ecology shall amend its rules to conform to this act.

AMENDED BILL COMPARED TO ORIGINAL:  Incorrect references are corrected.  Sections which may arguably result in substantive changes in the law are deleted.

Fiscal Note:      Requested March 13, 1987.

House Committee ‑ Testified For:    (House version, HB 481) Jeff Goltz, Attorney General.

House Committee - Testified Against:      None Presented.

House Committee - Testimony For:    (House version, HB 481) The inconsistencies between the different laws relating to Ecology procedures are confusing and misleading to attorneys and the public.  Parties have had to go to court to find out where to appeal certain permit decisions.  This bill establishes uniform procedures and avoids unnecessary litigation.

House Committee - Testimony Against:      None Presented.