Purpose: In accordance with ESSB 5889, pertaining to the livestock nutrient management program (LNMP) passed during the 2003 legislative session, clarify that appeals of LNMP orders and penalties are not appealable using Department of Agriculture (WSDA) procedural rules in chapter 16-08 WAC, but instead are appealable only to the Pollution Control Hearings Board (PCHB) and 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.

     Under RCW 34.05.350 the agency for good cause finds that immediate adoption, amendment, or repeal of a rule is necessary for the preservation of the public health, safety, or general welfare, and that observing the time requirements of notice and opportunity to comment upon adoption of a permanent rule would be contrary to the public interest.

     Reasons for this Finding: The 2003 legislature passed ESSB 5889 transferring the LNMP to the WSDA. WSDA has the authority to take immediate corrective action and formal, regulatory enforcement action for violations of chapters 90.64 and 90.48 RCW. While an appeal of other agency enforcement action is to the director of WSDA, an appeal of any WSDA action in the LNMP is under the jurisdiction of the PCHB. The emergency rule clarifies that appeals of LNMP orders and penalties are not appealable using the procedural rules in chapter 16-08 WAC, but instead are appealable only to the PCHB under chapter 43.21B RCW and chapter 371-08 WAC and must be served on and handled by WSDA rather than the Department of Ecology.

     Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0;      Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 0, Repealed 0.

     Effective Date of Rule: Immediately.

December 2, 2003

Valoria 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.

[]

     (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.

[]