IV---



# ..

VOLUME4 Titles37through44

2000 REVISEDCODEOFWASHINGTON

Published under the authority of chapter 1.08 RCW.

Containing all laws of a general and permanent nature through the 2000 second special session, which adjourned sine die April 27, 2000. 

# o



# o

o

(2000 Ed.) [Pre(ace-pi]

# •

• REVISEDCODEOFWASHINGTON
2000Edition

e

### 2000StateofWashington

CERTIFICATE



# • The 2000 edition of the Revised Code of Washington, published officially by the Statute Law Committee, is, in accordance with RCW 1.08.037, certified to comply with the currentspecificationsof the committee. 

# j/4

JOHN G. SCHULTZ, Chair, STATUTELAWCOMMITTEE

[Preface-piiJ (2000 Ed.)

# • CHAPTER 43.21BRCW

ENVIRONMENTAL HEARINGS OFFICE--POLLUTION CONTROL HEARINGS BOARD

Sections



# •

• 43.21B.001 43.21B.005

43.21B.010 43.21B.020 43.21B.030 43.21B.040

43.21B.050

43.21B.060

43.21B.080 43.21B.090

43.21B.100

43.21B.110 43.21B.130

43.21B.160 43.21B.170

43.21B.180

43.21B.190 43.21B.230 43.21B.240

43.21B.250

43.21B.260

43.21B.300 43.21B.305

43.21B.310 43.21B.320 43.21B.330 43.21B.900 Definitions. Environmental hearings office created--Composition-- Administrative appeals judges--Contracts for services. Pollution control hearings board created--Purpose. Members--Qualifications--Appointment. Members--Terms--Filling vacancies, term. Removal of member, procedure--As disqualification for reappointment. Governor to determine basis for operation-- Compensation if part time basis, limitation-- Reimbursement of travel expenses. Restrictions upon conduct while member and upon termination of membership. Chairman, biennial election of. Principal office--Quorum--Hearings--Board powers and duties. Board to make findings of fact and written decisions
on each case considered--Effective upon signing and filing--Public information.

. Pollution control hearings board jurisdiction. Administrative procedure act to apply to appeal of board rules and regulations--Scope of board action
on decisions and orders of others. Appeals--Generally. Proceedings conducted in accordance with published board rules and regulations. Judicial review--Director's right of review of decisions pursuant to RCW 43.21B.110. Judicial review--Appeal from board's order. Appeals of agency actions. Department--Air authorities--Adjudicative proceedings, may not conduct. Challenges to consistency of rules adopted pursuant. to RCW 43.21C.110 and 43.21C.120--Procedure-- Finality. Regulations and amendments of activated air pollution controlauthorities--Filing with hearings board authorized--Evidence. Penalty procedures. Appeals involving penalties of five thousand dollars
or less. Appeal of orders, permits, and licenses. Stays of orders. Summary procedures. Savings--Otherpowers and duties not affected-- Permits, standards not affected--Severability-- Effective date--1970 ex.s. c 62.

RCW (10/14/99 9:44) [ 1 ]RCW 43.21B.001 Definitions. As used in this chapter, "department" means the department ofecology, and "director" means the director of ecology. [1987 c 109 § 4.]

NOTES: Purpose--1987 c 109: "The purposes of this act are to: (1) Simplifyandclarifyexisting statutoryandadministrative procedures for appealingdecisions ofthe departmentofecologyand air pollution control authorities in order to (a) expedite those appeals, (b) insure that those appeals are conductedwitha minimum of expense to save state and private resources, and (c) allow the**appellat~** authorities to decide cases on their merits rather than
on procedural technicalities. (2) Clarify existing statutes relating to the environment but which refer to numerous agencies no longer in existence. (3) Eliminateprovisionsno longereffective ormeaningful and abbreviate statutory provisions which are unnecessarily long and confusing." [1987 c 109 § 1.]

Short title--1987 c 109: "This act may be referred to as the' "ecologyprocedures simplification act of 1987." [1987 c 109 § 2.]

Construction--1987 c 109: "Unless otherwise specifically intended, this act shall not be construed to change existing substantive or procedural law; it should only clarify and standardize existing procedures." [1987 c 109 § 3.]

Rules--1987 c 109: "The department ofecology shall amendits rules byJune 30, 1988, to effect the purposes ofthis act." [1987
c 109 § 160.] Severability--1987 c 109: "If any provision of this act or its application to anyperson or circumstance is held invalid, the remainder of the act or the application of the provision to ather persons or circumstances is not affected." [1987 c 109 §161.] Captions--1987 c 109: "As usedin this act, bill headings and section captions cohstitute no part of the law." [1987 c 109 § 162.]

RCW 43.21B.00S Environmental hearings office created-- Composition--Administrativeappealsjudges--Contractsforservices. (1) There is created an environmental hearings office of the state ofWashington. The environmental hearings office shall consist of thepollutioncontrol hearings boardcreatedinRCW43.21B.010, the forest practices appeals board created in RCW 76.09.210, the shorelines hearings board created in RCW 90.58.170, and the hydraulic appeals board created in RCW 75.20.130. The chairman of the pollution control hearings board shall be the.chief executive officerofthe environmental hearings office. Membership, powers, functions, and duties of the pollution control hearings board, the forest practices appeals board, the shorelines hearings board, and the hydraulic appeals board shall be as provided by law. (2) The chiefexecutive officer of the environmental hearings office may appoint an administrative appeals judge who shall '. :


# c

o·

(\.)

" ,/
RCW (10/14/99 9:44) [ 2 ]hearings board created-- theenvironmentalhearings

board of the state of "

# •

• possess the powers and duties conferred by the administrative procedure act, chapter 34.05 RCW, in cases before the boards comprising theoffice. The administrative appeals judge shallhave
a demonstrated knowledge of environmental law, and shall be admitted to the practice of law in the state of Washington

. Additional administrative appeals judges may also be appointed by the chief executive officer on the same terms

. Administrative appeals judges shall not be subject to chapter 41.06 RCW. (3) The administrative appeals judges appointed under subsection (2) of this section are subject to discipline and termination, for cause, by the chief executive officer. Upon written request by the person so disciplined or terminated, the chiefexecutive officer shall state the reasons for such action in writing. Theperson affectedhas a right ofreviewbythe superior court of Thurston county.on petition for reinstatement or other remedy filedwithinthirtydays ofreceipt ofsuchwrittenreasons. (4) The chief executive officer may appoint, discharge, and fix the compensation of such administrative or clerical staff as may be necessary. (5) The chiefexecutiveofficermayalso contract forrequired services. [1999 c 125 § 1; 1990 c 65 § 1; 1986 c 173 § 3; 1979
ex.s. c 47 § 2.]

NOTES:

Intent--1979 ex.s. c 47: "It is the intentofthe legislature to consolidate administratively the pollution control hearings board, the forest practices appeals board, and the shorelines hearings board into one agency of state government with minimum disturbance to these boards. It is not the intent of the legislature in consolidating these boards to change the existing membership of these boards. All· full-time employees of the pollution control hearings board and the full-time employee of the forest practices appeals board shall be full-time employees of the environmental hearings office without loss of rights. Property and obligations of these boards and the shorelines hearings board shall be property and obligations of the environmental hearings office." [1979 ex.s. c 47 § 1.]

RCW 43.21B.010 Pollution control Purpose. There is herebycreatedwithin office a pollution control hearings Washington. The purpose of the pollution control hearings board is to provide foramore expeditious andefficientdispositionofappeals with respect to the decisions and orders of the department and directorandwithrespect to all decisions ofairpollutioncontrol boards or authorities established pursuant to chapter 70.94 RCW.

[1979 ex.s. c 47 § 3; 1970 ex.s. c 62 § 31.]

NOTES:

Intent--1979 ex.s. c 47: See note following RCW 43.21B.005.

RCW (10/14/99 9:44) [ 3 ]RCW 43.21B.020 Members--Qualifications--Appointment. The hearings board shall consist of three members qualified by experience or training in pertinent matters pertaining to the environment, and at least one member of the hearings board shall havebeen admittedtopractice law inthis state andengagedinthe legal profession at the time of his appointment. The hearings board shall be appointed by the governor with the advice and consent of the senate, and no more than two ofwhomat the time of appointment or during their term shall be members of the same political party. [197'0 ex.s. c 62 § 32.]

RCW 43.21B.030 Members--Terms--Filling vacancies, term. Members of the hearings board shall be appointed for a termof six years anduntil their successors are appointed andhave qualified. In case of a vacancy, it shall be filled by appointment by the governor for the unexpired portion of the term in which said vacancy occurs: PROVIDED, That the terms of the first three members ofthe hearings board shall be staggeredso thatonemember shall be appointed to serve until July 1, 1972, one member until July 1, 1974, and one member until July 1, 1976. [1970 ex.s. c 62 § 33.]

RCW 43.21B.040 Removal of member, procedure--As disqualification for reappointment. Any member of the hearings boardmaybe removed for inefficiency, malfeasance andmisfeasance in office, under specific written charges filed by the governor, who shall transmit such written charges to the member accused and to the chiefjustice ofthe supreme court. The chiefjustice shall thereupon designate a tribunal composed of three judges of the superior court to hear and adjudicate the charges. Such tribunal shall fix the time of the hearing which shall be public, and the procedure for the hearing, and the decision of such tribunal shall be final and not subject to review by the supreme court. Removal of any member of the hearings board by the tribunal shall disqualify suchmember for reappointment; [1970 ex.s. c 62 § 34.]

RCW 43.21B.050 Governor to determine basis for operation-- Compensation if part time basis, limitation--Reimbursement of travel expenses. The hearings boardshall operateoneithera part' time ora full timebasis, as determinedbythe governor. Ifit is determined that the hearings board shall operate on a full time basis, each member of the hearings board shall receive an annual salary to be determinedby the governorpursuant to RCW43.03.040. Ifit is determinedthe hearings board shall operate ona part time basis, eachmemberofthehearings boardshallreceivecompensation
on the basis of seventy-five dollars for each day spent in performance of his duties but such compensation shall not exceed ten thousand dollars in a fiscal year. Eachhearings boardmember shall receive reimbursement for travel expenses incurred in the discharge of his duties in accordance with RCW 43.03.050 and 43.03.060 as now existing or hereafter amended. [1975-'76 2nd
ex.s. c 34 § 101; 1970 ex.s. C 62 § 35.] · 

### ,



# .:

RCW (10/14/99 9:44) [ 4 ]

# •

•

• NOTES:

Effective date--Severability--1975-'76 2nd ex.s. c 34: See notes following RCW 2.08.115.

RCW 43.21B.060 Restrictions upon conduct while member and upon terminationofmembership. Eachmemberofthe hearings board: (1) Shall not be a candidate for nor hold any other public office
or trust, and shall not engage in any occupation or business interfering with or inconsistent with his duty as a member of the hearings board, nor shall he serve onorunder anycommittee ofany political party; and (2) shall not for a period of one year after the termination of his membership on the hearings board, act in a representative capacity before the hearings board on any matter. [1970 ex.s. c 62 § 36.]

RCW 43.2lB.080 Chairman, biennial election of. The hearings board shall as soon as practicable afterthe initial appointment of the members thereof, meet and elect from among its members a chairman, and shall at least biennially thereafter meet and elect such a chairman. [1970 ex.s. c 62 § 38.J

RCW 43.2lB.090 Principal office--Quorum--Hearings--Board powers and duties. The principal office of the hearings board shall be at the state capitol, but it may sit or hold hearings at any other place in the state. A majority of the hearings board shall constitute a quorum for making orders. or decisions, promulgatingrules andregulations necessaryfor the conductofits powers andduties, or transacting other official business, andmay act though one position of the hearings board be vacant. One or more members may hold hearings and take testimony to be reported for action by the hearings board when authorized by rule or order of the hearings board. The hearings board shall perform all the powers and duties specified in this chapter or as otherwise provided by law. [1990 c 65 § 2; 1974 ex.s. c 69 § 1; 1970 ex.s. c 62 § 39.]

RCW 43.2lB.lOO Board to make findings of fact and written decisions on each case considered--Effective upon signing and filing--Public information. Thehearingsboardshallmake findings of fact andprepare a written decision in each case decidedby it,

.and such findings and decisions shall be effective upon being

signedby two ormore members of the hearings board anduponbeing filed at the hearings board's principal office, and shall be·open forpublic inspection at all reasonable times. [1970 ex.s. c 62 § 40.]

RCW 43.2lB.110 Pollutioncontrolhearingsboardjurisdiction. (1) The hearings board shall only have jurisdiction to hear and decide appeals from the following decisions of the department, the director, local conservation districts, and the air pollution control boards or authorities as established pursuant to chapter 70.94 RCW, or local health departments:

RCW (10/14/99 9:44) [ 5(a) Civil penalties imposed pursuant to RCW 18.104.155, 70.94.431, 70.105.080, 70.107.050, 88.46.090, 90.03.600, 90.48.144, 90.56.310, and 90.56.330. (b) Orders issued pursuant to RCW 18.104.043, 18.104.060, 43.27A.190, 70.94.211, 70.94.332, 70.105.095, 86.16.020, 88.46.070, 90.14.130, 90.48.120, and 90.56.330. (c) The issuance, modification, or terminationof anypermit, certificate, or license by the department or any air authority in the exercise of its jurisdiction, including the issuance or termination of a waste disposal permit, the denial of an application for a waste disposal permit, the modification of the conditions or the terms of a waste disposal permit, or a decision to approve or deny an application for a solid waste permit exemption under RCW 70.95.300. (d) Decisions of,local health departments regarding the grant
or denial of solid waste permits pursuant to chapter 70.95 RCW. (e) Decisions of local health departments regarding the issuance and enforcement ofpermits to use ordispose ofbiosolids under RCW 70.95J.080. (f) Decisions of the department regarding waste-derived fertilizer or micronutrient fertilizer under RCW 15.54.820, and decisionsofthedepartmentregardingwaste-derivedsoil amendments under RCW 70.95.205. (g) Decisions of local conservation districts related to the denial of approval or denial of certification of a dairy nutrient managementplan; conditions containedin a plan; applicationofany dairy nutrient management practices, standards, methods, and technologies to a particular dairy farm; and failure to adhere to the plan review and approval timelines in RCW 90.64.026. (h) Any other decision by the department or an air authority whichpursuant to lawmustbedecidedas an adjudicativeproceeding under chapter 34.05 RCW.

. (2) The following hearings shall not be conducted by the hearings board: (a) Hearings requiredby lawto be conductedbythe shorelines hearings board pursuant to chapter 90.58 RCW. (b) Hearings conducted by the department pursuant to RCW 70.94.332, 70.94.390, 70.94.395, 70.94.400, 70.94.405, 70.94.410, and 90.44.180. (c) Proceedings by the department relating to general adjudications of water rights pursuant to chapter 90.03 or 90.44 RCW. (d) Hearings conductedby the department to adopt, modify, or repeal rules. (3) Review of rules and regulations adopted by the hearings board shall be subject to review in accordance with the provisions of the Administrative Procedure Act, chapter 34.05 RCW. [1998 c 262 § 18; 1998 c 156 § 8; 1998 c 36 § 22; 1993 c 387 § 22. Prior: 1992 c 174 § 13; 1992 c 73 § 1; 1989 c 175 § 102; 1987 c 109 § 10; 1970 ex.s. c 62 § 41.]

NOTES:

Reviser's note: This section was amended by 1998 c 36 § 22, 1998 c 156 § 8, and by 1998 c 262 § 18, each without reference to the other. All amendments are incorporated in the publication of this sectionunder RCW 1.12.025(2). For rule ofconstruction, see RCW 1.12.025(1)

. 

# c



# o

RCW (10/14/99 9:44) [ 6 ]

# • Effective date--1998 c 262: See RCW 90.64.900.

Intent--1998 c 36: 'See RCW 15.54.265.

Short title--1998 c 36: See note following RCW 15.54.265

. Effective date--1993 c 387: See RCW 18.104.930.

Effective dates--Severability--1992 c 73: See RCW 82.23B.902 and 90.56.905.

Effectivedate--1989 c 175: Seenote followingRCW34.05.010. Purpose--Short Captions--1987 c 109: title--Construction--Rules--Severability-- See notes following RCW 43.21B.00I.



# ••

• Order for compliance with oil spill contingency orpreventionplan not subject to review by pollution control hearings board: RCW 90.56.270.

RCW 43.21B.130 Administrative procedure act to apply to appeal of board rules and regulations--Scope of board action on decisions andorders ofothers. The administrative procedure act, chapter 34.05 RCW, shall apply to the appeal of rules and regulations adopted by the board to the same extent as it applied to the review of rules and regulations adopted by the directors and/or boards or commissions of the various departments whose powers, duties andfunctions were transferredby section 6, chapter 62, Laws of 1970 ex. sess. to the department. All other decisions and orders of the director and all decisions of air pollution controlboards orauthorities establishedpursuant tochapter70.94 RCW shall be subject to reviewbythe hearings boardas provided in this chapter. [1990 c 65 § 3; 1970 ex.s. c 62 § 43.]

RCW 43.21B.160 Appeals--Generally. In all appeals, the hearings board shall have all powers relating to administration of oaths, issuance of subpoenas, and taking of depositions as are granted to agencies in chapter 34.05 RCW, the Administrative ProcedureAct. The hearings board, and eachmember thereof, shall be subject to all duties imposed upon, and shall have all powers granted to, an agency by those provisions of chapter 34.05 RCW relating to adjudicative proceedings. In the case of appeals withinthe jurisdictionofthe hearings board, the hearings board,
or any member thereof, may obtain such assistance, including the making of field investigations, from the staff of the director as the hearings board, or any member thereof, may deem necessary or appropriate. Anycommunication, oral orwritten, fromthe staffof the director to the hearings board shall be presented only in an open hearing. [1995'c 382 § 2; 1990 c 65 § 5; 1989 c 175 § 103; 1974 ex.s. c 69 § 3; 1970 ex.s. c 62 § 46.]

NOTES:

Effectivedate--1989 c 175: Seenote following RCW34.05.010

.

RCW (10/14/99 9:44) [ 7 ]RCW 43.21B.170 Proceedings conducted in accordance with publishedboard rules and regulations. All proceedings before the hearings board or any of its members shall be conducted in accordance with such rules of practice and procedure as the hearings board may prescribe. The hearings board shall publish such rules and arrange for the reasonable distribution thereof. [1995 c 382 § 3; 1970 ex.s. c 62 § 47.]

RCW 43.21B.180 Judicialreview--Director'srightofreviewof decisions pursuant to RCW 43.21B.110. Judicial review of a decisionofthe hearings boardmaybe obtainedonlypursuant toRCW 34.05.510 through 34.05.598. The director shall have the same right of review from a decisionmade pursuant to RCW 43.21B.110 as does any person. [1994 c 253 § 6; 1989 c 175 § 104; 1970 ex.s. c 62 § 48.]

NOTES:

Effectivedate--1989 c 175: Seenote following RCW34.05.010. 

# c';

RCW 43.21B.190 Judicial review--Appea1 from board's order. Within thirty days after the final decision and order of the hearings board upon such an appeal has been communicated to the interestedparties, suchinterestedpartyaggrievedbythedecision and order of the hearings board may appeal to the superior court. [1995 c 382 § 4; 1994 c 253 § 7; 1988 c 202 § 43; 1970 ex.s. c 62 § 49;]

NOTES: 

# c=5;

Severabi1ity--1988 c 202: See note following RCW 2.24.050.

RCW 43.21B.230 Appeals ofagencyactions. Anypersonhaving received notice of a denial of a petition, a notice of determination, notice of or an order made by the department may appeal to the hearings board, within thirty days from the date the notice of such denial, order, or determination is posted in the United States mail, properly addressed, postage prepaid, to the appealing party. The appeal shall be perfected by serving a copy of the notice of appeal upon the department or air pollution authority established pursuant to chapter 70.94 RCW, as the case maybe, withinthe time specifiedherein andby filing the original thereofwithproofof servicewiththe clerkofthe hearingsboard. [1997 c 125 § 2; 1994 c 253 § 8; 1990 c 65 § 6; 1970 ex.s. c 62 § 53.]

RCW 43.21B.240 Department--Air authorities--Adjudicative proceedings, may not conduct. The department and air authorities shall not have authority to hold adjudicative proceedings pursuant to the Administrative Procedure Act, chapter 34.05 RCW. Such hearings shall be held by the pollution control hearings board. [1989 c 175 § 105; 1987 c 109 § 9; 1970 ex.s. c 62 § 54.]

RCW (10/14/99 9:44) [ 8 ]NOTES:

Effective date--1989 c 175: Seenote followingRCW34.05.010. 

# • Purpose--Short Captions--1987 c 109: title--Construction--Rules--Severability-- See notes following RCW 43.21B.001.



# • RCW 43.21B.250 Challenges to consistency of rules adopted pursuant to RCW 43.21C.110 and 43.21C.120--Procedure--Finality. (1) All challenges in regard to the consistency of the rules adopted pursuant to RCW 43.21C.120 and with the rules and guidelines adoptedpursuant toRCW43.21C.110 shallbe initiatedby filing a petition for review with the pollution control hearings board in accordance with rules of practice and procedures promulgated by. the hearings board. (2) All challenges to the hearings board provided under this section shall be decidedon thebasis ofconformance ofrules, with the applicable rules and guidelines adopted pursuant to RCW 43.21C.110. The board may in its discretion require briefs, testimony, and oral arguments. (3) The decisions of the hearings board authorizedunder this section shall be final. [1974 ex.s. c 179 § 9.]

NOTES:
Purpose--1974 ex.s. c179: Seenote followingRCW43.21C.080.
Severability--1974 ex.s. c 179: See RCW 43.21C.910

.

RCW 43.21B.260 Regulations and amendments of activated air pollution control authorities--Filing with hearings board authorized--Evidence. Activatedairpollutioncontrolauthorities, established under chapter 70.94 RCW, may file certified copies of theirregulations andamendments theretowiththepollutioncontrol hearings board of the state of Washington, and the hearings board shall take judicial note of the copies so filed and the said regulations and amendments shall be received and admitted, by reference, in all hearings before the board, as prima facie evidence that such regulations and amendments on file are in full force and effect. [1974 ex.s. c 69 § 5.]

RCW 43.21B.300 Penalty procedures. (1) Any civil penalty provided in RCW 18.104.155, 70.94.431, 70.105.080, 70.107.050, 88.46.090, 90.03.600, 90.48.144, 90.56.310, and 90.56.330 shall be imposed by a notice in writing, either by certified mail with return receipt requested or by personal service, to the person incurringthepenaltyfromthe department, the administratorofthe *office of marine safety, or the local air authority, describing the violation with reasonable particularity. Within fifteen days after the notice is received, the person incurring the penaltymay apply in writing to the department, the administrator, or the authority for the remission or mitigation of the penalty. Upon receipt of the application, the department, the administrator, or authoritymayremitormitigate t.hepenaltyuporiwhateverterms the department, the administrator, or the authority in its discretion

RCW (10/14/99 9:44) [ 9 ]deems proper. The department or the authority may ascertain the facts regarding all suchapplications in suchreasonablemannerand under such rules as it may deemproper and shall remit or mitigate the penalty only upon a demonstration of extraordinary circumstances such as the presence of information or factors not considered in setting the original penalty. (2) Any penalty imposedunder this sectionmaybe appealed to the pollution control hearings board in accordance with this chapter if the appeal is filed with the hearings board and served
on the department, the administrator, or authority thirty days after receipt by the person penalized of the notice imposing the penalty or thirty days after receipt of the notice of disposition of the application for relief from penalty. (3) Apenalty shall become due and payable on the later of: (a) Thirty days after receipt of the notice imposing the penalty; (b) Thirty days after receipt of the notice ofdisposition on application for relief from penalty, if such an application is made; or (c) Thirtydays afterreceipt ofthe notice ofdecisionofthe hearings board if the penalty is appealed. (4) Ifthe amount ofanypenalty is not paidto the department
or the administrator within thirty days after it becomes due and payable, the attorney general, upon request of the department or the administrator, shall bring an action in the name of the state of Washington in the superior court of Thurston county, or of any county inwhich the violatordoes business, to recoverthepenalty. If the amount of the penalty is not paid to the authority within thirty days after it becomes due and payable, the authority may bring an action to recoverthe penalty in the superiorcourt ofthe countyofthe authority's mainoffice orofany county inwhichthe violatordoes business. In these actions, theprocedures andrules of evidence shall be the same as in an ordinary civil action. (5) All penalties recovered shall be paid into the state treasury and credited to the general fund except those penalties imposedpursuant to RCW 18.104.155, which shall be credited to the reclamation account as provided in RCW 18.104.155(7), RCW 70.94.431, the disposition of which shall be governed by that provision, RCW70.105.080, which shallbe creditedtothehazardous waste control and elimination account, created by RCW 70.105.180, and RCW 90.56.330, which shall be credited to the coastal protection fund created by RCW 90.48.390. [1993 c 387 § 23; 1992 c 73 § 2; 1987 c 109 § 5.]

NOTES:

*Reviser's note: The office ofmarine safetywas transferred to the department of ecology and renamed the integrated oil spill prevention and response program by 1995 2nd sp.s. c 14 § SIS, effective January I, 1996, until June 30, 1997.

Effective date--1993 c 387: See RCW 18.104.930.

# c··~

Effective dates--Severabi1ity--1992 c 73: SeeRCW 82.23B.902 and 90.56.905. Purpose--Short Captions--1987 c 109:

RCW (10/14/99 9:44) title--Construction--Rules--Severability-- See notes following RCW 43.21B.001.
[ 10 ] 

# •• .r

.- .>

# •

•

• RCW 43.21B.30S Appeals involving penalties of five thousand -dollars or less. In an appeal that involves a penalty of five thousand dollars or less, the appeal may be heardby one member of the board, whose decision shall be the final decisionoftheboard

. The board shall define by rule alternative procedures to expedite small appeals. These alternatives may include: Mediation, upon agreement of all parties; submission of testimony by affidavit; or other forms that may lead to less formal and faster resolution of appeals. [1994 c 253 § 5.]

/ RCW 43.21B.310 Appeal oforders, per.mits, and licenses. (1) Any order 

### Lssued by the department, the administrator of the *office of marine safety, or authority pursuant to RCW 70.94.211, 70.94.332, 70.105.095, 43.27A.190, 86.16.020, 88.46.070, or 90.48.120(2) or any provision enacted after July 26, 1987, or any permit, certificate, or license issued by the department may be appealed to the pollution control hearings board if the appeal is filed with the board and served on the department or authority within thirty days after receipt of the order. Except as provided underchapter70.105DRCW, this is the exclusivemeans ofappeal of such an order. (2) The department, the administrator, orthe authority in its discretion may stay the effectiveness of an order during the pendency of such an appeal. (3) At any time during the pendency of an appeal of such an order to the board, the appellant may apply pursuant to RCW 43.21B.320 to the hearings board for a stay of the orderor for the removal thereof

. (4) Any appeal must contain the following in accordance with the rules of the hearings board: (a) The appellant's name and address; (b) The date and docket number of the order, permit, or license appealed; (c) A description of the substance of the order, permit, or license that is the subject of the appeal; (d) A clear, separate, and concise statement of every error alleged to have been committed; (e) A clear and concise statement of facts upon which the requester relies to sustain his or her statements of error; and (f) A statement setting forth the relief sought. (5) Upon failure to comply with any final order of the department or the administrator, the attorney general, on request of the department or the administrator, may bring an action in the superior court of the county where the violation occurred or the potential violation is about to occur to obtain such relief as necessary, including injunctive relief, to insure compliance with the order.

-The air authorities may bring similar actions to enforce their orders. (6) An appealable decision or order shall be identified as such and shall contain a conspicuous notice to the recipient that itmaybe appealedonlyby filing an appeal withthe hearings board and serving it on the department within thirty days of receipt. [1992 c 73 § 3; 1989 c 2 § 14 (Initiative Measure No. 97, approved November 8, 1988); (1987 3rd ex.s. c 2 § 49 repealed by 1989 c 2 § 24, effective March 1, 1989); 1987 c 109 § 6.]

RCW (10/14/99 9:44) 11 

### l .NOTES:

*Reviser's note:**T~e** office ofmarine safetywas transferred to the department of ecology and renamed the integrated oil spill prevention and response program by 1995 2nd sp.s. c 14 § 515, effective January 1, 1996, until June 30, 1997

.. Effective dates--Severability--1992 c 73: See RCW 82.23B.902 and 90.56.905.

Short title--Construction--Existing agreements--Effective date--Severability--1989 c 2: See RCW 70.105D.900 and 70.105D.910 through 70.105D.921, respectively. 

# · )


# c

Put-pose--Short Captions--1987 c 109: title--Construction--Rules--Severability-- See notes following RCW 43.21B.001.

RCW 43.21B.320 Stays of orders. (1) 

### A person appealing to the hearings board an order of the department or an authority, 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 partymay request a stayby including such a request in the appeal document, in a subsequent motion, orby such other means as the rules of the hearings board shall prescribe. The request must be accompanied by a statement of grounds for the stay and evidence setting forth the factual basis upon which request is based. The hearings board shall hear the request for a stay as soon as possible. The hearing on the request for staymay be consolidated with the hearing on the merits. (3) The applicant maymake a prima facie case for stay if-the applicantdemonstrates eithera likelihoodofsuccess onthemerits of the appeal or irreparable harm. Upon such a showing, the hearings board shall grant the stay unless the department or authority demonstrates either (a) a substantial probability of
success on the merits or (b) likelihood of success on the merits and an overriding public interest which justifies denial of the stay. (4) Unless otherwise stipulated by the parties, the hearings board, after granting or denying an application for a stay, shall expedite the hearing and decision on the merits. (5) Anypartyorotherpersonaggrievedbythe grantordenial ofa staybythe hearings boardmaypetition the superiorcourt for Thurston county for review of that decision pursuant to chapter 34.05 RCW pending the appeal on the merits before the board. The superior court shall expedite its review of the decision of the hearings board. [1987 c 109 § 7.]

NOTES: Purpose--Short Captions--1987 c 109: title--Construction--Rules--Severability-- See notes following RCW 43.21B.001.

RCW 43.21B.330 Summaryprocedures. The hearings board shall develop procedures for summary procedures, consistent with the rules ofcivilprocedure for superiorcourt on summaryjudgment, to decide cases before it. Suchprocedures mayincludeprovisions for

## (~ \ J

"I
RCW (10/14/99 9:44) [ 12 ]determinations without an oral hearing or hearing by telephonic
means. [1987 c 109 § 8.] 

# • NOTES: Purpose--Short Captions--1987 c 109: title--Construction--Rules--Severability-- See notes following RCW 43.21B.001.



# • RCW 43.21B.900 Savings--Other powers and duties not affected--Permits, standardsnotaffected--Severability--Effective date--1970 ex.s. c 62. See notes following RCW 43.21A.010

.

RCW (10/14/99 9:44) [ 13 ]