Administrative Rule Review Report   #AR10-045

Legislative Service Office

20-Jul-10

AGENCY: State Emergency Response Commission, SERC.

DATE SUBMITTED: July 13, 2010.

SUBJECT: Chapter 2, Clandestine Lab Testing and Remediation.

NATURE OF RULES:                     Legislative and procedural.

STATUTORY AUTHORITY:         W.S. 35-9-153(h) and (j)

DETERMINATION OF PROCEDURAL COMPLIANCE BASED UPON INFORMATION SUBMITTED BY THE AGENCY TO LSO:   Apparently complete to date.  Notice of the proposed adoption of new rules was provided by the LSO as required by W.S. 28-9-103(d).  No comments have been received by LSO to date.  The Agency received several comments during the comment period and substantially revised the rules.  The Agency then sent the revised rules out for an additional 45-day comment period and received no comments.

SUMMARY OF RULES:  The rules provide detailed standards for determining the extent of contamination and standards for remediation required to render former clandestine laboratory operation sites safe for re-entry, habitation or use with respect to the following:

(i)  Decontamination and sampling standards and best management practices for the inspection and decontamination of property and the disposal of contaminated debris;

(ii)  Appropriate methods for the testing of buildings and interior surfaces, furnishings, soil and septic tanks for contamination;

(iii)  When testing for contamination may be required; and

(iv)  When a site may be declared remediated.

FINDINGS:   Section 14(b) of the rules requires the owner of the property and the environmental sampling professional to maintain copies of the final report for a period of seven years.  There is nothing in the statutory language which would authorize the Agency to require this record keeping.

Section 15(b) of the rules provides for notice of remediation requirements if the property does not pose an immediate and substantial threat to public health.  Under W.S. 35-9-159(d), the owner has ninety days to complete a remediation under this section before the law enforcement agency may step in and complete the remediation themselves, however, the owner may request an extension of time to complete the remediation if necessary.  If the agency denies the request for extension, W.S. 35-9-159(e) provides that the owner has sixty days to appeal the denial of the request for extension.  Section 15(b) of the rules provides that if the owner disagrees with the initial determination that the property must be remediated, the appeal must be made within sixty days of the initial notice of that determination.  Therefore, while the statute sets the time for appealing a denial for extension of time, the rules set the time for appealing the initial determination that a remediation was necessary. 

Despite the language in the statute and the rules, the time for appealing any final agency action is found in Wyoming Rules of Appellate Procedure § 12.04 which states "In a contested case, or in an uncontested case, even where a statute allows a different time limit on appeal, the petition for review shall be filed within 30 days after service upon all parties of the final decision of the agency…".

Other than these concerns, the rules appear to be within the scope of statutory authority and legislative intent.

STAFF RECOMMENDATION:  That the Council request the Governor to use his line item veto authority under W.S. 16-3-103(d) to address the concerns raised in this rule review report.  This could be done by striking the last sentence of Section 14(b) (related to record keeping requirements).  Striking the sentence "The owner may appeal to the district court within sixty (60) days of the written notice" from Section 15(b) would eliminate the possibility of confusion and reliance by an owner on an incorrect statement regarding the appeal timeline.  Otherwise, the recommendation would be for the Governor to direct the agency to rescind the rules and address the concerns raised.

In addition, the staff recommendation is that the Council direct the Joint Judiciary Interim Committee to review the language of W.S. 35-9-159(e), setting the time for appeal of a denial for extension at sixty days, to determine if statutory changes should be made to comply with the Wyoming Rules of Appellate Procedure.

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Lynda Cook

Staff Attorney

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David K. Gruver

Assistant Director