ENGROSSED SUBSTITUTE HOUSE BILL 2039

ByHouse Environment & Energy (originally sponsored by Representatives Fitzgibbon, Ramel, Reed, Ormsby, Fosse, and Duerr)

AN ACT Relating to modifying the appeals process for environmental and land use matters; amending RCW 34.05.518, 34.05.518, 90.58.180, 70A.230.080, 70A.300.120, 70A.430.070, and 86.16.081; reenacting and amending RCW 43.21B.110 and 43.21B.300; adding a new section to chapter 43.21B RCW; repealing RCW 70A.205.145; providing an effective date; and providing an expiration date.

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

Sec. 1. RCW 34.05.518 and 2021 c 305 s 2 are each amended to read as follows:

(1)(a) The final decision of an administrative agency in an adjudicative proceeding under this chapter may be directly reviewed by the court of appeals ((upon))either: (i) Upon certification by the superior court pursuant to this ((section))subsection and subsections (2) and (3) of this section; or (ii) if the final decision is from an environmental board as identified in RCW 43.21B.005 and the final decision relates to a clean energy project as defined in RCW 43.158.010, pursuant to subsection (4) of this section.

((Transfer of cases pursuant to this section does not require the filing of a motion for discretionary review with the court of appeals.))(b) The superior court may certify cases for transfer to the court of appeals upon finding that:

(((a)))(i) All parties have consented to the transfer to the court of appeals and agreed that the judicial review can occur based upon the agency record developed before the administrative body without supplementing the record pursuant to RCW 34.05.562; or

(((b)))(ii) One or more of the parties have not consented to the transfer, but the superior court finds that transfer would serve the interest of justice, would not cause substantial prejudice to any party, including any unrepresented party, and further finds that:

(((i)))(A) The judicial review can occur based upon the agency record developed before the administrative body without supplementing the record pursuant to RCW 34.05.562; or

(((ii)))(B) The superior court has completed any necessary supplementation of the record pursuant to RCW 34.05.562, such that only issues of law remain for determination.

(2) If the superior court certifies a final decision of an administrative agency in an adjudicative proceeding, the superior court shall transfer the matter to the court of appeals as a direct appeal.

(3) A party contesting a superior court decision granting or denying certification for direct review may file a motion for discretionary review with the court of appeals.

Sec. 2. RCW 34.05.518 and 2021 c 305 s 5 are each amended to read as follows:

(1) The final decision of an administrative agency in an adjudicative proceeding under this chapter may be directly reviewed by the court of appeals either (a) upon certification by the superior court pursuant to subsection (2) of this section ((or)); (b) if the final decision is from an environmental board as ((defined in))identified in RCW 43.21B.005 and the final decision relates to a clean energy project as defined in RCW 43.158.010, pursuant to subsection (3) of this section((, upon acceptance by the court of appeals after a certificate of appealability has been filed by the environmental board that rendered the final decision)); or (c) if the final decision is from an environmental board identified in RCW 43.21B.005 and the final decision does not relate to a clean energy project as defined in RCW 43.158.010, pursuant to subsection (4) of this section. Transfer of a case pursuant to subsections (3) or (4) of this section does not require the filing of a motion for discretionary review with the court of appeals.

(2)(a) For direct review upon certification by the superior court, an application for direct review must be filed with the superior court within thirty days of the filing of the petition for review in superior court. The superior court may certify a case for direct review only if the judicial review is limited to the record of the agency proceeding and the court finds that:

(((a)))(i) Fundamental and urgent issues affecting the future administrative process or the public interest are involved which require a prompt determination;

(((b)))(ii) Delay in obtaining a final and prompt determination of such issues would be detrimental to any party or the public interest;

(((c)))(iii) An appeal to the court of appeals would be likely regardless of the determination in superior court; and

(((d)))(iv) The appellate court's determination in the proceeding would have significant precedential value.

(b) Procedures for certification shall be established by court rule.

(3)(a) For the ((purposes of direct review of final decisions of environmental boards, environmental boards include those boards identified in RCW 43.21B.005 and the growth management hearings board as identified in RCW 36.70A.250.

(f) If a certificate of appealability is denied, review shall be by the superior court. The superior court's decision may be appealed to the court of appeals.))appeal of a permit related to a clean energy project, as defined in RCW 43.158.010, that is the subject of a final adjudicative decision of an environmental board, as identified in RCW 43.21B.005, upon a motion filed by any party to the appeal, the superior court shall certify a case for transfer to the court of appeals upon a finding that:

NEW SECTION.  Sec. 3. A new section is added to chapter 43.21B RCW to read as follows:

(1) Where multiple permits for the same underlying clean energy project, as defined in RCW 43.158.010, are appealed to one or more of the environmental boards, as identified in RCW 43.21B.005, the presiding officer shall consolidate the appeals for hearing when one or more of the following criteria are met:

(a) When appeals for the permits related to the same underlying project are either:

(i) Filed within 60 days of each other; or

(ii) If the permits are not filed within 60 days of each other and the environmental board issues a stay of the appeal of the permit pursuant to RCW 43.21B.320 following the applicant's request. Such a stay must include a stay of the construction of the project pending appeal, to allow other anticipated appeals of permits for the same underlying project to be filed with the environmental boards to accommodate consolidation pursuant to this section, but the environmental board may set a deadline after which an appeal may proceed in the absence of other permit appeals in order to ensure efficient resolution of appeals; or

(b) The presiding officer determines that the following three criteria have been met:

(i) Consolidation will expedite disposition of the appeals;

(ii) Consolidation will avoid duplication of testimony; and

(iii) Consolidation will not prejudice the rights of the parties.

(2) When all appeals of individual permits consolidated pursuant to this section are within the jurisdiction of the pollution control hearings board, the pollution control hearings board shall retain jurisdiction over the consolidated matter. When all appeals of individual permits consolidated pursuant to this section are within the jurisdiction of the shorelines hearings board, the shorelines hearings board shall retain jurisdiction over the consolidated matter. When appeals to the pollution control hearings board and appeals to the shorelines hearings board are consolidated pursuant to this section, the following applies:

(a) The consolidated appeals must be heard by the pollution control hearings board;

(b) The pollution control hearings board must issue its decision on the consolidated appeal within 240 days, which must be measured from the date that the last of the consolidated appeals was filed; and

(c) The time period in (b) of this subsection may be extended on motion from a party or by the pollution control hearings board upon a showing that the consolidated appeal raises issues of unique complexity and that delay is not against the public interest. In no case may the time period in (b) of this subsection be extended for a period greater than 30 days unless the time period is waived by all parties.

Sec. 4. RCW 90.58.180 and 2011 c 277 s 4 are each amended to read as follows:

(1)(a) Any person aggrieved by the granting, denying, or rescinding of a permit on shorelines of the state pursuant to RCW 90.58.140 may seek review from the shorelines hearings board by filing a petition for review within ((twenty-one))21 days of the date of filing of the decision as defined in RCW 90.58.140(6).

(b) Within seven days of the filing of any petition for review with the board as provided in this section pertaining to a final decision of a local government, the petitioner shall serve copies of the petition on the department, the office of the attorney general, and the local government. The department and the attorney general may intervene to protect the public interest and ensure that the provisions of this chapter are complied with at any time within ((fifteen))15 days from the date of the receipt by the department or the attorney general of a copy of the petition for review filed pursuant to this section. The shorelines hearings board shall schedule review proceedings on the petition for review without regard as to whether the period for the department or the attorney general to intervene has or has not expired.

(2) The department or the attorney general may obtain review of any final decision granting a permit, or granting or denying an application for a permit issued by a local government by filing a written petition with the shorelines hearings board and the appropriate local government within ((twenty-one))21 days from the date the final decision was filed as provided in RCW 90.58.140(6).

(3) The review proceedings authorized in subsections (1) and (2) of this section are subject to the provisions of chapter 34.05 RCW pertaining to procedures in adjudicative proceedings. Judicial review of such proceedings of the shorelines hearings board is governed by chapter 34.05 RCW. The board shall issue its decision on the appeal authorized under subsections (1) and (2) of this section within ((one hundred eighty))180 days after the date the petition is filed with the board or a petition to intervene is filed by the department or the attorney general, whichever is later. The time period may be extended by the board for a period of ((thirty))30 days upon a showing of good cause or may be waived by the parties.

(4) Any person may appeal any rules, regulations, or guidelines adopted or approved by the department within ((thirty))30 days of the date of the adoption or approval. The board shall make a final decision within ((sixty))60 days following the hearing held thereon.

(5) The board shall find the rule, regulation, or guideline to be valid and enter a final decision to that effect unless it determines that the rule, regulation, or guideline:

(a) Is clearly erroneous in light of the policy of this chapter; or

(b) Constitutes an implementation of this chapter in violation of constitutional or statutory provisions; or

(c) Is arbitrary and capricious; or

(d) Was developed without fully considering and evaluating all material submitted to the department during public review and comment; or

(e) Was not adopted in accordance with required procedures.

(6) If the board makes a determination under subsection (5)(a) through (e) of this section, it shall enter a final decision declaring the rule, regulation, or guideline invalid, remanding the rule, regulation, or guideline to the department with a statement of the reasons in support of the determination, and directing the department to adopt, after a thorough consultation with the affected local government and any other interested party, a new rule, regulation, or guideline consistent with the board's decision.

(7) A decision of the board on the validity of a rule, regulation, or guideline shall be subject to review in superior court, if authorized pursuant to chapter 34.05 RCW. A petition for review of the decision of the shorelines hearings board on a rule, regulation, or guideline shall be filed within ((thirty))30 days after the date of final decision by the shorelines hearings board.

Sec. 5. RCW 43.21B.110 and 2023 c 455 s 5, 2023 c 434 s 20, 2023 c 344 s 5, and 2023 c 135 s 6 are each reenacted and amended to read as follows:

(1) The hearings board shall only have jurisdiction to hear and decide appeals from the following decisions of the department, the director, local conservation districts, the air pollution control boards or authorities as established pursuant to chapter 70A.15 RCW, local health departments, the department of natural resources, the department of fish and wildlife, the parks and recreation commission, and authorized public entities described in chapter 79.100 RCW:

(a) Civil penalties imposed pursuant to chapter 70A.230 RCW and RCW 18.104.155, 70A.15.3160, 70A.300.090, 70A.20.050, 70A.205.280, 70A.355.070, 70A.430.070, 70A.500.260, 70A.505.100, 70A.505.110, 70A.530.040, 70A.350.070, 70A.515.060, 70A.245.040, 70A.245.050, 70A.245.070, 70A.245.080, 70A.245.130, 70A.245.140, 70A.65.200, 70A.455.090, 70A.550.030, 70A.555.110, 70A.560.020, 76.09.170, 77.55.440, 78.44.250, 88.46.090, 90.03.600, 90.46.270, 90.48.144, 90.56.310, 90.56.330, and 90.64.102.

(b) Orders issued pursuant to RCW 18.104.043, 18.104.060, 18.104.130, 43.27A.190, 70A.15.2520, 70A.15.3010, 70A.15.4530, 70A.15.6010, 70A.205.280, 70A.214.140, 70A.300.120, 70A.350.070, 70A.245.020, 70A.65.200, 70A.555.110, 70A.560.020, 86.16.020, 88.46.070, 90.03.665, 90.14.130, 90.46.250, 90.48.120, ((and))90.48.240, 90.56.330, and 90.64.040.

(c) Except as provided in RCW 90.03.210(2), the issuance, modification, or termination of any permit, certificate, or license by the department or any air authority in the exercise of its jurisdiction, including the issuance or termination of a waste disposal permit, the denial of an application for a waste disposal permit, the modification of the conditions or the terms of a waste disposal permit, ((or)) a decision to approve or deny a solid waste management plan under RCW 70A.205.055, approval or denial of an application for a ((solid waste permit exemption))beneficial use determination under RCW 70A.205.260, an application for a change under RCW 90.03.383, or a permit to distribute reclaimed water under RCW 90.46.220.

(d) Decisions of local health departments regarding the ((grant))granting or denial of solid waste permits pursuant to chapter 70A.205 RCW, including appeals by the department as provided in RCW 70A.205.130.

(e) Decisions of local health departments regarding the issuance and enforcement of permits to use or dispose of biosolids under RCW 70A.226.090.

(f) Decisions of the department regarding waste-derived fertilizer or micronutrient fertilizer under RCW 15.54.820((, and decisions of the department regarding waste-derived soil amendments under RCW 70A.205.145)).

(g) Decisions of local conservation districts related to the denial of approval or denial of certification of a dairy nutrient management plan; conditions contained in a plan; application of any dairy nutrient management practices, standards, methods, and technologies to a particular dairy farm; and failure to adhere to the plan review and approval timelines in RCW 90.64.026 as provided in RCW 90.64.028.

(h) Any other decision by the department or an air authority which pursuant to law must be decided as an adjudicative proceeding under chapter 34.05 RCW.

(i) Decisions of the department of natural resources, the department of fish and wildlife, and the department that are reviewable under chapter 76.09 RCW, and the department of natural resources' appeals of county, city, or town objections under RCW 76.09.050(7).

(j) Forest health hazard orders issued by the commissioner of public lands under RCW 76.06.180.

(k) Decisions of the department of fish and wildlife to issue, deny, condition, or modify a hydraulic project approval permit under chapter 77.55 RCW, to issue a stop work order, to issue a notice to comply, to issue a civil penalty, or to issue a notice of intent to disapprove applications.

(l) Decisions of the department of natural resources that are reviewable under RCW 78.44.270.

(m) Decisions of an authorized public entity under RCW 79.100.010 to take temporary possession or custody of a vessel or to contest the amount of reimbursement owed that are reviewable by the hearings board under RCW 79.100.120.

(n) Decisions of the department of ecology that are appealable under RCW 70A.245.020 to set recycled minimum postconsumer content for covered products or to temporarily exclude types of covered products in plastic containers from minimum postconsumer recycled content requirements.

(o) Orders by the department of ecology under RCW 70A.455.080.

(2) The following hearings shall not be conducted by the hearings board:

(a) Hearings required by law to be conducted by the shorelines hearings board pursuant to chapter 90.58 RCW, except where appeals to the pollution control hearings board and appeals to the shorelines hearings board have been consolidated pursuant to section 3 of this act.

(b) Hearings conducted by the department pursuant to RCW 70A.15.3010, 70A.15.3070, 70A.15.3080, 70A.15.3090, 70A.15.3100, 70A.15.3110, and 90.44.180.

(c) Appeals of decisions by the department under RCW 90.03.110 and 90.44.220.

(d) Hearings conducted by the department to adopt, modify, or repeal rules.

(3) Review of rules and regulations adopted by the hearings board shall be subject to review in accordance with the provisions of the administrative procedure act, chapter 34.05 RCW.

Sec. 6. RCW 43.21B.300 and 2023 c 455 s 6, 2023 c 434 s 21, and 2023 c 135 s 7 are each reenacted and amended to read as follows:

(1) Any civil penalty provided in RCW 18.104.155, 70A.15.3160, 70A.205.280, 70A.230.080, 70A.300.090, 70A.20.050, 70A.245.040, 70A.245.050, 70A.245.070, 70A.245.080, 70A.245.130, 70A.245.140, 70A.65.200, 70A.430.070, 70A.455.090, 70A.500.260, 70A.505.110, 70A.555.110, 70A.560.020, 86.16.081, 88.46.090, 90.03.600, 90.46.270, 90.48.144, 90.56.310, 90.56.330, and 90.64.102 and chapter 70A.355 RCW 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. For penalties issued by local air authorities, within 30 days after the notice is received, the person incurring the penalty may apply in writing to the authority for the remission or mitigation of the penalty. Upon receipt of the application, the authority may remit or mitigate the penalty upon whatever terms the authority in its discretion deems proper. 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 30 days after the date of receipt by the person penalized of the notice imposing the penalty or 30 days after the date of receipt of the notice of disposition by a local air authority of the application for relief from penalty.

(3) A penalty shall become due and payable on the later of:

(a) 30 days after receipt of the notice imposing the penalty;

(b) 30 days after receipt of the notice of disposition by a local air authority on application for relief from penalty, if such an application is made; or

(c) 30 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 30 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 30 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 70A.15.3160, the disposition of which shall be governed by that provision, RCW 70A.245.040 and 70A.245.050, which shall be credited to the recycling enhancement account created in RCW 70A.245.100, RCW 70A.300.090, 70A.555.110, and 70A.560.020, which shall be credited to the model toxics control operating account created in RCW 70A.305.180, RCW 70A.65.200, which shall be credited to the climate investment account created in RCW 70A.65.250, RCW 90.56.330, which shall be credited to the coastal protection fund created by RCW 90.48.390, and RCW 70A.355.070, which shall be credited to the underground storage tank account created by RCW 70A.355.090))the following:

(h) Penalties imposed pursuant to RCW 70A.355.070 must be credited to the underground storage tank account created in RCW 70A.355.090.

Sec. 7. RCW 70A.230.080 and 2020 c 20 s 1245 are each amended to read as follows:

A violation of this chapter is punishable by a civil penalty not to exceed ((one thousand dollars))$1,000 for each violation in the case of a first violation. Repeat violators are liable for a civil penalty not to exceed ((five thousand dollars))$5,000 for each repeat violation. Penalties collected under this section must be deposited in the model toxics control operating account created in RCW 70A.305.180. The penalties provided in this section must be imposed pursuant to RCW 43.21B.300 and may be appealed to the pollution control hearings board.

Sec. 8. RCW 70A.300.120 and 2012 c 117 s 417 are each amended to read as follows:

(1) Whenever on the basis on any information the department determines that a person has violated or is about to violate any provision of this chapter, the department may issue an order requiring compliance either immediately or within a specified period of time. The order shall be delivered by registered mail or personally to the person against whom the order is directed.

(2) Any person who fails to take corrective action as specified in a compliance order shall be liable for a civil penalty of not more than ((ten thousand dollars))$10,000 for each day of continued noncompliance. In addition, the department may suspend or revoke any permits and/or certificates issued under the provisions of this chapter to a person who fails to comply with an order directed against him or her.

(3) Any order or penalty may be appealed pursuant to RCW ((43.21B.310))43.21B.300.

Sec. 9. RCW 70A.430.070 and 2020 c 20 s 1409 are each amended to read as follows:

(1) A manufacturer of products that are restricted under this chapter must notify persons that sell the manufacturer's products in this state about the provisions of this chapter no less than ((ninety))90 days prior to the effective date of the restrictions.

(2) A manufacturer that produces, sells, or distributes a product prohibited from manufacture, sale, or distribution in this state under this chapter must recall the product and reimburse the retailer or any other purchaser for the product.

(3) A manufacturer of products in violation of this chapter is subject to a civil penalty not to exceed ((five thousand dollars))$5,000 for each violation in the case of a first offense. Manufacturers who are repeat violators are subject to a civil penalty not to exceed ((ten thousand dollars))$10,000 for each repeat offense. Penalties collected under this section must be deposited in the model toxics control operating account created in RCW 70A.305.180. The penalties provided in this section must be imposed pursuant to RCW 43.21B.300 and may be appealed to the pollution control hearings board.

(4) Retailers who unknowingly sell products that are restricted from sale under this chapter are not liable under this chapter.

(5) The sale or purchase of any previously owned products containing a chemical restricted under this chapter made in casual or isolated sales as defined in RCW 82.04.040, or by a nonprofit organization, is exempt from this chapter.

Sec. 10. RCW 86.16.081 and 1995 c 403 s 634 are each amended to read as follows:

(1) Except as provided in RCW 43.05.060 through 43.05.080 and 43.05.150, the attorney general or the attorney for the local government shall bring such injunctive, declaratory, or other actions as are necessary to ensure compliance with this chapter.

(2) Any person who fails to comply with this chapter shall also be subject to a civil penalty not to exceed ((one thousand dollars))$1,000 for each violation. Each violation or each day of noncompliance shall constitute a separate violation.

(3) The penalty provided for in this section ((shall))must be imposed by a notice in writing((, either by certified mail with return receipt requested or by personal service, to the person incurring the same from the department or local government, describing the violation with reasonable particularity and ordering))and must be imposed consistent with the procedures of RCW 43.21B.300. The notice in writing must also order the act or acts constituting the violation or violations to cease and desist or, in appropriate cases, ((requiring))must require necessary corrective action to be taken within a specific and reasonable time.

(4) Any penalty imposed pursuant to this section by the department shall be subject to review by the pollution control hearings board under chapter 43.21B RCW. Any penalty imposed pursuant to this section by local government shall be subject to review by the local government legislative authority. Any penalty jointly imposed by the department and local government shall be appealed to the pollution control hearings board under chapter 43.21B RCW.

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