S-2123.1 _______________________________________________
SUBSTITUTE SENATE BILL 5688
_______________________________________________
State of Washington 53rd Legislature 1993 Regular Session
By Senate Committee on Natural Resources (originally sponsored by Senators Owen, A. Smith and Oke)
Read first time 03/03/93.
AN ACT Relating to civil enforcement of forest practices violations; amending RCW 76.09.140 and 76.09.170; and prescribing penalties.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
Sec. 1. RCW 76.09.140 and 1975 1st ex.s. c 200 s 8 are each amended to read as follows:
(1) The department of natural resources((,
through the attorney general,)) may take any necessary action to enforce
any final order or final decision, ((or to enjoin any forest practices by
any person for a one year period after such person has failed to comply with a
final order or a final decision)) and may disapprove for up to one year
any forest practices application or notification submitted by any person who
has failed to comply with a final order or final decision or has failed to pay
any civil penalties as provided in RCW 76.09.170. For purposes of this act,
the terms "final order" and "final decision" shall mean the
same as set forth in RCW 76.09.080, 76.09.090, and 76.09.110. The department
shall provide written notice of its intent to disapprove an application or
notification under this subsection. The department shall forward copies of its
notice of intent to disapprove to any affected landowner. The disapproval
period shall run from thirty days following the date of actual notice or when
all administrative and judicial appellate processes, if any, have been exhausted.
Any person provided the notice may seek review from the appeals board by filing
a request for review within thirty days of the date of the notice of intent.
(2) On request of the department, the attorney general may take action necessary to enforce this chapter, including, but not limited to, seeking penalties, enforcing final orders or decisions, and seeking civil injunctions, show cause orders, or contempt orders.
(((2))) (3) A county may bring
injunctive, declaratory, or other actions for enforcement for forest practice
activities within its jurisdiction in the superior court as provided by law
against the department, the forest land owner, timber owner or operator to
enforce the forest practice regulations or any final order of the department, or
the appeals board((: PROVIDED, That)). No civil or criminal
penalties shall be imposed for past actions or omissions if such actions or
omissions were conducted pursuant to an approval or directive of the department
((of natural resources: AND PROVIDED FURTHER, That such actions shall)).
Injunctions, declaratory actions, or other actions for enforcement under this
subsection may not be commenced unless the department fails to take
appropriate action after ten days written notice to the department by the
county of a violation of the forest practices ((regulations)) rules
or final orders of the department or the appeals board.
Sec. 2. RCW 76.09.170 and 1975 1st ex.s. c 200 s 9 are each amended to read as follows:
(1) Every person who ((fails to
comply with)) violates any provision of RCW 76.09.010 through
76.09.280 ((as now or hereafter amended)) or of the forest practices ((regulations))
rules, or who converts forest land to a use other than commercial timber
operation within three years after completion of the forest practice without
the consent of the county, city, or town, shall be subject to a penalty in
an amount of not more than ((five hundred)) ten thousand dollars
for every such violation. Each and every such violation shall be a separate
and distinct offense. In case of a failure to comply with a ((notice
pursuant to RCW 76.09.090 as now or hereafter amended or a)) stop work
order, every day's continuance shall be a separate and distinct violation.
Every person who through an act of commission or omission procures, aids or
abets in the violation shall be considered to have violated the provisions of
this section and shall be subject to the penalty ((herein provided for:
PROVIDED, That)) in this section. No penalty shall be imposed under
this section upon any governmental official, an employee of any governmental
department, agency, or entity, or a member of any board or advisory committee
created by this chapter for any act or omission in his or her duties in
the administration of this chapter or of any ((regulation promulgated
thereunder.)) rule adopted under this chapter.
(2) The department shall develop and recommend to the board a penalty schedule to determine the amount to be imposed under this section. The board shall adopt by rule, pursuant to chapter 34.05 RCW, such penalty schedule to be effective no later than January 1, 1994. The schedule shall be developed in consideration of the following:
(a) Previous violation history;
(b) Severity of the impact on public resources;
(c) Whether the violation of this chapter or its rules was intentional;
(d) Cooperation with the department; and
(e) Repairability of the adverse effect from the violation.
(3) The penalty ((herein provided for))
in this section 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 same from the department ((of natural resources))
describing the violation with reasonable particularity. Within fifteen days
after the notice is received, the person incurring the penalty may apply in
writing to the department for the remission or mitigation of such penalty.
Upon receipt of the application, that department may remit or mitigate the
penalty upon whatever terms that department in its discretion deems proper,
provided the department deems such remission or mitigation to be in the best
interests of carrying out the purposes of this chapter. The department ((of
natural resources)) shall have authority to ascertain the facts regarding
all such applications in such reasonable manner and under such ((regulations))
rule as it may deem proper.
(4) Any person incurring ((any)) a
penalty ((hereunder)) under this section may appeal the ((same))
penalty to the forest practices appeals board. Such appeals shall be
filed within thirty days of receipt of notice imposing any penalty unless an
application for remission or mitigation is made to the department. When such
an application for remission or mitigation is made, such appeals shall be filed
within thirty days of receipt of notice from the department setting forth the
disposition of the application for remission or mitigation.
((Any)) (5) The penalty imposed
((hereunder)) under this section shall become due and payable
thirty days after receipt of a notice imposing the same unless application for
remission or mitigation is made or an appeal is filed. When such an
application for remission or mitigation is made, any penalty incurred ((hereunder))
under this section shall become due and payable thirty days after
receipt of notice setting forth the disposition of such application unless an
appeal is filed from such disposition. Whenever an appeal of ((any)) the
penalty incurred ((hereunder)) is filed, the penalty shall become due
and payable only upon completion of all administrative and judicial
review proceedings and the issuance of a final decision confirming the penalty
in whole or in part.
(6) If the amount of any penalty is not paid to the department within thirty days after it becomes due and payable, the attorney general, upon the 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 such violator may do business, to recover such penalty. In all such actions the procedure and rules of evidence shall be the same as an ordinary civil action except as otherwise in this chapter provided. In addition to or as an alternative to seeking enforcement of penalties in superior court, the department may bring an action in district court as provided in Title 3 RCW, to collect penalties.
(7) Penalties imposed under this section for violations associated with a conversion to a use other than commercial timber operation shall be a lien upon the real property of the person assessed the penalty and the department may collect such amount in the same manner provided in chapter 60.04 RCW for mechanics' liens.
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