WSR 23-17-035
[Filed August 9, 2023, 9:57 a.m.]
Original Notice.
Proposal is exempt under RCW 34.05.310(4) or 34.05.330(1).
Title of Rule and Other Identifying Information: Amend Regulation I, Sections 3.11 (Civil Penalties) and 3.25 (Federal Regulation Reference Date).
Hearing Location(s): On September 28, 2023, at 8:45 a.m., via Zoom, Meeting ID 912 850 0665, Passcode 1904, Call in 888 788 0099 US Toll-free; or in person at 1904 3rd Avenue, Suite 105, Seattle, WA.
Date of Intended Adoption: September 28, 2023.
Submit Written Comments to: Betsy Wheelock, Puget Sound Clean Air Agency, 1904 3rd Avenue, Suite 105, Seattle, WA 98101, email, fax 206-343-7522, by September 27, 2023.
Assistance for Persons with Disabilities: Contact agency receptionist, phone 206-343-8800, fax 206-343-7522, email, by September 22, 2023.
Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: Section 3.11: The agency's practice for many years has been to annually adjust the maximum civil penalty amount as allowed by law. The proposed adjustment to the maximum civil penalty amount accounts for inflation, as authorized by RCW 70A.15.3160 (formerly RCW 70.94.431) and as determined by the state office of the economic and revenue forecast council. Without this adjustment, the maximum penalty amount would effectively decrease each year. The consumer price index (CPI) for the Seattle/Tacoma/Bellevue area increased by 7.89 percent for the 2022 calendar year, which amounts to an increase of $1,776.00 in the maximum civil penalty amount. The agency has used the CPI for wage earners (CPI-W) in the Puget Sound region for many years to make this inflation-based adjustment because it reflects the data of what happened (i.e. not a forecast) and it represents local economic information.
The proposed amendment does not affect the way the agency determines actual civil penalty amounts in individual cases. This continues to be done following civil penalty worksheets previously approved by the board.
Section 3.11: This section currently references chapter 70.94 RCW, which was recodified as chapter 70A.15 RCW pursuant to section 2010, chapter 20, Laws of 2020. These actions by the Washington state legislature did not make any material changes to these sections of the RCW. The agency is updating this section to reflect the proper RCW references.
Section 3.25: This section currently provides that whenever federal rules are referenced in agency regulations, the effective date of the federal regulations referred to is July 1, 2022. This provides certainty so that persons affected by the regulations and agency staff know which version of a federal regulation to reference. For many years, the agency's practice has been to update this date annually to stay current with federal regulations. Following this practice, the proposed amendments would change the reference date to July 1, 2023.
Statutory Authority for Adoption: Chapter 70A.15 RCW.
Statute Being Implemented: Chapter 70A.15 RCW.
Rule is not necessitated by federal law, federal or state court decision.
Name of Proponent: Puget Sound Clean Air Agency, governmental.
Name of Agency Personnel Responsible for Drafting: John Dawson, 1904 3rd Avenue, Suite 105, Seattle, WA 98101, 206-689-4060; Implementation and Enforcement: Steve Van Slyke, 1904 3rd Avenue, Suite 105, Seattle, WA 98101, 206-689-4052.
A school district fiscal impact statement is not required under RCW 28A.305.135.
A cost-benefit analysis is not required under RCW 34.05.328. RCW 34.05.328 does not apply to local air agencies, per RCW 70A.15.2040.
This rule proposal, or portions of the proposal, is exempt from requirements of the Regulatory Fairness Act because the proposal:
Is exempt under RCW 19.85.025(3) as the rules relate only to internal governmental operations that are not subject to violation by a nongovernment party; and rules are adopting or incorporating by reference without material change federal statutes or regulations, Washington state statutes, rules of other Washington state agencies, shoreline master programs other than those programs governing shorelines of statewide significance, or, as referenced by Washington state law, national consensus codes that generally establish industry standards, if the material adopted or incorporated regulates the same subject matter and conduct as the adopting or incorporating rule.
Is exempt under RCW 19.85.011.
Explanation of exemptions: Chapter 19.85 RCW does not appear to apply to local air agencies.
Scope of exemption for rule proposal:
Is fully exempt.
August 8, 2023
Christine Cooley
Executive Director
(a) Any person who violates any of the provisions of chapter (( 70.94 RCW)) 70A.15 or any of the rules or regulations in force pursuant thereto, may incur a civil penalty in an amount not to exceed $((22,497.00)) 24,273.00, per day for each violation.
(b) Any person who fails to take action as specified by an order issued pursuant to chapter ((70.94)) 70A.15 RCW or Regulations I, II, and III of the Puget Sound Clean Air Agency shall be liable for a civil penalty of not more than $((22,497.00)) 24,273.00, for each day of continued noncompliance.
(c) Within 30 days of the date of receipt of a Notice and Order of Civil Penalty, the person incurring the penalty may apply in writing to the Control Officer for the remission or mitigation of the penalty. To be considered timely, a mitigation request must be actually received by the Agency, during regular office hours, within 30 days of the date of receipt of a Notice and Order of Civil Penalty. This time period shall be calculated by excluding the first day and including the last, unless the last day is a Saturday, Sunday, or legal holiday, and then it is excluded and the next succeeding day that is not a Saturday, Sunday, or legal holiday is included. The date stamped by the Agency on the mitigation request is prima facie evidence of the date the Agency received the request.
(d) A mitigation request must contain the following:
(1) The name, mailing address, telephone number, and telefacsimile number (if available) of the party requesting mitigation;
(2) A copy of the Notice and Order of Civil Penalty involved;
(3) A short and plain statement showing the grounds upon which the party requesting mitigation considers such order to be unjust or unlawful;
(4) A clear and concise statement of facts upon which the party requesting mitigation relies to sustain his or her grounds for mitigation;
(5) The relief sought, including the specific nature and extent; and
(6) A statement that the party requesting mitigation has read the mitigation request and believes the contents to be true, followed by the party's signature.
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.
(e) Any civil penalty may also be appealed to the Pollution Control Hearings Board pursuant to chapter 43.21B RCW and chapter 371-08 WAC. An appeal must be filed with the Hearings Board and served on the Agency within 30 days of the date of receipt of the Notice and Order of Civil Penalty or the notice of disposition on the application for relief from penalty.
(f) A civil penalty shall become due and payable on the later of:
(1) 30 days after receipt of the notice imposing the penalty;
(2) 30 days after receipt of the notice of disposition on application for relief from penalty, if such application is made; or
(3) 30 days after receipt of the notice of decision of the Hearings Board if the penalty is appealed.
(g) 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 bring action to recover the penalty in King County Superior Court or in the superior court 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.
(h) Civil penalties incurred but not paid shall accrue interest beginning on the 91st day following the date that the penalty becomes due and payable, at the highest rate allowed by RCW 19.52.020 on the date that the penalty becomes due and payable. If violations or penalties are appealed, interest shall not begin to accrue until the 31st day following final resolution of the appeal.
(i) To secure the penalty incurred under this section, the Agency shall have a lien on any vessel used or operated in violation of Regulations I, II, and III which shall be enforced as provided in RCW 60.36.050.
Whenever federal regulations are referenced in Regulation I, II, or III, the effective date shall be July 1, ((2022)) 2023.