,',

fOHN SPELLMAN

Governor

ST.-\TE OF WASHINGTON

DEPARTMENT OF ECOLOGY

Stall Stop P\', i I • Olvrroi«. H:ashfngron 9850-1 • (2!XJ! ,J59-6C()(J

NovemQer 19, 1982

Mr. John R. Spencer

'Regional Administration Region X

U.S. Environmental Protection Agency'

1200 Sixth Avenue

Seattle, WA 98101

Dear Mr. Spencer:

DONALD W. MOOS

Director

Ie..

The enclosed copies of the Memorandum of Agreement between the Energy

Facility -Site Evaluation Council (EFSEC) and the Department of Ecology, a

letter from Nicholas D. Lewis of EFSEC dated November 15, 1982, and the

emergency regulation adopted by EFSEC are submitted to you as supplements to

the department's hazardous waste initial Interim Authorization Application

of May 3, 1982 and the department's response letter of September 23, 1982.

I hope this supplemental material will complete our application and expedite

your review process. We look forward to your favorable consideration of

Washington's program for interim authorization.

Sincerely,

,

'. ' " ///) ., y1

.., (, ._,,-..::1./ I I _ .l~7'/'--'C:.. ~L I L- 1. ,

j. D aId W. Moos

Director

DWM:vb

Enclosures

cc: Ken Feigner

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hi -.\ .,~ .......

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MEMORANDUi1 OF ·AGREEMENT

The Energy Facility Site Evaluation Council (EFSEC) and the

Washington State Department of Ecology (WDOE) agree as follows:

1. Purpose. There is a need to set forth the division of

responsibilities of the parties for the purpose of assuring compliance

by energy facilities, as defined in Chapter 80.50 RCW, with the

federally approved dangerous waste management program of the State

of Washington. This agreement sets forth the understanding of the

parties as to their respective responsibilities and provides a basis

for consistent and coordinated management and control of dangerous

wastes.

2. On-site Regulation. This agreement pertains to on-site

dangerous waste generation, transportation, treatment, storage, and

disposal. For the purpose of this agreement, "on-site" means the

project area described in the Certification Agreement as the· project

legal description.

3. EFSEC Rules Adoption. In order to provide procedural

continuity and state implementation, EFSEC has adopted an emergency

regulation (see, RCW 34.04.030) which adopts by reference, as an

EFSEC regulation, the Department of Ecology Dangerous Waste Regulations, ch. 173-303 WAC. EFSEC and WDOE will cooperate in implementati0n of ch. l73-~03 WAC as adopted by EFSEC under the terms of

this agreement.

4. Site Certifications. All certifications (defined at

RCW 80.50.020(5)) issued by EFSEC under ch. 80.50 RCW to energy
;.- .. ( ..

.,. I ('Iffacilities shall require compliance with all substantive

provisions of ch. 173-303 WAC which are identified in testimony,

presented during contested case hearings before EFSEC, by WDOE

witnesses as being applicable to the project.

5. r1onitoring and Inspection. All construction and operational monitoring, and inspection of an energy facility for

compliance with ch. 173-303 WAC shall be by contractual agreement

between WDOE and EFSEC.

6. Enforcement. Violations of permit requirements applicable to energy facilities detected by WDOE shall be reported to

EFSEC, together with recommendations for enforcement action.

EFSEC shall initiate action to secure compliance, including, but

not limited to, the assessment of penalties. Any notification

pertaining to a violation, sudden or nonsudden accident, breakdown, or related matter shall be reported directly to EFSEC.

Immediate enforcement action may be initiated by the Chairman, in

emergency situations, subject to subsequent confirmation or

modification by full Council.

7. Effective Date and Term of Agreement. This Memorandum

of Agreement shall be effective upon approval of Interim

Authorization for the State of Washington by the Administrator

of the U.S. Environmental Protection Agency, or her delegate,

pursuant to section 3006 of the Resource Conservation and

Recovery Act of 1976. This Agreement shall remain in effect

for the duration of such authorization or until rescinded by

-2-
....... 1 i ...- I"~ , J' .. .. \

the parties. This Agreement may be modified from time to

time as the parties may mutually decide in order to simplify

the procedures and refine the methods as contained herein.

DEPARTI1ENT OF ECOLOGY

APPROVED AS TO FORM:

\ ENERGY FACILITY SITE

\ EVALUATION COUNCIL (

\~ lG-l1-L w v, •

Nicholas D. Lew~ Chairman

Date

r I

Kevin Rya i

Assistant ktorney_General

Energy Facility Site

Evaluation Council

-3-

for
...

-

JOHN sPELLMAN

Governor

.........

NICHOLAS D. LEWIS

Chairman

STATE OF WASHINGTON

ENERGY FACILITY SITE EVALUATION COUNCIL

Mail Stop PY·77 • Olympia. Washington 98504 • (206) 459-fJ490 • (SCAN) 585-fJ490

November 15, 1982

Mr. Donald W. Moos

Director

Department of Ecology

Mail Stop PV-l1

. Olympia, WA 98504

Dear Don:

The following information is provided for your use in supplementing the State's application to EPA for interim authorization under the Resource Conservation and Recovery Act (RCRA)

since the Department of Ecology serves as coordinator with

EPA.

I believe the following discussion will provide additional

useful information to EPA concerning certain aspects of our

rules and authorities.

We have determined that at this time, there are three certified energy facilities that appear subject.to the existing EPA

hazardous waste requirements. These facilities are Washington

Public Power Supply System facilities at Hanford and Satsop

which obtained Identification Numbers as waste generators. To

our knowledge, no existing certified energy facilities now or

intend to manage wastes on-site in such a way as to subject

the facility to RCRA's permitting requirements or standards

for treatment, storage or disposal facilities.

Secondly, the dangerous waste requirements are immediately applicable to these generators as a result of the adoption of

the emergency rules on October 11, 1982.

The dangerous waste regulations adopted by EFSEC on an emergency basis, will remain in effect no longer than 90 days.

During this time, formal rulemaking will be completed.

With respect to enforcement of requirements for energy facilities, we will apply the provisions of RCW 80.50.150 upon prosecution of violations of these requirements. In addition,
.... ~--

Mr. Donald W. Moos

Page Two

November 15, 1982

with respect to RCRA requirements for assuring public participation in the enforcement process (intervention), we will determine whether Civil Rule 24(a) for intervention in judicial

proceedings is also applicable to EFSEC administrative enforcement actions. We will advise you of our findings.

Lastly, as required by EPA, we agree that any information obtained or used in our implementation of the authorized program

will be available to EPA upon request without restriction. If

such information has been submitted to us under a claim of confidentiality, we will submit that claim so that the information

can be treated in accordance with 40 CFR Part 2 as to confidentiality, determinations by EPA.

If EPA should request of you, any additional clarification concerning EFSEC authorities or requirements with respect to the

State's dangerous waste program, or application for interim

authorization, we will be pleased to provide that information

to you.

Nicholas

Chairman

NDL:se

cc: F. Hahn, DOE

B. Fitch, EFSEC

G. Hansen, EFSEC

C. Kleeberg, EPA
·,

..:; .. . -- FORM OF ORDER AND IANSMIITAL BY BOARD, COlV~ ~SSION, OR COUNCIL

."

State of Washington

Energy Facility Site Evaluation council

(name of governing body)

Energy Facility Site Evaluation Council

(agency name, if applicable)

Resolution No. _

Administrative Order No. 82-2 _

(1) Be it resolved by the Energy Faci I i ty Site Eva I ua tion Counci I

. acting at Olympia, Washington

(place)

that it does adopt the annexed rules relating to:

WAC 463-40-010 Purpose

WAC 463-40-020 Coverage

WAC 463-40-030 Regulations

WAC 463-40-040 Monitoring and Enforcement

(2) ALTERNATIVE A. Use only for Adoptioa of Permaaeot Rules.

This action is taken pursuant to Notice No.

filed with the code reviser on '.These rules shalltake effect:

o thirty days after they are filed witb the code reviser Pursuant to RCW 34.04.040(2):

o at a later date, such date being .

(2) ALTERNATIVE B. Use only for AaoptiOft of Emergeocy Rilles.

We, the Energy Facility Site Evaluation Council ,find that

an emergency exists and that this order is necessary for the preservation of the public health, safety, or general

welfare and that observance of the requirements of notice and opportunity to present views on the proposed action

would be contrary to public interest. A statement of the facts constituting the emergency is: to meet u. S .

Environmental Protection Agency deadline for delegation to state for

on-site activities at energy facilities which involve the generation,

st%g~ru'es~feat~~r~~f/a'd~pt£na~erlifr~rn~§TI{u?;rto8fe ~~fu~r?min~fwit~'1re9c~c?M~se'1.astes

- - - - - •. - _.1 _
,

..

NEW SECTION

.r--.. ~'.

WAC 463-40-010 Purpose. The Energy Facility Site

Evaluation Council, under authority invested in it by chapter

80.50 RCW is charged with the responsibility of adopting rules

sufficient to the protection of the public and the environment

from the effects of dangerous wastes generated at energy facilities subject to chapter 80.50 RCW.

NEW SECTION

WAC 463-40-020 Coverage. The provlslons of this chapter

shall apply state-wide for those generators of dangerous wastes

under the jurisdiction of the Energy Facility Site Evaluation

Council .

. NEW SECTION

. WAC 463-40-030 Regulations. Notwithstanding the provisions

of WAC 173-303-801, to the extent of their applicability and appropriateness, the provisions of WAC 173-303 shall apply to the

on-site activities, at energy facilities sUbject to this chapter,

which involve the generation, storage, transportation, treatment

or disposal of dangerous wastes.

NEW SECTION

WAC 463-40-040 Monitoring and enforcement. The council

hereby delegates to the Department of Ecology (DOE) the monitoring. activities for dangerous "',astes regulated by this chapter

under a Certification Agreement. As a result of said monitoring

activities, DOE shall report to the council any activity by a

permittee which in its judgment requires the initiation of appropriate enforcement activities by the council. The council shall

then take or initiate action to enforce the terms of any Certific3tion Agreement. This in no way shall restrict any enforcement

by other public agencies and officials under existing law. If

DOE determines t ha t; Lrarned i a t e act inn i (: noorlo~ ... - __ J:___ '-'~ - - -_.
.--'.

· . .•~~ • .;r.....>' Chapter 34.04 RCW

ADMINISTRATIVE PROCEDURE ACT

34.04.270

34.04.940

34.04.260

34.04.280

Review and objection procedures--No presumption

established.

Agency review of own rules for conformity with federal

law.

Reports by agency to office of financial management-Compilation by office of financial management provided to legislative officers.

Application of RCW 34.04.270 and 34.04.280.

Severability----1959 c 234.

SevetabiliLy-----1967 c 237.

General repeal and saving.

Effective dares- --195<1 c 234_

Effective date 1%7 c ~37.

Operation of chapter if in conflict with federal law.

Operation of 1967 amendatory act if in conflict with

federal law.

Savings--Authority of agencies to comply with chapter--Effect of subsequent legislation'.

Hearings, procedures, rule making by various agencies to be in accordance with Administrative Procedure Act: Cf. the pertinent statute under which the particular agency is established.

34.04.290

34_04.900

34.04.901

34.04.910

34.04920

34.04.921

34.04.930

34.04.931

RCW 34.04.010 Definitions. The definitions set

forth in this section shall apply throughout this chapter,

unless the context clearly requires otherwise.

(I) "Agency" means any state board, commission. department, or officer, authorized by law to make rules or

to adjudicate contested cases, except those in the legislative or judicial branches.

(2) "Rule" means any agency order, directive, or regulation of general applicability (a) the violation of which

subjects a person to a penalty or administrative sanction;

(b) which establishes, alters, or revokes any procedure,

practice, or requirement relating to agency hearings; (c)

which establishes, alters. or revokes any qualification or

requirement relating to the enjoyment of benefits or

privileges conferred by law; (d) which establishes, alters,

or revokes any qualifications or standards for the issuance, suspension, or revocation of licenses to pursue any

commercial activity, trade, or profession: or (e) which

establishes, alters, or revokes any mandatory standards

for any product or material which must be met before

distribution or sale. The term includes the amendment

or repeal of a prior rule. but does not include (i) statements concerning only the internal management of an

agency and not affecting private rights or procedures

available to the public. (ii) declaratory rulings issued

pursuant to RCW 34.04.080, as now or hereafter

amended, or (iii) traffic restrictions for motor vehicles,

bicyclists, and pedestrians established by the secretary of

transportation or his designee where notice of such restrictions is given by official traffic control devices.

(3) "Contested casco means a proceeding before an

agency in which an opportunity for a hearing before

such agency is required by law or constitutional right

prior or subsequent to the determination by the agency

Definitions.

Adoption of rules of practice and procedure--Organizational description--Records of decisions. orders.

and opinions open to public--Exceptions--Effect

of failure to comply.

Uniform procedural rules--Application--Conduct

of contested cases.

Notices of intention to adopt rules--Opportunity to

submit data--Proceedings on rule barred until

twenty days after register distribution--Noncompliance. effect.

Specific reference to rule-making authority to be inc1uded--Alternatives--Format-·-Request for

more specific reference.

Failure to give twenty days notice of intended action--Effect.

Emergency rules and amendments.

Rules filed with code reviser--Register--Effective

dates--Report.

Statement of proposed rule's purpose and how irnplemented-Contents--Distribution by agency.

Withdrawal of proposed rules.

Code reviser to compile and edit rules. publish register--Removal of unconstitutional rules--Distriburien of registers and codes-County law library

trustees to maintain set--Judicial notice of rules.

Scope of editing and revision of rules.

Regulations on filing and form of rules and notices.

Style. format, and numbering of rules--Agency

compliance.

Format and style of rules amending existing sections.

adding new sections--Effect of failure to comply.

Petition for adoption. amendment, repeal of rule--

Agency action.

Declaratory judgment on validity of rule---Small

business economic impact statement action as part of

record.

Declaratory ruling by agency--Petition-Court

review.

Contested cases--Notice--Hearing--Summary

orders--Informal disposition--Record--Findings of fact--Agency's powers.

Contested cases--Rules of evidence--Crossexamination.

Agency hearings and contested cases--Hearings.

oaths, subpoenas, evidence. witnesses--Contempt.

Contested cases-e--c-Procedure when deciding officials

have not heard or read evidence.

Consultation by agency officer as to issues.

Contested cases--Adverse decisions and orders--

Findings and conclusions.

Contested cases--Judicial review.

Contested cases--Direct review by court of appeals.

Contested cases--Refusal of review by court of

appeals.

Appeal to supreme court or court of appeals.

Exclusions from chapter or parts of chapter.

Provisions applicable to licenses and licensing.

Joint administrative rules review committee--Members--Appointment--Terms--Vacancies.

Review of proposed rules--Notice.

Review of existing rules--Notice--Hearing.

Committee objections to agency action---Statement in

register and WAC .

Recommendations and reports by committee to

legislature.

34.04.090

34.04.080

34.04.250

34.04.105

34.04.100

34.04.027

34.04.030

34.04.040

34.04.045

34.04.026

34.04.025

34.04.115

34.04.120

34.04.022

Sections

34.04.010

34.04.020

.14.04.110

34.04.052

34.04.055

34.04.057

34.04.058

34.04.060

34.04.070

34.04.048

34.04.050

34.04.130

34.04.133

34.04.135

34.04.140

34.04.150

34.04.170

34.04.210

34.04.220

34.04.230

34.04.240

..........

(1983 Laws) (Cu. 34.04 RCW-p II

J
34.04.010 Administrative Procedure Act

of the legal rights, duties, or privileges of specific parties. Contested cases shall also include all cases of licensing and rate making in which an application for a

license or rate change is denied except as limited by

RCW 66.08.150, or a license is revoked, suspended, or

modified, or in which the granting of an application is

contested by a person having standing to contest under

the law or agency rules.

(4) "License" includes the whole or part of any

agency permit, certificate, approval, registration, charter. or any form of permission required by law, including

agency rule, to engage in any activity, but does not include a license required solely for revenue purposes.

(5) "Licensing" includes the agency process respecting

the grant, denial, renewal, revocation, suspension, annulment, withdrawal, or modification of a license.

(6) "Rules review committee" or "committee" means

the joint administrative rules review committee created

pursuant to RCW 34.04.210 for the purpose of selectively reviewing existing and proposed rules of state

agencies. [1982.c 10 § 5. Prior: 1981 c 324 § 2; 1981 c

183 § I; 1967 c 237 § I; 1959 c 234 § I.]

Senrablllty--1982 c 10: See note following RCW 6.12.100.

Leglslathe .mrmation-1981 c 324: 'The legislature affirms that

all rule-making authority of state agencies and institutions of higher

education is a function delegated by the legislature, and as such, shall

be exercised pursuant to the conditions and restrictions contained in

this act.' [1981 c 324 § I.)

Se'erablllty--1981 e 324: '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 other persons or circumstances is not affected.' [1981 c 324 § 18.)

In the above two annotations, the phrase 'this act' refers to the

amendment of RCW 288.19.020, 288.19.030, 288.19.040, 34.04.010,

34.04.025, and 34.04.030 and to the enactment of RCW 288.19.160,

288.19.163,288.19.165,288.19.168, and 34.04.210 through 34.04.260

by 198\ c 324.

RCW 34.04.020 Adoption of rules of practice and

procedure---Organizational description--Records of

decisions, orders, and opinions open to public--Exceptions--Effect of failure to comply. In addition to

other rule-making requirements imposed by law:

(I) Each agency shall adopt rules governing the formal and informal procedures prescribed or authorized by

this chapter and rules of practice before the agency, together with forms and instructions: Provided, That rules

for the conduct of contested cases shall be those which

are promulgated by the chief administrative law judge

pursuant to RCW 34.04.022. as now or hereafter

amended.

(2) To assist interested persons dealing with it, each

agency shall adopt as a rule a description of its organization, stating the general course and method of its operations and the methods whereby the public may obtain

information and make submissions or requests. No person may be required to comply with agency procedure

not adopted as a rule as herein required.

(3) To the extent not prohibited by federal law or

regulation, nor prohibited for reasons of confidentiality

by state law, each agency shall keep on file for public

inspection all final orders, decisions, and opinions in

contested cases and any digest or index to those orders,

(0. ;W.04 RCW-p 21

decisions, or opinions prepared by the agency for its own

use. No agency order, decision, or opinion is valid or effective against any person, nor may it be invoked by the

agency for any purpose. unless it is available for public

inspection as herein required. This provision is not applicable in favor of any person who has actual knowledge thereof. [1981 c 67 § 13; 1967 c 237 § 2; 1959 c

234 § 2.]

Effecti,e dates--:--Severability--1981 c 67: See notes following

RCW 34.12.010. .

RCW 34.04.022 Uniform procedural rules--Application--Conduct of contested cases. On or before

July I, 1967, the code reviser shall add to Title I of the

Washington Administrative Code a new chapter to be

known as chapter 1-08 WAC--Uniform Procedural

Rules, which shall become effective July I, 1967, and

shall govern the administrative practice and procedure in

and before all agencies which have not adopted comprehensive rules of practice and procedure prior to that

date. Except for the numbering thereof, such rules shall

be identical with the rules contained in WAC 308-08-

010 through 308-08-590 as the same existed on January

3, 1966; Provided. That in publishing chapter 1-08

WAC the reviser may revise such terms as are used in

chapter 308-08 WAC to describe "agency", "department", "board", "commission", and like terms, so as to

enable the use of such rules by multiple agencies.

The chief administrative law judge shall promulgate

uniform procedural rules governing the conduct of contested cases. The rules may consist of, may be based

upon, or may completely replace the rules codified in

chapter 1-08 WAC as of June 30, 1981. From time to

time thereafter the chief administrative law judge may

modify the uniform procedural rules.

The chief administrative law judge may adopt rules

with variations from the uniform rules for an agency if

the chief administrative law judge determines there are

sufficient demonstrable needs for variations. Variations

shall, to the greatest practicable extent, embody the uniform rules of practice and procedure. [1981 c 67 § 14;

1967 c 237 § 12.]

Effective dates---Severability--1981 c 67: See notes following

RCW 34.12.010.

RCW 34.04.025 Notices of intention to adopt

rules-Opportunity to submit data--Proceedings on

rule barred until twenty days after register distribution--Noncompliance, effect. (I) Prior to the adoption, amendment, or repeal of any rule. each agency

shall:

(a) File notice thereof with the code reviser in accordance with RCW 34.08.020( I) for publication in the

state register, and with the rules review committee, and

mail such notice to all persons who have made timely

request of the agency for advance notice of its rulemaking proceedings. Such notice shall also include (i)

reference to the authority under which the rule is proposed, (ii) a statement of either the terms or substance

of the proposed rule or a description of the subjects and

issues involved, and (iii) the time when. the place where,

(1983 Laws)

.-.....-'
_, ..:1

Administrative Procedure Act 34.04.030

.:~:>:.

,;~l@~;

,--.'

and the manner in which interested persons may present

their views thereon;

. (b) Afford. all interested persons reasonable opportunItY. to submit data, views, or arguments, orally or in

wntI.ng. In case of substantive rules, opportunity for oral

hearing must be granted if requested by twenty-five

persons, by a governmental subdivision or agency, by the

rules review committee, or by an association having not

less than twenty-five members.

(2) The agency shall make every 'effort to insure that

the infor~ation on the proposed rule circulated pursuant

to subsection (I )(a) of this section accurately reflects the

r...;c to be presented and discussed at any oral hearing on

such rule. Where substantial changes in the draft of the

proposed rule are made after publication of notice in the

register which would render it difficult for interested

persons to properly comment on the rule without further

notice, new notice of the agency's intended action as

provided in subsection (I )(a) of this section shall be

required.

(3) The agency shall consider fully all written and

oral submissi~ns respecting the proposed rule including

thos~ ad~r~sslng .the question of whether the proposed

rule IS within the Intent of the legislature as expressed by

the statute which the rule implements, and may amend

the propose~ rule at the oral hearing or adopt the propos~ rule, If there are no substantial changes, without

r~fihng the notice required by this section. Upon adopnon of a rule, the agency, if requested to do so by an interested person either prior to adoption or within thirty

days thereafter, shall issue a concise statement of the

pri~cipal re~so~s for and against its adoption, incorpor~tlng therein ItS reasons for overruling the considerations urged against its adoption.

(4) No proceeding may be held on any rule until

twenty days have passed from the distribution date of

the register in which notice thereof was contained. The

code rev.is~r shal.1 make provisions for informing an

agency givmg notice under subsection (I) of this section

of the distribution date of the register in which such notice will be published.

. (5) No rule hereafter adopted is valid unless adopted

In substantial compliance with this section, unless it is an

emergency rule designated as such and is adopted in

substantial compliance with RCW 34.04.030, as now or

hereafter amended. In any proceeding a rule cannot be

contested on the ground of noncompliance with the proc~dural requirements of RCW 34.08.020( I), of this secnon, or of RCW 34.04.030, as now or hereafter

amended, after two years have elapsed from the effective

date of the rule. [1982 c 221 § 1; 1981 c 324 § 3; 1977

ex.s. c 240 § 7; 1971 ex.s, c 250 § 17; 1967 c 237 § 3.]

Legislative affirmalion---Severabilily-1981 c 324: See notes

following RCW 34.04.010.

Effective dale-1977 ex.s. c 240: See note following RCW

34.08.010.

M'enbllity-t977 ex.s. c 240: See RCW 34.08.910.

Construcllon-......Severabllity-197I ex.s. c 2SO: See RCW 42-

..10.910.42.30.920.

Agency duties and options when adopting rule affecting small business:

RCW 19.~5.030.

(1983 Laws)

Small business economic impact slatemenl-Purpose-Contents:

RCW 19.85.040.

RCW 34.04.026 Specific reference to rule-making

authority to be included--Alternatives--Format--Request for more specific reference. (I) In addition to the provisions of RCW 34.04.025( 1)(a)(i),

every agency shall incorporate the most specific, but in

no case omit all, of the following language alternatives

when adopting or amending rules:

(a) The most specific reference shall be to a section of

law which the rule is implementing, and shall be quoted

as follows: "This rule is promulgated pursuant to RCW ._ ______________ and is intended to administratively

Implement that statute."

(b) The next specific reference, and one which shall

be used only if paragraph (a) of this subsection is not

applicable, shall be to that portion of an act which directs an agency to adopt rules and regulations as necessary to implement the act, and shall be quoted as

follows: "This rule is promulgated pursuant to RCW _____ which directs that the (agency) has

authority to Implement the provisions of (name of act or

RCW citation)."

(c) The least specific reference, and one which shall

be used only if paragraphs (a) and (b) of this subsection

are not applicable, is one which indicates that the rule is

pro~u)gated. unde~ the agency's broad rule-making authonty--elther In the agency enabling legislation or

chapter 34.04 RCW, and shall be quoted as follows:

"This rule is promulgated under the general rule-rnak-.

ing authority of t~e (agency) as authorized in RCW

(2) T~e code reviser is directed to develop a format.

for p~acmg such specific language in each rule, and{

agencies shall then comply with the code reviser's direc-t

tion, and shall include the same in the final rule. .

(3) During the promulgation hearings process the

public may question whether such rule should have a

more specific reference, and the agency shall, pursuant

to RCW 34.04.025( I)(b), give considera tion to such requests. [1977 c 19 § 2.]

Agency. plan to review all rules affecting industry and businesses

Iherem--Scope-Faclors applicable upon rule review-Annual list of rules 10 be reviewed: RCW 19.85.050.

RCW 34.04.027 Failure to give twenty days notice

of intended action--Effect. When twenty days notice

of intended action to adopt, amend or repeal a rule has

not been filed with the code reviser, as required in RCW

34.04.025, the code reviser shall not publish such rule

and such rule shall not be effective for any purpose.

[1967 c 237 § 4.]

RCW 34.04.030 Emergency rules and amendments.

If the agency finds that immediate adoption or amendmen~ of a rule is necessary for the preservation of the

public health. safety, or general welfare, and that observance of .thc requirements of notice and opportunity to

present vle:-vs. on the proposed action would be contrary

to th.e pubhc interest. the agency may dispense with such

requirements and adopt the rule or amendment as an

leb. 34.04 RCW-p 31
34.04.030 Administrative Procedure Act

. emergency rule or amendment. The agency's finding and

a concise statement of the reasons for its finding shall be

incorporated in the emergency rule or amendment as

filed with the office of the code reviser under RCW 34-

.04.040 and with the rules review committee. An emergency rule or amendment may not remain in effect for

longer than ninety days after filing. This section does not

relieve any agency from compliance with any law requiring that its permanent rules be approved by designated persons or. bodies before they become effective.

[1981 c 324 § 4; 1977 ex.s, c 240 § 8; 1959 c 234 § 3.)

Legislative amrmatlon----Se~erabilily-I981 c 324: See notes

following RCW 34.04.010.

Effecthe date--1977 ex.s. c 240: See note following RCW

34.08.010.

8eYerablIity-1977 ex.s. c 240: See RCW 34.08.910.

RCW 34.04.040 Rules filed with code reviser--

Register--Effective dates-Report. (I) Each agency

shall file forthwith in the office of the code reviser a

certified copy of all rules now in effect and hereafter

adopted, except the rules contained in tariffs filed with

or published by the Washington utilities and transportation commission. The code reviser shall keep a permanent register of such rules open to public inspection.

(2) Emergency rules adopted under RCW 34.04.030

shall become effective upon filing. All other rules hereafter adopted shall become effective upon the expiration

of thirty days after the date of filing, unless a later date

is required by statute or specified in the rule.

(3) The code reviser shall report to each regular session of the legislature during an odd-numbered year on

the state of compliance of the agencies with this section.

For this purpose, all agencies shall supply the code reviser with such information as he may request. [1980 c

87§ II; 1959c234§4.)

RCW 34.04.045 Statement of proposed rule's purpose and how implemented--Contents--Distribution

by agency. (I) For the purpose of legislative review of

agency rules filed pursuant to this chapter, any proposed

new or amendatory rule shall be accompanied by a.

statement prepared by the adopting agency which generally describes the rule's purpose and how the rule is to

be implemented. Such statement shall be on the agency's

stationery or a form bearing the agency's name and shall

contain, but is not limited to, the following:

(a) A title, containing a description of the rule's purpose and any other information which may be of assistance in identifying the rule or its purpose;

(b) Citations of the statutory authority for adopting

the rule and the specific statute the rule is intended to

implement;

(c) A summary of the rule and a statement of the

reasons supporting the proposed action;

(d) The agency personnel, with their office location

and telephone number, who are responsible for the

drafting, implementation, and enforcement of the rule;

(e) The name of the person or organization, whether

private, public. or governmental, proposing the rule;

(aa. 34.04 RCW---1' 4J

(f) Agency comments or recommendations. if any,

regarding statutory language, implementation. enforcement, and fiscal matters pertaining to the rule;

(g) Whether the rule is necessary as the result of federal law or federal or state court action. and if so. a copy

of such law or court decision shall be attached to the

purpose statement;

(h) A copy of the small business economic impact

statement, where applicable.

(2) Upon filing notice of the proposed rule with the

code reviser, the adopting agency shall have copies of the

statement on file and available for public inspection and

shall forward three copies of the noticc and the statement to the rules review committee. [1982 c n 1 § 2;

1982 c 6 § 7; 1980 c 186 § 10; 1977 cx.s. c 84 § I.)

Se~erability-1982 c 6: See RCW 19.85.900.

Se~erability-1980 c 186: 'If any provision of this 1980 aCI or its

application to any person or circumstance is held invalid. the remainder of the act or the application of the provision to other persons or

circumstances is not affected .. [1980 c 186 § 29.1

Small business economic impact slatemenl-Purpose-Contents:

RCW 19.85.040.

RCW 34.04.048 Withdrawal of proposed rules. (I)

A proposed rule may be withdrawn by the proposing

agency at any time before adoption. A withdrawn rule

may not be adopted unless it is again proposed in accordance with RCW 34.04.025 as now or hereafter

amended.

(2) Rules not adopted within one year after publication of the text as last proposed in the register shall be

regarded as withdrawn. An agency may not thereafter

adopt the text of the rules without filing the text in accordance with. RCW 34.04.025 as now or hereafter

amended. The code reviser shall give notice of the withdrawal in the register. [1980 c 186 § 11.)

Se~erability-1980 c 186: See note following RCW 34.04.045.

RCW 34.04.050 Code reviser to compile and edit

rules, publish register--Removal of unconstitutional

rules--Distribution of registers and codes--County

law library trustees to maintain set--Judicial notice of

rules. (I) The code reviser shall. as soon as practicable

after March 23. 1960, compile and index all rules

adopted by each agency and remaining in effect. Compilations shall be supplemented or revised as often as

necessary and at least once every two years.

(2) The code reviser shall publish a register in which

he shall set forth the text of all rules filed during the

appropriate register publication period.

(3) The code reviser ma y. in his discret ion. am it from

the register or the compilation, rules, the publication of

which would be unduly cumbersome, expensive, or

otherwise inexpedient, if such rules are made available

in printed or processed form on application to the

adopting agency, and if such register or compilation

contains a notice stating the general subject matter of

the rules so omitted and stating how copies thereof may

be obtained.

(4) The code reviser may edit and revise rules for

publication, codification, and compilation, without

(1983 Laws)

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. ..: ...

.~.
Administrative Procedure Act 34.04.060

'-.... " ,

changing the meaning of any such rule, in accordance

with the provisions of RCW 34.04.052.

(5) When a rule, in whole or in part, is declared

invalid and unconstitutional by a court of final appeal.

the adopting agency shall give notice to that effect in the

register. With the consent of the attorney general, the

code reviser may remove obsolete rules or parts of rules

from the Washington Administrative Code when:

(a) The rules are declared unconstitutional bv a court

of final appeal; or -

(b) The adopting agency ceases to exist and the rules

are not transferred by statute to a successor agency.

(6) Registers and compilations shall be made available, in written form to (a) state elected officials whose

offices are created by ArticleIl or III of the state Constitution or by RCW 48.02.0 I 0, upon request, (b) to the

secretary of the senate and the chief clerk of the house

for committee usc, as required, but not to exceed the

number of standing committees in each body, (c) to

county boards of law library trustees and to the Olympia

representatives of the Associated Press and the United

Press International without request, free of charge, and

(d) to other persons at a price fixed by the code reviser.

(7) The board of law library trustees of each county

shall keep and maintain a complete and current set of

registers and compilations for use and inspection as provided in RCW 27.24.060.

(8) Judicial notice shall be taken of rules filed and

published as provided in RCW 34.04.040 and this section. [1982 1st ex.s. c 32 § 7; 1980 c 186 § 12; 1977 ex.s.

c 240 § 9; 1959 c 234 § 5.]

Senrabillty-I980 c 186: See note following RCW 34.04.045.

Effective date-1977 ex.s, c 240: See note following RCW

34.08.010.

Senrability-1977 ex.s. c 240: See RCW 34.08.910.

RCW 34.04.052 Scope of editing and revision of

rules. Subject to such general policies as may be promulgated by the statute law committee and to the general supervision of the committee, the code reviser shall

edit and revise agency rules for consolidation into the

Washington Administrative Code, to the extent deemed

necessary and desirable by the reviser and without

changing the meaning of any such rule, in the following

respects only:

(I) Make capitalization uniform with that followed

generally in the Washington Administrative Code;

(2) Make chapter or section division and subdivision

designations uniform with that followed in the

Washington Administrative Code;

(3) Rearrange any misplaced material, incorporate

any omitted material as well as correct manifest errors

in spelling, manifest clerical or typographical errors, or

errors by way of additions or omissions;

(4) ~orrect manifest errors in references, by chapter

or section number. to other laws or rules;

(5) Corre~t manif~st errors or omissions in numbering

or renumbering sections of the Washington Administrative Code;

(6) Strike provisions manifestly obsolete. [1980 c 186

§ 13.]

(1983 Laws)

Severability-I980 c 186: See note following RCW 34.04.045.

RCW 34.04.055 Regulations on filing and form of

rul~s and notices. The code reviser may prescribe regulat~ons for carrying out the provisions of this chapter relating to the filing and publication of rules and notices of

intention to adopt rules. including the form and style to

be employed by the various agencies in the drafting of

such rules and notices. [1967 c 237 § 13.]

RCW 34.04.057 Style, format, and numbering of

rules--Agency compliance. After the rules of an

agency have been published by the reviser:

(I) All agency orders amending or rescinding such

rules. or creating new rules. shall be formulated in accordance with the style. format, and numbering system

of the Washington Administrative Code. and

(2) Any subsequent printing or reprinting of such

rules shall be printed in the style and format (including

the numbering system) of such code. [1967 c 237 § 14.]

RCW 34.04.058 Format and style of rules amending

existing sections, adding new sections--Effect of failure to comply. (I) Rules promulgated by an agency pursuant to RCW 34.04.025 or 34.04.030, as now or

hereafter amended, which amend existing sections of the

administrative code shall have the words which are

amendatory to such existing sections underlined. Any

matter to be deleted from an existing section shall be

indicated by setting such matter forth in full, enclosed

by double parentheses. and such deleted matter shall be

lined out with hyphens. In the case of a new section,'

such shall be designated "NEW SECTION" in upper

case type and such designation shall be underlined, but

the complete text of the section shall not be underlined'<

No rule may be forwarded by any agency to the code!

reviser, nor may the code reviser accept for filing any

rule unless the format of such rule is in compliance with

the provisions of this section.

(2) Once the rule has been formally adopted by the

agency the code reviser need not, except with regard to

the register published pursuant to RCW 34.04.050(2),

include the items enumerated in subsection (I) of this

section in the official code.

(J) Any addition to or deletion from an existing code

section .not filed by ~he ag~ncy in the style prescribed by

subsection (I) of this section shall in all respects be ineffectual. and shall not be shown in subsequent publications or codifications of that section unless the

ineffectual portion of the rule is clearly distinguished

an~ an ~xplanatory note is appended thereto by the code

reviser to accordance with RCW 34.04.050, as now or

hereafter amended, and RCW 34.04.052. [1980 c 186 §

14; 1977 c 19 § I.]

Severability-1980 c 186: See note following RCW 34.04.045.

RCW 34.04.060 Petition for adoption, amendment,

repeal of. ~ule--Agency action. Any interested person

may petition an agency requesting the promulgation,

amen~ment, or repeal of any rule. Each agency shall

prescribe by rule the form for such petitions and the

ICb. 34.04 RCW~ 51

".'
34.04.060

."--.

Administrative Procedure Act

.;-,

procedure for their submission, consideration. and disposition. Within thirty days after submission of a petition.

or at the next meeting of the agency if it does not meet

within thirty days. the agency shall formally consider the

petition and shall within thirty days thereafter either

deny the petition in writing (stating its reasons for the

denial) or initiate rule-making proceedings in accordance with RCW 34.04.025. [1967 c 237 § 5; 1959 c 234

§ 6.]

RCW 34.04.070 Declaratory judgment on validity of

rule---Small business economic impact statement action as part of record. (I) The validity of any rule may

be determined upon petition for a declaratory judgment

thereon addressed to the superior court of Thurston

county, when it appears that the rule, or its threatened

application, interferes with or impairs or immediately

threatens to interfere with or impair. the legal rights or

privileges of the petitioner. The agency shall be made a

party to the proceeding. The declaratory judgment may

be rendered whether or not the petitioner has first requested the agency to pass upon the validity of the rule

in question.

(2) In a proceeding under subsection (I) of this section the court shall declare the rule invalid only if it

finds that it violates constitutional provisions or exceeds

the statutory authority of the agency or was adopted

without compliance with statutory rule-making

procedures.

(3) A petition for a declaratory judgment pursuant to

this section may not be solely based on the contents of

the smal1 business economic impact statement. However,

in the case of a petition for a declaratory judgment as to

the validity of any rule which is adopted after June 10,

1982, and which is based on grounds other than the

contents of the small business economic impact statement, the compliance or noncompliance by the agency

with the provisions of this chapter and where applicable

the small business economic impact statement shall constitute part of the whole record of the agency's action in

connection with the petition. [1982 c 6 § 8; 1959 c 234 §

7.]

Seyerabllity-1982 c 6: See RCW 19.85.900.

Small business economic impact statement-Purpose-Contents:

RCW 19.85.040.

RCW 34.04.080 Declaratory ruling by agency--

Petition---Court review. On petition of any interested

person, an agency may issue a declaratory ruling with

respect to the applicability to any person. property, or

state of facts of any rule or statute enforceable by it. A

declaratory ruling. if issued after argument and stated to

be binding, is binding between the agency and the petitioner on the state of facts alleged. unless it is altered or

set aside by a court. Such a ruling is subject to review in

the superior court of Thurston county in the manner

hereinafter provided for the review of decisions in contested cases. Each agency shall prescribe by rule the

form for such petitions and the procedure for their submission, consideration', and disposition. [1959 c 234 § 8.]

leb. 34.04 RCW...., 61

RCW 34.04.090 Contested cases--Notice--

Hearing--8ummary orders--Informal disposition--Record--Findings of fact--Agency's powers. (I) In any contested case all parties shall be

afforded an opportunity for hearing 'after not less than

twenty days' notice; but no hearing shall be required

until the hearing is demanded unless other statutory

provisions or agency rules provide otherwise. The notice

shall include:

(a) A statement of the time, place and nature of the

proceeding;

(b) A statement of the legal authority and jurisdiction

under which the hearing is to be held:

(c) A reference to the particular sections of the statutes and rules involved;

(d) A short and plain statement of the matters asserted. If the agency or other party is unable to state the

matters in detail at the time the notice is served, the initial notice may be limited to a statement of the issues

involved. Thereafter upon request a more definite and

detailed statement shall be furnished.

(2) Opportunity shall be afforded all parties to respond and present evidence and .argument on all issues

involved.

(3) An agency may provide by rule for entry of summary orders in part or in whole after notice and hearing

to all parties. The motion shall be granted if the pleadings, dispositions and admissions on file, together with

the affidavits, if any, show there is no genuine issue as to

any material fact and that the moving party is entitled

to the order as a matter of law.

(4) Unless precluded by law, informal disposition may

also be made of any contested case by stipulation,

agreed settlement, consent order, or default.

(5) The record in a contested case shall include:

(a) All pleadings, motions, intermediate rulings;

(b) Evidence received or considered;

(c) A statement of matters officially noticed:

(d) Questions and offers of proof, objections. and ruling thereon;

(e) Proposed findings and exceptions;

(f) Any decision, opinion, or report by the officer presiding at the hearing.

(6) Oral proceedings shall be transcribed for the purposes of agency decision pursuant to RCW 34.04.110, as

now or hereafter amended, rehearing, or court review. A

copy of the record or any part thereof shall be transcribed and furnished to any party to the hearing upon

request therefor and payment of the reasonable costs

thereof.

(7) Findings of fact shall be based exclusively on the

evidence and on matters officially noticed.

(8) Each agency shall adopt appropriate rules of procedure for notice and hearing in contested cases.

(9) Agencies, or their authorized agents, may:

(a) Administer oaths and affirmations, examine witnesses. and receive evidence. and no person shall be

compelled to divulge information which he could not be

compelled to divulge in a court of law,

(b) Issue subpoenas as provided in RCW 34.04.105,

(1983 Laws)

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Administrative Procedure Act 34.04.105

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(c) Rule upon offers of proof and receive relevant

evidence,

(d) Take or cause depositions to be taken pursuant to

rules promulgated by the agency, and no person shall be

compelled to divulge information which he could not be

compelled to divulge by deposition in connection with a

court proceeding,

(e) Regulate the course of the hearing,

(f) Hold conferences for the settlement or simplification of the issues by consent of the parties,

(g) Dispose of procedural requests or similar matters,

(h) Issue summary orders,

(i) Make decisions or proposals for decisions pursuant

to RCW 34.04.110,

U) Take any other action authorized by agency rule

consistent with this chapter. [1980 c 31 § 1; 1967 c 237

§ 9; 1959 c 234 § 9.]

RCW 34.04.100 Contested cases--Rules of evidence--Cross-examination. In contested cases:

(I) Agencies, or their authorized agents, may admit

and give probative effect to evidence which possesses

probative value commonly accepted by reasonably prudent men in the conduct of their affairs. They shall give

effect to the rules of privilege recognized by law. They

may exclude incompetent, irrelevant, immaterial, and

unduly repetitious evidence.

(2) All evidence, including but not limited to records

and documents in the possession of the agency of which

it desires to avail itself, shall be offered and made a part

of the record in the case, and no other factual information or evidence shall be considered in the determination

of the case. Documentary evidence may be received in

the form of copies or excerpts, or by incorporation by

reference.

(3) Every party shall have the right of cross-examination of witnesses who testify, and shall have the right

to submit rebuttal evidence.

(4) Agencies, or their authorized agents, may take

notice of judicially cognizable facts and in addition may

take notice of general, technical, or scientific facts

within their specialized knowledge. Parties shall be notified either before or during hearing, or by reference in

preliminary reports or otherwise, of the material so noticed, and they shall be afforded an opportunity to contest the facts so noticed. Agencies, or their authorized

agents, may utilize their experience, technical competence, and specialized knowledge in the evaluation of the

evidence presented to them. [1959 c 234 § 10.]

RCW 34.04.105 Agency hearings and contested

cases--Hearings, oaths, subpoenas, evidence, witnesses--Contempt. (I) In order to determine the necessity or desirability of adopting. amending, repealing,

or otherwise revising a rule or proposed rule, agencies

may hold public hearings, subpoena witnesses. administer oaths, take the testimony of any person under oath,

and in connection therewith, require the production for

examination of any books or papers relating to the subject matter of contemplated regulation. Each agency

may make rules as to the issuance of subpoenas by the

tl983 Laws}

agency or its authorized agents. This subsection shall not

preclude the exercise of subpoena powers for investigative purposes granted agencies by other statutory

provisions.

(2) In any contested case after service of notice as reo

quired in RCW 34.04.090( I), as now or hereafter

amended, agencies, their authorized agents. and hearing

examiners hearing the case:

(a) Shall issue a subpoena upon the request of any

party and, to the extent required by agency rule, upon a

statement showing general relevance and reasonable

scope of the evidence sought: Provided, however, That

such subpoena may be issued with like effect by the attorney of record of the party to the contested case in

whose behalf the witness is required to appear, and the

form of such subpoena in each case may be the same as

when issued by the agency except that it shall only be

subscribed by the signature of such attorney;

(b) May issue a subpoena upon their own motion.

(3) The subpoena powers created by this section shall

be state-wide in effect.

(4) Witnesses in an agency hearing or contested case

shall be paid the same fees and allowances, in the same

manner and under the same conditions, as provided for

witnesses in the courts of this state by chapter 2.40

RCW and by RCW 5.56.010, as now or hereafter

amended: Provided, That the agency shall have the

power to fix the allowance for meals and lodging in like

manner as is provided in RCW 5.56.010, as now or

hereafter amended, as to courts. Such fees and allowances, and the cost of producing records required to be

produced by agency subpoena, shall be paid by the

agency or, in a contested case, by the party requesting

the issuance of the subpoena. ,

(5) If an individual fails to obey a subpoena, or obeys'

a subpoena but refuses to testify when requested concerning any matter under examination or investigation

at the hearing, the agency or attorney issuing the subpoena may petition the superior court of the county

where the 'hearing is being conducted for enforcement of

the subpoena. The petition shall be accompanied by a

copy of the subpoena and proof of service, and shall set

forth in what specific manner the subpoena has not been

complied with, and shall ask an order of the court to

compel the witness to appear and testify before the

agency. The court upon such petition shall enter an order directing the witness to appear before the court at a

time and place to be fixed in such order and then and

there to show cause why he has not responded to the

subpoena or has refused to testify. A copy of the order

shall be served upon the witness. If it appears to the

court that the subpoena was properly issued and that the

particular questions which the witness refuses to answer

are reasonable and relevant, and in the case of a rulemaking hearing that the requested appearance and testimony are necessary to secure information the expected

nature of which would reasonably tend to cause the

agency to exercise its rule-making authority, the court

shall enter an order that the witness appear at the time

and place fixed in the order and testify or produce the

required papers. and on failing to obey said order the

leb. 34.04 RCW-p 7)
34.04.105 Administrative Procedure Act

witness shall be dealt with as for contempt of court.

[i967 c 237 § 10.]

RCW 34.04.110 Contested cases--Procedure

when deciding officials have not heard or read evidence.

Whenever in a contested case a majority of the officials

of the agency who are to render the final decision have

not heard or read the evidence. the decision. if adverse to

a party to the proceeding other than the agency itself.

shall not be made until a proposal for decision. including

findings of fact and conclusions of law has been served

upon the parties, and an opportunity has been afforded

each party adversely affected to file exceptions and

present written argument to a majority of the officials

who are to render the decision. who shall personally

consider the whole record or such portions thereof as

may be cited by the parties. Oral arguments may be

heard in the discretion of the agency. [1959 c 234 § 11.]

RCW 34.04.115 Consultation by agency officer as to

issues. Except upon notice and opportunity for all parties

to be present or to the extent required for the disposition

of ex parte matters as authorized by law. no hearing examiner or agency or member of an agency presiding in a

contested case or preparing a decision. or proposal for

decision shall consult with any person or party on any

issue of fact or law in the proceeding. except that in analyzing and appraising the record for decision any

agency member or hearing examiner may (I) consult

with members of the agency making the decision, (2)

have the aid and advice of one or more personal assistants, (3) have the assistance of other employees of the

agency who have not participated in the proceeding in

any manner, who are not engaged for the agency in any

investigative functions in the same or any current factually related case and who are not engaged for the agency

in any prosecutory functions. [1967 c 237 § 11.]

RCW 34.04.120 Contested cases--Adverse decisions and orders--Findings and conclusions. Every decision and order adverse to a party to the proceeding,

rendered by an agency in a contested case, shall be in

writing or stated in the record and shall be accompanied

by findings of fact and conclusions of law. The findings

of fact shall consist of a concise statement of each fact

found upon each contested issue of fact. Parties to the

proceeding shall be notified of the decision and order in

person or by mail. A copy of the decision and order and

accompanying findings and conclusions shall be delivered or mailed to each party and to his attorney of

record, ifany. [1975 c 12 § I; 1959 c 234 § 12.]

RCW 34.04.130 Contested cases--Judicial review.

. (I) Any person aggrieved by a final decision in a contested case, whether such decision is affirmative or negative in form, is entitled to judicial review thereof only

under the provisions of ·this 1967 amendatory act. and

such person may not use any other procedure to obtain

judicial review of a final decision, even though another

procedure is provided elsewhere by a special statute or a

statute of general application. Where the agency's rules

ICh. 34.04 RCW-p 81

provide a procedure for rehearing or reconsideration,

and that procedure has been invoked, the agency decision shall not be final until the agency shall have acted

thereon.

(2) Proceedings for review under this chapter shall be

instituted by filing a petition in the superior court. at the

petitioner's option, for (a) Thurston county. (b) the

county of the petitioner's residence or principal place of

business. or (c) in any county where the property owned

by the petitioner and affected by the contested decision

is located. The petition shall be served and filed within

thirty days after the service of the final decision of the

agency. Copies of the petition shall be served upon the

agency and all parties of record. If a timely petition is

filed any party of record not filing or joining in the first

petition who wants relief from the decision must join in

the petition or serve and file a cross-petition within

twenty days after service of the first petition or thirty

days after service of the final decision of the agency,

whichever period of time is longer. The court. in its discretion, may permit other interested persons to

intervene.

(3) The filing of the petition shall not stay enforcement of the agency decision. Where other statutes provide for stay or supersedeas of an agency decision. it

may be stayed by the agency or the reviewing court only

as provided therein; otherwise the agency may do so, or

the reviewing court may order a stay upon such terms as

it deems proper. .

(4) Within thirty days after service of the petition. or

within such further time as the court may allow, the

agency shall transmit to the reviewing court the original

or a ·certified copy of the entire record of the proceeding

under review; but, by stipulation of all parties to the review proceeding, the record may be shortened. Any

party unreasonably refusing to stipulate to 'limit the

record may be taxed by the court for the additional

costs. The court may require or permit subsequent corrections or additions to the record when deemed

desirable.

(5) The review shall be conducted by the court without a jury and shall be confined to the record. except

that in cases of alleged irregularities in procedure before

the agency, not shown in the record, testimony thereon

may be taken in the court. The court shall. upon request,

hear oral argument and receive written briefs.

(6) The court may. affirm the decision of the agency

or remand the case for further proceedings; or it may

reverse the decision if the substantial rights of the petitioners may have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:

(a) in violation of constitutional provisions; or

(b) in excess of the statutory authority or jurisdiction

of the agency; or

(c) made upon unlawful procedure; or

(d) affected by other error of law; or

(e) clearly erroneous in view of the entire record as

submitted and the public policy contained in the act of

the legislature authorizing the decision or order; or

(f) arbitrary or capricious. [1977 ex.s. c 52 § 1; 1967

c 237 § 6; 1959 c 234 § 13.)

(1983 Laws)

0.

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Administrative Procedure Act 34.04.210

"Reviser's note: This 1967 amendatory act [1967 c 237] is codified

as RCW 34.04.010. 34.04.020. 34.04.022, 34.04.025. 34.04.027, 34-

.04.055. 34.04.057. 34.04.060. 34.04.090. 34.04.105, 34.04.115. 34.04-

.130. 34.04.150. 34.04.170. 34.04.901. 34.04.910. 34.04.921. 34.04.931.

34.04.940. 48.03.070. 48.04.010. 48.04.040. 48.04.090. 48.5],060. 66·

.08.150. and 82.32.130. Sections 21 and 22, chapter 237. Laws of 1967

(uncodified) were repealed by chapter 71. Laws of 1967 extraordinary

session.

RCW 34.04.133 Contested cases-Direct review

by court of appeals. The final decision of an administrative agency in a contested case under chapter 34.04

RCW may be directly reviewed by the court of appeals

upon certification by the superior court pursuant to this

section. An application for such direct review must be

filed with the superior court within thirty days of the

filing of the petition for review in superior court. The

superior court may certify a case for direct review only

if the judicial review is limited to the record of the

agency proceeding and the court finds that:

(I) Fundamental and urgent issues affecting the future administrative process or the public interest are involved which require a prompt determination;

(2) Delay in obtaining a final and prompt determination of such issues would be detrimental to any party or

the public interest;

(3) An appeal to the court of appeals would be likely

regardless of the determination in superior court; and

(4) The appellate court's determination in the proceeding would have significant precedential value. [1980

c 76 § I.]

RCW 34.04.135 Contested cases-Refusal of review by court of appeals. The court of appeals may

refuse to accept review of a case certified pursuant to

RCW 34.04.133. The refusal to accept such review is

not subject to further appellate review. notwithstanding

anything in Rule 13.3 of the Rules of Appellate Procedure to the contrary. [1980 c 76 § 2.]

RCW 34.04.140 Appeal to supreme court or court of

appeals. An aggrieved party may secure a review of any

final judgment of the superior court under this cha pter

by appeal to the supreme court or the court of appeals.

Such appeal shall be taken in the manner provided by

law for appeals from the superior court in other civil

cases. [1971 c 81 § 87: 1959 c 234 § 14.]

RCW 34.04.150 Exclusions from chapter or parts of

chapter. Except as provided under RCW 34.04.290. this

chapter shall not apply to the state militia. or the board

of prison terms and paroles. or any institution of higher

education as defined in RCW 288.19.020. The provisions of RCW 34.04.090 through 34.04.130 shall not

apply to the board of industrial insurance appeals or the

board of tax appeals unless an election is made pursuant

to RCW 82.03.140 or 82.03.190. The provisions of

RCW 34.04.090 through 34.04.130 and the provisions of

RCW 34.04.170 shall not apply to the denial. suspension. or revocation of a driver's license by the department of licensing. To the extent they are inconsistent

with RCW 80.50.140. the provisions of RCW 34.04.\30.

(1983 Laws)

34.04.\33. and 34.04.140 shall not apply to review of

decisions made under RCW 80.50.100. All other agencies. whether or not formerly specifically excluded from

the provisions of all or any part of the administrative

procedure act, shall be subject to the entire act. [1982 c

121 § 6; 1981 c 64 § 2: 1979 c 158 § 90; 1971 ex.s. c 57

§ 17; 197\ c 21 § r. \967 ex.s. c 71 § I; 1967 c 237 § 7;

1963 c 237 § I; 1959 c 234 § 15.]

Effective dates--Severability-1971 ex.s, c 57: See notes following RCW 288.19.010.

RCW 34.04.170 Provisions applicable to licenses

and licensing. (I) When a licensee has made timely and

sufficient application for the renewal of a license or a

new license with reference to any activity of a continuing

nature. an existing full. temporary. or provisional license

does not expire until the application has been finally determined by the agency. and, in case the application is

denied or the terms of the new license limited. until the

last day for seeking review of the agency order or a later

date fixed by order of the reviewing court.

(2) If the agency finds that public health, safety. or

welfare imperatively requires emergency action. and incorporates a finding to that effect in its order, summary

suspension of a license may be ordered pending proceedings for revocation or other action. These proceedings

shall be promptly instituted and determined. [1980 c 33

§ I; 1967 c 237 § 8.]

RCW 34.04.210 Joint administrative rules review

committee-Members--Appointment--

Terms-Vacancies. (I) There is hereby created a joint

administrative rules review committee which shall be a

bipartisan committee consisting of four senators and

four representatives from the state legislature. The senate members of the committee shall be appointed by the

president of the senate, and the house members of the

committee shall be appointed by the speaker of the

house. Not more than two members from each house

may be from the same political party. All appointments

to the committee arc subject to approval by the caucuses

to which the appointed members belong.

(2) The initial members of the committee shall be appointed as soon as possible after July 26, 1981, and shall

serve until the next regular session of the legislature

convenes in an odd-numbered year. Thereafter members

shall be appointed as soon as possible after the legislature convenes in regular session in an odd-numbered

year. and their terms shall extend until their successors

are appointed and qualified at the next regular session of

the legislature in an odd-numbered year or until such

members no longer serve in the legislature. whichever

occurs first. Members may be reappointed to a

committee.

(3) The president of the senate shall appoint the

chairperson in even-numbered years and the vice chairperson in odd-numbered years from among committee

membership. The speaker of the house shall appoint the

chairperson in odd-numbered years and the vice chairperson in even-numbered years from among committee

[eb. 34.04 RCW-p 9J

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34.04.210 Administrative Procedure Act

membership. Such appointments shall be made in January of each year as soon as possible after a legislative

session convenes,

(4) A vacancy on the committee shall be filled by appointment of a legislator from the same political party as

the original appointment. The appropriate appointing

authority shall make the appointment within thirty days

of the vacancy occurring. [1983 c 53 § I; 1981 c 324 §

5.]

Legislative .ffirmation---Severability--1981 C 324: See nOlCS

following RCW 34.04.010.

RCW 34.04.220 Review of proposed rules--Notice. Whenever a majority of the members of the rules

review committee determines that a proposed rule is not

within the intent of the legislature as expressed in the

statute which the rule implements, the committee shall

give the affected agency written notice of its decision.

The notice shall be given at least seven days prior to any

hearing scheduled for consideration of or adoption of the

proposed rule pursuant to RCW 34.04.025(1 )(a)(iii) as

now or hereafter amended. The notice shall include a

statement of the review committee's findings and the

reasons therefor. [1981 c 324 § 6.]

Legislative affirmation---Severability--1981 C 324: See notes

following RCW 34.04.010.

RCW 34.04.230 Review of existing rules--Notice--Hearing. (I) All rules required to be filed pursuant to RCW 34.04.040, and emergency rules adopted

pursuant to RCW 34.04.030 as now or hereafter

amended, are subject to selective review by the

legislature.

(2) If the rules review committee finds by a majority

vote of its members: (a) That an existing rule is not

within the intent of the legislature as expressed by the

statute which the rule implements, or (b) that the rule

has not been adopted in accordance with all applicable

provisions of law, the agency affected shall be notified of

such finding and the reasons therefor. Within thirty days

of the receipt of the rules review committee's notice, the

agency shall file notice of a hearing on the rule in question with the code reviser and mail notice to all persons

who have made timely request of the agency for advance

notice of its rule-making proceedings as provided in

RCW 34.04.025, as now or hereafter amended. The

agency's notice shall include the rules review committee's findings and reasons therefor, and shall be published in the Washington state register in accordance

with the provisions of chapter 34.08 RCW.

(3) The agency shall consider fully all written and

oral submissions regarding whether the rule in question

is within the intent of the legislature as expressed by the

statute which the rule implements and whether the rule

was adopted in accordance with all applicable provisions

of law. [1981 c 324 § 7.]

Legislative .ffirmation---Severability--1981 c 324: See notes

following RCW 34.04.010.

RCW 34.04.240 Committee objections to agency action-Statement in register and WAC. (I) Within

lOa. 34.04 RCW-p 101

seven days of an agency hearing held after notification

of the agency by the rules review committee pursuant to

RCW 34.04.220 or 34.04.230. the affected agency shall

notify the committee of its action on a proposed or existing rule to which the committee objected. If the rules

review committee determines, by a majority vote of its

members, that the agency has failed to provide for the

required hearings or notice of its action to the committee, the committee may file notice of its objections, together with a concise statement of the reasons therefor.

wit h the code reviser within t hirtv days of such

determination. . .

(2) If the rules review committee finds, by a majority

VOle of its members, that the proposed or existing rule in

question has not been modified. amended. withdrawn, or

repealed by the agency so as to conform with the intent

of the legislature, the rules review committee may,

within thirty days from notification by the agency of its

action, file with the code reviser notice of its objections

together with a concise statement of the reasons therefor. Such notice and statement shall also be provided to

the agency by the rules review committee.

(3) The code reviser shall publish the rules review

committee's notice of objection and statement of the

reasons therefor issued pursuant to subsection (I) or (2)

of this section in the Washington state register and shall

publish in the next supplement and compilation of the

Washington Administrative Code a reference to the

committee's objection and to the issue of the

Washington state register in which the full text thereof

appears.

(4) Such notice shall be removed from a rule published in the Washington Administrative Code if a subsequent adjudicatory proceeding determines that the rule

is within the intent of the legislature or was adopted in

accordance with all applicable laws, whichever was the

objection of the rules review committee. [1981 c 324 §

8.]

Legislative affirmation---Severability--1981 c 324: See notes

following RCW 34.04.010..

RCW 34.04.250 Recommendations and reports by

committee to legislature. (I) The rules review committee

may recommend to the legislature that the original enabling legislation serving as authority for the promulgation of any rule reviewed by the committee be amended

or repealed in such manner as the committee deems

advisable.

(2) The rules review committee shall report on its activities, including findings and recommendations with

respect to rule-making procedures of state agencies and

institutions of higher education. thirty days prior to the

convening of the regular session of the legislature in

1984. [1981 c 324 § 9.]

Legislative affirmation---Severabilily--1981 C 324: See notes

following RCW 34.04.010.

RCW 34.04.260 Review and objection procedures--No presumption established. It is the express

policy of the legislature that establishment of procedures

for review of administrative rules by the legislature and

(1983 Laws) ,6
!

Administrative Procedure Act

/'. .' ,

34.04.940

I

I

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···_l"~··

the notice of objection required by RCW 34.04.230(2)

and 34.04.240(2). in no way serves to establish a presumption as to the legality or constitutionality of a rule

in any subsequent judicial proceedings interpreting such

rules. [1981 c 324 § 10.)

Legislative affirmation--Seferability-1981 c 324: See notes

following Rc\V 34.04.010.

RCW 34.04.270 Agency review of own rules for

conformity with federal law. Each agency head shall be

responsible for conducting a review of the agency's rules

contained in the Washington Administrative Code in order to identify each rule which the agency head believes

was designed. in whole or in part. to conform to a federal law which. on or after January I. 1981.. has been

eliminated or changed in a manner which reduces or deletes the requirements or standards with which the rule

was designed to conform. For purposes of this section.

"federal law" includes federal statutes and federal rules

and regulations. [1982 c 221 § 3.]

RCW 34.04.280 Reports by agency to office of financial management--Compilation by office of financial management provided to legislative officers. (I) By

November I, 1982, and each year thereafter, each

agency shall provide the office of financial management

with a document containing: (a) A list citing the rules

identified pursuant to RCW 34.04.270 and the actions,

if any, taken by the agency head to change or eliminate

the rules; and (b) a list of those rules which cannot be

changed or eliminated without conflicting with the statutes authorizing, or dealing with, the rules and a list of

such statutes.

(2) The office of financial management shall compile

the documents submitted under subsection (I) of this

section and by January I, 1983, and each year thereafter, shall provide the compilation to the speaker of the

house of representatives and the president of the senate.

[1982 c 221 § 4.)

RCW 34.04.290 Application of RCW 34.04.270 and

34.04.280. RCW 34.04.270 and 34.04.280 apply to each

"agency" as defined in RCW 34.04.010. It also applies

to each agency exempted. in whole or in part, under

RCW 34.04.150. [1982 c 221 § 5.]

RCW 34.04.900 Severability--1959 c 234. If any

provision of this chapter or the application thereof to

any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of the

chapter which can be given effect without the' invalid

provision or application, and to this end the provisions of

this chapter are declared to be severable. [t 959 c 234 §

16.)

RCW 34.04.901 Se~'erability--1967 c 237. If any

provision of this 1967 amendatory act. or its application

to any person or circumstance is held invalid. the remainder of "this 1967 amendatory act, or the application of the provision to other persons or circumstances is

not affected. [1967 c 237 § 27.)

(1983 Laws)

"Refiser's Dote: For meaning of 'this 1967 amendatory act' see note

following RCW 34.04.130.

RCW 34.04,910 General repeal and saving.. All acts

or parts of acts. whether special or comprehensive in nature. which are inconsistent with the provisions of this

chapter. whether in the review procedures which they

establish or otherwise. are hereby repealed, but such repeal shall not affect pending proceedings. [1967 c 237 §

25; 1959 c 234 § 17.]

RCW 34,04.920 Effective dates--1959 c 234.

Sections 2. 3. 4. and 5 of this act shall take effect upon

the elapse of one year from the date of its enactment.

The other sections or this act shall take effect upon the

elapse of six months from the date of its enactment.

[1959 c 234 § 18.)

RCW 34,04.921 Effective date--1967 c 237.

·This act shall take effect on July I, 1967. [1967 c 237

§ 29.]

"Refiser's note: 'This act" see note following RCW 34.04.130.

RCW 34.04.930 Operation of chapter if in conflict

with federal law. If any part of this chapter shall be

found to be in conflict with federal requirements which

are a condition precedent to the allocation of federal

funds to the state, such conflicting part of this chapter is

hereby declared to be inoperative solely to the extent of

such conflict and with respect to the agencies directly

affected, and such findings or determination shall not

affect the operation of the remainder of this chapter in

its application to the agencies concerned. [1959 c 234 §

19.]

RCW 34.04.931 Operation of 1967 amendatory act

if in conflict with federal law. If any part of ·this 1967

amendatory act shall be found to be in conflict with

federal requirements which are a condition precedent to

the allocation of federal funds to the state, such conflicting part of ·this 1967 amendatory act is hereby declared to be inopera tive solely to the extent of such

conflict and with respect to the agencies directly affected, and such findings or determination shall not affect the operation of the remainder of this 1967

amendatory act in its application to the agencies concerned. [1967 c 237 § 26.)

"Reviser's note: For meaning of 'this 1967 amendatory act' see note

following RCW 34.04.130.

RCW 34.04.940 Savings--Authority of agencies

to comply with ehapter--Effect of subsequent legislation. Nothing in the Administrative Procedure Act shall

be held to diminish the constitutional rights of any person or to limit or repeal additional requirements imposed

by statute or otherwise recognized by law. Except 3S

otherwise required by law, all requirements or privileges

relating to evidence or procedure shall apply equally to

agencies and persons. Every agency is granted all authority necessary to comply with the requirements of the

Administrative Procedure Act through the issuance of

[Cb. 34.04 RCW-p III

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34.04.940

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( ': "

Administrative Procedure Act

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rules or otherwise. No subsequent legislation shall be

held to supersede or modify the provisions of the Administrative Procedure Act or its applicability to any

agency except to the extent that such legislation shall do

so expressly. [1967 c 237 § 24.)

1Cb. 34.04 RCW...., 111 (1983 Laws)

...,.:-....

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