• Chapter 43.21B·RCW

ENVIRONMENTAL HEARINGS OFFICE-POLLUTION

CONTROL HEARINGS BOARD

•

•

Sections

43.218.001 Definitions.

43.218.005 Environmental bearings office created-e-Cornposition-e-Chief

executive officer-Still support.

43.2IB.01O Pollution control hearings board created-s-Purpose.

43.21 B.020 Members-Qualifications-Appointment.

43.21 B.030 Members-Terms-Filling vacancies, term.

43.2IB.04O Removal of member. procedure-As disqualification for

. reappointment.

43.2IB.05O Governor to determine basis for operarion-e-Cornpensaticn if

part time basis. limitation-Reimbursement of travel

expenses.

43.2IB.06O Restrictions upon conduct while member and upon termination of membership.

43.2IB.080 Chairman, biennial election of.

43.2IB.09O Principal oflice-Quorum-Hearings-Board powers and

duties.

43.2IB.100 Board to make findings of fact and written decisions on

each case considered-Effective upon signing and filing-Public informatioo.

43.218.110 Pollution control hcarlngs board jurisdiction.

43.218.130 Administrative procedure act to apply to appeal of board

rules and regulations-5cope of board action on decisions and orders of others.

43.2IB.14O Formal or informal hearing, election of party taking appeal-Exception.

43.2IB.150 Informal hearings-Generally.

43.21 B.16O Formal bearings-s-Generally.

43.218.170 Proceedings conducted in accordance WlTh published board

rules and regulations.

43.218.180 Judicial review-Director's right of review of decisions

. pursuant to RCW 43218.110.

43.2IB.19O Judicial review-Appeal from board's order-ProcedureAppellate review-When bonds required.

43.218.230 Appeals of agency actions.

43.2IB.24O Department-Air authorities-Adjudicative proceedings,

may not conduct.

43.218.250 Challenges to consistency of rules adopted pursuant to RCW

43.2IC.110 and 43.2IC.120--Pr0cedure-F'maliry.

43.218.260 Regulations and amendments of activated air pollution control authorities-Filing with hearings board authorizedEvidence.

43.218.300 Penalty procedures.

43.2IB.305 Appeals involving penalties of five thousand dollars or less.

43.218.310 Appeal of orders. permits, and licenses.

43.218.320 Stays of orders.

43.218.330 Summary procedures.

43.2IB.9OO Savings-other powers and duties not affected-Pennits,

standards DOl affected--Severnbiliry-Effective ~te1970 ex.s. c 62.

RCW 43.21B.OOl Definitions. As used in this

chapter, "department" means the department of ecology, and

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

Purpose-1987 c 109: "Ibe 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 slate

and privare resources. and(e) allow the appeUate authorities to decide eases

on their ~lS rather than 011 procedural technicalities.

(1994)

l:!) Qarify existing statutesrelating to the environment but which refer

to numerous agencies DO longer in existence.

(3) Eliminate provisions no longer effective or meaningful and

abbre\"iate SlalUtory provisions whim are unnecasarily long andconfusing."

(1987 e 109 § 1.1 .

Short Utle-I987 e 109: "This ad may be rerermS to as the "ecology

procedures simplification act of 1987.' (1987 c 109 § 2.)

Coostructloo-l987 e 109: "Unless othetwise 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-l987 e 109: "Ibe department of ecology shall amend its rules

by June 30. 1988. to effect the purposes of this act." [1987 c 109 § 160.)

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

application to any person or circumstance is held invalid. lhe remainder of

the act or the application of the provision 10 other persons or circumstances

is not affected." [1987 c 109 § 161.]

CapUons--l987 e 109: •As used in this act. bill headings and section

captioos constitute no part of the law." [1987 e 109 § 162.]

RCW 43.21B.OOS Environmental hearings office

created-Composition--Chief executive officer-Starr

support. 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 43.2IB.OIO, 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

poJ1ution control hearings board shan 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.

The chief executive officer of the environmental

hearings office may appoint an administrative appeals judge

who shan 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.

The chief executive officer may appoint. discharge, and

fIX the compensation of such administrative or clerical staff

as may be necessary.

The chief executive officer may also contract for

required services. [1990 c 6S § I; 1986 c 173 § 3; 1979

ex.s. c 47 § 2.]

. I DleDI-1979' es.a. e 47: '11 is the intent of the legislature to

COIl5Olidate adminislrlJiydy the pollution c:omroI hearings board. the forest

[Cb. 43.21B-p. 1]
43.218.005 Environmental Hearings Omce-Pollution Con'trol Hearings Board -'

practices appeals board. and the shorelines hearings board into one agency

of state government with minimum disturbance 10 these boards, It is IlOl the

Inlent of the legisl:dure in consolidating these boards 10 change the ellisting

membership of these boards,

, ,All full-time employees of the pollution control hearings board and the

full-time employee of tbe forest practices appeals board shall be full·time

employees of th~ e~vironmental 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.OI0 Pollution control hearings board

created-Purpose. There is hereby created within the

environmental hearings office a pollution control hearings

board of the state of Washington.

Th.e purpose of the pollution control hearings board is

to provide !or a more expeditious and efficient disposition of

appeals WIth respect to the decisions and orders of the

d~partmen~ 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.]

Inlenl-1979 ex.s, c 47: See note following RCW 43.218.005.

RCW 43.218.020 . Members-QuallficatlonsAppointment. 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 th~ 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. [1970 ex.s. c 62 § 32.]

R<?W 43.218.030 Members-Terms-Filling

vaca?oes, 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 ?e fille~ 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

sha~l be appointed to serve until July I, 1972, one member

until July I, 1974, and one member until July I, 1976.

[1970 ex.s. c 62 § 33.]

~CW ~3.21B.040 Removal of member, procedureAs dlSq.ualification for reappointment. Any member of

the hearings ~ard may be removed for inefficiency, malfeasance and misfeasance in office, under specific written

ch~rges filed by the governor, who shall transmit such

wntten charges to the member accused and to the chief

justice ?f the supr~rne court. The chief justice shall thereupon de~Jgnate a tnbunal composed of three judges of the

s~penor court to hear and adjudicate the charges. Such

tnb~nal shall fix the time of the hearing which shall be

public, an~ the procedure for the hearing, and the decision

of such tribunal shall be final and not subject to review by

_ the supreme cou~. Removal of any member of the hearings

.-board-by the tnbunal shall disqualify such member for

reappomtment, [1970 ex.s. c 62 § 34.]

[eb. 43.11B-,». 2)

RCW 43.218.050 Governor to determine basis for

operatlon-Compensation It part time basts. limitationReimbursement of travel expenses. The hearings board0

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

reim?urse~ent.for travel expenses incurred in the discharge

of hIS duties 1D 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.]

EffectIve date-Severability-197S·'76 2nd u.s. e 34: See notes

following RCW 2.08.115.

RCW 43.21B.06O Restrictions upon conduct while

member and upon termination of membership. Each

member of the hearings board: (I) 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

bo~, 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.] j

RCW 43.218.080 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.]

RCW 43.21B.090 Prlnclpal office-QuofumHearings-Board powers and duties. The principal office

o~ the hearings ~ard 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 regulanons 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 bearings 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 § I; 1970 ex.s. c 62 § 39.]

RCW 43.218.100 Board to make flndings of fact

and written decisions on each case consldered-EffectiverOupon signing and flllng-Publlc information. The

hearings board shall make findings of fact and prepare a

written decision in each casedecided by it. and such findings

(1994)
Environmental Hearings Omce-Pollutlon Control Hearings Board

•

•

•

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 43.21B.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. the administrator of

the office of marine safety. and the air pollution control

boards or authorities as established pursuant to chapter 70.94

RCW. or local health departments:

(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.I90. 70.94.211, 70.94.332. 70.105.095,

86.16.020.88.46.070.90.14.130. and 90.48.120.

(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. or the modification of the conditions or the terms of a waste disposal

permit.

(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) Any other decision by the department. the administrator of the office of marine safety. 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. [1993 c 387 § 22. Priori. 1992 c 174 § 13;

1992 c 73 § 1; 1989 c 175 § 102; 1987 c 109 § 10; 1970

ex.s. c 62 § 41.]

Effective date-I993 c 387: See RCW 18.104.930.

Effective dates--Severability-I991 e 73: See RCW 82.238.902

and 90.56.905.

Eaectlve date-l989 c 175: See note following RCW 34.05.010.

Purpose-5hort t1tle-Coostructioo-Rules-SeverabllltyCaptlons--l987 e 109: See IlOCCS following RCW 43.218.001.

(1994)

43.11B.l00

Order for cOplpliQllct with oil spill coruingtncy or preventio« plan not

subjtClIO by ~lIIiOft COIIITOI htarings board: RCWS(l•.s6.270.

RCW 43.218.130 Administrative procedure act to

apply to appeal or board rules and regulatlons-Scope or

board action on decisions and orders or 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 6S § 3;

1970 ex.s, c 62 § 43.]

RCW 43.11B.140 Formal or informal bearing,

election or party taking appeal-Exception. In all appeals

over which the hearings board has jurisdiction, a party taking

an appeal may elect either a formal or an informal hearing.

such election to be made according to rules of practice and

procedure to be promulgated by the hearings board: PROVIDED, That nothing herein shall be construed to modify

the provisions of RCW 43.218.190 and *43.218.200. In the

event that appeals are taken from the same decision, order,

or determination, as the case may be. by different parties.and

only one of such parties elects a formal hearing, a formal

hearing shall be granted. [1987 c 109 § 30; 1970 ex.s. c:62

§ 44.]

-Reviser's note: RCW 43.218.200 was repealed by 1987 c 109 §

159.

Purpose-5bort tltle-Coostructioo-Rules-5everabI1ItyCaptions-l987 e 109: See notes following RCW 43.218.001. "

RCW 43.218.150 Informal bearings-Generally: In

all appeals involving an informal hearing, the hearings board

shall have all powers relating to the administration of oaths,

issuance of subpoenas, and taking of depositions as are

granted to agencies by chapter 34.05 RCW. In the case of

appeals within the jurisdiction of the hearings board, tbe

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: PROVIDED,

That any communication, oral or written, from the staff of

the director to the hearings board shall be presented only in

an open hearing. [1990 C65 § 4; 1974 ex.s. c 69 § 2; 1970

ex.s. c 62 § 45.]

RCW 43.218.160 Formal hearings-Generally. In

all appeals involving a formal hearing, 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 RCWrelating to adjudicative proceedings. In

[eb. 43.118-;1. 3)
43.218.160 Environmental Hearings Omce-Pollutlon Control Hearings Board

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. [1990 c 65 § 5; 1989 c 175 § 103; 1974 ex.s.

c 69 § 3; 1970 ex.s, c 62 § 46.)

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

RCW 43.218.170 Proceedings conducted in aceordance with published board rules and regulations. All

proceedings. including both formal and informal hearings.

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. [1970 ex.s, c 62 § 47.]

RCW 43.218.180 Judicial review-Director's right

oC review or decisions pursuant to RCW 43.218.110.

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 43.2IB.IIO as does

any person. [1994 c 253 § 6; 1989 c 175 § 104; 1970 ex.s.

c 62 § 48.]

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

RCW 43.21B.190 Judicial review-Appeal Crom

board's order-Procedure-Appellate review-When

bonds required. 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. In all appeals

involving a decision or an order of the hearings board after

an informal hearing, the petition shall be filed in the superior

court for the county of the petitioner's residence or principal

place of business, or in tbe absence of a residence or

principal place of business, for Thurston county. Such

appeal may be perfected by filing with the clerk of the

superior court a notice of appeal, and by serving a copy

thereof by mail, or personally on tbe director, the air

pollution control boards or authorities. established pursuant

to chapter 70.94 RCW or on the board as the case may be.

The hearings board shall serve upon the appealing party, the

director, the air pollution control board or authorities established pursuant to chapter 70.94 RCW, or the board, as the

case may be. and on any other party appearing at the

hearings board's proceeding, and file with the clerk of the

court before trial, a certified copy of the hearings board's

decision and order. Appellate review of a decision of the

superior court may be sought as in other civil cases. No

bond shall be required on appeals to the superior court or on

review by the supreme court unless specifically required by

the judge of the superior court. [1994 c 253 § 7; 1988 c 202

§ 43; 1970 ex.s. c .62 § 49.}

Severability-l988 e 202: See note following RCW 2.24.050.

[Cb. 43.21B-1J. 4]

RCW 43.218.230 Appeals 01 agency actions. Any

person having received notice of a denial of a petition. ao

notice of determination, notice of or an order made by the

department may appeal. within thirty days from the date of

the notice of such denial. order. or determination to the

hearings board. 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. [1994 c 253 § 8; 1990 c 65

§ 6; 1970 ex.s. c 62 § 53.]

RCW 43.218.240 Department-Air authoritiesAdjudicative 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.]

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

Purpose-Sbort titie-Consttuction-Ruies-SeverabllltyCaptlons-l987 c 109: See notes following RCW 43.218.001.

RCW 43.218.250 Challenges to consistency 01 rules

adopted pursuant to RCW 43.21C.UO and 43.21C.I20-

Procedure-Finality. (I) 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 aC'

petition for review with thepollution 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.IIO. 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.)

Purpose-l974 u.s. c 179: See note following RCW43.21C.080.

SeverabDlty-1974 ex.s.e 179: See RCW 43.21C.910.

RCW 43.218.260 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 bearings 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 43.218.300 Penalty procedures. (I) Any civil0

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

(1994)
Environmental Hearings Omce-pollutlon Control Hearings Board

•

•

•

Q

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 the penalty upon whatever terms the

department. the administrator. or the authority in its discretion 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.]

~ec:tlve date-I993 e 387: See RCW 18.104.930.

Efl'edlve dates-Senrability-lm e 73: See RCW 82.238.902

and 9O.S6.90S.

(1994)

43.21B.300

Purpose-5hort tltle-Constructlon-Rules-5nerabllltyCapllons-1987 e 109: See notes (ollowing RCW 43.2t8.001.

RCW 43.21B.305 Appeals involving penalties olOve

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 01 orders, permits, and

licenses. (I) Any order issued 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,

43.27 A.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 theexclusive

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 43.218.320 to the hearings board for a stay ofthe

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.]

(eb. 43.21B-p. 5]
43.118.310 Environmental Hearings Omce-Pollutlon Con.trol Hearings Board

Enectlve dlltes-Severablllty-I991 c 73: See RCW 82.238.902

and 9O.56.9OS.

Short tltle-Construcllon--Exlstlng lIgrtements-ElJectlve dateSe\'erabllity-1989 c 2: See RCW 70.1050.900 and 70.1050.910 through

70.1050.921, respectively.

Purpose-Shorllitie-Construction-Ruies-Severabllil~'­

ClIplions-1987 c 109: See notes following RCW 43.:!IB.001.

RCW 43.218.320 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.)

Purpose-Short t1tle-Constructloo-Rules-SeverabilityCaptlons-1987 c 109: See DOtes following RCW 43.218.001.

RCW 43.218.330 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 determinations without an oral hearing or hearing by telephonic means.

[1987 c 109.§ 8.)

Purpose-Short t1t1e-Constructioo-Rules-SeverabilityCaptlons-l987 c 109: See DOleS following RCW 43.218.001.

RCW 43.218.900 Savings-Other powers and

duties not affected-Permits, standards not affectedSeverability-Effective date-1970 ex.s, c 62. See notes

following RCW 43.2IA.01O.

[0. 43.21B-p. 6] (1994)

o

o