wa-law.org > bill > 2023-24 > HB 2039 > Engrossed Substitute
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The final decision of an administrative agency in an adjudicative proceeding under this chapter may be directly reviewed by the court of appeals either: (i) Upon certification by the superior court pursuant to this subsection and subsections (2) and (3) of this section; or (ii) if the final decision is from an environmental board as identified in RCW 43.21B.005 and the final decision relates to a clean energy project as defined in RCW 43.158.010, pursuant to subsection (4) of this section.
The superior court may certify cases for transfer to the court of appeals upon finding that:
All parties have consented to the transfer to the court of appeals and agreed that the judicial review can occur based upon the agency record developed before the administrative body without supplementing the record pursuant to RCW 34.05.562; or
One or more of the parties have not consented to the transfer, but the superior court finds that transfer would serve the interest of justice, would not cause substantial prejudice to any party, including any unrepresented party, and further finds that:
(A) The judicial review can occur based upon the agency record developed before the administrative body without supplementing the record pursuant to RCW 34.05.562; or
(B) The superior court has completed any necessary supplementation of the record pursuant to RCW 34.05.562, such that only issues of law remain for determination.
If the superior court certifies a final decision of an administrative agency in an adjudicative proceeding, the superior court shall transfer the matter to the court of appeals as a direct appeal.
A party contesting a superior court decision granting or denying certification for direct review may file a motion for discretionary review with the court of appeals.
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For the appeal of a permit related to a clean energy project, as defined in RCW 43.158.010, that is the subject of a final adjudicative decision of an environmental board, as identified in RCW 43.21B.005, upon a motion filed by any party to the appeal, the superior court shall certify a case for transfer to the court of appeals upon a finding that:
The judicial review can occur based upon the agency record developed before the administrative body without supplementing the record pursuant to RCW 34.05.562; or
The superior court has completed any necessary supplementation of the record pursuant to RCW 34.05.562.
If the superior court certifies a final decision of an administrative agency in an adjudicative proceeding, the superior court shall transfer the matter to the court of appeals as a direct appeal.
A party contesting a superior court decision granting or denying certification for direct review may file a motion for discretionary review with the court of appeals. Where a contesting party demonstrates that substantial prejudice would result from direct review by the court of appeals, the court of appeals may remand to the superior court.
Transfer of cases pursuant to this section does not require the filing of a motion for discretionary review with the court of appeals.
The final decision of an administrative agency in an adjudicative proceeding under this chapter may be directly reviewed by the court of appeals either (a) upon certification by the superior court pursuant to subsection (2) of this section ; (b) if the final decision is from an environmental board as identified in RCW 43.21B.005 and the final decision relates to a clean energy project as defined in RCW 43.158.010, pursuant to subsection (3) of this section; or (c) if the final decision is from an environmental board identified in RCW 43.21B.005 and the final decision does not relate to a clean energy project as defined in RCW 43.158.010, pursuant to subsection (4) of this section. Transfer of a case pursuant to subsections (3) or (4) of this section does not require the filing of a motion for discretionary review with the court of appeals.
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For direct review upon certification by the superior court, an application for direct review must be filed with the superior court within thirty days of the filing of the petition for review in superior court. The superior court may certify a case for direct review only if the judicial review is limited to the record of the agency proceeding and the court finds that:
Fundamental and urgent issues affecting the future administrative process or the public interest are involved which require a prompt determination;
Delay in obtaining a final and prompt determination of such issues would be detrimental to any party or the public interest;
An appeal to the court of appeals would be likely regardless of the determination in superior court; and
The appellate court's determination in the proceeding would have significant precedential value.
Procedures for certification shall be established by court rule.
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appeal of a permit related to a clean energy project, as defined in RCW 43.158.010, that is the subject of a final adjudicative decision of an environmental board, as identified in RCW 43.21B.005, upon a motion filed by any party to the appeal, the superior court shall certify a case for transfer to the court of appeals upon a finding that:
i. The judicial review can occur based upon the agency record developed before the administrative body without supplementing the record pursuant to RCW 34.05.562; or
ii. The superior court has completed any necessary supplementation of the record pursuant to RCW 34.05.562.
b. If the superior court certifies a final decision of an administrative agency in an adjudicative proceeding, the superior court shall transfer the matter to the court of appeals as a direct appeal.
c. A party contesting a superior court decision granting or denying certification for direct review may file a motion for discretionary review with the court of appeals. Where a contesting party demonstrates that substantial prejudice would result from direct review by the court of appeals, the court of appeals may remand to superior court.
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The final adjudicative decision of an environmental board, as identified in RCW 43.21B.005, that does not relate to a clean energy project as defined in RCW 43.158.010, may be directly reviewed by the court of appeals upon certification by the superior court pursuant to this subsection. The superior court shall certify cases for transfer to the court of appeals upon finding that:
All parties have consented to the transfer to the court of appeals and agreed that the judicial review can occur based upon the agency record developed before the administrative body without supplementing the record pursuant to RCW 34.05.562; or
One or more of the parties have not consented to the transfer, but the superior court finds that transfer would serve the interest of justice, would not cause substantial prejudice to any party, including any unrepresented party, and further finds that:
(A) The judicial review can occur based upon the agency record developed before the administrative body without supplementing the record pursuant to RCW 34.05.562; or
(B) The superior court has completed any necessary supplementation of the record pursuant to RCW 34.05.562, such that only issues of law remain for determination.
b. If the superior court certifies a final decision of an administrative agency in an adjudicative proceeding, the superior court shall transfer the matter to the court of appeals as a direct appeal.
c. A party contesting a superior court decision granting or denying certification for direct review may file a motion for discretionary review with the court of appeals. Where a contesting party demonstrates that substantial prejudice would result from direct review by the court of appeals, the court of appeals may remand to the superior court.
Where multiple permits for the same underlying clean energy project, as defined in RCW 43.158.010, are appealed to one or more of the environmental boards, as identified in RCW 43.21B.005, the presiding officer shall consolidate the appeals for hearing when one or more of the following criteria are met:
When appeals for the permits related to the same underlying project are either:
Filed within 60 days of each other; or
If the permits are not filed within 60 days of each other and the environmental board issues a stay of the appeal of the permit pursuant to RCW 43.21B.320 following the applicant's request. Such a stay must include a stay of the construction of the project pending appeal, to allow other anticipated appeals of permits for the same underlying project to be filed with the environmental boards to accommodate consolidation pursuant to this section, but the environmental board may set a deadline after which an appeal may proceed in the absence of other permit appeals in order to ensure efficient resolution of appeals; or
The presiding officer determines that the following three criteria have been met:
Consolidation will expedite disposition of the appeals;
Consolidation will avoid duplication of testimony; and
Consolidation will not prejudice the rights of the parties.
When all appeals of individual permits consolidated pursuant to this section are within the jurisdiction of the pollution control hearings board, the pollution control hearings board shall retain jurisdiction over the consolidated matter. When all appeals of individual permits consolidated pursuant to this section are within the jurisdiction of the shorelines hearings board, the shorelines hearings board shall retain jurisdiction over the consolidated matter. When appeals to the pollution control hearings board and appeals to the shorelines hearings board are consolidated pursuant to this section, the following applies:
The consolidated appeals must be heard by the pollution control hearings board;
The pollution control hearings board must issue its decision on the consolidated appeal within 240 days, which must be measured from the date that the last of the consolidated appeals was filed; and
The time period in (b) of this subsection may be extended on motion from a party or by the pollution control hearings board upon a showing that the consolidated appeal raises issues of unique complexity and that delay is not against the public interest. In no case may the time period in (b) of this subsection be extended for a period greater than 30 days unless the time period is waived by all parties.
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Any person aggrieved by the granting, denying, or rescinding of a permit on shorelines of the state pursuant to RCW 90.58.140 may seek review from the shorelines hearings board by filing a petition for review within 21 days of the date of filing of the decision as defined in RCW 90.58.140(6).
Within seven days of the filing of any petition for review with the board as provided in this section pertaining to a final decision of a local government, the petitioner shall serve copies of the petition on the department, the office of the attorney general, and the local government. The department and the attorney general may intervene to protect the public interest and ensure that the provisions of this chapter are complied with at any time within 15 days from the date of the receipt by the department or the attorney general of a copy of the petition for review filed pursuant to this section. The shorelines hearings board shall schedule review proceedings on the petition for review without regard as to whether the period for the department or the attorney general to intervene has or has not expired.
The department or the attorney general may obtain review of any final decision granting a permit, or granting or denying an application for a permit issued by a local government by filing a written petition with the shorelines hearings board and the appropriate local government within 21 days from the date the final decision was filed as provided in RCW 90.58.140(6).
The review proceedings authorized in subsections (1) and (2) of this section are subject to the provisions of chapter 34.05 RCW pertaining to procedures in adjudicative proceedings. Judicial review of such proceedings of the shorelines hearings board is governed by chapter 34.05 RCW. The board shall issue its decision on the appeal authorized under subsections (1) and (2) of this section within 180 days after the date the petition is filed with the board or a petition to intervene is filed by the department or the attorney general, whichever is later. The time period may be extended by the board for a period of 30 days upon a showing of good cause or may be waived by the parties.
Any person may appeal any rules, regulations, or guidelines adopted or approved by the department within 30 days of the date of the adoption or approval. The board shall make a final decision within 60 days following the hearing held thereon.
The board shall find the rule, regulation, or guideline to be valid and enter a final decision to that effect unless it determines that the rule, regulation, or guideline:
Is clearly erroneous in light of the policy of this chapter; or
Constitutes an implementation of this chapter in violation of constitutional or statutory provisions; or
Is arbitrary and capricious; or
Was developed without fully considering and evaluating all material submitted to the department during public review and comment; or
Was not adopted in accordance with required procedures.
If the board makes a determination under subsection (5)(a) through (e) of this section, it shall enter a final decision declaring the rule, regulation, or guideline invalid, remanding the rule, regulation, or guideline to the department with a statement of the reasons in support of the determination, and directing the department to adopt, after a thorough consultation with the affected local government and any other interested party, a new rule, regulation, or guideline consistent with the board's decision.
A decision of the board on the validity of a rule, regulation, or guideline shall be subject to review in superior court, if authorized pursuant to chapter 34.05 RCW. A petition for review of the decision of the shorelines hearings board on a rule, regulation, or guideline shall be filed within 30 days after the date of final decision by the shorelines hearings board.
Where multiple permits for the same underlying clean energy project, as defined in RCW 43.158.010, have been appealed to one or more of the environmental boards, as identified in RCW 43.21B.005, the presiding officer shall consolidate the appeals, including appeals to the shorelines hearings board, pursuant to section 3 of this act.
(1) The hearings board shall only have jurisdiction to hear and decide appeals from the following decisions of the department, the director, local conservation districts, the air pollution control boards or authorities as established pursuant to chapter 70A.15 RCW, local health departments, the department of natural resources, the department of fish and wildlife, the parks and recreation commission, and authorized public entities described in chapter 79.100 RCW:
Any civil penalty provided in RCW 18.104.155, 70A.15.3160, 70A.205.280, 70A.230.080, 70A.300.090, 70A.20.050, 70A.245.040, 70A.245.050, 70A.245.070, 70A.245.080, 70A.245.130, 70A.245.140, 70A.65.200, 70A.430.070, 70A.455.090, 70A.500.260, 70A.505.110, 70A.555.110, 70A.560.020, 86.16.081, 88.46.090, 90.03.600, 90.46.270, 90.48.144, 90.56.310, 90.56.330, and 90.64.102 and chapter 70A.355 RCW shall be imposed by a notice in writing, either by certified mail with return receipt requested or by personal service, to the person incurring the penalty from the department or the local air authority, describing the violation with reasonable particularity. For penalties issued by local air authorities, within 30 days after the notice is received, the person incurring the penalty may apply in writing to the authority for the remission or mitigation of the penalty. Upon receipt of the application, the authority may remit or mitigate the penalty upon whatever terms the authority in its discretion deems proper. The authority may ascertain the facts regarding all such applications in such reasonable manner and under such rules as it may deem proper and shall remit or mitigate the penalty only upon a demonstration of extraordinary circumstances such as the presence of information or factors not considered in setting the original penalty.
Any penalty imposed under this section may be appealed to the pollution control hearings board in accordance with this chapter if the appeal is filed with the hearings board and served on the department or authority 30 days after the date of receipt by the person penalized of the notice imposing the penalty or 30 days after the date of receipt of the notice of disposition by a local air authority of the application for relief from penalty.
A penalty shall become due and payable on the later of:
30 days after receipt of the notice imposing the penalty;
30 days after receipt of the notice of disposition by a local air authority on application for relief from penalty, if such an application is made; or
30 days after receipt of the notice of decision of the hearings board if the penalty is appealed.
If the amount of any penalty is not paid to the department within 30 days after it becomes due and payable, the attorney general, upon request of the department, shall bring an action in the name of the state of Washington in the superior court of Thurston county, or of any county in which the violator does business, to recover the penalty. If the amount of the penalty is not paid to the authority within 30 days after it becomes due and payable, the authority may bring an action to recover the penalty in the superior court of the county of the authority's main office or 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.
All penalties recovered shall be paid into the state treasury and credited to the general fund except the following:
Penalties imposed pursuant to RCW 18.104.155 must be credited to the reclamation account as provided in RCW 18.104.155(7);
Penalties imposed pursuant to RCW 70A.15.3160 must be disposed of pursuant to RCW 70A.15.3160;
Penalties imposed pursuant to RCW 70A.230.080, 70A.300.090, 70A.430.070, 70A.555.110, and 70A.560.020 must be credited to the model toxics control operating account created in RCW 70A.305.180;
Penalties imposed pursuant to RCW 70A.245.040 and 70A.245.050 must be credited to the recycling enhancement account created in RCW 70A.245.100;
Penalties imposed pursuant to RCW 70A.500.260 must be deposited into the electronic products recycling account created in RCW 70A.500.130;
Penalties imposed pursuant to RCW 70A.65.200 must be credited to the climate investment account created in RCW 70A.65.250;
Penalties imposed pursuant to RCW 90.56.330 must be credited to the coastal protection fund established in RCW 90.48.390; and
Penalties imposed pursuant to RCW 70A.355.070 must be credited to the underground storage tank account created in RCW 70A.355.090.
A violation of this chapter is punishable by a civil penalty not to exceed $1,000 for each violation in the case of a first violation. Repeat violators are liable for a civil penalty not to exceed $5,000 for each repeat violation. Penalties collected under this section must be deposited in the model toxics control operating account created in RCW 70A.305.180. The penalties provided in this section must be imposed pursuant to RCW 43.21B.300 and may be appealed to the pollution control hearings board.
Whenever on the basis on any information the department determines that a person has violated or is about to violate any provision of this chapter, the department may issue an order requiring compliance either immediately or within a specified period of time. The order shall be delivered by registered mail or personally to the person against whom the order is directed.
Any person who fails to take corrective action as specified in a compliance order shall be liable for a civil penalty of not more than $10,000 for each day of continued noncompliance. In addition, the department may suspend or revoke any permits and/or certificates issued under the provisions of this chapter to a person who fails to comply with an order directed against him or her.
Any order or penalty may be appealed pursuant to RCW 43.21B.300.
A manufacturer of products that are restricted under this chapter must notify persons that sell the manufacturer's products in this state about the provisions of this chapter no less than 90 days prior to the effective date of the restrictions.
A manufacturer that produces, sells, or distributes a product prohibited from manufacture, sale, or distribution in this state under this chapter must recall the product and reimburse the retailer or any other purchaser for the product.
A manufacturer of products in violation of this chapter is subject to a civil penalty not to exceed $5,000 for each violation in the case of a first offense. Manufacturers who are repeat violators are subject to a civil penalty not to exceed $10,000 for each repeat offense. Penalties collected under this section must be deposited in the model toxics control operating account created in RCW 70A.305.180. The penalties provided in this section must be imposed pursuant to RCW 43.21B.300 and may be appealed to the pollution control hearings board.
Retailers who unknowingly sell products that are restricted from sale under this chapter are not liable under this chapter.
The sale or purchase of any previously owned products containing a chemical restricted under this chapter made in casual or isolated sales as defined in RCW 82.04.040, or by a nonprofit organization, is exempt from this chapter.
Except as provided in RCW 43.05.060 through 43.05.080 and 43.05.150, the attorney general or the attorney for the local government shall bring such injunctive, declaratory, or other actions as are necessary to ensure compliance with this chapter.
Any person who fails to comply with this chapter shall also be subject to a civil penalty not to exceed $1,000 for each violation. Each violation or each day of noncompliance shall constitute a separate violation.
The penalty provided for in this section must be imposed by a notice in writingand must be imposed consistent with the procedures of RCW 43.21B.300. The notice in writing must also order the act or acts constituting the violation or violations to cease and desist or, in appropriate cases, must require necessary corrective action to be taken within a specific and reasonable time.
Any penalty imposed pursuant to this section by the department shall be subject to review by the pollution control hearings board under chapter 43.21B RCW. Any penalty imposed pursuant to this section by local government shall be subject to review by the local government legislative authority. Any penalty jointly imposed by the department and local government shall be appealed to the pollution control hearings board under chapter 43.21B RCW.
Section 1 of this act expires July 1, 2026.
Section 2 of this act takes effect July 1, 2026.