WSR 12-06-028

EXPEDITED RULES

DEPARTMENT OF

NATURAL RESOURCES

[ Filed March 1, 2012, 12:09 p.m. ]

     Title of Rule and Other Identifying Information: Department of natural resources (DNR) administrative appeals related to derelict and abandoned vessels, surface mining, and decisions from forest practices brief adjudicative proceedings (BAP).

NOTICE

     THIS RULE IS BEING PROPOSED UNDER AN EXPEDITED RULE-MAKING PROCESS THAT WILL ELIMINATE THE NEED FOR THE AGENCY TO HOLD PUBLIC HEARINGS, PREPARE A SMALL BUSINESS ECONOMIC IMPACT STATEMENT, OR PROVIDE RESPONSES TO THE CRITERIA FOR A SIGNIFICANT LEGISLATIVE RULE. IF YOU OBJECT TO THIS USE OF THE EXPEDITED RULE-MAKING PROCESS, YOU MUST EXPRESS YOUR OBJECTIONS IN WRITING AND THEY MUST BE SENT TO Peggy Murphy, Department of Natural Resources, P.O. Box 47014, Olympia, WA 98504-7014, fax (360) 902-1789 , AND RECEIVED BY May 7, 2012.


     Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: Amend rules in chapter 332-08 WAC to:

• Incorporate provisions of 2010 natural resources reform (chapter 210, Laws of 2010) pertaining to adjudicative proceedings under the Derelict and Abandoned Vessel Act, chapter 79.100 RCW, changing proceedings to the pollution control hearings board (PCHB).
• Incorporate provisions of 2010 natural resources reform (chapter 210, Laws of 2010) pertaining to adjudicative proceedings of surface mining decisions, chapter 78.44 RCW, changing proceedings to the PCHB.
• Incorporate provisions of 2010 natural resources reform (chapter 210, Laws of 2010) pertaining to appeals from forest practices BAP, chapter 76.09 RCW, changing appeals of DNR forest practices BAP decisions from the forest practices appeals board to the PCHB.
• Incorporate provisions of 2010 natural resources reform (chapter 210, Laws of 2010) eliminating DNR adjudicative proceedings except where specifically retained by statute, and changing proceedings to the PCHB.

Amend rules in chapter 332-18 WAC to:


• Incorporate provisions of 2010 natural resources reform (chapter 210, Laws of 2010) pertaining to adjudicative proceedings of surface mining penalties, chapter 78.44 RCW, changing proceedings related to mitigation of penalties.

     Reasons Supporting Proposal: The intent is to make DNR rules consistent with Washington state statutes.

     Statutory Authority for Adoption: RCW 34.05.220.

     Statute Being Implemented: Statutes amended in chapter 210, Laws of 2010.

     Rule is not necessitated by federal law, federal or state court decision.

     Name of Proponent: DNR, governmental.

     Name of Agency Personnel Responsible for Drafting: Peggy Murphy, 1111 Washington Street S.E., Olympia, (360) 902-1393; Implementation and Enforcement: Pamela Krueger, 1111 Washington Street S.E., Olympia, (360) 902-1424.

January 29, 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 Department of Natural Resources
Physical Address: Aquatic Resources Division
1111 Israel Road S.W., Suite 301 Derelict Vessel Removal Program
Tumwater, WA 98501 P.O. Box 47027
Olympia, WA 98504-7027
Mailing Address:
P.O. Box 40903
Olympia, WA 98504-0903

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

[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.

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