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• Chapter 371-08 WAC

PRACTICE AND PROCEDURE

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•

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 and jurisdiction.

Board administration--Dffice and address of the

board.

Board administration-Quorum.

Board administration-Comrnunications with th

board-Public records.

Definitions.

Service of 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 of representatives.

Appearance and practice before the board-Conduct.

Presiding officer-Powers and duties.

Subpoenas.

Appeals to the board-Contents of notice of appeal.

Appeals to the board-Time for filing appeals.

Appeals to the board-Jurisdictional requirementsDismissal on jurisdictional grounds.

Appeals to the board-Correction or amendment of

notice.

Appeals to the board-Stays.

Appeals to the board-Intervention.

Conferences-Purpose of prehearing conferences.

Conferences-When held.

Conferences-Agreements at prehearing conferencesPrehearing orders.

Prehearing procedures-Telephone.

Prehearing procedures-Use of civil ruJes-Discovery.

Prehearing procedures-Motions.

Prehearing procedures-Summary judgment.

Hearings-Types of hearings.

Hearings-Election of type of hearings.

Hearings-Assignment of dates.

Hearings-Default.

Hearings--Continuances. dismissal.

Hearings-Procedures at hearings.

Hearings-Standard and scope of review-Burden of

proof.

Hearings-Interpreters.

Hearings-Additional evidence by presiding officer.

Rules of evidence-Admissibility criteria.

Rules of evidence-s-Official notice-Maners of law.

Rules of evidence-s-Official notice-Material facts.

Rules of evidence-Tentative admission-ExclusionDiscontinuance--Dbjections.

Disposition of adjudicative proceedings-Record.

Disposition of adjudicative proceedings-Transcripts.

Disposition of adjudicative proceedings-Final decisions and orders-Petition for reconsideration.

Disposition of adjudicative proceedings-Final decisions and orders.

Appeals to the courts-Notice of appeal to the superior court.

Appeals to the courts-Certification of record.

Computation of time.

Petitions for declaratory ruling.

Review of pennits under the National PoUutant Discharge Elimination System.

Review of pennits 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 by Order 74-3. filed 5I8f74. See chapter 371·12

WAC.

371-08-015 Board administration-Meeting of the board. [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 of the 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 1/8/9 I, effective 2/8/91.

Statutory Authority: RCW 43.21B.II0(3).

371-08-060 Presiding officer-Definition. [Order 70-1, § 371-08-060.

filed 12118170.] Repealed by Order 75-1, flied 119m.

371-08-070 Presiding officer-Substitution of presiding officer.

[Order 70-1. § 371-08-070. filed 12118170.) Repealed by

Order 75-1. filed 119175.

371-08-090 Appeals to the board-Granting the appeal. [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:

RCW 43.2IB.170.

371-08-095 Appeals to the board-Cross-appeals. [Statutory Authority: RCW 43.2IB.170. 81-17-055 (Order 82-1. Resolution

No. 82-1). § 371-08-095. filed 8118181; Order 75-1. § 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 of informal conferences. [Statutory

Authority: RCW 43.218.170. 81-17-055 (Order 82·1,

Resolution No. 82-\). § 371-08-110. filed 8118181; Order

75·1. § 371·08-11 O. 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 of appeal with the board

and the service of a copy thereof on 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 of chapter 371-08 WAC is to provide comprehensive rules of practice 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-OO I. 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 of the 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 and jurisdiction. The function of this

board is to provide an expeditious and efficient disposition

of appeals from the decisions and orders of the department

of ecology from the decisions of air pollution control

authorities established pursuant to chapter 70.94 RCW, and

from the decisions of local health departments. when such

orders and decisions concern matters within the jurisdiction

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 43.27 A.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 of local health departments regarding the

grant or denial of solid 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. filed 9N76. 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. filed 8118181; 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-Documentary evidence. [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 1/8/9 I. 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 2/8/9 J. 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 of additional

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 of contested cases-Finality of proposed

•

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 the courts-Notice of appeal to the court 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) of the 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 has jurisdiction at law shall not constitute any waiver

or withdrawal whatsoever from such jurisdiction.

(Statutory Authority: RCW 43.218.110(3). 91-03-028. § 311-08-005. filed

118191. effective 218191. Statutory Authority: RCW 43.218.110. 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 of the 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 the dispute 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: RCW 43.218.110(3). 91-03-028. § 311-08-010. filed

118191, effective 218191. Statutory Authority: RCW 43.218.110. 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 of the 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 member or administrative appeals

judge shall not become final until approved by a quorum of

the board.

(Statutory Authority: RCW 43.218.110(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 of appeal and applications and

requests for relief of 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

chapter the following terms shall have the following meaning:

(l) "Adjudicative proceeding" means a proceeding

involving an opportunity for hearing before the board as

defined 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 of ecology, air pollution control authority. local

health department, or other agency-whose decisions the

board has jurisdiction 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 of the

pollution control hearings board.

(4) "Department" refers to and means the department of

ecology.

(5) "Filing" of a document that is required to be filed

with the board means delivery of the document to the office

of the 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. or joined as a party by

the board.

(7) "Person" means any individual. partnership. corporation, association, organization, governmental subdivision,

agency, or entity of any character.

(8) "Presiding officer" means a member of the board or

an administrative appeals judge 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 of documents on representatives. Service of any document required to be served

on a party to a case. including final decisions of the board•

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

WAC 371-08-040 Appearance and practice before

the board-Appearance by representative. (1) Appearances may be made on behalf of any party by his or her

attorney or other duly authorized representative as defined in

WAC 371-08-035, by

(a) Filing a notice of appeal or other pleading or a

written notice of appearance containing the name of the

party to be represented, and the name, address and telephone

number of the representative. or by

(b) Entering an appearance at the time and place of a

conference or hearing on the appeal, and notifying the

presiding officer conducting the same of the party to be

represented and the name. address and telephone number of

the representative.

(2) Copies of every written notice of appearance shall

be furnished by the representative to all other parties or their

representatives of record 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 of the 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.

[Sunutory Authority: RCW43.218.110(3). 91~3-028. § 37I-OS~33. fiI~d 118191. effective 218191.1

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 of any 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 of court 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 of any individual to represent himself or herself.

(3) No former employee of the department or member

of the attorney general's staff may. 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 behalf of other 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 of the board shall. for a period

of one year after the termination of his or her membership,

act in a representative capacity before the board on any

matter.

[Statutory Authority: RCW43.218.110(3). 91~3-028. § 371-08~35. filed

118191. effective 218191. Statutory Authority: RCW 43.218.170. 81-17-

055 (Order 82-1. Resolution No. 82·1). § 371-08~35. filed 8118181; Order

75-1. § 371-08-035. filed 119m; Order 70-1. § 37J~8-035. filed 12118170.)

from the requirements herein relating to the filing of written

notices of appearance and to the furnishing of copies 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 be served

by the board upon such representative. Service upon the

representative shall constitute service upon the party.

[Stlllutory Authority: RCW 43.218.110(3). 91~3-028. § 371-08..()4(). filed

118191. effective 218191. Statutory Authority: RCW 43.218.170. 81-17·

055 (Order 82-1. Resolution No. 82-1). § 371-08-040. filed 8118181; Order

75-1, § 371·08-040. filed 119m; Order 70-1. § 371-08-040. filed I:!II8170.)

WAC 371-08-050 Appearance and practice before

the board-Withdrawal or substitution of representatives. An attorney or other representative withdrawing from

a case shall immediately so notify the board and all parties

of record in writing, or shall state such withdrawal on the

record at a conference or hearing. Any substitution of an

attorney or representative shall be accomplished by written

notification to the board and to all parties of record. together

with the written consent of the prior attorney or representative, and if such consent cannot be obtained. a written

statement of the reason therefor shall be supplied.

[Statutory Authority: RCW 43.218.170. 81-17·055 (Order 82-1. Resolution

No. 82-1). § 371-08-050. filed 8118/81; Order 75-1. § 371·08·050. filed

119m; Order 70-1, § 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 of ethical conduct required of attorneys

before the courts of Washington. 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.

[statutory Authority: RCW 43218.170. 81-17~5 (Order 82-1. Resolution

No. 82-1). § 371-08-055. filed 8118181; Order 75-1. § 37t-08-055. filed

Il9n5; Order 70-1. § 371-08~5. filed 12118170.)

WAC 371-08-065 .Presiding officer-Powers and

duties. It shall be the duty of the 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 of these

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 of proof and 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. 371-08 WAC--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 of parties 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' of the appeals and

avoid duplication of testimony and when the rights of the

parties will not be prejudiced thereby;

(10) To hold conferences for the settlement or amplification of the 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 of the 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 of record, as provided in RCW

34.05.446. Each subpoena shall be subscribed with the

signature of the issuing person. Parties desiring subpoenas

to be signed by the presiding officer shall make a showing

of general relevance and reasonable scope of the 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 of the 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 of subpoenas shall be made by

delivering a copy of the 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 of the witness. .

(4) Proof of service. The person serving the subpoena

shall make proof of service by filing the subpoena and the

required return, affidavit or acknowledgement of service with

the board or presiding officer of the case. Failure to make

proof of service does not affect the validity of the 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 if it

is unreasonable or requires evidence not relevant to any

matter in issue, or (c) condition denial of the motion upon

just and reasonable conditions.

(118191)

'·'371-4)8.065

(6) Geographical scope. Attendance of witnesses and

production of evidence may be required from any place in

the state of Washington, at any designated place of hearing.

(Statutory AUthority: RCW 43.218.110(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

of notice of appeal. The notice of appeal shall contain:

(I) The name, mailing address, telephone number and

telefacsimile number (if available) of the appealing party,

and of the representative, if any;

(2) Identification of the 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 of the order or 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 of facts upon which

an appealing party relies to sustain his or her grounds for

appeal.

(6) The relief sought, 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. If the appealing party is unavailable to sign the notice

of appeal, 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; Order 70-1, § 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 of appeal shall be filed within thirty days from the

date the copy of the order or decision of the agency was

communicated to the appealing party. The date of filing

shall be the date of actual receipt by the board. Receipt of

an appeal shall be acknowledged by the board; the date

stamp placed thereon shall be prima facie evidence of the

date of receipt. The board may thereafter require additional

copies to be filed.

(2) Within the same thirty-day period, a copy of the

notice of appeal shall be served, by mail or otherwise, on the

agency whose decision is being appealed. Proof of such

service may be made by certificate or affidavit filed with the

board.

(3) A copy of the notice of appeal 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 (Order 82-1, Resolution No. 82-1). § 371-08-080, filed 8/18181; Order

75-1, § 371-08-080. filed 119m; Order 70-1, § 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 on Jurisdictional

grounds. (I) Timely filing of the notice of appeal with the

board and timely service of the notice of appeal on the

appropriate agency must both be accomplished for the board

to acquire jurisdiction.

(2) Any party may challenge the jurisdiction of the

board to hear an appeal, and the board may on its own raise

the jurisdictional issue. The board shall, when satisfied that

it does not have jurisdiction, dismiss an appeal.

[Statutory Authority: RCW 43.218.110(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: RCW 43.218.110(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. filed 8118181.1

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: RCW 43.218.110(3). 91-03-028. § 371-08-106. filed

118191. effective 218191.)

•

•

WAC 371-08-100 Appeals to the board-Correction

or amendment of notice. Within thirty days of receipt by

the board, if any notice of appeal is found to be defective or

insufficient, the board may require the party filing said

notice of appeal 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

of such appeal upon failure to comply within a specified

time.

[StatGtory Authority: RCW 43.218.110(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 of the effectiveness of that order

only as set forth in this section.

(2) An appealing party may request a stay by including

such a request in the notice of appeal 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. If it appears that

a hearing on the merits and issues of the case should be

consolidated with the request for a stay, the board will

advance the hearing date on its own initiative, or by request

of the parties.

(4) The requestor makes a prima facie case for a stay if

the requestor demonstrates either a likelihood of success on

. the merits of the appeal or irreparable harm. Upon such a

showing, the board shall grant the stay unless the agency

demonstrates either (a) a substantial probability of success on

the merits or (b) likelihood of success and an overriding

public interest which justifies denial of the stay.

(5) Unless otherwise stipulated by the parties, the board,

after granting 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 of a stay

by the board may petition the superior court of Thurston

County for review of that 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 of a prehearing

conference shall be:

(I) To determine the feasibility of a 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: RCW 43.218.110(3). 91-03-028. § 371-08-125. filed

1/8191. effective 218191; Order 75-1. § 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 of a hearing already set

or may otherwise restrict the time or location of hearing.

[Statutory Authority: RCW 43.218.110(3). 91-03-028. § 371-08-130. filed

118191. effective 218191; Order 75-1. § 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 of the appeal is

reached at a prehearing conference, the parties shall thereafter present an agreed order implementing the agreement. If

the agreement is in accordance with the law, the board shall

enter the agreed order disposing of the 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 statement o.fissues and lists of

witnesses and exhibits or provision for filing such lists, as

well as other matters which may bear on the preparation for

hearing. The issues stated in the prehearing order shall

control the subsequent course of the proceedings. unless

modified for good cause by subsequent order.

(statutory Authority: RCW 43.218.110(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 of the 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

civU rules-s-Discovery. Except where in conflict with these

rules. the statutes and rules regarding pretrial procedures in

the superior courts of this state shall be followed in proceedings before the board. Such rules shall include but not be

limited by those rules pertaining to discovery of evidence 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 Prehearing procedures-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 relief sought. Written motions may be included in

the notice of appeal or filed and served separately.

(2) When a motion is filed. the matter will be scheduled

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 proceduresSummary judgment The board will entertain a motion for

summary judgment on some or all of the substantive issues

of a case pursuant to the provisions of Civil 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 of hearings.

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 of order entered. The procedures

in conducting these two types of hearings by the board shall

be generally the same.

[Order 75-1. § 371-08-1SO. filed Il9n5; Order 70-1. § 371-08-150. med

12I18n0.)

WAC 371·08·155 Hearings-Election of type 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 of appeal.

notify the board of its 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 of dates.

(I) The board will assign a prehearing conference date or

date(s) for the hearing on the merits, and advise the parties

thereof by letter.

(2) Normally. when a prehearing conference is held, the

scheduling of the hearing on the merits will be deferred until

the prehearing conference.

(3) When Ihe board schedules a hearing, it shall mail a

written notice thereof to all parties not less than ten days

prior to the hearing date.

[Statutory Authority: RCW 43.2IB.II0(3). 91-03-028. § 371-Q8-1S6. filed

118191. effective 218191. Statutory Authority: RCW 43.218.170. 81-17·

a55 (Order 82-1. Resolution No. 82'1). § 371-Q8-1S6. filed 8118181; Order

75-1. § 371-08-156. filed Il9n5.)

WAC 371·08·162 Hearings-Default (I) If a party

fails to attend or participate in a hearing or other stage of an

appeal. the presiding officer may serve on all parties an

order of default or other dispositive order. which shall

include a statement of the grounds for the order.

(2) Within ten days after receipt of an 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, dismissai. (I) Continuance of a 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 be filed

more than three months before the scheduled hearing date.

so that any time cleared on the calendar can 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: RCW 43.2IB.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; Order 70-1. § 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 be administered

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 of recording

device.

(b) Unofficial use of photographic and recording

equipment is pennined at hearings; however, the presiding

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

•

•

•

•

371.08·180

officer shall be consulted first and may impose conditions on

their use as necessary to prevent disruption of the hearing.

(4) Order of presentation of evidence.

(a) The presiding officer shall determine the proper

order of presentation of evidence. 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 of tum in contravention

of this rule by agreement of all 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 of qualifications of expert

witnesses. Any party who plans to introduce the testimony

of any 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 of the department. appear, except

when permitted by RCW 42.18.220, as an expert witness on

behalf of other parties in a formal proceeding in which an

active part in the investigation as a representative of the

department was taken.

(8) Objections and motions to strike. Objections to

the admission or exclusion of evidence shall be in short

form. stating the legal grounds of objection relied upon.

(9) Rulings. All rulings upon objections to the

admissibility of evidence shall be made in accordance with

WAC 371-08-185 through 371-08-189.

[Statutory Authority: RCW 43.218.110(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. filed 8118181; Order

75-1.§ 371-08-180. filed 119m; Order 70-1. § 371-08-180. fIled 12/18170.1

WAC 371·08·183 Hearings--Standard and scope of

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

be conducted de novo unless otherwise provided by law.

(3) The issuing agency shall have the initial burden of

proof in cases involving penalties or regulatory orders. In

other cases, the appealing party shall have the initial burden

of proof.

[Statutory Authority: RCW 43.218.110(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. filed 8118181.1

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 of WAC 1~8-150

and 10-08-160(2).

[Cb. J71-OS WAC-p. 81

[Statutory Authority: RCW 43.218.110(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 of such

evidence. Such application shall be granted by assignment

of a time and place for presentation of such rebuttal evidence.

[statutory Authority: RCW 43.218.170. 81·17-055 (Order 82-1. Resolution

No. 82·1), § 371-08·185. filed 8118181; Order 75-1. § 371-08·185, filed

119m; Order 70-1. § 371-08-185, filed 12118170.1

WAC 371·08·186 Rules of evidence-AdmJssibUity

criteria. (I) Evidence. including hearsay evidence, is

admissible if in the judgment of the presiding officer it is the

kind of evidence on which reasonably prudent persons are

accustomed to rely in the conduct of their affairs. All

relevant evidence is admissible which. in the opinion of the

presiding officer, is the best evidence reasonably obtainable.

having due regard for its necessity, availability and trustworthiness. In passing upon the admissibility of evidence, the

presiding officer shall give consideration to, but shall not be

bound to follow, the rules of evidence governing civil

proceedings in matters not involving trial by jury in the

superior courts of the state of Washington.

(2) The presiding officer shall exclude evidence that is

excludable on constitutional or statutory grounds or on the

basis of evidentiary privilege recognized in the courts of this

state.

[Statutory Authority: RCW 43.218.110(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 of evidence-Official

notice-Matters of law. The presiding 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 of federal courts and administrative agencies; executive

orders and proclamations; and all rules, orders and notices

published in the Federal Register.

(2) State law. The Constitution of the state of Washington, acts of the legislature, resolutions, records, journals

and committee reports: Decisions of administrative agencies

of the state of Washington, 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 of the 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 of regional authorities. Rules or regulations

of air pollution control boards or authorities established

pursuant to chapter 70.94 RCW, when such rules or regulations are tiled with the board pursuant to RCW 43.21B.26O.

[Statutory Authority: RCW43.2IB.110(3). 91-03-028. § 371-08-187. filed

118191. effective 218191. Statutory Authority: RCW 43.218.170. 81-17-

055 (Order 82-1. Resolution No. 82-1). § 371-08-187. filed 8118181; Order

75-1. § 371·08-187. filed 119m.!

.. WAC 371·08·188 Rules of evidence-Orriclal

notice-Material facts. In the absence of controverting

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 of business;

(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 of the board as a body of experts, within the

scope or pertaining to the subject matter of its statutory

duties. responsibilities or jurisdiction;

(5) Request or suggestion. Any party may request, or

the presiding officer may suggest, that official notice be

taken of a 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 brief served upon all parties, at any time prior to

a final decision;

(6) Statement. Where a final decision of the board

rests in whole or in part upon official notice of a 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

of pertinent information, whether or not furnished as it may

be, by any party and whether or not admissible under the

rules of evidence;

(7) Controversion. Any party may controvert a request

or a suggestion that official notice of a 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 of a 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 of the material fact assumed or

denied in the decision;

(8) Evaluation of evidence. Nothing herein shall be

construed to preclude the board from utilizing their experience, technical competence. and specialized knowledge in

the evaluation of the evidence presented to them.

[Statutory Authority: RCW 43.218.110(3). 91-03-028. § 371-08-t88. filed

118191. effective 218191. SllltUtory Authority: RCW 43.2IB.170. 81-17-

055 (Order 82-t. Resolution No. 82-1). § 371-08·188. filed 8118181; Order

75-1. § 371-08-188. filed Il9m.1

WAC 371·08·189 Rules of evidence-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. Resolution No. 82-1), § 371-08-189. filed 8118181; Order

75-1. § 371-08·189. filed Il9m.1

WAC 371·08·195 Disposition of adjudicative

proceedings-Record. The record before the board in any

adjudicative proceeding shall consist of the decision or order

appealed from, the notice of appeal therefrom, responsive

pleadings, if any, and notices of appearances, and any other

written applications, motions, stipulations or requests duly

filed by any party and written reports or orders of the

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 of the department's record or other documents

shall be made part of the record of the board unless admitted

in evidence.

[SllltUtory Authority: RCW 43.2IB.1I0(3). 91-03-028. § 371-08-195. filed

118191. effective 218191; Order 75-1. § 371-08-195. filed 119n5; Order 70-1,

§ 371-08-195. filed 12/18170.)

WAC 371·08·196 Disposition of adjudicative

proceedings-Transcripts. (I) The board, in its discretion,

may at any time cause a transcript to 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 of the party wishing a

transcript, or portions of it, to order the same from the board

reporter and assume the cost of printing same.

[SlalUlory Authority: RCW 43.21B.I 10(3). 9.1-03-028. § 371-08-196. filed

118191, effective 2/8191. Statutory Authority: RCW 43.2IB.l70. 81-17-

055 (Order 82-1, Resolution No. 82-1), § 371-08-196.filed 8118181; Order

75-2., § 371-08-196. filed 1115n5;Order 7S·I. § 371.Q8..196, filed 119m.]

WAC 371·08·200 Disposition of adjudicative

proceedings-Final decisions and orders-Petition for

reconsideration. (I) When the hearing on the appeal has

been concluded. and upon completion of the record and

submission of the issues for decision and order, a written

final decision and order concurred in by.a majority of the

board may be adopted which shall contain findings and

conclusions as to each contested issue of fact and law.

[Ch. 371-08WAC-p. 9]
•

Practice and Procedure

WAC 371·08·230 Appeals to tbe courtsCertification of record. Upon receipt of a copy of the

•

notice of appeal to the superior court, the board shall certify

and transmit to the reviewing court the record made before

the board. Normally this will not include a transcript of 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 be filed within ten days of mailing of the final

decision. The board may require an answer to the petition.

Copies of the petition for reconsideration, and an answer. if

required. shall be served on the other parties of record.

(b) The filing of a petition for reconsideration does not

stay the effectiveness of the final decision of the 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 for judicial review does

not commence until disposition of the petition for reconsideration. However. the filing of a petition for reconsideration

is not a prerequisite for seeking judicial review.

(3) Copies of the final decision and order and of the

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; Order 75-1. § 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 of ecology

under chapter 173-303 WAC.

(2) In the event that the board determines that a permit

issued by the department of ecology under chapter 173-303

WAC is invalid in any respect. the board shall issue an order

remanding the permit to the department of ecology for

reconsideration and appropriate action consistent with the

provisions of said order and federal and state law.

printed, arrangements for and costs of the written transcript

shall be the obligation of the party appealing to the Superior

Court.

[Statutory Authority: RCW 43.218.110(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 1211 snO.)

WAC 371·08·250 Review of permits under the

National Pollutant Discharge Elimination System. (I)

The provisions of this section shall apply only to review

proceedings before the board pertaining to permits issued by

the department of ecology under the provisions of the

National Pol1utant Discharge 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 of ecology 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 of RCW

34.05.410 through 34.05.494 and the provisions of these

rules shall apply to petitions for declaratory rulings as to

other cases brought before the board.

[Statutory Authority: RCW 43.218.110(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 of time

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 of the notice of

appeal to the superior court.

[Statutory Authority: RCW 43.218.110(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; Order 75-1. § 371-08-220. filed vm».

Order 70-1. § 371-08-220. filed 12118170.)

WAC 371·08·215 Disposition of adjudicative

proceedings-Final decisions and orders. The record

before the board shall be considered by at least two of the

members of the board: Provided. That if two members

cannot agree on a decision. the third member must consider

the record before the board: And further provided, 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. 371-08 WAC-p. 10) (118191 )
·.. Practice and Procedure

[Sl4Iutory Authority: RCW 43218.170. 83-14-074 (Order 83-1. Resolution

No. 83·(). t 371-08·2SS. filed 7/6183.1

• WAC 371-08·260 Applicability of SEPA guidelines.

The board has reviewed its authorized activities pursuant to

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

from the provisions of chapter 197-10 WAC.

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

•

371·08·255

'.

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