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# • Chapter 371-08 WAC PRACTICE AND PROCEDURE



# •

• WAC
371-08-001 371-08-002 371-08-005 371-08-010

371-08-020 371-08-030

371-08-032 371-08-033 371-08-035

371-08-040

371-08-050

371-08-055 371-08-065 371-08-071 371-08-075 371-08-080 371-08-085

371-08-100

371-08-104 371-08-106 371-08-125 371-08-130 371-08-140

371-08-144 371-08-146 371-08-147 371-08-148 371-08-150 371-08-155 371-08-156 371-08-162 371-08-165 371-08-180 371-08-183

371-08-184 371-08-185 371-08-186 371-08-187 371-08-188 371-08-189

371-08-195 371-08-196 371-08-200

371-08-215

371-08-220

371-08-230 371-08-235 371-08-240 371-08-250**371-O8~255**

(118191) Purpose and applicability. Commencement of adjudicative proceedings. Membership. function andjurisdiction. Boardadministration--Dffice and address of the board. Boardadministration-Quorum. Boardadministration-Comrnunications with th board-Public records. Definitions. Serviceof documents on representatives. Appearance and practice before the board-Persons who may and may not appear. Appearance and practice before the boardAppearance by representative. Appearance and practice before the boardWithdrawal or substitution ofrepresentatives. Appearance and practice before the board-Conduct. Presidingofficer-Powers and duties. Subpoenas. Appeals to theboard-Contents of notice of appeal. Appeals to theboard-Time for filing appeals. Appeals to the board-Jurisdictional requirementsDismissal onjurisdictional grounds. Appeals to theboard-Correction or amendment of notice. Appeals to theboard-Stays. Appeals to the board-Intervention. Conferences-Purpose of prehearing conferences. Conferences-When held. Conferences-Agreements at prehearing conferencesPrehearing orders. Prehearingprocedures-Telephone. Prehearingprocedures-Use of civil ruJes-Discovery. Prehearingprocedures-Motions. Prehearingprocedures-Summaryjudgment. Hearings-Types of hearings. Hearings-Election of type ofhearings. Hearings-Assignment of dates. Hearings-Default. Hearings--Continuances. dismissal. Hearings-Procedures at hearings. Hearings-Standard and scope ofreview-Burden of proof. Hearings-Interpreters. Hearings-Additional evidence by presiding officer. Rules ofevidence-Admissibility criteria. Rules ofevidence-s-Official notice-Maners of law. Rules ofevidence-s-Official notice-Material facts. Rules ofevidence-Tentative admission-ExclusionDiscontinuance--Dbjections. Disposition of adjudicative proceedings-Record. Dispositionofadjudicative proceedings-Transcripts. Disposition of adjudicative proceedings-Final decisions and orders-Petition for reconsideration. Dispositionofadjudicative proceedings-Final decisionsand orders. Appeals to thecourts-Notice ofappeal to the superior court. Appeals to thecourts-Certification ofrecord. Computation of time. Petitions for declaratory ruling. Review ofpennits under the National PoUutant Discharge Elimination System. Review ofpennits issued under chapter 173-303 WAC. 371-08-260 Applicability of SEPA guidelines.

DISPOSITION OF SECTIONS FORMERLY CODIFIED IN THIS CHAPTER

371-08-006 Public records. (Order. § 371·08·006. filed 5131173.) Repealed byOrder74-3. filed 5I8f74. See chapter 371·12 WAC. 371-08-015 Boardadministration-Meeting of theboard. [Order 75-1. § 371·08·015. filed 1/9175; Order 70·1, § 371-08-015. filed 12/18170.) Repealed by 91-03-028. filed 1/8/91. effective 2/8/91. Statutory Authority: RCW 43.21B.II0(3). 371-08-025 Board administration--Dffice of the clerk ofthe board. [Order 75-1, § 371-08-025. filed 1/9175; Order 70-1, § 371-08-025. filed 12/18170.) Repealed by 81-17-055 (Order 82·1. Resolution No. 82-1). filed 8118181. Statutory Authority: RCW 43.2IB.170. 371-08-031 Procedures applicable. [Statutory Authority: RCW 43.2IB.170. 81-17-055 (Order 82-1, Resolution No: 82- I), § 371-08-031,filed 8118181; Order 75-1. § 371-08-031. filed 1/9175.) Repealed by 91-03-028. filed 1/8/91. effective 2/8/91. Statutory Authority: RCW 43.21B.l1 0(3). 371-08-045 Appearance and practice before the board-No formal admission to practice. (Order 75-1, § 371-08-045. filed 1/9175: Order 70-1. § 371-08-045. filed 12/18170.] Repealed by 91-03-028, filed 1/8/9I, effective 2/8/91. Statutory Authority: RCW 43.21B.II0(3). 371-08-060 Presidingofficer-Definition. [Order70-1, § 371-08-060. filed 12118170.] Repealed by Order 75-1, flied 119m. 371-08-070 Presiding officer-Substitution ofpresiding officer. [Order70-1. § 371-08-070. filed 12118170.) Repealed by Order 75-1. filed 119175. 371-08-090 Appeals to theboard-Granting theappeal. [Order 75·1, § 371-08-090. filed 1/9175; Order 70-1, § 371-08-090. filed 12/18170.) Repealed by 81-17·055 (Order 82-1. Resolution No. 82-1). filed 8118181. Statutory Authority: RCW43.2IB.170. 371-08-095 Appeals totheboard-Cross-appeals. [Statutory Authority: RCW 43.2IB.170. 81-17-055 (Order 82-1. Resolution No. 82-1). § 371-08-095. filed 8118181; Order75-1. § 371- 08-095. filed 1/9175;Order 70-1, § 371-08-095. filed 12118170.) Repealed by 91-03-028. filed 11819t, effective 218191. Statutory Authority: RCW 43.2IB.l10(3). 371-08-102 Appeals to the board-Responsive pleadings, [Statutory Authority: RCW 43.2IB.170. 81-17-055 (Order 82-t, Resolution No. 82-1). § 371-08-102. filed 8/18/81.] Repealed by 91-03-028. filed 1/8/91, effective 2/8191. Statutory Authority: RCW 43.2IB.II0(3). 371-08-105 Conferences-Two types. [Order 75-1. § 371-08-105. filed 119175; Order 70-1. § 371-08-105. filed 12118170.) Repealed by 91-03-028, filed 1/819t, effective 2/8/91. Statutory Authority: RCW 43.218.110(3). 371-08-110 Conferences-PUIpose ofinformal conferences. [Statutory Authority: RCW 43.218.170. 81-17-055 (Order 82·1, Resolution No. 82-\). § 371-08-110. filed 8118181; Order 75·1. § 371·08-11O. filed 119175; Order 70-1. § 371-08- 110. filed 12118170.) Repealed by 91-03-028. filed 118191. effective 2/8/91. Statutory Authority: RCW 43.218.110(3). 371-08-115 Conferences-When held. [Statutory Authority: RCW 43.2IB.170. 81·17-055 (Order 82-1. Resolution No. 82· I). § 371-08-115.filed 8118181; Order 75-1. § 371-08-115. filed 119m; Order 70-1. § 371-08-115. filed 12118170.)

[Cb. 371-08 WAC-p. 1]

### Chapter 

### 371.08



### - --Praetlee and Procedure

(118191) 

### WAC 

### 371·08·002 Commencement of adjudicative proceedings. An adjudicative proceeding before the board shall be initiated by filing a notice ofappeal with the board and the service ofa copy thereofon the agency whose decision is being appealed. For the board to acquire jurisdiction both such tiling and such service must be timely accomplished as provided in WAC 371-08-080.
[Statutory Authority: RCW 43.21B.110(3). 91-03·028. § 371-08-002. filed 118191. effective**~l.)** 

### WAC 

### 371-08-001 Purpose and applicability. (I) 

### The purpose ofchapter 371-08 WAC is to provide comprehensive rules ofpractice and procedure before the pollution control hearings board (hereinafter board). (2) This chapter shall apply to all procedural matters before the board and replaces chapters 1-08 and 10-08 WAC. except where specifically noted.
[Statutory Authority: RCW 43.218.110(3). 91-03·028. § 371-OS-OOI. filed 118191. effective**~I.)**



### WAC 

### 371·08·005 'Membership, function and jurisdiction. (I) 

### Members. The board is composed of three members appointed by the governor, with the advice and consent ofthe senate, for a term of six years. The members are to be qualified by experience or training in pertinent matters pertaining to the environment, and at least

one member shall be a lawyer, and not more than two members shall be of the same political party. (2) Function andjurisdiction. The function ofthis board is to provide an expeditious and efficient disposition of appeals from the decisions and orders of the department ofecology from the decisions ofair pollution control authorities established pursuant to chapter70.94 RCW, and from the decisions oflocal health departments. when such orders and decisions concern matters within thejurisdiction of the board as provided in RCW 43.21B.IIO: (a) Civil penalties imposed pursuant to RCW 70.94.431, 70.105.080,70.107.050,90.03.600.90.48.144, and 90.48.350. (b) Orders issued pursuant to RCW 43.27A.190, 70.94.211, 70.94.332, 70.105.095, 86.16.020, 90.14.130. 90.48.120. (c) The issuance, modification, termination or denial of any permit certificate or license by the department of ecology or any 

### air pollution control authority. (d) Decisions oflocal health departments regarding the grant or denial ofsolid waste permits pursuant to chapter 70.95 RCW. (e) Any other decision by the department of ecology or an air pollution control authority which pursuant to law must be

### decided as an adjudicative proceeding under chapter 34.05 RCW. 70-1. § 371·08·225. filed 12118/70.) Repealed by Order 77·1. filed9N76. Later promulgation, see WAC 371-08- 220. Petitions for rule making [Statutory Authority: RCW 43.218.170. 81-17-055 (Order 82·1. Resolution No. 82- I). § 371-08·245. filed8118181; Order·75·1. § 371-08·245. filed Il9n5; Order 70-1. § 371·08·245. filed 12118/70.) Repealed by 91·03·028. filed 1/8191. effective 2/8191. Statutory Authority: RCW 43.218.110(3). 371·08·245 Repealed by 91-03-028. filed 1/8/91. effective 218191. Statutory Authority: RCW 43.218.110(3).

• 371·08·120 Conferences-AgJUments at infonnal conferences. [Order 75·1. § 371·08·120. filed 119m; Order 70-1. § 371·08· 120. filed 12118/70.) Repealed by 91·03-028. filed 118191. effective 2/8/91. Statutory Authority: RCW 43.218.110(3). 371·08·131 Conferences-Documentaryevidence. [Statutory Authori· ty: RCW 43.218.170. 81·17-055 (Order 82-1. Resolution No. 82-1). § 371-OS-131. filed 8118181; Order 75·1. § 371· 08-131. filed 1/9175.] Repealed by 91·03-028. filed 1/8/91. effective 2/8/91. Statutory Authority: RCW 43.218.110(3). 371-08-132 Conferences-Excerpts from documentary evidence. [Statutory Authority: RCW 43.218.170. 81-17-055 (Order 82·1. Resolution No. 82·1). § 371-08-132. filed 8/18/81; Order 75·1. § 371-08·132. filed 119175.) Repealed by 91·03-028. filed 1/8/9I. effective 2/8/91. Statutory Authority: RCW 43.2IB.110(3). 371-08·135 Conferences-Failure to supply prehearing information. [Order 75- J. § 371·08·135. filed 119175; Order 70-1. § 371-08-135. filed 12118/70.) Repealed by 91-03-028. filed 1/8/91. effective 2/8/9J. Statutory Authority: RCW 43.218.110(3). 371-08-145 Conferences-Applicability of superior court rules. [Order 75·1. § 371·08·145. filed 119175; Order 70-1. § 371·08· 145. filed 12118/70.) Repealed by 81-17-055 (Order 82-1. Resolution No. 82-1). filed 8118181. Statutory Authority: RCW 43.2IB.170. 371-08-160 Hearings-Notice of hearing. [Statutory Authority: RCW 43.218.170. 81·17·055 (Order 82-1. Resolution No. 82- I). § 371-08·160. filed 8118181; Order 75-1. § 371-08-160. filed 119175; Order 70-1. § 371·08·160. filed 12I18/70.J Repealed by 91-03-028. filed 1/8/91. effective 218191. Statutory Authority: RCW 43.2IB.110(3). 371-08-163 Hearings-Briefs. [Statutory Authority: RCW

• 43.218.170. 81-17·055 (Order 82-1. Resolution No. 82- 1). § 371-08-163. filed 8118181.] Repealed by 91-03-028. filed 118191. effective 218191. Statutory Authority: RCW 43.21 B.110(3). 371-08·170 Hearings-Continuances. [Order 70-1. § 371-08-170. filed 12118/70.) Repealed by Order 75-1. filed 119175. 371-08-175 Hearings-Selling subsequent hearings. [Statutory Authority: RCW 43.218.170. 81-17-055 (Order 82-1. Resolution No. 82-1). § 371-08-175. filed 8118181; Order 75-1. § 371-08-175. filed 119/75; Order 70-1. § 371-08- 175. filed 12118/70.] Repealed by 91-03-028. filed 118191. effective 218/91. Statutory Authority: RCW, 43.2IB.110(3). 371-08-190 Disposition of contested cases-Definition. [Statutory Authority: RCW 43.2IB.170. 81-17-055. (Order 82-1. Resolution No. 82·1). § 371·08-190. filed 8118181; Order 75-1. § 371-08·190. filed 1/9/75; Order 70-1. § 371-08· 190. filed 12118/70.) Repealed by 91-03-028. filed 118191. effective 2/8/91. Statutory Authority: RCW 43.2IB.110(3).

. 371-08-201 Disposition of contested cases-Presentation ofadditional evidence. [Statutory Authority: RCW 43.218.170. 81- 17-055 (Order 82-1. Resolution No. 82-1). § 371-08-201. filed 8118/81; Order 75-1. § 371-08-201. filed 1/9175.) Repealed by 91-03·028. filed 1/8/91. effective 2/8191. Statutory Authority: RCW 43.218.110(3).

. 371-08-205 Disposition of contested cases-Exceptions. [Statutory Authority: RCW 43.218.170. 81-17-055 (Order 82·1. Resolution No. 82-1). § 371-08-205. filed 8118181; Order 75-1. § 371-08-205. filed 119175; Order 70-1.'§ 371.()8· 205. filed 12118/70.] Repealed by 91-03-028. filed 118191. effective 2/8/91. Statutory Authority: RCW 43.2IB.110(3). 371-08-210 Disposition ofcontested cases-Finality ofproposed

• decisions and orders. [Order 75-1. § 371-08-210. filed 1/9175; Order 70·1. § 371-08-210. filed 12/18170.] Repealed by 91·03·028. filed 1/8191, effective 2/8191. Statutory Authority: RCW 43.218.110(3). 371-Q8-225 Appeals to thecourts-Notice ofappeal to thecourt of appeals. [Order 75-1. § 371-08-225, filed 119m; Order
leb. 371-08 WAC-p. 2]

### Practice and Procedure



# • • • (3) ECPA. The board also has jurisdiction to hear and decide appeals from any final decision contained in the document issued by the department of ecology pursuant to RCW 90.62.060(6) ofthe Environmental Coordination Procedures Act. (4) This section is intended to be general and infonnational only, and failure herein to list matters over which the board hasjurisdiction at law shall not constitute any waiver or withdrawal whatsoever from suchjurisdiction.
(Statutory Authority: RCW43.218.110(3). 91-03-028. § 311-08-005. filed 118191. effective 218191. Statutory Authority: RCW43.218.110. 81-11· 055 (Order 82·1, Resolution No. 82·1). § 311-08.Q05. filed 8/18/81; Order 1S·L§ 311·08-005. filed 119m; Order 10-1. § 311-08-005. filed 12I18f70.)



### WAC 

### 371·08·010 Board administration-Office and address of the board. (I) 

### The administrative business of the board is performed by the Environmental Hearings Office, which holds regular meetings at 10:00 a.m. on the second Tuesday of each month, pursuant to WAC 198-12- 030. at the address set forth below and at such other times and places as the chairperson shall designate. (2) The board is housed at the office ofthe Environmental Hearings Office. 4224 6th Avenue S.E., Building 2 Rowesix, Lacey. Washington. The principal hearing room used by the board is located at the same address. although many hearings are held near the site of thedispute at issue. (3) The mailing address of the board is:

Pollution Control Hearings Board Mailstop: PY-21 Olympia. WA 98504 (4) The telephone number of the board is (206) 459- 6327. The telefacsimile number is (206) 438-7699.
(Statutory Authority: RCW43.218.110(3). 91-03-028. § 311-08-010. filed 118191, effective 218191. Statutory Authority: RCW43.218.110. 81-11- OS5 (Order 82-1, Resolution No. 82-1). § 311-08-010. filed 8/18181; Order 15-1. § 311-08-010. filed 119m; Order 10-1. § 311-08-010. filed I2I18f70.1



### WAC 

### 371·08·020 Board administration-Quorum.

. Two members ofthe board shall constitute a quorum for

making orders or decisions, or for promulgating rules and regulations relating to its procedures, and may act although

one position on the board be vacant. One member or designated administrative appeals judge may hold hearings and take testimony when assigned by the chairperson to so do. The findings of such memberor administrative appeals judge shall not become final until approved by aquorum of the board.
(StatutoryAuthority: RCW43.218.110(3). 91-03-028. § 311-08-020. filed 118191, effective 218191. Statutory Authority: RCW 43.218.110. 81-11- OSS (Order 82-1, Resolution No. 82-1), § 311-08-020. filed 8/18181; Order 15-1, § 311-08-020, filed 119m; Order 10-1, § 311-08-020, filed 12I18f70.)



### WAC 

### 371·08·030 Board administrationCommunications 

### with the board-Public records. (1) All written communications by parties pertaining to a particular
case, including notices ofappeal and applications and requests for reliefof any kind. shall be filed with the board either by manual delivery, by mail or by telefacsimile. Copies of all such written communications shall be furnished to the appropriate agency and to all other interested parties

. " 

### 371·08-005

and the original filed with the board shall show thereon compliance with this requirement. (2) Public records maintained by the board are available for public inspection and copying as provided in chapter 198- I2 WAC. The fonn for requests for public records is set forth in WAC 198-12-140.
(Statutory Authority: RCW 43.218.110(3). 91-03-028. § 311-08-030, filed 1/8/91, effective 218191. Statutory Authority: RCW 43.218.170. 81-11· 055 (Order 82-1. Resolution No. 82-1). § 311-08-030. filed 8/18181; Order 15-1, § 311-08-030. filed 119m; Order 10-1, § 311-08-030. filed 12I18f70.1



### WAC 

### 371-08·032 Definitions. As used in this chapterthe following terms shall have the following meaning: (l) 

### "Adjudicative proceeding" means a proceeding involving an opportunity for hearing before the board asdefined in RCW 34.05.010. The term "adjudicative proceeding" is used interchangeably with the terms "case" and "appeal" in this chapter. (2) "Agency" means any governmental entitydepartment ofecology, air pollution control authority. local health department, or other agency-whose decisions the board hasjurisdiction to review. (3) "Board" means the pollution control hearings board

as described in WAC 371-08-005. Where appropriate. the
term "board" also refers to the designated agents ofthe pollution control hearings board. (4) "Department" refers to and means the departmentof ecology. (5) "Filing" ofa document that is required to be filed with the board means delivery of the document to the office ofthe board. Filing by telefacsimile transmission is effective only where the transmission is ten pages or less and where the original is simultaneously mailed or sent by commercial service delivery company. (6) "Party" means:(a) A person to whom any agency decision is specifically directed; or (b) A person named as a party to the adjudicative proceeding, or allowed to intervene. orjoined as a party by the board. (7) "Person" means any individual. partnership. corporation, association, organization, governmental subdivision, agency, or entity ofany character. (8) "Presiding officer" means a member ofthe board or

an administrative appealsjudge who is assigned to conduct

a conference or hearing by the chairperson. (9) "Service" means posting in the United States mail. properly addressed, postage prepaid; telefacsimile transmission; or personal service. Service by mail is complete upon deposit in the United States mail. Service by telefacsimile transmission is effective only where copies are simultaneously mailed or sent by commercial service delivery company. (Statutory Authority: RCW 43.218.110(3). 91.()3-028, § 311.Q8.Q32, filed 1/8/91, effective 218191. Statutory Authority: RCW 43.218.110. '81-17- 055 (Order 82-1, Resolution No. 82-1), § 37I-08.Q32. filed 8/18181; Order 15-1, § 371-08-032, filed 119m.)



### WAC 

### 371-08-033 Service ofdocuments on 

### representatives. Service ofany document required to be served on a party to a case. including final decisions ofthe board•

(118191) [Ch. 371-08WAC-p. 3)

### Practice and 

### Procedure

WAC 371-08-040 Appearance and practice before the board-Appearance by representative. (1) Appearances may be made on behalfofany party by his or her attorney or other duly authorized representative as defined in WAC 371-08-035, by (a) Filing a notice ofappeal or other pleading or a written notice ofappearance containing the name ofthe party to be represented, and the name, address and telephone number ofthe representative. or by (b) Entering an appearance at the time and place ofa conference or hearing on the appeal, and notifying the presiding officer conducting the same ofthe party to be represented and the name. address and telephone numberof the representative. (2) Copies ofevery written notice of appearance shall be furnished by the representative to all other parties or their representatives ofrecord at the time the original is filed with the board.

• (3) Unless the department notifies the board otherwise. the attorney general shall. in all appeals from decisions and orders ofthe department and director. be deemed to have entered appearance for the department., and shall be exempt 

# •

• J71-68-0J3

may be made by serving the party's representative in the matter.
[SunutoryAuthority: RCW43.218.110(3). 91

### ~3-028. §

### 37I-OS~33.**fiI~d** 118191. effective218191.1

WAC 371-08-035 Appearance and practice before the board-Persons who may and may not appear. (I) No person may appear in a representative capacity before the board other than the following: (a) Attorneys at law duly qualified and entitled to practice before the highest court of record ofany state. (b) A bona fide officer, partner. owner, full-time employee or member of an association, partnership, corporation. organization, government subdivision or agency who appears for such entity. (c) Legal interns admitted to practice under APR 9 of the rules ofcourt appearing before the board under the conditions and limitations therein specified. (d) Any other individual designated by an entity to serve

as spokesperson in a case. with the approval of the presiding offices. (2) Nothing in this section shall be construed as limiting the right ofany individual to represent himselfor herself. (3) No former employee ofthe department or member of the attorney general's staffmay. at any time after leaving the employment of the department or the attorney general.
appear, except when permitted by RCW 42.18.220. in a representative capacity on behalfofother parties in a formal proceeding in which an active part as a representative of the department was taken in the same case or proceeding

. (4) No former member ofthe board shall. for a period ofone year after the termination of his or her membership,
act in a representative capacity before the board on any matter.
[StatutoryAuthority: RCW43.218.110(3). 91**~3-028.** §**371-08~35.** filed 118191. effective 218191. StatutoryAuthority: RCW43.218.170. 81-17- 055 (Order 82-1. Resolution No.82·1). §**371-08~35.** filed8118181; Order 75-1. § 371-08-035. filed 119m; Order70-1. §**37J~8-035.** filed 12118170.) from 

### the requirements herein relating to the filing ofwritten notices ofappearance and to the furnishing ofcopies of
same to other parties and their representatives. (4) After an appearance by a representative for a party has been made. all future notices and orders shall 

### beserved by the board upon such representative. Service upon the representative shall constitute service upon the party. [Stlllutory Authority: RCW43.218.110(3).**91~3-028.** § 371-08..()4(). filed 118191. effective218191. Statutory Authority: RCW 43.218.170. 81-17· 055 (Order82-1. Resolution No. 82-1). § 371-08-040. filed8118181; Order 75-1, § 371·08-040. filed 119m; Order70-1. § 371-08-040. filed I:!II8170.)

WAC 371-08-050 Appearance and practice before the board-Withdrawal or substitution ofrepresentatives. An attorney or otherrepresentative withdrawing from a case shall immediately so notify the board and all parties ofrecord in writing, or shall state such withdrawal on the record at a conference or hearing. Any substitution ofan attorney or representative shall be accomplished by written notification to the board and to all parties ofrecord. together with the written consent ofthe prior attorney or representative, and if such consent cannot be obtained. a written
statement ofthe reason therefor shall be supplied.
[Statutory Authority: RCW43.218.170. 81-17·055 (Order82-1. Resolution No. 82-1). § 371-08-050. filed 8118/81; Order75-1. § 371·08·050. filed 119m; Order70-1, § 371-08-050. filed 12118170.)

WAC 371-08-055 Appearance and practice before the board-Conduct. All persons appearing in a representative capacity in proceedings before the board shall conform to the standards ofethical conduct required ofattorneys before the courts ofWashington. 

### If any such person does
not conform to such standard, the presiding officer may admonish or reprimand such person, or exclude such person from further participation in the proceedings and adjourn the
same, or report the matter to the board which may. in its discretion. after notice and hearing. take appropriate disciplinary action including. but not limited to. a letter of reprimand. and refusal to permit such person to appear in a representative capacity in any proceeding before the board.
[statutoryAuthority: RCW43218.170.**81-17~5** (Order82-1. Resolution No. 82-1). § 371-08-055. filed 8118181; Order75-1. § 37t-08-055. filed Il9n5; Order70-1. §**371-08~5.** filed 12118170.)

WAC 371-08-065 .Presiding officer-Powers and duties. It shall be the duty ofthe presiding officer to conduct conferences or hearings in cases assigned- in an impartial and orderly manner. The presiding officer shall have the authority. subject to the other provisions ofthese rules: (1) To administer oaths and affirmations; (2) To issue subpoenas and enter protective orders as provided in RCW 34.05.446; (3) To rule on all procedural matters. objections and motions; (4) To rule on all offers ofproofand receive relevant evidence; (5) To question witnesses called by the parties in an impartial manner to develop any facts deemed necessary to fairly and adequately decide the appeal;

leh. 371-08WAC--p.

### 41 (118191)Practice and 

### Procedure 

# •

•

• (6) To secure and present in an impartial manner such evidence, in addition to that presented by the parties, as deemed necessary to fairly and equitably decide the appeal; (7) To take appropriate disciplinary action with respect to representatives ofparties appearing before the board; (8) To issue orders joining other parties, on motion of
any party, or on its own when it appears that such other parties may have an interest in. or may be affected by, the proceedings; (9) To consolidate appeals for hearing when such consolidation will expedite disposition'ofthe appeals and avoid duplication oftestimony and when the rights ofthe parties will not be prejudiced thereby; (10) To hold conferences for the settlement or amplification ofthe issues; (II) To take or cause to be taken depositions and interrogatories pursuant to these rules and to procedures available to litigants in civil cases in superior courts in the
state of Washington; (12) To regulate the course ofthe hearing; (13) To take any other action necessary and authorized by these rules and the law.
[Statutory Authority: RCW 43.218.110(3). 91-03-028. § 371-08-065. filed 1/8191.effective 218191. Statutory Authority: RCW 43.218.170. 81-17- 055 (Order 82-1. Resolution No. 82-1). § 371-08-065. filed 8118181;Order 75-1. § 371-08-065. filed Il9n5; Order 70-1. § 371-08-065. filed 12/18170.1

WAC 

### 371-08-071 Subpoenas. (1) Issuance. Subpoenas may be issued by the presiding officer assigned to the case. or by an attorney ofrecord, as provided in RCW 34.05.446. Each subpoena shall be subscribed with the signature ofthe issuing person. Parties desiring subpoenas to be signed by the presiding officer shall make a showing ofgeneral relevance and reasonable scope ofthe testimony

or evidence sought, and shall prepare the subpoenas for issuance, send them to the board's office for signature, and upon return shall make arrangements for service. (2) Form. Every subpoena shall name the pollution control hearings board and the title ofthe proceedings, and shall command the person to whom it is directed to attend and give testimony or produce designated 

### books, documents,

or things under that person's control at a specified time and place. (3) Service. Service ofsubpoenas shall be made by delivering a copy ofthe subpoena to such person and tendering on demand, where entitled to make such a demand, the fees for one day's attendance and the mileage allowed by law. All costs shall be paid by the party seeking the attendance ofthe witness.

. (4) Proofofservice. The person serving the subpoena shall make proofofservice by filing the subpoena and the required return, affidavit or acknowledgement ofservice with the board or presiding officer ofthe case. Failure to make proofofservice does not affect the validity ofthe service. (5) Quashing. Upon motion made promptly (at or before the time specified in the subpoena for compliance) by the person to whom the subpoena is directed and upon notice to the party for whom the subpoena was issued, the presiding officer may (a) quash, or (b) modify the subpoena ifit is unreasonable or requires evidence not relevant to any matter in issue, or (c) condition denial ofthe motion upon just and reasonable conditions.

(118191) 

### '·'371-4)8.065

(6) Geographical scope. Attendance ofwitnesses and production ofevidence may be required from any place in the state ofWashington, at any designated place ofhearing.
(Statutory AUthority: RCW43.218.110(3). 9I-03-02&. § 371-08-071. filed 118191. effective 218191. Statutory Authority: RCW 43.218.170. 81·17· 055 (Order 82·1. Resolution No. 82·1). § 371-08·071. filed 8/18181.1

WAC 

### 371·08·075 Appeals to the board-Contents ofnotice ofappeal. The notice ofappeal shall contain: (I) The name, mailing address, telephone number and telefacsimile number (ifavailable) of the appealing party, and ofthe representative, if any; (2) Identification ofthe parties, by listing in the caption

or otherwise. In every case, the agency whose decision is being appealed and the person to whom the decision is directed shall be named as parties; (3) A copy ofthe orderor decision appealed from, and if the order or decision followed an application, a copy of the application: (4) A short and plain statement showing the grounds
upon which the appealing party considers such order or decision to be unjust or unlawful; (5) A clear and concise statement offacts upon which

an appealing party relies to sustain his or her grounds for appeal. (6) The reliefsought, including the specific nature and extent; (7) A statement that the appealing party has read the notice and believes the contents to be true, followed by the party's signature and the signature of the representative, if
any. 

### Ifthe appealing party is unavailable to sign the notice ofappeal, it may be signed by the representative. (8) All pleadings shall be so construedas to do substantial justice.
(Statutory Authority: RCW 43.218.110(3). 91-03-028. § 371-08-075. filed 118191, effective 2/8191. Statutory Authority: RCW 43.218.170. 81-17- 055 (Order 82-1, Resolution No. 82-1). § 371-08-075. filed 8/18181; Order 75-1, § 371-08-075. filed 119m; Order70-1, § 371-Q8-Q75.filed 12/18170.1

WAC 

### 371-08·080 Appeals to the board-Time for fding appeals. (1) Unless provided otherwise by law, the notice ofappeal shall be filed within thirty days from the date the copy ofthe order or decision ofthe agency was communicated to the appealing party. The date offiling shall be the date ofactual receipt by the board. Receipt of

an appeal shall be acknowledged by the board; the date stamp placed thereon shall be prima facie evidence ofthe date ofreceipt. The board may thereafterrequire additional copies to be filed. (2) Within the same thirty-day period, a copy ofthe notice ofappeal shall beserved, by mail or otherwise, on the
agency whose decision is being appealed. Proofofsuch service may bemade by certificate or affidavit filed with the board. (3) A copy ofthe notice ofappeal shall also be served on all other persons named as parties to the appeal.
[Statutory Authority: RCW 43.218.110(3). 91-03-028. § 371-08-080. filed 118191, effective 218191. Statutory Authority: RCW 43.218.170. 81-17- 055 (Order82-1, Resolution No. 82-1). § 371-08-080, filed 8/18181; Order 75-1, § 371-08-080. filed 119m; Order70-1, § 371-08-080, filed 12/18170.)

(Cb. J71.08 WAC-p. 5)

### Practice and Procedure

WAC 371·08·085 Appeals to the boardJurisdictional requirements-Dismissal onJurisdictional grounds. (I) Timely filing of the notice ofappeal with the board and timely service ofthe notice ofappeal on the appropriate agency must both 

### beaccomplished for the board to acquire jurisdiction. (2) Any party may challenge the jurisdiction ofthe board to hear an appeal, and the board may on its own raise thejurisdictional issue. The board shall, when satisfied that it does not havejurisdiction, dismiss an appeal.
[Statutory Authority: RCW43.218.110(3). 91-03-028. § 371-08-085. filed 1/8191. effective 218191; Order 75-1. § 371-08-085. filed Il9n5;Order 70-1. § 371-08-085. filed .12118170.) 

# • 371·0S.085

(Statutory Authority: RCW43.218.110(3). 91-03-028. 

### t 371-08-104. filed 118191. effective 218191. Statutory Authority: RCW 43.218.170. 81-\7- 055 (Order 82-1. Resolution No. 82-1). § 371-08-104. filed8118181.1



### WAC 371·08·106 Appeals to the boardIntervention. (I) The presiding officer may grant a petition for intervention at any time. upon determining that the petitioner qualifies as an intervener pursuant to Civil Rule 24. (2) The presiding officer may impose conditions upon the intervenor's participation in the proceedings.
[Statutory Authority: RCW43.218.110(3). 91-03-028. § 371-08-106. filed 118191. effective 218191.)



# •

• WAC 371-08-100 Appeals 

### to the board-Correction

or amendment ofnotice. Within thirty days ofreceipt by the board, if any notice of appeal is found to bedefective or insufficient, the board may require the party filing said notice ofappeal to correct, clarify or amend the same to conform to the requirements of the board's rules. The board may refuse to schedule any conference or hearing thereon until compliance with such requirements, or may issue an appropriate order which may include providing for dismissal ofsuch appeal upon failure to comply within a specified time.
[StatGtory Authority: RCW43.218.110(3). 91-03-028. § 371-08-100. filed 118191. effective 2/8191. Statutory Authority: RCW 43.218.170. 81-\7- 055 (Order 82-\, Resolution No. 82·1). § 371-08-100, filed 8118181; Order 75-1. § 371-08-100. filed Il9n5; Order 70-1, § 371-08-100. filed 12118170.)



### WAC 371-08·104 Appeals to the board-8tays. (1) 

### A person appealing an order not stayed by the issuing agency, may obtain a stay ofthe effectiveness ofthat order only as set forth in this section. (2) An appealing party may request a stay by including such a request in the notice ofappeal or in a subsequent motion. The request must be accompanied by a statement of grounds for the stay and evidence setting forth the factual basis upon which the request is based. (3) Upon receipt of

# arequest for a stay. the board will confer with the parties regarding its disposition. If necessary, a hearing on the motion will be held. Ifit appears that

a hearing on the merits and issues ofthe case should be consolidated with the request for a stay, the board will advance the hearing date on its own initiative, or by request ofthe parties. (4) The requestor makes a prima facie case for a stay if the requestor demonstrates either a likelihood ofsuccess on . the merits ofthe appeal or irreparable harm. Upon such a showing, the board shall grant the stay unless the agency demonstrates either (a) a substantial probability ofsuccess on the merits or (b) likelihood ofsuccess and an overriding public interest which justifies denial ofthe stay. (5) Unless otherwise stipulated by the parties, the board, aftergranting or denying a request for a stay, shall expedite the hearing and decision on the merits. (6) Any party aggrieved by the grant or denial ofa stay by the board may petition the superior court ofThurston County for review ofthat decision pending the hearing on the merits before the board.

reb. 371-08WAC--p. 6] 

### WAC 371·08·125 Conferences-Purpose of prehearing conferences. The purpose ofa prehearing conference shall be: (I) To determine the feasibility ofa settlement of the appeal or, failing settlement; (2) To prepare the case for hearing by scheduling the hearing and interim dates, by identification of issues, and, to the extent possible, witnesses, exhibits, stipulations, and admissions.
(Statutory Authority: RCW43.218.110(3). 91-03-028. § 371-08-125. filed 1/8191. effective 218191; Order75-1. § 371-08-125. filed Il9n5; Order 70-1. § 371-08·125. filed 12118170.)



### WAC 371·08·130 Conferences-When held. (I) The board may. upon written request by a party. or on its
own, schedule a prehearing conference on not less than

seven days' notice mailed to each party to the appeal. at a time and place fixed by the board. (2) If any party fails to appear at a prehearing conference. the presiding officer may suspend setting a hearing or may continue or deny continuance ofa hearing already set or may otherwise restrict the time or location ofhearing.
[Statutory Authority: RCW43.218.110(3). 91-03-028. § 371-08-130. filed 118191. effective 218191; Order75-1. § 371-08-130. filed Il9n5;Order 70-1. § 371-08-130. filed 12118170.)



### WAC 371·08-140 Conferences-Agreements at prehearing conferences-Prebearing orders. (1) When agreement concerning final disposition ofthe appeal is reached at a prehearing conference, the parties shall thereafter present an agreed order implementing the agreement. If the agreement is inaccordance with the law, the board shall
enter the agreed order disposing ofthe appeal. (2) After a prehearing conference which has not resulted in settlement, the presiding officer shall set the date of hearing and interim dates and enter a prehearing order. Normally, this will include a statemento.fissues and lists of witnesses and exhibits or provision for filing such lists, as well as other matters which may bearon thepreparation for hearing. The issues stated in the prehearing order shall control the subsequent course ofthe proceedings. unless modified for good cause by subsequent order.
(statutory Authority: RCW43.218.110(3). 91-03-028. § 371-08-140. filed 118191. effective 218191; Order75-1. § 371-08-140. fIled Il9n5;Order 70-1. § 371-08-140. filed 12/18170.)

(11&91)Practice and Procedure

. 

### •



# •

•

• WAC 371·08·144 Prebearlng proceduresTelephone. The board may schedule any conference or motion hearing. to be conducted by telephone conference call. if it appears to promote the fair, speedy and economicaJ processing ofthe matter.
[Statutory Authority: RCW 43.218.110(3). 91.Q3-028. § 371-08-144.filed 1/8191. effective 218191. Statutory Authority: RCW 43.218.170. 81·17- 055 (Order 82·1. Resolution No. 82-1). § 371.Q8-144. filed 8I18I81.J

WAC 371·08·146 Prehearlng procedures-Use of civUrules-s-Discovery. Except where inconflict with these rules. the statutes and rules regarding pretrial procedures in the superior courts of this state shall 

### befollowed in proceedings before the board. Such rules shall include but not be limited by those rules pertaining to discovery ofevidence by parties to civil actions.
[Statutory Authority: RCW 43.218.110(3). 91.Q3-028. § 371-08-146. filed 1/8191. effective 21819I.J

WAC 371·08·147 Prehearingprocedures-Motions. (I) An application to the board for an order shall be by motion which. unless made during a hearing, shall be in writing. state with particularity the grounds therefor and set forth the reliefsought. Written motions may be included in the notice of appeal or filed and served separately. (2) When a motion is filed. the matter will 

### bescheduled separately. In all cases. the defending party shall have an opportunity to respond. (3) Unless oral argument is requested. a motion will 

### be decided on the written record.
[Statutory Authority: RCW 43.218.110(3). 91.Q3-028. § 371.Q8-147. filed 1/8191. effective 218191.]

WAC 371·08·148 Prehearing proceduresSummaryjudgment The board will entertain a motion for summaryjudgment on some or all ofthe substantive issues ofa case pursuant to the provisions ofCivil Rule 56.
[Statutory Authority: RCW 43.21B.1l0(3). 91.Q3-028. § 371-Q8-14S. filed 118191. effective 218191.]

WAC 371·08·150 Hearings-Types ofhearings. The statute creating the board contemplates two kinds of hearings. informal and formal, without any indication as to what the distinction should be. but with very different provisions for the review oforder entered. The procedures in conducting these two types of hearings by the board shall be generally the same.

[Order75-1. § 371-08-1SO. filed Il9n5; Order 70-1. § 371-08-150.

## med 12I18n0.)

WAC 371·08·155 Hearings-Election oftype of hearings. When a party elects a formal hearing, the hearing will be formal. H no party makes an election, the hearing will 'be informal. An agency whose decision is appealed shall. within ten days after receiving a notice ofappeal. notify the board ofits intention that the hearing be formal.
[statutory Authority: RCW 43.218.110(3). 91.Q3-02S. § 371-08-155.fiJed 118191. effective 218191; Order 75-1. § 371.Q8-155. filed Il9n5; Order70-1. § 371-08-155. filed 12I18n0.]

(118191) 

### ---- -371·()8.144

WAC 371·08·156 Hearings-Assignment ofdates. (I) The board will assign a prehearing conference date or date(s) for the hearing on the merits, and advise the parties thereofby letter. (2) Normally. when a prehearing conference is held, the scheduling of the hearing on the merits will 

### bedeferred until the prehearing conference. (3) When Ihe board schedules a hearing, it shall mail a written notice thereofto all parties not less than ten days prior to the hearing date.
[Statutory Authority: RCW43.2IB.II0(3). 91-03-028. § 371-Q8-1S6. filed 118191. effective 218191. Statutory Authority: RCW 43.218.170. 81-17· a55 (Order82-1. Resolution No. 82'1). § 371-Q8-1S6. filed 8118181; Order 75-1. § 371-08-156.filed Il9n5.)

WAC 371·08·162 Hearings-Default (I) 

### Ifa party fails to attend or participate in a hearing or other stage ofan appeal. the presiding officer may serve on all parties an order ofdefault or other dispositive order. which shall include a statement of the grounds for the order. (2) Within ten days after receipt ofan order under subsection (I) of this section. the party against whom it was entered may file and serve a written motion requesting that the order be vacated and stating the grounds relied upon.
[Statutory Authority: RCW 43.2IB.II0(3). 9I-03-02S. § 371-Q8-162. filed 118191. effective 218191.]

WAC 371·08-165 Hearings-Continuances, 

### dismiss

### ai. (I) Continuance ofa hearing is within the discretion of the board. whether contested or uncontested by the parties. The board may continue a hearing on its own motion. (2) Normally, motions for continuance should 

### befiled more than three months before the scheduled hearing date. so that any time cleared on the calendarcan be productively used for other appeals. (3) Prior to moving for a continuance, a person should confer and seek agreement on the matter with the other parties.
[Statutory Authority: RCW43.2IB.110(3). 91.Q3-028. § 371-08-165. filed II819t.effective 218191. Statutory Authority: RCW 43.218.170. 81-17-

oss (Order 82-t. Resolution No. 82-1). § 371-Q8-165. filed 8118181; Order 75-1,§ 371-Q8-165. filed 119m; Order70-1. § 37I-oS-165. fiJed 12I18n0.J

WAC 371·08-180 Hearings-Procedures at hearings. (1) Presiding officer. All hearings shall be conducted by a presiding officer who shall conduct the hearing in an orderly manner and rule on all procedural matters, objections and motions. (2) Testimony under oath. Oaths shall 

### beadministered by the presiding officer or other officer with authority to administer oaths. All testimony to be considered by the board shall be sworn, and each person shall swear (or affirm) that the testimony about to be given shall be the truth, the whole truth, and nothing but 

### the truth. (3) Recording. (a) An official record of all evidentiary hearings shall 

### be made by manual, electronic. or other type ofrecording device. (b) Unofficial use ofphotographic and recording equipment is pennined at hearings; however, the presiding



### leb. 371-08 WAe-p. 7)Practice and Procedure 

### •



# •

•

• 371.08·180

officershall be consulted first and may impose conditions on their use as necessary to prevent disruption of the hearing. (4) Order of presentation ofevidence. (a) The presiding officer shall determine the proper order of presentation ofevidence. As a general rule. the appealing party shall initially introduce its evidence. except that in case of an appeal from a regulatory order or an order assessing a penalty. the agency. shall initially introduce all evidence necessary to its case. (b) The opposing party shall present its evidence after the party initially presenting evidence has rested. (c) Rebuttal and surrebuttal evidence will 

### be received only at the discretion of the presiding officer. (d) Witnesses may be called out oftum in contravention of this rule by agreement ofall parties. (5) Opening statements. Unless the presiding officer rules otherwise. parties may present an oral opening statement setting out briefly a statement of the basic facts, disputes. and issues of the case. (6) Written statement ofqualifications of expert witnesses. Any party who plans to introduce the testimony ofany expert witness at the hearing shall submit as an exhibit to the board and all parties at the hearing a written
statement of the qualifications, experience. and expertise of each such expert witness. (7) Former employee as an expert witness. No former employee of the department shall. at any time after leaving the employment ofthe department. appear, except when permitted by RCW 42.18.220, as an expert witness on behalfof other parties in a formal proceeding in which an active part in the investigation as a representative ofthe department was taken. (8) Objections and motions to strike. Objections to the admission or exclusion ofevidence shall be in short form. stating the legal grounds ofobjection relied upon. (9) Rulings. All rulings upon objections to the admissibility ofevidence shall be made in accordance with WAC 371-08-185 through 371-08-189.
[Statutory Authority: RCW43.218.110(3). 91-03-028. § 371-08-180. fIled 118191. effective 2/8191. Statutory Authority: RCW 43.218.170. 81-17- 055(Order 82-1.Resolution No. 82-1), § 371-08.180.filed8118181; Order 75-1.§ 371-08-180. filed 119m; Order 70-1.§ 371-08-180. fIled12/18170.1

WAC 371·08·183 Hearings--Standard and scopeof review-Burden of proof. (I) The board will apply the specific criteria provided by law in making its decision on each case. (2) Hearings shall be quasi-judicial in nature and shall 

### beconducted de novo unless otherwise provided by law. (3) The issuing agency shall have the initial burden of proofin cases involving penalties or regulatory orders. 

### In othercases, the appealing party shall have the initial burden ofproof.
[Statutory Authority: RCW43.218.110(3). 91-03-028, § 371-08-183, filed 118191, effective 218191. Statutory Authority: RCW 43.218.170. 81-17- 055 (Order 82-1,Resolution No. 82-1), § 371-08-183. filed8118181.1

WAC 371·08-184 Hearings-Interpreters. Whenever any person involved in an adjudicative proceeding is an "impaired person" as defined by WAC 10-08-150(1), the board shall comply with 

### the provisions ofWAC**1~8-150** and 10-08-160(2).
[Cb. J71-OS WAC-p. 81 [Statutory Authority: RCW43.218.110(3). 91-03-028. § 371-08-184. ftled 118191. effective 218191.1

WAC 371-08-185 Hearings-Additional evidence 

### by presiding offlcer. The presiding officer may, when all parties have rested, present such evidence, in addition to that presented by the parties. as deemed necessary to decide the appeal fairly and equitably. Any such evidence secured and presented by the presiding officer shall be presented in an impartial manner. and shall be received subject to full opportunity for cross-examination by all parties. If a party desires to present rebuttal evidence to any evidence so presented by 

### the presiding officer. application shall be made therefor immediately following the conclusion ofsuch evidence. Such application shall be granted by assignment ofa time and place for presentation ofsuch rebuttal evidence.
[statutory Authority: RCW43.218.170. 81·17-055(Order 82-1. Resolution No. 82·1), § 371-08·185. filed 8118181; Order75-1. § 371-08·185, filed 119m; Order 70-1. § 371-08-185,filed 12118170.1

WAC 371·08·186 Rules ofevidence-AdmJssibUity criteria. (I) Evidence. including hearsay evidence, is admissible if in thejudgmentofthe presiding officerit is 

### the kind ofevidence on which reasonably prudent persons are accustomed to rely in the conduct oftheir affairs. All relevant evidence is admissible which. in the opinion ofthe presiding officer, is the best evidence reasonably obtainable. having due regard for its necessity, availability and trustworthiness. In passing upon the admissibility ofevidence, the presiding officer shall give consideration to, but shall not be bound to follow, the rules ofevidence governing civil proceedings in matters not involving trial byjury in the superior courts ofthe state ofWashington. (2) The presiding officer shall exclude evidence that is excludable on constitutional or statutory grounds or on the basis ofevidentiary privilege recognized in the courts ofthis
state.
[Statutory Authority: RCW43.218.110(3). 91-03-028,§ 371-08-186. filed 118191, effective 218191; Order 75-1. § 371-08-186, filed Il9n5.1

WAC 371·08·187 Rules ofevidence-Official notice-Matters oflaw. 

### Thepresiding officer, upon request made before or during a hearing, will officially notice: (l) Federal law, The Constitution; congressional acts, resolutions, records, journals and committee reports; decisions offederal courts and administrative agencies; executive orders and proclamations; and all rules, orders and notices published in the Federal Register. (2) State law. The Constitution ofthe state ofWashington, acts ofthe legislature, resolutions, records, journals and committee reports: Decisions ofadministrative agencies ofthe state ofWashington, executive orders and proclamations by the governor, and all rules, orders and notices filed with 

### the code reviser. (3) Governmental organization. Organization, territorial limitations, officers, departments, and general administration ofthe government of

### the state of Washington, the United States, the several states and foreign nations.

(INJI)

## •

.'--Practice and Procedure 371.08-187

(4) Agency organization. The department, commission or board organization. administration, officers, personnel, and

• official publications. (5) Rules ofregional authorities. Rules or regulations ofair pollution control boards or authorities established pursuant to chapter70.94 RCW, when such rules or regulations are tiled with the board pursuant to RCW 43.21B.26O.
[StatutoryAuthority: RCW43.2IB.110(3). 91-03-028.§ 371-08-187. filed 118191. effective218191. StatutoryAuthority: RCW 43.218.170. 81-17- 055 (Order 82-1.Resolution No. 82-1). § 371-08-187. filed8118181; Order 75-1. § 371·08-187. filed 119m.!

.. WAC 

### 371·08·188 Rules ofevidence-Orriclal notice-Material facts. In the absence ofcontroverting evidence, the presiding officer, upon request made before or during a hearing, or in a proposed decision, may officially notice: ( I) Board proceedings. The pendency of. the issues and position of the parties therein, and the disposition of any proceeding then pending before or theretofore concluded by the board; (2) Business customs. General customs and practices followed in the transaction ofbusiness; (3) Notorious facts. Facts so generally and widely known to all well-informed persons as not to be subject to reasonable dispute, or specific facts which are capable of immediate and accurate demonstration by resort to accessible

sources of generally accepted authority, including but not exclusively, facts stated in any publication authorized or permitted by law to be made by any federal or state officer,

• department, or agency; (4) Technical knowledge. Matters within the technical knowledge ofthe board as a body ofexperts, within the scope or pertaining to the subject matter ofits statutory duties. responsibilities orjurisdiction; (5) Request or suggestion. Any party may request, or the presiding officer may suggest, that official notice be taken ofa material fact, which shall be clearly and precisely stated, orally on the record, at any prehearing conference or oral hearing or argument, or may make such request or suggestion by written notice, any pleading, motion, memorandum, or briefserved upon all parties, at any time prior to a final decision; (6) Statement. Where a final decision ofthe board
rests in whole or in part upon official notice ofa material fact, such fact shall be clearly and precisely stated in such decision. In determining whether to take official notice of material facts, the presiding officer may consult any source ofpertinent information, whether or not furnished as it may be, by any party and whether or not admissible under the rules ofevidence; (7) Controversion. Any party may controvert a request or a suggestion that official notice ofa material fact be taken at the time the same is made if it be made orally, or by a pleading, which the same is made or suggested. 

### If any decision is stated to rest in whole or in part upon official notice ofa material fact which the parties have not had a

• prior opportunity to controvert. any party may controvert such fact by a petition for reconsideration. Such

. controversion shall concisely and clearly set forth the
sources, authority and other data relied upon to show the

(I1l1J91) existence or nonexistence ofthe material fact assumed or denied in the decision; (8) Evaluation ofevidence. Nothing herein shall be construed to preclude the board from utilizing their experience, technical competence. and specialized knowledge in the evaluation ofthe evidence presented to them.
[StatutoryAuthority: RCW 43.218.110(3). 91-03-028. § 371-08-t88. filed 118191. effective 218191. SllltUtory Authority: RCW 43.2IB.170. 81-17- 055 (Order82-t. Resolution No. 82-1). § 371-08·188. filed8118181; Order 75-1. § 371-08-188. filed Il9m.1

WAC 

### 371·08·189 Rules ofevidence-Tentative admission-Exclusion-Discontinuance-ObJections. When objection is made to the admissibility of evidence, such evidence may be received subject to a later ruling. The presiding officer may, either with or without objection, exclude inadmissible evidence or order cumulative evidence discontinued.
[Statutory Authority: RCW 43.2IB.110(3). 91-03-028. § 371-08·189. filed 118191. effective 218191. Statutory Authority: RCW 43.218.170. 81-17- 055 (Order 82-1. ResolutionNo. 82-1), § 371-08-189. filed8118181; Order 75-1. § 371-08·189. filed Il9m.1

WAC 

### 371·08·195 Disposition ofadjudicative proceedings-Record. The record before the board in any adjudicative proceeding shall consist of

### thedecision or order appealed from, the notice ofappeal therefrom, responsive pleadings, if any, and notices ofappearances, and any other written applications, motions, stipulations or requests duly filed by any party and written reports or orders ofthe presiding officer. Such record shall also include all depositions, if they are admitted at the hearing, the transcript of testimony as provided in WAC 371-08-196, and other proceedings at the hearing, together with all exhibits admitted. No part ofthe department's record or other documents shall be made part of the record of

### theboard unless admitted in evidence.
[SllltUtory Authority: RCW 43.2IB.1I0(3). 91-03-028. § 371-08-195. filed 118191.effective218191; Order75-1. § 371-08-195. filed 119n5;Order 70-1, § 371-08-195.filed 12/18170.)

WAC 

### 371·08·196 Disposition ofadjudicative proceedings-Transcripts. (I) The board, in itsdiscretion, may at any time cause a transcriptto be printed, but will not normally do so. (2) When the board shall not cause a transcript to be printed, it shall be the obligation ofthe party wishing a transcript, or portions ofit, to order the same from the board reporter and assume the cost ofprinting same.
[SlalUlory Authority: RCW 43.21B.I10(3). 9.1-03-028. § 371-08-196. filed 118191, effective2/8191. Statutory Authority: RCW 43.2IB.l70. 81-17- 055 (Order 82-1, Resolution No. 82-1), § 371-08-196.filed8118181; Order 75-2., § 371-08-196. filed 1115n5;Order 7S·I. § 371.Q8..196, filed 119m.]

WAC 

### 371·08·200 Disposition ofadjudicative proceedings-Final decisions and orders-Petition for reconsideration. (I) When the hearing on the appeal has been concluded. and upon completion ofthe record and submission ofthe issues for decision and order, a written final decision and order concurred in by.a majority ofthe board may be adopted which shall contain findings and conclusions as to each contested issue offact and law.

[Ch. 371-08WAC-p. 9]

# • Practice and 

### Procedure

WAC 

### 371·08·230 Appeals to tbe courtsCertification ofrecord. Upon receipt ofa copy ofthe

• notice ofappeal to the superior court, 

### the board shall certify and transmit to the reviewing court 

### therecord made before the board. Normally this will not include a transcriptof the testimony. .Unless the board bas

### caused a transcript to be (2)(a) After issuance of a final decision. any party may file a petition for reconsideration with the board. Such petition must 

### befiled within ten days ofmailing ofthe final decision. The board may require an answer to the petition. Copies ofthe petition forreconsideration, and an answer. if required. shall be served on the other parties ofrecord. (b) The filing ofa petition for reconsideration does not stay the effectiveness of the final decision ofthe board. (c) In response to a petition for reconsideration. the board may deny it. or may reverse or modify its decision or may reopen the hearing. The board is deemed to have denied the petition if. within twenty days from the date the

.petition is filed, the board does not act on the petition or

specify a date by which it will act on the petition. (d) The time for filing a petition forjudicial review does not commence until dispositionofthe 

### petition for reconsideration. However. the filing ofa petition for reconsideration is not a prerequisite for seekingjudicial review. (3) Copies ofthe final decision and order and ofthe board's disposition of any petition for reconsideration shall be mailed by the board to each party 

### to the appeal or to the attorney or representative of record. Service on the representative shall be deemed to be service on the party.
[Statutory Authority: RCW 43.218.110(3). 91-03-028. § 371-08-200. filed 118191, effective 2/8191. Statutory Authority: RCW 43.218.170. 81-17- 055 (Order 82-1. Resolution No. 82-1). § 371-08-200. filed 8/18/81; Order 75-2, § 371-08-200. filed II/SnS; Order75-1. § 371-08-200. filed Il9nS; Order 70-1, § 371-08-200. filed 12IlsnO.) 

# •

WAC 

### 371-08-255 Review of permits issued under chapter 

### 173·303 WAC. (I) The provisions of this section shall apply only to review proceedings before the board pertaining to permits issued by the department ofecology under chapter 173-303 WAC. (2) In the event that 

### the board determines that a permit issued by the department ofecology under chapter 173-303 WAC is invalid in any respect. 

### the

### boardshall issue an order remanding the permit to the department ofecology for reconsideration and appropriate action consistent with the provisions ofsaid order and federal and state law. printed, arrangements for and costs ofthe written transcript shall 

### bethe obligation of the party appealing to the Superior Court.
[Statutory Authority: RCW43.218.110(3). 91-03-028. § 371·08-230. filed 118191, effective 218191. Statutory Authority: RCW 43.218.170. 81·17- 055 (Order 82·1. Resolution No. 82-1). § 371-08-230. filed 8/18181; Order 77-1, § 371-08-230. filed 918176; Order 75-1, § 371-08·230. filed Il9n5; Order 70-1. § 371-08-230. filed 1211snO.)



### WAC 

### 371·08·250 Review ofpermits under the National Pollutant Discharge Elimination System. (I) The provisions ofthis section shall apply only to review proceedings before the board pertaining to permits issued by the department ofecology under the provisions ofthe National Pol1utantDischarge Elimination System. (2) In those cases where the board determines that a permit issued by the department of ecology is invalid in any respect, the board shall issue an order directing the department ofecology to reissue the permit in accordance with said order and consistent with the provisions of said order and with all applicable federal statutes and guidelines as well as with applicable state statutes

### and guidelines.

[Order 75-1, § 371-08-250. filed Il9nS; Order 74-2. § 371-08-250. filed 

## znn«; WAC 

### 371·08·240 Petitions for declaratory ruling. Right to petition for declaratory ruling. As prescribed by RCW 34.05.240. any interested person may petition the board for a declaratory ruling. The provisions ofRCW 34.05.410 through 34.05.494 and the provisions ofthese rules shall apply to petitions for declaratory rulings as to other cases brought before the board.
[Statutory Authority: RCW43.218.110(3). 91-03-028. § 371-08-240. filed 118191, effective 218191; Order 75-1. § 371-08-240. filed Il9n5;Order 70-1, § 371-08-240. filed 121lsnO.] 

### WAC 

### 371·08·235 Computation of time. The time within which any act shall be done. as provided by these rules, shall be computed by excluding the first day and including the last, unless the last day is a Saturday. a Sunday. or a legal holiday. and then it is excluded and the
next succeeding day which is neither a Saturday, a Sunday. nor a legal holiday, is included. When the period oftime prescribed or allowed is less than seven days. intermediate Saturdays. Sundays and holidays shall be excluded in the computation.

[Order 75-1, § 371·08-235. filed Il9nS; Order 70-1.§ 371-08-235. filed 12IlsnO.] 

### 37(-08-100

WAC 

### 371·08·220 Appeals to the courts-Notice of appeal to the superior court. All appeals from orders of the board, whether after a formal or informal hearing. shall be to a superior court. The appealing party shall file with the board and all parties of record a copy ofthe notice of appeal to the superior court.
[Statutory Authority: RCW43.218.110(3). 91-03-028, § 371-08·220. filed 118191, effective 218191. Statutory Authority: RCW 43.218.170. 81-17- 055(Order 82-1. Resolution No. 82-1), § 371-08-220. filed 8118/81; Order 77-1. § 371-08-220. filed 918n6;Order75-1. § 371-08-220. filed 

## vm». Order70-1. § 371-08-220. filed 12118170.) 

### WAC 

### 371·08·215 Disposition ofadjudicative proceedings-Final decisions and orders. The record before the board shall be considered by at least two of the members ofthe board: 

### Provided. That iftwo members
cannot agree on a decision. the third 

### member must consider the record before the board: 

### Andfurtherprovided, That if
two members cannot agree on a decision in any case. the substantive decision of the agency (or authority) will control in those cases where the appealing party has the burden of proof.
[Statutory Authority: RCW 43.218.110(3). 91-03-028. § 371-08-215. filed 118191. effective 218/91. Statutory Authority: RCW 43.218.170. 81·17- 055 (Order 82·1. Resolution No. 82-1). § 371-08-215. filed 8/18/81; Order 75-1. § 371-08-215. filed Il9ns; Order 70-1. § 371-08·215. filed 12IlsnO.) 

# •

[eb. 371-08WAC-p. 10) (118191)·

# .. Practice and Procedure

[Sl4Iutory Authority: RCW43218.170. 83-14-074 (Order 83-1. Resolution No. 83·(). 

### t 371-08·2SS. filed7/6183.1



### • WAC 371-08·260 Applicability

### ofSEPA guidelines. The board has reviewed its authorized activities pursuant to 

### WAC 197-10-800(4) and has found them all to 

### beexempt from the provisions of chapter 197-10 

### WAC.

[Order 77-2. § 371-08-260. filed 1216177.1



# • 371·08·255



# '.

(11&91) [Cb. 371-08WAC-p. 11]