IV---

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VOLUME 4

Titles 37 through 44

2000

REVISED CODE OF WASHINGTON

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.

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(2000 Ed.) [Pre(ace-p i]
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REVISED CODE OF WASHINGTON

2000 Edition

e 2000 State of Washington

CERTIFICATE

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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 current specifications of the committee.

j/4

JOHN G. SCHULTZ, Chair,

STATUTE LAW COMMITTEE

[Preface-p iiJ (2000 Ed.)
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CHAPTER 43.21BRCW

ENVIRONMENTAL HEARINGS OFFICE--POLLUTION CONTROL HEARINGS BOARD

Sections

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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--Other powers 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 of ecology, and "director" means

the director of ecology. [1987 c 109 § 4.]

NOTES:

Purpose--1987 c 109: "The purposes of this act are to:

(1) Simplify and clarify existing statutory and administrative

procedures for appealing decisions of the department of ecology and

air pollution control authorities in order to (a) expedite those

appeals, (b) insure that those appeals are conducted with a 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) Eliminate provisions no longer effective or meaningful 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'

"ecology procedures 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 of ecology shall amend its

rules by June 30, 1988, to effect the purposes of this act." [1987

c 109 § 160.]

Severability--1987 c 109: "If any provision of this act or

its application to any person 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 used in 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- -Administrative appeals judges- -Contracts for services.

(1) There is created an environmental hearings office of the state

of Washington. The environmental hearings office shall consist of

the pollution control hearings board created in RCW 43. 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

officer of the 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 chief executive officer of the environmental hearings

office may appoint an administrative appeals judge who shall

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

the environmental hearings

board of the state of

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possess the powers and duties conferred by the administrative

procedure act, chapter 34.05 RCW, in cases before the boards

comprising the office. The administrative appeals judge shall have

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

chief executive officer shall state the reasons for such action in

writing. The person affected has a right of review by the superior

court of Thurston county. on petition for reinstatement or other

remedy filed within thirty days of receipt of such written reasons.

(4) The chief executive officer may appoint, discharge, and

fix the compensation of such administrative or clerical staff as

may be necessary.

(5) The chief executive officer may also contract for required

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 intent of the 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 hereby created within

office a pollution control hearings

Washington.

The purpose of the pollution control hearings board is to

provide for a more expeditious and efficient disposition of appeals

with respect to the decisions and orders of the department and

director and with respect to all decisions of air pollution control

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

have been admitted to practice law in this state and engaged in the

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 of whom at 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 term of six

years and until their successors are appointed and have 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 of the hearings board shall be staggered so that one member

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

board may be removed for inefficiency, malfeasance and misfeasance

in office, under specific written charges filed by the governor,

who shall transmit such written charges to the member accused and

to the chief justice of the supreme court. The chief justice 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 such member 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 board shall operate on either a part'

time or a full time basis, as determined by the governor. If it 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 determined by the governor pursuant to RCW 43.03.040.

If it is determined the hearings board shall operate on a part time

basis, each member of the hearings board shall receive compensation

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. Each hearings board member

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.]

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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 termination of membership. Each member of the 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 on or under any committee of any

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 after the 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,

promulgating rules and regulations necessary for the conduct of its

powers and duties, or transacting other official business, and may

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. The hearings board shall make findings

of fact and prepare a written decision in each case decided by it,

. and such findings and decisions shall be effective upon being

signed by two or more members of the hearings board and upon being

filed at the hearings board's principal office, and shall be· open

for public inspection at all reasonable times. [1970 ex.s. c 62 §

40. ]

RCW 43. 2lB.110 Pollution control hearings board jurisdiction.

(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 termination of any permit,

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 of permits to use or dispose of biosolids

under RCW 70.95J.080.

(f) Decisions of the department regarding waste-derived

fertilizer or micronutrient fertilizer under RCW 15.54.820, and

decisions of the department regarding waste-derived soil 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

management plan; conditions contained in a plan; application of any

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

which pursuant to law must be decided as an adjudicative proceeding

under chapter 34.05 RCW. .

(2) The following hearings shall not be conducted by the

hearings board:

(a) Hearings required by law to be conducted by the 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 conducted by 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 section under RCW 1.12.025(2). For rule of construction, see

RCW 1.12.025 (1) .

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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.

Effective date--1989 c 175: See note following RCW 34.05.010.

Purpose--Short

Captions--1987 c 109:

title--Construction--Rules--Severability--

See notes following RCW 43.21B.00I.

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Order for compliance with oil spill contingency or prevention plan

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 and orders of others. 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 and functions were transferred by 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

control boards or authorities established pursuant to chapter 70.94

RCW shall be subject to review by the hearings board as 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

Procedure Act. The hearings board, and each member 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

within the jurisdiction of the 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. Any communication, oral or written, from the staff of

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:

Effective date--1989 c 175: See note following RCW 34.05.010 .

RCW (10/14/99 9:44) [ 7 ]
RCW 43.21B.170 Proceedings conducted in accordance with

published board 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 Judicial review- -Director's right of review of

decisions pursuant to RCW 43. 21B .110. Judicial review of a

decision of the hearings board may be obtained only pursuant to RCW

34.05.510 through 34.05.598. The director shall have the same

right of review from a decision made 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:

Effective date--1989 c 175: See note following RCW 34.05.010.

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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

interested parties, such interested party aggrieved by the decision

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 of agency actions. Any person having

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

may be, within the time specified herein and by filing the original

thereof with proof of service with the clerk of the hearings board.

[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: See note following RCW 34.05.010.

• 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 adopted pursuant to RCW 43.21C.110 shall be initiated by

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 decided on the basis of conformance of rules, 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 authorized under this

section shall be final. [1974 ex.s. c 179 § 9.]

NOTES:

Purpose--1974 ex.s. c179: See note following RCW 43.21C.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. Activated air pollution control authorities,

established under chapter 70.94 RCW, may file certified copies of

their regulations and amendments thereto with the pollution control

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

incurring the penalty from the department, the administrator of the

*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 penalty may

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

authority may remit or mitigate t.he penalty upori whatever terms 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 such applications in such reasonable manner and

under such rules as it may deem proper 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 imposed under this section may be 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) A penalty 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 of disposition on

application for relief from penalty, if such an application is

made; or

(c) Thirty days after receipt of the notice of decision of the

hearings board if the penalty is appealed.

(4) If the amount of any penalty is not paid to 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 in which the violator does business, to recover the penalty.

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 recover the penalty in the superior court of the

county of the authority's main office or of any county in which the

violator does business. In these actions, the procedures and rules

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

imposed pursuant 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, RCW 70.105.080, which shall be credited to the hazardous

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 of marine safety was 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: See RCW 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.

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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 heard by one member of

the board, whose decision shall be the final decision of the board .

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 of orders, 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

under chapter 70.105D RCW, this is the exclusive means of appeal of

such an order.

(2) The department, the administrator, or the 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 order or 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

it may be appealed only by filing an appeal with the 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 of marine safety was 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 party may request a stay by including such a

request in the appeal document, in a subsequent motion, or by 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 stay may

be consolidated with the hearing on the merits.

(3) The applicant may make a prima facie case for stay if-the

applicant demonstrates either a likelihood of success on the merits

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) Any party or other person aggrieved by the grant or denial

of a stay by the hearings board may petition the superior court 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 Summary procedures. The hearings board shall

develop procedures for summary procedures, consistent with the

rules of civil procedure for superior court on summary judgment, to

decide cases before it. Such procedures may include provisions 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, standards not affected--Severability--Effective

date--1970 ex.s. c 62. See notes following RCW 43.21A.010 .

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