COMMENT ON THE WASHINGTON STATE LIQUOR CONTROL BOARDS I-502 RULEMAKING SEPA DNS

The July 12, 2013 DNS issued by the Liquor Control Board is based upon improper procedure, lack of notice, insufficient coordination with state, local and federal agencies, and an incomplete record and should be withdrawn. Following are the legal justifications in support of this request. 1. The Liquor Control Boards DNS threshold determination process did not follow SEPA requirements. SEPA rules are not unclear as to the requirements of a lead agency when making a determination - regarding having sufficient information to make an adequate analysis, addressing cumulative impacts, addressing the uniqueness of site issues, and working with other agencies or jurisdictions in gathering information about potential adverse impacts. WAC 197-11-330(3): "In determining an impact's significance, the responsible official shall take into account the following, that: (a) The same proposal may have a significant adverse impact in one location but not in another location; (c) Several marginal impacts when considered together may result in a significant adverse impact; and (e) "Establish a precedent for future actions with significant effects, involves unique and unknown risks to the environment, or may affect public health or safety." The implementation of I-502 by the Liquor Control Board (LCB) is just such an action that involves unique and unknown risks, undeniably affects public health and safety, and establishes a precedent for future actions nationwide in the realm of marijuana regulation and local land use. Regarding the foreseeable impacts of I-502 implementation, over 50 COMMENT ON JULY 12, 2013I-502 RULEMAKING DNS
1

local jurisdictions have identified significant impacts that, taken together, comprise a more than marginal impact on land use and the quality of life. In fact, these jurisdictions have declared emergencies and taken emergency action based upon the reasonably foreseeable impacts of the implementation of i-502. In setting new rules unprecedented in the Nation, the Liquor Control Board, as a SEPA lead agency, is not only setting a nationwide precedent, but one that has that has massive cumulative effects related to the growing, production and sale of legal marijuana. The impacts of a new regulatory scheme for the growing, production and sale legal recreational marijuana and marijuana related products statewide must also surely "affect public health and safety and cause a significant foreseeable impact that can be addressed in an EIS. These undeniably significant impacts must now be addressed and the defective July 12 DNS withdrawn. Further, the LCBs DNS was facially defective as it was based upon insufficient information, and the LCB deliberately excluded information that it knew or should have known existed. When there is inadequate information to make a determination, as in the sparsely completed July 1st checklist, with no other information available to consult, an agency has a duty to request additional information of the applicant and other agencies. The Department of Ecology's SEPA Handbook states that during the threshold determination process is the time when lead agency should identify major problem areas, and "to work with other agencies and the public to make them aware of the project and allow them to identify any concerns which may be resolved early in the SEPA process." Significantly, although the LCB has been meeting with over a dozen 2 COMMENT ON JULY 12, 2013I-502 RULEMAKING DNS

State Agencies every week for months, none of the resulting information has made it into the SEPA review process and no State agency comments have been solicited or received. The Rulemaking File required by State law has not been compiled or made available for public inspection or for the use of those wishing to comment on the SEPA DNS, making the full disclosure provisions of SEPA an empty promise. RCW 42.56.070 (6) provides A public record may be relied on, used, or cited as precedent by an agency against a party other than an agency and it may be invoked by the agency for any other purpose only if: available to the public The LCBs rulemaking file has not been compiled or made available for review, and cannot be used to support the DNS. As such the one short white paper the DNS relies upon is grossly inadequate to support the agency action, especially since the white paper fails to support the DNS and actually serves as evidence of the many potential impacts that have not been adequately studied or mitigated. The Botec White Paper is facially inadequate as it fails to assess the impacts of processing and sales, and deals with production only in a superficial and haphazard manner. As just one example, the economic effects of the proposed rulemaking are confined to a reference to doritos and unbaked chocolate chip cookie dough, an analysis that is both humorless and grossly inadequate under the State Environmental Policy Act. Aside from the junk food reference, absolutely no socio-economic analysis has been conducted, and no assessment of the impact of hundreds of farms, warehouses, and retail establishments and transportation and processing facilities has been conducted. This is manifestly inadequate to assess the likely impact of the legal 3 COMMENT ON JULY 12, 2013I-502 RULEMAKING DNS

(a) It has been indexed in an index

marijuana business, especially in light of the OFMs projections on the amount of marijuana and revenue reasonably expected to result from the LCBs implementation of rules to legalize and regulate the growth, processing transportation, testing, and sale of an entirely new commodity that has never before been legally regulated. WAC 197-11-335: "The lead agency shall make its threshold determination based upon information reasonably sufficient to evaluate the environmental impact of a proposal. In this case, the LCB has failed to do this or to seek on the record, information from other State agencies to remedy this defect. In addition to a sketchy checklist, the LCBs threshhold determination was made after review of the checklist and one single record, a Botec White paper The LCB cannot be relying on any other information, as none has been compiled or cited. Nor is the Agency record available for public inspection. Obviously, a determination was made that involves an entirely new agricultural product, thousands of acres of agricultural uses with the potential for impacts to water quality and protected species, land use changes so severe as to have prompted over 50 moratoriums by local jurisdictions all across the State, and over a half a billion dollars in altered revenue. Yet the cumulative effects of this was all considered to not have a significant impact, with no additional information requested or consulted as required by SEPA. Such an omission is so glaring as to go beyond simple mistake and into the realm of deliberate evasion.

COMMENT ON JULY 12, 2013I-502 RULEMAKING DNS

2. Critical information from other agencies, vital to the protection of the environment and the quality of life, was not considered during this determination. Despite the LCB having met repeatedly with local jurisdictions, law enforcement, and dozens of State agencies during its moths long rulemaking process, none of the input from these authorities has been considered in the SEPA process, and the question arises as to what the LCB was doing meeting with these other groups if it was not seeking their input as to the significant impacts to be addressed in the rulemaking process? The records of the LCBs clandestine rulemaking meetings are all properly a part o the SEPA review process and should have been conducted in the light of day, not in secret back room good old boy sessions without the knowledge or participation of the public. The SEPA process, including the process of threshhold determination, is created to help jurisdictions utilize many resources of information to obtain an accurate and adequate finding. When critical information is not sought and evaluated, as in this case, and when deliberation is conducted secretly without meaningful public participation, a correct determination cannot be made. 3. Affected state, federal and local agencies and tribes were not given timely notice, hence the DNS has not yet been issued. This DNS must be withdrawn in that affected parties, such as this petitioner, federal and state agencies, and many local jurisdictions who are on record as having identified reasonably foreseeable significant impacts from the implementation of I-502 were not given notice of the SEPA review process or even of this subsequent threshhold determination. Without proper notice to State and local government, as well as the Tribes and federal 5 COMMENT ON JULY 12, 2013I-502 RULEMAKING DNS

agencies impacted by the new rules and the implementation of I-502 a proper review and determination simply cannot have been made. WAC 197-11-340 provides The responsible official shall send the DNS and environmental checklist to agencies with jurisdiction, the department of ecology, and affected tribes, and each local agency or political subdivision whose public services would be changed as a result of implementation of the proposal, and shall give notice under WAC 197-11-510. (d) The date of issue for the DNS is the date the DNS is sent to the department of ecology and agencies with jurisdiction and is made publicly available." The LCB has not complied with this requirement and cannot proceed without providing such required notice and disclosure. 4. This determination requires a joint SEPA-NEPA document due to the conflict with federal law and the regulatory authority of the federal government. The federal government has regulatory authority over the regulation of marijuana (See 21 U.S.C. 811). The implementation of i-502 involves a significant conflict with the Controlled Substances Act. such a conflict with federal law requires a Joint NEPA-SEPA review to assess the potential for costly state and federal conflict over the implementation of I-502. The SEPA and NEPA process is the proper means for the State and federal government to work together to assess the actual foreseeable impacts of the implementation of I-502 on Washington and the rest of the country. In the absence of a jopint federal and state determination, the implementation of I502 is subject to significant adverse impacts of a federal action to shut down the states implementation, after many millions of dollars have been spent 6 COMMENT ON JULY 12, 2013I-502 RULEMAKING DNS

and invested in business authorized by I-502. The impact of such action would be devastating on investors and on the economy and the potential for drastic federal action should be assessed in a joint NEPA-SEPA study on the impacts of I-502. However, there is no evidence that these federal issues have even been considered by the LCB and they do not appear on the superficial checklist or any of the one supporting document offered to attempt to support the LCBs woefully inadequate DNS. 5. Local land use impacts from growing, warehousing, transportation, and retail distribution, were omitted from the DNS, and no Socioeconomic impacts were considered The OFM fiscal impact statement predicted 172,000 pounds of recreational marijuana annually would be handled by the I-502 scheme. Yet nowhere does the DNS assess the reasonably foreseeable impacts from the growing, distribution and sale of such a huge and economically significant new commodity. The one document the DNS relies upon, a Botec White Paper, identifies some of the possible environmental impacts, but it does nothing to assess whether they are significant, and even suggests that an entire complement of environmental regulations will be necessary to address possible adverse environmental impacts resulting from pesticides, fertilizer, toxic chemicals, energy use, and water quality. Absolutely no socio-economic analysis was conducted despite the overwhelming likelihood of significant socio-economic effects of the I-502 regulatory scheme and the hundreds of millions of dollars of trade it was projected to encompass. Such superficial review identifying a whole range 7 COMMENT ON JULY 12, 2013I-502 RULEMAKING DNS

of un-assessed potentially significant impacts requires that the DNS be withdrawn and the SEPA process be conducted in a manner that demonstrates prima facia compliance with the mandate of SEPA. 6. Human factors such as the heightened use of marijuana by minors, impacts on the quality of human life and the impact on medical marijuana patients were not considered by the DNS An even more glaring defect is that the DNS deliberately overlooked the massive undeniable potential impacts of I-502 implementation on the quality of life and upon human factors required to be assessed in environmental review. The July 12 DNS was fatally defective due to the failure of the Liquor Control Board to consider impacts related to human factors and the quality of life that have been recognized as an indispensible part of the environmental review process. A possibly more serious shortcoming of the analysis lies in the social, not physical, sciencesThat an EIS must consider these human factors is well established. Hanly v. Mitchell, 460 F.2d 640, 647 (2d Cir.), cert. denied, 409 U.S. 990, 93 S.Ct. 313, 34 L.Ed.2d 256 (1972). In Hanly v. Kliendienst, a federal court held that the agency was required to give attention to other factors that might affect human environment in the area, This Court concluded: "The Act must be construed to include protection of the quality of life for city residents. Noise, traffic, overburdened mass transportation systems, crime, congestion and even availability of drugs all affect the urban 'environment' Hanly I, 460 F.2d at 647, cited in Hanly v. Kliendienst 471 F.2d 823 (1972) COMMENT ON JULY 12, 2013I-502 RULEMAKING DNS
8

The human factors involved in the implementation of I-502 have not yet been addressed, and the SEPA process is the proper forum for the review of such potential impacts, in one State coordinated review. For the following legally supported reasons, the MDNS should be withdrawn and a new environmental review process begun. 1. The threshold determination process did not follow SEPA requirements. 2. Critical information, vital to protecting the environment, was not considered, and no record of the agency administrative process was compiled. 3. Timely notice was not provided to affected jurisdictions and state, local, and federal agencies did not participate in the process to comment on their view of the potential impacts of I-502 rules. 4. The DNS is manifestly improper in light of the vast range of foreseeable adverse impacts likely to result from the implementation of I-502. Petitioner requests that the July 12th DNS be withdrawn to enable the compliance of all SEPA requirements, including addressing the cumulative effects, as well as the many significant impacts identified by the over 50 local jurisdictions who have declared emergencies and adopted moratoriums due to the potential impact of I-502. Done July 18, 2013. s/Arthur West ARTHUR WEST

COMMENT ON JULY 12, 2013I-502 RULEMAKING DNS