WSR 07-03-035

PERMANENT RULES

OLYMPIC REGION

CLEAN AIR AGENCY

[ Filed January 10, 2007, 3:50 p.m. , effective February 10, 2007 ]


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

Purpose: This action will increase the maximum daily penalty that may be imposed by the Olympic Region Clean Air Agency to $14,915.00 per day per violation. The previous maximum was $10,000.00 per day per violation. The second revision changes the means of collecting a fee for land clearing burn permits. Previously, the permits were $100.00. This action will change the fee to $75.00 per acre cleared.

Citation of Existing Rules Affected by this Order: Amending Olympic Region Clean Air Agency Regulations, Rules 2.5 and 3.4.

Statutory Authority for Adoption: Chapter 70.94 RCW.

Adopted under notice filed as WSR 06-24-002 on November 22, 2006.

Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.

Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 0, Repealed 0.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 0, Repealed 0.

Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 0, Repealed 0.

Date Adopted: January 10, 2007.

Richard A. Stedman

Executive Director

AMENDED SECTION

RULE 3.4 OUTDOOR BURNING PERMIT FEES


Agricultural Burn permit: For 10 acres (or equivalent) or less the fee is twenty-five dollars ($25.00). For greater than 10 acres (or equivalent) the fee will be two dollars and fifty cents ($2.50) per acre.

Land Clearing Burn Permit: Land clearing burning permits issued by ORCAA will be charged ((a fee in the amount of one hundred dollars ($100.00))) $75.00 for one acre or less. For greater than one acre the fee will be $75.00 per acre cleared, rounded to the nearest full acre.

AMENDED SECTION

RULE 2.5 REGULATORY ACTIONS AND PENALTIES


The Control Officer may take any of the following regulatory actions to enforce the provisions of chapter 70.94 RCW or any of the rules or regulations in force pursuant thereto, which are incorporated by reference.

(a) Civil Penalties

(1) Any person who violates any of the provisions of chapter 70.94 RCW or any of the rules or regulations in force pursuant thereto, may incur a civil penalty in an amount not to exceed (($10,000.00)) $14,915.00 per day for each violation.

(2) Any person who fails to take action as specified by an Order issued pursuant to chapter 70.94 RCW or Regulations of the Olympic Region Clean Air Agency (ORCAA) shall be liable for a civil penalty of not more than (($10,000.00)) $14,915.00 for each day of continued noncompliance.

(3) Within 30 days after receipt of Notice of Civil Penalty, the person incurring the penalty may apply in writing to the Control Officer for the remission or mitigation of the penalty. Any such request must contain the following:

(i) The name, mailing address, and telephone number of the appealing party;

(ii) A copy of the Notice of Civil Penalty appealed from;

(iii) A short and plain statement showing the grounds upon which the appealing party considers such Order to be unjust or unlawful;

(iv) A clear and concise statement of facts upon which the appealing party relies to sustain his or her grounds for appeal;

(v) The relief sought, including the specific nature and extent; and

(vi) A statement that the appealing party has read the notice of appeal and believes the contents to be true followed by the party's signature.

Upon receipt of the application, the Control Officer shall remit or mitigate the penalty only upon a demonstration by the requestor of extraordinary circumstances such as the presence of information or factors not considered in setting the original penalty.

(4) Any civil penalty may also be appealed to the Pollution Control Hearings Board pursuant to chapter 43.21B RCW and chapter 371-08 WAC if the appeal is filed with the Hearings Board and served on the Agency within 30 days after receipt by the person penalized of the notice imposing the penalty or 30 days after receipt of the notice of disposition of the application for relief from penalty.

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

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

(ii) 30 days after receipt of the notice of disposition on application for the relief from penalty, if such application is made; or

(iii) 30 days after receipt of the notice of decision of the Hearings Board if the penalty is appealed.

(6) If the amount of the civil penalty is not paid to the Agency within 30 days after it becomes due and payable, the Agency may use any available methods, including Superior Court, to recover the penalty. In all actions brought in the Superior Court for recovery of penalties hereunder, the procedures and rules of evidence shall be the same as in ordinary civil action.

(7) To secure the penalty incurred under this rule, this Agency shall have a lien on any vessel used or operated in violation of these Regulations, which shall be enforced as provided in RCW 60.36.050.

(b) Criminal Penalties

(1) Any person who knowingly violates any of the provisions of chapter 70.94 RCW or any rules or regulations in force pursuant thereto, shall be guilty of a crime and upon conviction thereof, shall be punished by fine of not more than $10,000.00, or by imprisonment in the county jail for not more than 1 year, or by both for each separate violation.

(2) Any persons who negligently releases into the ambient air any substance listed by the Department of Ecology as a hazardous air pollutant, other than in compliance with terms of an applicable permit or emission limit, and who at the time negligently places another person in imminent danger of death or substantial bodily harm shall be guilty of a crime and shall, upon conviction, be punished by a fine of not more than $10,000.00, or by imprisonment for not more than 1 year, or both.

(3) Any person who knowingly releases into the ambient air any substance listed by the Department of Ecology as a hazardous air pollutant, other than in compliance with the terms of an applicable permit or emission limit, and who knows at the time that they have thereby placed another person in imminent danger of death or substantial bodily harm shall be guilty of a crime and shall, upon conviction, be punished by a fine of not less than $50,000.00, or by imprisonment for not more than 5 year, or both.

(c) Additional Enforcement

(1) Notwithstanding the existence or use of any other remedy, whenever any person has engaged in, or is about to engage in, any acts or practices which constitute or will constitute a violation of any provision of chapter 70.94 RCW, or any order, rule or regulation issued by the Board of Control Officer or duly authorized agent, the Board, after notice to such person and an opportunity to comply, may petition the Superior Court of the county wherein the violation is alleged to be occurring or to have occurred for a restraining order or a temporary or permanent injunction or another appropriate order.

(2) As an additional means of enforcement, the Board or Control Officer may accept an assurance of discontinuance of any act or practice deemed in violation of chapter 70.94 RCW or of any order, rule, or regulation adopted pursuant thereto, from any person engaging in, or who has engaged in, such act or practice. Any such assurance shall specify a time limit during which such discontinuance is to be accomplished. Failure to perform the terms of any such assurance shall constitute prima facie proof of a violation of this chapter or the orders, rules or regulations issued pursuant thereto, which make the alleged act or practice unlawful for the purpose of securing any injunction or other relief from Superior Court in the county wherein the violation is alleged to be occurring or to have occurred.

Reviser's note: The typographical errors in the above material occurred in the copy filed by the Olympic Region Clean Air Agency and appear in the Register pursuant to the requirements of RCW 34.08.040.

Washington State Code Reviser's Office