Date Adopted: January 5, 2004.

     Purpose: The 2003 legislature transferred the livestock nutrient management program from the Department of Ecology to the Washington State Department of Agriculture (WSDA). By enacting ESSB 5889, the legislature gave WSDA the authority to take immediate corrective action and formal regulatory enforcement action for violations of chapter 90.64 RCW, Dairy nutrient management, and chapter 90.48 RCW, Water pollution control. However, ESSB 5889 left the appeal of any WSDA livestock nutrient management program action under the jurisdiction of the Pollution Control Hearings Board.

     This rule-making order adopts amendments to chapter 16-08 WAC, Practice and procedure, to make clear that any appeal of livestock nutrient management program orders and penalties must be appealed to the Pollution Control Hearings Board under chapter 43.21B RCW, Environmental hearings office -- Pollution control hearings board, and chapter 371-08 WAC, Environmental hearings office -- Pollution control hearings board. An appellant cannot use the procedural rules in chapter 16-08 WAC. The adopted amendments also clarify that any appeal of livestock nutrient management program orders and penalties must be served on and handled by WSDA rather than the Department of Ecology.

     Statutory Authority for Adoption: Chapters 90.64 and 34.05 RCW.

      Adopted under notice filed as WSR 03-23-136 on November 19, 2003.

     Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 2, Amended 0, Repealed 0.

     Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0;      Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 2, Amended 0, Repealed 0.

     Effective Date of Rule: Thirty-one days after filing.

January 5, 2004

Valoria H. Loveland

Director

OTS-6766.1

NEW SECTION
WAC 16-08-003   Declaration of purpose and applicability.   This chapter sets forth the rules of procedure that are applicable to adjudicative proceedings before the department. Because civil penalties and orders issued by the department pursuant to chapters 90.64 and 90.48 RCW in the livestock nutrient management program are appealable only to the pollution control hearings board (PCHB) under chapter 43.21B RCW and chapter 371-08 WAC, this chapter is not applicable to those proceedings.

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     (2) Pursuant to WAC 371-08-306, when referring to appeals related to civil penalties and orders issued by the department of agriculture in the livestock nutrient management program, all references to "department" in both chapters 43.21B RCW and 371-08 WAC shall mean department of agriculture; all references to "director" shall mean director of agriculture.

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