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# Chapter371-08WAC PRACTICE AND PROCEDURE

DISPOSITIONOF SECTIONSFORMERLYCODIFIEDINTHIS CHAPTER



### WAC 371-08-005 Membership, function and jurisdiction. (I) Members. The pollution control hearings board (hereinafter board) is an independent agency of the state of Washington. composed of three members appointedby the governor.with the adviceand consentof the senate, for a term of six years. The members are to be qualified by experience or training in pertinent matters pertaining to the environment, and at least one membershall be a lawyer. and not more than two members shallbe of the same political party. (2) Function and jurisdiction. The function of this board is to provide an expeditious and efficient disposition ofappeals from the decisions and orders of the department of ecology (hereinafter department) or its

[Cb.371-08WAC-p I) WAC**371-O8~5** 371-08-010 371-08-015 371-08-020 371-08-030

37\-08-031 371-08-032 371-08-035**371..:o8~0 371-O8~5** 
371-08-050

37\-08-055 371-08--«i5 371-08-07\ 371-08-075 371-08-080 371-08-085

371-08-095 371-08-100

371-08-102 371-08-104 371-08-105 371-08-110 371-08-115 371':'{}8-120 371-08-125 371-08-130 371-08-131 371-08-132 371-08-135

371-08-140 371-08-144 371-08-150 371-08-155 371-08-156 371-08-160 371-08-163 371-08-165

371-08-175 371-011-lllO 371·011-·11l3 371-011-11l5 371-·011-11l6 371 -o8-11l7 .HI ·Oll·-Illll 37I-011-11l9

371-08-190 371-O11-195 371-08:"196' 371-08-200

371-08-201

371-08-205 371-08-210

(7/6/83) Membership. function andjurisdiction. Boardadministration-Officeof the board. Boardadministration-Meetingof the board. Boardadministration-Quorum. Board administration-Communicationswith the

board. Procedures applicable. Definitions. Appearanceand practicebefore the board-Persons

who may and may notappear. Appearanceand practicebefore the board-Appearance byrepresentative. Appearanceand practicebefore the board-No formal admission topractice. Appearance and practicebefore the board-Withdrawal orsubstitutionofrepresentatives. Appearanceand practicebefore the board-Conduct. Presiding officer-Powersand duties. Subpoenas. Appeals to the board-Contentsof notice ofappeal. Appeals to the board-Timefor filing appeals'. '. Appeals to the board-Dismissalofappealon JUrISdictional grounds. Appeals to the board-Cross-appeals. Appeals to the board-Correctionor amendmentof

notice. Appeals to the board-Responsivepleadings. Appeals to the board-s-Stays. Conferences-Twotypes. Conferences-Purposeof informal conferences. Conferences-Whenheld. Conferences-Agreementsat informalconferences. Conferences-Purposeofpreheatingconferences. Conferences--Whenheld. Conferences-Documentaryevidence. Conferences-Excerpts fromdocumentaryevidence. Conferences-Failure to supply prehearing

information. Conferences-Agreements at prehearingconferences. Procedures-Telephone. Hearings-Types of hearings. Hearings-Electionof type ofhearings. Hearings-Assignmentday-Time. Hearings-Noticeof hearing. Hearings-Briefs. Hearings-Continuances. hearing postponcmcntsand

dismissal. Hearings-v-Seuingsubsequcnt hearings. Hcarings-v-Proccdurcsat hearings. Hearings- Standardand scopeof review. Hcarings-Additionalevidence by presiding officer. Rulcs ofcvidencc-c-Adrnissibilitycriteria. Rules of evidence·-..Official notice·--Matlersof law. Rules ofevidence ..·Official notice--Material facts . Rulcs ofevidence--Tentative admission-Exclusion-Discontin uance-Objections. Disposition ofcontestedeascs--Definition. Disposition ofcontestedcascs-v-Reccrd. Disposition ofcontestedcases--Transcripts. Disposition ofcontestcdcases-Proposedand final decisions and orders.

. Disposition ofcontestedcases-Presentationof additional evidence. Disposition ofcontestedcases-Exceptions. Dispositionofcontestedcases-Finalitypfproposed decisions and orders. 371-08-215

371-08-220

371-08-230 371-08-235 371-08-240 371-08-245 371-08-250

371-08-225

371-08-260

371-{)8-O06

371-08-025

371-08-060

371-08-070

371-08-090

371-08-145

371-08-170

371-08-225 Disposition ofcontestedcases-Finaldecisions and orders. Appeals to the courts-Noticeof appeal to the superiorcourt. Appeals to the courts-Certificationof record. Computationof time.

. Petitions fordeclaratoryruling. Petitions for rule making. Review ofpermits underthe nationalpollutantdischargeelimination system. Review ofpermits issued under chapter 173-303

WAC. ApplicabilityofSEPAguidelines.

Public records. [Order, §371-08-o06,fiIed5/31/73.) Repealed by Order 74-3, filed 5/8/74. See chapter 371-12WAC. Board administration-Office of the clerk of the board. [Order75-1, § 371-08-025, filed 1/9/75; Order 70-1, § 371-08-025, filed 12/18/70.) Repealed by 81-17-055 (Order 82-1, Resolution 82-1), filed 8/18/8I. StatutoryAuthority: RCW 43.21 B.170. Presiding officer-Definition. [Order 70-1, § 371- 08-060, filed 12/18/70.) Repealed by Order 75-1, filed 1/9/75. Presiding officer-5ubstitution of presiding officer. [Order 70-1. § 371-08-070, filed 12/18/70.) Repealed byOrder75-1, filed 1/9/75. Appeals to the board-Granting the appeal. [Order 75-1, § 371-08-090, filed 1/9/75; Order 70-1, § 371-08-090. filed 12/18/70.) Repealed by 81-17- 055 (Order 82-1. Resolution 82-1), filed 8/18/8I. StatutoryAuthority: RCW43.21 B.170. Conferences-Applicability of superior court rules. [Order 75-1, § 371-08-145, filed 1/9/75; Order70- I, § 371-08-145. filed 12/18/70.} Repealed by 81- 17-055 (Order 82-1. Resolution 82-1). filed 8/18/8I. StatutoryAuthority: RCW43.21 B.170. Hearings-Continuances. [Order 70-1. § 371-08- 170. filed 12/18/70.] Repealed by Order 75-1, filed 1/9/75. Appeals to the courts-Noticeof Appeal to the court ofappeals. [Order75-1, § 371-08-225, filed 1/9/75; Order 70-1, § 371-08-225. filed 12/18/70.J Repealed byOrder77-1. filed 9/8/76. Laterpromulgation. see WAC 371-08-220.

### 371-08-005 Practiceand Procedure rr-;



### director; and from the decisions ofair pollution control boards or authorities established pursuant to chapter70- .94 RCW. when such orders and decisions concern matters within thejurisdiction of the board as provided in the actcreating it or any subsequent legislation (chapter 43.21B RCW). (a) Appeals will lie from theissuance, modification or termination of any permit or license issued by the department or air pollution control boards or authorities. including the issuance, modification, or termination of
waste disposal permits; the denial ofthe application for such permits, or the denial of an application for the modification ofthe termsofsuch permits. (b) The board also hasjurisdiction to hear and decide appeals from any person aggrieved by an orderissued by thedepartmentor bysuch airpollutioncontrol boards or authorities with respect to violations ofany law administered by the department or of any rule or regulation adopted by the department or by air pollution boards or authorities, inclusive of any variances which the department or air pollution boards and authorities may be authorized to grant, butexclusive ofappeals based upon claimed violations of their purely administrative rules and regulations. The board further has jurisdiction to hear and decide appeals from any person aggrieved by any final decision contained in the document issued by thedepartment pursuant to the Environmental Coordination Procedures Act, RCW 90.62.060(6). (c) This section is intended to be 

### general and informational only, and failure herein to list matters over which the board has jurisdiction at law shall not constitute any waiveror withdrawal whatsoever from suchjurisdiction. [Statutory Authority: RCW 43.21B.170. 81- 17-055 (Order 82-1, Resolution 82-1), 

### § 371-08-005. filed 8/18/81; Order75-1, 

### § 371-08-005, filed 1/9/75; Order70-1, § 371-08-005, filed 12/18/70.]

WAC 371-08-010 Board administration--Office of the board. The headquarters and principal office of the board is the Environmental Hearings Office, 4224 6th Avenue S.E.,'Building 2 Rowesix
, Mailstop: PY-21. Lacey, Washington. (Telephone No. (206) 459-6327). [Statutory Authority: RCW 43.21B.170. 81-17-055 (Order 82-1, Resolution 82-1). § 371-08-010. filed 8/18/81; Order 75-1. § 371-08-010. filed 1/9/75: Order 70-1. 

### § 37i-08-010. filed 12/18/7C.]

WAC 371-08-015 Board administration--Meeting ofthe board. The board shall meet in formal sessions at its principal office at 10:00 a.m. on the first Tuesday of each month; and shall meet at such other times and places as the board may designate. [Order 75-1, 

### § 371- 08-015, filed 1/9/75; Order 70-1. 

### § 371-08-015. filed 12/18/70.]
,

WAC 371-08-020 Board administration--Quorum. Twomembers ofthe board shall constitute aquorum for making orders or decisions. or for promulgating rules and regulations relating to its procedures, and may act although one position on the board be vacant (RCW 43.21B.090). One member or designated administrative



### IClt. 371-011 WAC-p 2) 

### law judge may hold hearings and take testimony when assigned by the board to so do. The findings of such member or administrative law judge shall not become final until approved by aquorum ofthe board. The law- . yer member shall be thechiefadministrative lawjudge. [Statutory Authority: RCW 43.21 B.170. 81-17-055 (Order 82-1. Resolution 82-1), § 371-08-020. filed 8/18/81: Order 75-1, 

### § 371-08-020. filed 1/9/75: Order 70-1. 

### § 371-08-020, filed 12/18/70.]

WAC 371-08-030 Board administration--Communications with the board. All written communications by parties pertaining to

### a particularcase, including requests for hearings on claimed violations of rules and regulations as specifically provided in RCW 43.21 B.120; notices of appeal from orders and decisions of the director and/or department: and applications and requests for relief of any kind, shall be filed with the board at its principal office in Lacey, Washington. Copiesof all such written communications shall be furnished to the department or other appropriate agency and to all other interested parties or their representatives of record, 'and the original filed with the board shall show thereon compliance with this requirement. [Statutory Authority: RCW 43.2IB.170. 81-17-055 (Order 82-1. Resolution 82-1), § 371-08-030, filed 8/18/81: Order 75-'1. § 371-08-030, filed 1/9/75: Order 70-1. § 371-08-030. filed 12/18/70.)

WAC 371-08-031 Procedures applicable. (1) The board shall be guided in procedural matters before it by chapter 371-08 WAC. Chapter 371-08 WAC specifically replaces the uniform proceduralrules chapter 1-08 WAC. exceptwhere specifically noted. (2) Insofar as applicable, and not in conflict with these rules. the statutes and rules regarding pretrial procedures in civil cases in the superior courts of this state shall be followed. Such rules shall include but shall not be limited to those rules pertaining to discovery of evidence by parties to civil actions. [Statutory Authority: RCW 43.2IB.170, 81-17-055 (Order 82-1, Resolution 82-1). 

### § 371-08-031, filed 8/18/81; Order 75-1. § 371-08-031, filed 1/9/75.)

WAC 371-08-032 Definitions. As used in' this chapter the following terms shall have the following meaning: (I) "Board" refers to and means the pollution control hearings board as described in WAC 371-08-005. Where appropriate, the term "board" also refers to the designated agents of the pollution control hearings board. (2) "Department" refers to andmeans the department ofecology. (3) "Presidingofficer" or "hearingofficer" shall mean any member ofthe board or any person who isassigned
to conduct a conference or hearing by the chairman or bythevice-chairmanineventoftl)echairman'sabsence. [Statutory Authority: RCW 43.21 B.170. 81-17-055 (Order 82-1, Resolution 82-1), 

### § 371-08-032. filed 8/18/81: Order 75-1, 

### § 371-08-032. filed 1/9/75.]

(7/6/83) ''..'<:'P'''''

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### ...

# -.'

### .'

Practiceand Procedure 

# ---.

371-08-065

WAC 371-08-035 Appearance and practice before the board--Persons who may and may not appear. No person may appear in a representative capacity before the board or itsdesignated hearingofficerotherthan the following:



### (I) Attorneys at law duly qualified and entitled to practice before the supreme court of the state of Washington. (2) Attorneys at law duly qualified and entitled to practice before the highest court of record ofany state, if the attorneys at law ofthe state of Washington are permitted to appear in a representative capacity before



### ..dministrativc agencies of such other state, and if not otherwise prohibited byourstate law. 

### (3) A bona fide officer, partneror 

### full time employee of an individual firm. association, partnership, corporation or local government unit who appears for such individual, firm, association, partnership, corporation or local government unit. (4) Legal interns admittedto practiceunderAPR 9of therulesofcourt may appearbeforetheboardunderthe conditions and limitations therein specified. 

### (5) No formeremployeeofthedepartmentor member of the attorney general's staff may, at any time after leaving the employment ofthe department or the attorney general, appear, except when permitted by RCW 

### 42.18.220, in a representativecapacityon behalfofother parties in a formal proceeding in which an active part as

a representative of the department was taken in the

same case or proceeding. [Statutory Authority: RCW 

### 43.218.170.81-17-055 (Order 

### 82-1, Resolution 

### 82-1), 

### § 371-08-035, filed 

### 8/18/81; Order 

### 75-1, 

### § 371-08- 035, filed 

### 1/9/75; Order**7~1,** § 

### 371-08-035, filed 

### 12/18/70.]

WAC 371-08-040 Appearance and practice before the board--Appearance by representative. (I) Appearances may be made on behalfofany party by his attorney orotherduly authorized representative as defined in WAC 

### 371-08-035, by (a) Filing a written notice of appearance containing the name ofthe party to be represented, and the name, address and telephone number of the representative, or by(b) Entering an appearanceat the time and place of a conference or hearing on the appeal, and notifying the presiding officerconducting the same ofthe party to be represented and the name. address and telephone number of the representative. (2) Copies ofevery written notice ofappearance shall be furnished by the representative to 311 other parties or their representatives ofrecord at the time the original is filed with the board.

(3) Unless the department notifies the board otherwise, the attorney general shall, in all appeals from decisions and orders of the department and director, be deemed to have entered appearance for the department. and shall be exempt from the requirements herein relating to the filing of written notices of appearance and to the furnishing of copies of same to other parties and theirrepresentatives.

(7/6/'631 

### (4) Thereafter all future notices and orders shall be served by the board upon such representative. Service upon the representative shall constitute service upon the party. [Statutory Authority: RCW 

### 43.218.170. 81-17- 055 (Order

### 82-1, Resolution 

### 82-1), 

### § 371-08-040, filed 

### 8/18/81; Order 

### 75-1. § 

### 371-08-040, filed 

### 1/9/75; Order 

### 70-1, 

### § 371-08-040, filed 

### 12/18/70.]

WAC 371-08-045 Appearance and practice before the board--No formal admission to practice. Duly authorized representatives shall be permitted to appear in proceedings before

### theboard withouta formal requestor admission to practice before the board. [Order 

### 75-1, 

### § 371-08-045, filed 

### 1/9/75; Order 

### 70-1, § 

### 371-08-045, filed 

### 12/18/70.]

WAC 371-08-050 Appearance and practice before theboard--Withdrawalorsubstitutionofrepresentatives. An attorney or other representative withdrawing from a

case shall immediatelyso notifytheboardandall parties of record in writing, or shall state such withdrawal on the record at a conference or hearing. Any substitution ofan attorneyor representativeshall be accomplished by written notification to the board and to all parties 

### of.: record, together with the written consentofthe prior attorney or representative, and if such consent cannot be obtained, a written statementofthe reasonthereforshall be supplied. [Statutory Authority: RCW 

### 43.2\8.170.' 81-17-055 (Order 

### 82-1, Resolution 

### 82-1), 

### § 37\-08- 050, filed 

### 8/18/81; Order 

### 75-1, § 371-08-050, filed'" 

### 1/9/75'; Order**7~1,** § 

### 371-08-050, filed 

### 12/18/70.] ,:!"

WAC 371-08-055 Appearance and practice 

### before.s: the board-Conduct. All persons appearing in a repre-.: sentative capacity in proceedings before the board**shall~;·** conform to the standards ofethical conduct required of attorneys before the courts ofWashington. Ifany such ;, person does not conform to such standard, the presiding officer may admonish or reprimand such person, or exclude such person from further participation in the pro- :. ceedings and adjourn the same, or report the matter to ' the board which may, in its discretion, after notice and hearing, take appropriate disciplinary action including, but not limited to, a letter ofreprimand, and refusal to permit such person to appear in a representative capacity in any proceeding before the board. [Statutory Authority: RCW 

### 43.218.170. 81-\7-055 (Order 

### 82-1, Resolution 

### 82-1), § 

### 371-08-055, filed 

### 8/18/81; Order 

### 75-1, § 

### 371-08-055. filed 

### 1/9/75; Order 

### 70-1, § 

### 371- Ol:i-055. filed 

### 12/18/70.1

WAC 371-08-065 Presiding officer--Powers and duties. It shall be the duty of the presiding officer to conduct conferences or hearings in cases assigned in an impartial and orderly manner. The presiding officer shall have the authority, subject to the other provisions ofthese rules: (I) Toadminister oaths and affirmations; (2) To issue subpoenas as provided in RCW 

### 34.04.105;

[eb. 371-08WAC-p3J

### 371-08-065 Practiceand Procedure "



### (3) To rule on all procedural matters. objections and motions;

.(4) To rule on all offers of proofand receive relevant evidence; (5) Tointerrogatewitnesses called bythe parties in an impartial manner to develop any facts deemed necessary to fairly and adequately decide the appeal; (6) To secure and present in an impartial manner such evidence, in addition to 

### that presented by the parties, as deemed necessary to fairly and equitably decide theappeal; (7) To take appropriate disciplinary action with respect to representatives ofparties appearing before the board; (8) To issue ordersjoiningother parties, on motion of any party, or 

### sua spontewhen itappears thatsuch other parties may have an interest in, or may be affected by, thc proceedings; (9) To consolidate appeals for hearing when such consolidation willexpeditedisposition of the appeals and avoid duplication of testimony and when the rights of the parties will not be prejudiced thereby; (10) To hold conferences for the settlement or amplification ofthe issues;

. (11) To take or cause to be taken depositions and interrogatories pursuant to these rules and to procedures available to litigants in civil cases in superior courts in thestateofWashington; (12) To cause to be submitted, written sworn statements as currently provided in WAC 1-08-470through 1-08-500;

(13) To regulatethecourseof the hearing; (14) To take any other action necessary and authorized by these rules and the law. [Statutory Authority: RCW 43.218.170. 81-17-055 (Order 82-1, Resolution 82-1), 

### § 371-08-065, filed 8/18/81; Order 75-1. 

### § 371-08-065, filed 1/9/75: Order 70-1, 

### § 371-08-065. filed 12/18/70.1

WAC 371-08-071 Subpoenas. (I) Issuance. Subpoenas may be issued by any member of the board. or presiding officer assigned to the case, or by the attorney of record. as provided in RCW 34.04.105. Each subpoena shall be subscribed with the signature of the issuing person. Parties desiring subpoenas to be signed by a person from the board shall make a showing ofgeneral relevance and reasonable scope of the testimony or evidence sought, and shall prepare the subpoenas for issuance, send them to the board's office for signature. and
upon return shall make arrangements for service. (2) Form. Every subpoena shall name the pollution control hearings board and the title of the proceedings. and shall command the person to whom it·is directed to attend and give testimony or produce designated books, documents, or things under that person's control at a specified timeand place. (3) Service. Service of subpoenas shall be made by delivering a copy of the subpoena to such person and tenderingon demand, where entitled to make such a demand, the fees for oneday's attendance and the mileage

(Cb.371-08WAC-p4) 

### allowed by law. All costs shall be paid by the party seeking the attendance of the witness

. (4) Proofofservice. The person serving the subpoena shall make proofof service by filing the subpoena and. the required return, affidavit or acknowledgement of service with the board or presiding officer of the case. Failure to make proofofservice does not affect the validity ofthe service. (5) Quashing. Upon motion made promptly (ator before the time specified in the subpoena for compliance) by the person to whom the subpoena is directed and upon notice to the party for whom the subpoena was issued. the boardor its presidingofficer may (a) quash, or (b) modify the subpoena if it is unreasonable or requires evidence not relevant to any matter in issue, or (c) condition denial of the motion upon just and reasonable conditions. (6) Geographical scope. Attendance of witnesses and production of evidence may be required from any place in the state of Washington, at any designated place of hearing. [Statutory Authority: RCW 43.218.170. X I 17--055 (Order 82-1, Resolution 82-1), § 371':"'08-071, filed 8/18/81.]

WAC 371:"'08-075 Appeals to the board--Contents ofnoticeofappeal. The noticeofappeal shall contain: ( I) The name, mailing address and telephone number ofthe appealing party, and of the representative, if any; (2) The appealing party's legal residence or principal place ofbusiness within the state; (3) A copy of the order or decision appealed from, and if the order or decision followed an application, a copy ofthe application; (4) A short and plain statement showing the grounds upon which the appealing party considers such order or decision to be unjust or unlawful, and if one of the grounds so asserted is failure to comply with RCW**4J.~** 

### 1C.030(2)(c) (SEPA), three copies of any environmental impact statement ifavailableto appellant: ()) The relief sought. including the specific nature and extent; (6) A statement that the appealing party has read till" notice and believes the contents to be true, followed by the party's signature and the signature of the representative. if any. If the appealing party is unavailable to sign the notice ofappeal. it may be signed by the representative. [Statutory Authority: RCW 43.218.170. 81- 17-055 (Order 82-1, Resolution 82-1), 

### § 371-08-075, filed 8/18/81: Order 75-1, § 371-08-075, filed 1/9/75; Order 70-1, 

### § 371-08-075. filed 12/18/70.]

WAC 371-08-080 Appeals to the board--Time for filing appeals. (I) Unless provided otherwise by law, the notice of appeal shall be filed within thirty days from the date the copy ofthe order or decision of the department or other agency or pollution control board (or authority) was communicated to the appealing party. The original and one copy of the notice of appeal shall be filed. by mail or otherwise, with the board. The date of filing shall be the date of actual receipt by the board. Receipt of an appeal shall be acknowledged; the date

(7/6/83) -**-~-**

### -
..

### Practiceand Procedure 371-08-115

stamp placed thereon shall be prima facie evidence of the date of receipt. The board may thereafter require additionalcopies to be filed. (2) If the appeal is of a decision or order of the department, one copy shall be

### filed. by mail or otherwise. with thedirector of ecology. If the decision ororder appealed from is made by another agency or an air pollution control board (orauthority). a notice ofappeal shall also be 

### filed with that agency or board (or authority). If the appeal involves a license or permit. a copy of the notice of appeal shall also bemailed to the holder thereof. [Statutory Authority: RCW 43.21B.170. 81-17-055 (Order 82-1. Resolution 82-1). § 371-08-080, filed 8/18/81; Order 75-1. § 

### 371-08-080. filed 1/9/75; Order 70-1. § 

### 371--08-080. filed 12/18/70.)

WAC371-08-085 Appeals to the board--Dismissal of appeal onjurisdictionalgrounds. Any party may challenge thejurisdictionof the board to hear an appeal on jurisdictional grounds. and the board may sua sponte raise thejurisdictional issue. The board may. when satisfied that it does not havejurisdiction. dismiss an appeal. [Order 75-1, § 

### 371-08-085. filed 1/9/75; Order 70-1, § 371-08-085. filed 12/18/70.)

WAC 371-08-095 Appeals to the board--Crossappeals. Within twenty days after a notice of appeal is received, interested parties may file a notice of crossappeal with the board which shall conform in all respects to the requirements for a notice of appeal. The cross-appellant shall be subject to the same rules as an appellant. unless the rule isclearly inapplicable. [Statutory Authority: RCW 43.21B.170. 81-17-055 (Order 82-1. Resolution 82-1). § 371-08-095. filed 8/18/81; Order 75-1. § 371-08-095, filed 1/9/75; Order 70-1. § 371-08-095. filed 12/18/70.)

WAC 371-08-100 Appeals to the board--Correction or amendment of notice. (I) If any notice ofappeal is found by the board to bedefective or insufficient. the board may require the party filing said notice ofappeal
tocorrect. clarify oramend the same to conform to the requirements of the statute and the board's rules. The board may refuse toschedule any conference or hearing thereon until compliancewith such requirements, or may issue an appropriate order which may include providing for dismissal of such appeal upon failure to comply within a specified time. (2) Prior to the scheduling of the hearing. the party appealing may amend the notice of appeal at any time; thereafter. such amendment may be made on such terms as the board or presiding officer may prescribe. and the presiding officermay. whendeemed necessary. injustice to all parties. require correction. clarification or amendment of a notice of appeal before allowing any hearing thereon to proceed. or may issue an orderrequiringsuch correction. clarification or amendment to be made within a specified time. and if such requirement is not complied with. the board may issue an appropriate order which may include dismissal of the appeal. [Statutory Authority: RCW 43.21 B.170. 81-17-055 (Order 82-1.

(7/6/H)) 

### Resolution 82-1), § 371-08-100, filed 8/18/81; Order 75-1, 

### § 371-08-100. filed 1/9/75; Order 70-1. 

### § 371- 08-100. filed 12/18/70.]

WAC 371-08-102 Appeals to the board--Responsive pleadings. Respondent(s) mayfile an answer to an appeal with the board and serve a copy thereof upon other parties within twenty days ofreceipt of the notice of appeal. or such further time that the board may allow. Answers shall generally conform to the requirements of a notice ofappeal. [Statutory Authority: RCW 43.2"18.170.81-17-055 (Order 82-1, Resolution 82-1). § 

### 371-08-102. filed 8/18/81.]

WAC 371-08-104 Appeals to the board--Stays. (I) The existing law relating to the staying ofappealed orders or decisions pending final determination by the board applies to pending matters. (2) In an appropriate case. a party may apply for a stay of an appealed order or decision. Written application for such stay must beclearlydesignated as.such in the title. preferably by a separatedocument. Thefactual and legal reasons for the granting of a stay shall be stated. and the application shall be supported byaffidavits, whereappropriate. Theoriginal applicationand one, copy shall be filed with the board. and one copy shall be served on the appropriate agency and permit holder (if such holderis not the moving party), if any. (3) Upon receipt of an application, the board 

### will schedule a hearing on the motion. If it appears that

## a' hearing on the merits and issues of the case should be: consolidated with the application for a stay. the board." willadvancethe hearing date on its owninitiative,or by' request of the parties. [Statutory Authority: RCW 43::",. .218.170. 81-17-055 (Order 82-1. Resolution 82-1**),§.~** 

### 371-08-104. filed 8/18/81.]

.

WAC 371-08-105 Conferences--Two types. Conferences shall be of two types: Informal and prehearing. [Order75-1. 

### § 371-08-105. filed 1/9/75;Order70-1. 

### § 371-08-105, filed 12/18/70.]

WAC 371-08-110 Conferences--Purpose of informal conferences. The purpose of an informal conference shall be to determine the feasibility of a settlement of the appeal. The presiding officer shall be present at the opening and closing of a scheduled informal conference. 1f it may facilitate an agreement or a settlement. the presiding officer may leave the conference from time to time. [Statutory Authority: RCW 43.21 B.170. 81-17- 055 (Order 82-1, Resolution 82-1), 

### § 371-08-110. filed 8/18/81; Order 75-1. § 371-08-110. filed 1/9/75; Order 70-1. § 371-08-110, filed 12/18/70.]

WAC 371-08-115 Conferences--Wbenheld. At any time prior to hearing on an appeal. any party thereto may file awritten application with the board, requesting

an informalconference. Theboard may thereupon, at its discretion, or any time on its own motion. order an informal conference on not less than seven days' notice mailed to each party to the appeal. at a time and place



### leb.371-08WAC-p5)371-08-115 

## rr-.

Practiceand Procedure

fixed by the board. At any time prior to hearing, the presiding officer to whom the case is assigned, may, pursuant to agreement of all parties, convene and preside at an informal conference at a time and place agreed upon. [Statutory Authority: RCW 

### 43.218.170. 81-17-055 (Order 

### 82-1. Resolution 

### 82-1), § 

### 371-08- 115, filed 

### 8/18/81: Order 

### 75-1, 

### § 371-08-115, riled 

### 1/9/75; Order

### 70-1, 

### § 371-08-115, filed 

### 12/18/70.1

WAC 371-08-120 Conferenees--Agreements at informal conferences. (I) All agreements reached at informal conferences shall be stated on the record by the presidingofficer and the parties shall indicate theirconcurrenceon the record. (2) 

### Ifan agreementconcerning final disposition ofthe appeal is reached by all the parties present or represented at a conference, an order may be issued in conformity therewith, providing the board finds said agreementis in accordancewith the law. (3) Ifthe board decides that the agreement is not in accordance with the law and the facts, it may schedule another informal conference, or direct that a prehearing conferencebe held. (4) If no agreement is reached by the parties as to final disposition of an appeal, a prehearing conference may thereupon be held. [Order 

### 75-1, 

### § 371-08-120, filed 

### 1/9/75; Order 

### 70-1, 

### § 371-08-120. filed 

### 12/18/70.]

WAC 371-08-125 Conferences--Purpose of prebearing conferences. The purpose of a prehearing conference shall be. to obtain a stipulation offacts to show the board's jurisdiction in the matter; to obtain agreement as to the issues of law and fact presented and the simplification or limitation thereof; to determine the necessity of amendments to the notice of appeal or other pleadings; to determine the possibility ofobtaining admissions of facts and authenticity of documents which will avoid unnecessary proof: to determine the admissibilityofexhibits; to obtain stipulation as to all or part of the facts in the case; to determine the limitation of the number of witnesses; to obtain information as to thenumberofexpert and lay witnesses expected to be called by the parties and their names when possible: to determine the approximate time necessary for the presentation of the evidence of the respective parties: and to obtain all other information which may aid in the prompt disposition of the appeal. [Order 

### 75-1. § 

### 371- 08-125, filed 

### 1/9/75; Order 

### 70-1, 

### § 371-08-125, filed 

### 12/18/70.]

WAC 371-08-130 Conferences--Whenheld. At any time prior to hearing on an appeal, any party thereto may file a written application with the board requesting

a prehearing conference. The board may, thereupon. at its discretion, or at any time on its own motion. order a prehearingconferenceon not less thanseven days' notice mailed to each party to the appeal. at a time and place fixed by the board. At any time prior to hearing, the



### leb.371..{)8WAC-p

### 61 presiding officer to whom the case is assigned. may, pursuant to agreement of all parties. convene and preside at a preheating conference at a time and place agreed upon. Such preheating conference may also be held immediately at the conclusion of an informal con-

.ference if time permits, or, at the discretion of the presiding officer, may be held at a latertimeon seven days' written notice to each party to the appeal. [Order 

### 75-1. 

### § 371-08-130, filed 

### 1/9/75; Order

### 70"':\.

### § 371-08-130, filed 

### 12/18/70.]

WAC 371-08-131 Conferences--Documentary evidence. (I) Theboardor its presidingofficermay require: (a) That all documentary evidence which is to be offered during the taking of evidence be identified at or prior to any prchearing conference. (b) That documentary evidence not identified, as required by subsection (I)(a), be excluded as evidence in the absence of a clear showing that the offering party had good cause for the failure to produce the evidence

sooner. (c) That the authenticity of all documents so presented and examined be deemed admitted unless written objection theretois filed priorto the hearing, except that

a party will be permitted to challenge such authenticity
at a later time upon a clear showing of good cause for failure to have filed such written objection. (2) The presiding officer may, upon findingsmadeon the record. limit the documentary evidence to that presented at any prehearing conference. For good cause shown any party may submit additional documentary evidence at the time of hearing. [Statutory Authority: RCW 

### 43.218.170. 81-17-055 (Order 

### 82-1, Resolution 

### 82-1). 

### § 371-08-131, filed 

### 8/18/81; Order 

### 75-1, 

### § 371-08-131, filed 

### 1/9/75.1

WAC 371-08-132 Conferences--Excerpts from documentary evidence. When only portions of a document are to be relied upon, the offering party shall prepare the pertinent excerpts, adequately identified, and shall supplycopies ofsuch excerpts to the presidingofficer and to the other parties. However, the whole of the original document shall be made available for examination and for use by all parties to the proceeding. [Statutory Authority:RCW 

### 43.21B.170. 81-17-055 (Order 

### 82-1. Resolution 

### 82-1), § 

### 371-08-132. riled 

### !l/18/81; Order 

### 75-1. 

### § 371-08-132. filed 

### 1/9/75.1

WAC 371-08-135 Conferences--Failure to supply prehearing information. If any party fails to supply the presiding officer at a prehearing conference the information reasonably necessary to aid the board inproperly scheduling hearings, the board or the presiding officer may suspend setting a hearing pending receipt of the required information, or may refuse to grant such party a continuance of the original hearing, or may otherwise restrict the time or location of hearing for receipt of such party's evidence. [Order 

### 75-1, 

### § 371-08-135, filed 

### 1/9/75; Order

### 70-1, 

### § 371-08-135, filed 

### 12/18/70.J

(7/6/83) ... -" ",



# '-IPracticeand Procedure 371-08-165

(3) In all cases, the chairman shall be consulted before assignments are finalized. [Statutory Authority: RCW 

### 43.218.170. 81-17-055 (Order 

### 82-1. Resolution 

### 82-1), § 

### 371-08-156, filed 

### 8/18/81; Order 

### 75-1, § 371-08-156, filed 

### 1/9/75.]

WAC 371-08-163 Hearings--Briefs. An original and three copies of written briefs. if filed, should be submitted to the board at least three days before the time ofhearing, or other such time as the board may prescribe. When briefs are filed, a copy shall also be served on the other parties or theirattorneys. The board may permit or require the filing of additional briefs. Proposed findings may be included with the briefs: [Statutory Authority: RCW 

### 43.218.170. 81-17-055 (Order 

### 82-1, Resolution 

### 82-1). 

### § 371-08-163, filed 8/18/81.] " WAC 371-08-160 Hearings--Noticeofhearing. (I·) Time. If the board schedules a hearing, it shall mail a written notice thereofto all parties not less than twenty days prior to the hearing date unless otherwise provided by law. (2) Contents. The notice shall identify the appeal to be heard, the names of the parties to the appeal and their representatives, if any, and shall specify the time and place ofhearing, and that the hearing is to be held pursuant to chapter 

### 43.218 RCW and chapter 

### 371-08 WAC. [Statutory Authority: RCW 

### 43.218.170. 81-17- 055 (Order

### 82-1, Resolution 

### 82-1), § 371-08-160, filed 

### 8/18/81; Order 

### 75-1. 

### § 371-08-160, filed 

### 1/9/75; Order

### 70-1, § 371-08-160, filed 

### 12/18/70.]

·'.A.

WAC 371-08-165 Hearings-Continuances, hearing:' postponements anddismissal. (1) Continuances. (a) 

### Pursuant toagreementsatprehearingconference. Ifagreementis reached at a prehearingconference, continuances shall be granted in accordance with such agreement and no written application therefor shall be required. (b) 

### Requestsprior to

### hearing. If, prior to the hearing date. a party is not able to fully present evidence at the scheduled hearing, such party shall file a written request for continuance with the board setting forth the reasons therefor as soon as such reasons are known and deliver copies to all other parties. (c) 

### Requestsat limeof

### hearing. Ifreasons requiring a continuance ofa hearing are not known in time to permit compliance with subsection (b) of this section, application therefor may be madeorally at the hearing. (d) 

### When granted. Applications for a continuance made pursuantto subsections (b) or (c) above shall only be granted upon a proper showing ofgood cause to prevent manifest injustice. In order to show •good cause," the party applying for a continuance becauseofthe unavailability ofa witness or witnesses shall show that due diligence was exercised in attempting to obtain the presence of such witnesses at the time set for hearing and the reasons for theirunavailability, and shall identifythe witnesses and explain, in substance, what the testimony of such witnesses would prove. In all cases in which a WAC 371-08-144 Proeedures--Telephone. Parties may agree to conduct any conferenceor hearing, or any part thereof. provided in these rules by telephone conferencecall. Upon a timely request. the board or its presidingofficer may schedulesuch conferenceor hearing if it appears to promote the fair, speedy and economical processing of a mailer compatible with this procedure. [Statutory Authority: RCW 

### 43.218.170. 81-17-055 (Order 

### 82-1, Resolution 

### 82-1), § 371-08-144, filed 

### 8/18/81.] WAC 371-08-140 Conferences--Agreements at prehearing conferences. At the conclusion ofa prchcaringconference. the presidingofficerconductingthesame shall state on the record the results thereof. The statement shall include the agreements of the parties concerning issues, admissions, witnesses. time and location of hearings. the issues remaining to be determined and othermatters that may expedite the subsequent hearing. The statement of agreement and issues, and rulings of the presiding officer, shall control the subsequentcourse of the proceedings, unless modified for good cause by subsequent order. [Order 

### 75-1, § 

### 371-08-140. filed 

### 1/9/75; Order

### 70-1, § 

### 371-08-140, filed 

### 12/18/70.]

WAC 371-08-155 Hearings--Election of type of bearings. In all appeals over which the board hasjurisdiction, the party taking the appeal may elect a formal

or informal hearing. 

### Ifdifferent parties appeal from the

sameorder and one elects a formal hearing,the hearing will be formal. If no party taking an appeal ofan order makes an election. the hearing will be informal. However, notwithstanding any election ofa party taking an appeal, the department or any air pollution control boardor authority may. within ten days afterreceivinga noticeofappeal. notify the boardof its intention that the hearing be formal and when such notice ofintention is filed. the hearing will'be formal. [Order 

### 75·-1, § 

### 371- OX ISS. filed 

### 1/9/75; Order 

### 70-1. § 371-0X-·155. filed 

### 12/IH/70.]

WAC 371-08-150 Hearings--Types of hearings. Thestatutecreatingthe boardcontemplates two kinds of hearings, informal and formal, without any indication as to whatthe distinction shouldbe, butwith verydifferent provisions for the review oforder entered. The procedures in conducting these two types ofhearings by the board shall be generally the same. [Order 

### 75-1, § 371- 08-150, filed 

### 1/9/75: Order 

### 70-1, 

### § 371-08-150, filed 

### 12/18/70.]

WAC 371-08-156 Hearings--Assignment day-- Time. (I) As a general rule, the board, or its designee. shallassign hearingdays forcases before it for review on the first Tuesday ofeach month: 

### Provided, That ifsuch day falls on a legal holiday. the assignment day shall be the next working day. The board in its discretion may makesuch assignments at other times. (2) The board or its designee may set prehearing conference dates at the same time and on the same conditions as that set out insubsection (I) above.

(7/6/83) (eb. 371-08WAC-p 7)371-08-165 Practiceand Procedure

request for continuance is granted. subsequent hearings shall be scheduled. (2) Hearing postponements. A postponement of a hearing may be requested by any party after receipt of the notice ofhearing: 

### Provided. That written objections

are filed within ten days of the receipt of such notice. Copies ofsuch request shall be served on all other parlies. Ifthe request isgranted. all parties shall be notified of the postponement. Requests for postponement not filed within the ten day period shall be granted only ill exceptional cases to prevent manifest injustice. In all cases in which a request for postponement is granted, subsequent hearings shall be scheduled in accordancewith WAC 371-08-175. (3) Dismissal. Ifthe appealing party fails to appear at the scheduled hearing and fails to obtain a continuance

or postponement as provided in this section, the appeal shall be dismissed except to prevent manifest injustice or unless such party can show good cause for such failure. Such showing shall be made in writing under oath and shall be filed with the board and copies delivered to all other parties not later than ten days after the mailing of the order ofdismissal. [Statutory Authority: RCW 43- .2IB.170. 81-17-055 (Order 82-1, Resolution 82-1), 

### § 371-08-165, filed 8/18/81: Order 75-1, 

### § 371-08-165. filed 1/9/75; Order 70-1. 

### § 371-08-165. filed 12/18/70.)

WAC 371-08-175 Hearings--Setting subsequent bearings. Any further hearings shall be scheduled in due

course at such time and placeas deemed proper by the board, the presiding officer or the chairman. [Statutory Authority: RCW 43.2IB.170. 81-17-055 (Order 82-1, Resolution 82-1), 

### § 371-08-175, filed 8/18/81; Order 75-1, 

### § 371-08-175, filed 1/9/75; Order 70-1, 

### § 371- 08-175, filed 12/18/70.]

WAC 371-08-180 Hearings--Procedures at hearings. (I) Presiding officer. All hearings shall be conducted by a presiding officer who shall conduct the hearing in an orderly manner and rule on all procedural
matters. objections and motions.

.(2)Testimony underoath. Oaths shall be administered by the presiding officer. 1\11 testimony to be considered by theboard shall be sworn, and each person shall swear (or affirm) that the testimony about to be given shall be the truth, the whole truth. and nothing but the truth. (3) Order of presentation of evidence. The presiding officer shall determine the proper order of presentation ofevidence. As a general rule. the appealing party shall initially introduce its evidence, except that in case of an appeal from an order assessing a penalty, the department (or airpollution board), shall initially introduce**~1I1** evidence necessary to its case. Rebuttal evidence will then be received. Witnesses may be called out of turn in contravention ofthis rule by agreement of all parties. (4) Opening statements. Unless the presiding officer rules otherwise, parties may present an oral opening
statement setting out briefly a statement of the basic facts, disputes, and issues ofthecase.

ICb.371-08WAC-p81 (5) Written statement of qualifications of expert witnesses. Any party who plans to introduce the testimony of any expert witness at the hearing shall submit as an exhibit to the board and all parties at the hearing a written statement of the qualifications, experience, and expertise ofeach such expertwitness. (6) Former employee as an expert witness. No former employee of the department shall. at any time after leaving the employment of the department. appear, exccpt when permitted by RCW 42.18.220, as an expert witness on behalfofother parties in a formal proceeding in which an active part in the investigation as a representative ofthe department was taken. (7) Objections and motions to strike. Objections to the admissionor exclusion ofevidence shall be inshort form, stating the legal grounds of objection relied upon, and the transcript shall not include extended argument or debate. (8) Rulings. The presidingofficer, on objection or 

### sua sponte. shall exclude all irrelevant or unduly repetitious evidence and all rulings upon objections to the admissibility of evidence shall be made in accordance with WAC 371-08-185 through 371-08-189. [Statutory Authority: RCW 43.21B.170. 81-17-055 (Order 82-1, Resolution 82-1). 

### § 371-08-180. filed 8/18/81: Order 7:;··1. § 371-08-180, filed 1/9/75: Order 70-1. § 371- OX-ISO. filed 12/18/70.1

WAC 371-08-183 Hearings--Standard and scope of review. (I) The board will apply the specific criteria provided by law in making its decision on each case. (2) Hearings shall be quasi-judicial in nature and shall be conducted de novo unless otherwise provided by law. [Statutory Authority: RCW 43.218.170. 81-17- 055 (Order 82-:-1,Resolution 82-1), 

### § 371-08-183, filed 8/18/81.)

WAC 371-08-185 Hearings--Additional evidence by presiding officer. The presidingofficer may, when all parties have rested, present such evidence. in addition to that presented by the parties, as deemed necessary to decide the appeal fairly and equitably. Any such evidence secured and presented by the presiding officer sha ll be presented in an impartial manner, and shall be received subject to full opportunity for cross-examination by all parties. If a party desires to present rebuttal

cvidcncc to any evidence so presented by the presiding officer. application shall be made therefor immediately following the conclusion ofsuch evidence. Such application shall be granted by assignment of a time and place for presentation of such rebuttal evidence. [Statutory Authority: RCW 43.2IB.170. 81-17-055 (Order 82-1, Resolution 82-1), § 371-08-185, filed 8/18/81; Order 75-1. § 371-08-185, filed 1/9/75: Order 70-1. § 371- 08-185. filed 12/18/70.)·

WAC 371-08-186 Rules of evidence--Admissibility criteria. Subject to the.otherprovisions ofthese rules, all relevant evidence is admissible which, in the opinion or the officer conducting the hearing, is the best evidence

(7/6/'(,3) .......

### - ..

### .'

Practiceand Procedure 

### 371-08-190

reasonably obtainable. having due regard for its necessity. availabilityand trustworthiness. Inpassingupon the admissibility of evidence. the officer conducting the hearing shall give consideration to. but shall not be bound to follow, the rules of evidence governing civil proceedings inmatters not involving trial byjury in the superiorcourtsof the stateofWashington. [Order75-1, § 371-08-186, filed 1/9/75.]

WAC 

### 371-08-187 Rules of evidence--Official notice--Mattersof law. The board and its hearingofficers, upon request made before or during a hearing. will officially notice: (I) Federal law. The Constitution; congressional acts, resolutions, records. journals and committee reports: decisions of federal courts and administrative agencies: executive orders and proclamations; and all rules, orders and notices published in the Federal Register. (2) State law. The Constitution of the state of Washington. acts of the legislature. resolutions. records. journals and committee reports: Decisions of administrative agencies of the state of Washington, executive orders and proclamations by the governor; and all rules. orders and notices filed with the code reviser. (3) Governmental organization. Organization. territorial limitations, officers, departments, and general administration of the government of the state of Washington. the United States. the several states and foreign nations. (4) Agencyorganization. Thedepartment. commission or board organization. administration. officers, personnel, official publications, and practitionersbefore its bar. (5) Rules of regional authorities. Rules or regulations of air pollution control boards or authorities established pursuant to chapter 70.94 RCW. when such rules or regulations are filed with the board pursuant to RCW 43.218.260. [Statutory Authority: RCW 43.21 B.170. 81-17-055 (Order 82-1. Resolution 82-1). § 

### 371-08- 187. filed 8/18/81; Order 75-1, § 371-08-187. filed 1/9/75.]

WAC 

### 371-08-188 Rules of evidence--Official notice--Materialfacts. In the absence ofcontroverting evidence. the board and its hearing officers, upon request made before or during a hearing. or in a proposed decision. mayofficially notice: (I) 

### Board proceedings. The pendency of, the issues and position of the parties therein, and the disposition of any proceeding then pending before or theretofore concluded by the board; (2) Business customs. General customs and practices followed in the transaction ofbusiness:

(]) Notorious facts. facts so generally 

### and widely known to all well-informed persons as not to be subject
toreasonabledispute,or specific facts which arc capable of immediate and accurate demonstration by resort to accessible sources of generally accepted authority, including but not exclusively, facts stated in any publication authorized or permitted by law to be made by any federal orstateofficer. department. or agency;

(7/6/83) 

### (4) Technical knowledge. Matters within the technical knowledge ofthe board as a body ofexperts, within the scope or pertainingto the subjectmatterof its statutory. duties. responsibilitiesorjurisdiction; (5) Requestor suggestion. Any party may request, or the presiding officermay suggest. that official notice be takenof a material fact. which shall be clearly and precisely stated. orally on the record. at any prehearing conference or oral hearing or argument, or may make such request or suggestion by written notice, any pleading, motion. memorandum, or briefserved upon all parties, atany timepriorto a final decision; (6) Statement. Where an initial or final decision of the boardrestsin whole or inpartupon officialnoticeof

a material fact. such fact 'shall be clearly and precisely stated in such decision. In determining whether to take official notice of material facts. the hearing officer may consult any source ofpertinent information, whether or not furnished as it may be. by any party and whetheror not admissibleunder the rules ofevidence; (7) Controversion. Any partymay controvertarequest

or a suggestion that official notice ofa material fact be taken at the time the same is made if it be madeorally, or by a pleading, which the same is made or suggested. If any decision isstated to rest in whole or in part upon'. official notice of a material fact which the parties have not had a prioropportunitytocontrovert. any partymay controvert such fact by appropriate exceptions if such notice be taken in an initial or intermediate decision orby a petition for reconsideration ifnoticeof such fact be . 

### taken in a final report. 

### Such controversion shall con-.» 

### cisely and clearly set forth the sources. authority and**~';** 

### otherdatarelied upon to show theexistenceor nonexistence of the material fact assumed or denied in the

- decision; (8) Evaluation of evidence. Nothing herein shall beconstrued to preclude the boardor its authorized agents from utilizing their experience. technical competence. and specialized knowledge in the evaluation of the evi- . dence presented to them. [Statutory Authority: RCW 43.2IB.170. 81-17-055 (Order 82-1, Resolution 82-1). § 

### 371-08-188, filed 8/18/81: Order 75-1. § 371-08- 188, 

### filed 1/9/75.]

.

WAC 

### 371-08-189 Rules of

### evidence-s-Tentative admission--Exclusion--Discontinuance--Objections. When objection is made to the admissibilityofevidence. such evidence may be received subject to a later ruling. The officer conducting the hearing may, either with or withoutobjection.exclude inadmissibleevidenceororder cumulative evidence discontinued. Parties objecting to the introduction of evidence shall state the precise grounds ofsuch objection at the time such evidence is offered. [Statutory Authority: RCW 43.21 B.170. 81- 17-055 (Order 82-1, Resolution 82-1), 

### § 371-08-189. filed 8/18/81; Order 75-1. 

### § 371-08-189, filed 1/9/75.]

WAC 

### 371-08-190 Disposition of contested cases-- Definition. As used herein. a contested case shall mean any case not previously disposed of by agreementofthe

ICh.371-08WAC-p

### 91371-08-190 Practiceand Procedure**.~**

parties, or by dismissal thereofeither voluntarily or for failure ofprosecution, which is submitted to the board for determination ofany issueoffact or law. [Statutory**Au~ority:** RCW 

### 43.218.170. 81-17-055 (Order 

### 82-1. Resolution 

### 82-1). § 

### 371-08-190. filed 

### 8/18/81: Order 

### 75-1, § 371-08-190. filed 

### 1/9/75: Order 

### 70-1, § 

### 371- 08-190, filed 

### 12/18/70.]

WAC 371-08-195 Disposition ofcontested cases-- Record. The record before the board in any contested

case shall consistofthe decision or order appealed from. the notice ofappeal therefrom. responsive pleadings. if any, and notices of appearances. and any other v.ritten applications, motions, stipulations or requests duly filed by any party and written reports or orders of the presiding officer. Such record shall also includeall depositions. ifthey are admitted at the hearing, the transcriptof testimony as provided in WAC 

### 371-08-196. and other proceedings at the hearing, together with all exhibits offered. No partofthedepartment's record or otherdocuments shall be made part of the record of the board unless admitted in evidence. [Order 

### 75-l , § 

### 371-08- 195, filed 

### 1/9/75; Order 

### 70-1, § 

### 371-08-195. filed 

### 12/18/70.]

WAC 371-08-196 Disposition of contested cases-- Transcripts. The following shall be the policy of the board with regard to transcription ofthe record: (1) If less than two or no members of the board are present at the hearing and ifexceptions to the proposed decision and orderofthe board or presidingofficer have been timely filed as provided by WAC 

### 371-08-205, the board shall causea transcript to be printed for review by the board. Any party may obtain a transcript upon paymentofthe reasonablecost thereof. (2) Theboard, in its discretion. may atanytimecause

a transcriptto be printed. (3) In any case when the board shall not cause a transcript to be printed, it shall be the obligation of the partywishing a transcript, or such portions of it. to order the same from the board reporter and assume the
cost of printing same. [Statutory Authority: RCW 

### 1<_ .218.170.81-17-055 (Order 

### 82-1. Resolution 

### 82-1). § 

### 371-08-196. filed 

### 8/18/81: Order 

### 75-2. 

### § 371-08-196. filed 

### 11/5/75: Order 

### 75-1. § 371-08-196. filed 

### 1/9/75.]

WAC 371-08-200 Disposition of contested cases-- Proposed and final decisions and orders. (I) Final. (a) When the hearing on the appeal has been heard by a majority ofthe board. and upon completion of the record and submission of the issues for decision and order. a written final decision and 

### order concurred in by them then may be adopted which shall contain findings and conclusions as to each contested issue of fact and law. (b) After issuanceof a final decision issued under this subsection. any party may file a petition for reconsideration with the board. Such petition must be filed within eightdays ofmailing of the final decision. Copies of the



### leb. 371--08WAC-p 101 petition for reconsideration, and an answer, ifrequired, shall be served on the other parties ofrecord. The original and threecopies shall be filed with the board. (c) The filing of a petition for reconsideration shall suspend the final decision of the board until the petition isdenied by the board, or a modified decision isentered by the board. (d) In response to a petition for reconsideration. the board may deny it, or may modify its decision or reopen the hearing. (e) Such final decision and order shall be the final decision ofthe board for purposes ofjudicial review. (2) Proposed, When the hearing on the appeal has been heard by less than a majority ofthe board or when less than a majority of the board concurin the matteror when the board shall otherwise elect to do so. a written proposed final decision and order shall thereafter be prepared which shall contain findings and conclusions as to each contested issue offact and law. The provision ofWAC 

### 371-08-205. 37i

### -08-210, and 

### 371-08-215 shall apply to such proposed decision and order. Petitions for reconsideration are not applicable to final decisions issued after such proposed decisions. (3) Copies of the final decision and order and proposed decision and order. as the case may be, shall be mailed by the board to each party to the appeal and to the attorney or representative of record. [Statutory Authority: RCW 

### 43.218.170. 81-17-055 (Order 

### 82-\, Resolution 

### 82-1), § 

### 371-08-200. filed 

### 8/18/81; Order 

### 75-2. 

### § 371-08-200, filed 

### 11/5/75; Order

### 75-1. 

### § 371- 08-200. filed 

### 1/9/75; Order 

### 70-1. 

### § 371-08-200, filed 

### 12/18/70.]

WAC 371-08-201 Disposition of contested cases-- Presentation of additional evidence. After the parties have rested or upon review ofthe record, the board 

### may present such evidence, in addition to that contained in the record. as deemed necessary to decide the appeal fairly and equitably. Any evidence secured and presented by the board shall be presented in an impartial

manner. and shall be received subjectto full opportunity for cross-examination by all parties. If a partydesires to presentrebuttal evidence to any evidencesopresented by the·board, application shall be made therefor immediately following the submission of such evidence. Such application will be granted by assignment of a time and place for taking of such rebuttal evidence. [Statutory Authority: RCW 

### 43.218.170. 81-17-055 (Order 

### 82-1. Resolution 

### 82-1). 

### § 371-08-201. filed 

### 8/18/81; Order 

### 75-\, § 

### 371-08-201. filed 

### 1/9/75.]

WAC 371-08-205 Disposition of contested cases--

. Exceptions. (I) Time for filing. Within twenty days, or such further period as the board may allow on written application of a party, from the date of receipt of the proposed decision and order to the parties or their attorneys of record, any party aggrieved thereby may file with the board, a written statement of exceptions
thereto. Copies thereof shall be furnished to all other parties. In the event such statement of exceptions is

(7/6/83) 

### -....:.



# ...,../

# ,

Practiceand Procedure 371-08-235**.-:~**

### ..**~.** filed, the failure of any party not aggrieved by the proposed decision andorderto file astatementofexceptions shall not be deemed a waiver by such party of any objectionsor irregularities disclosedby the record. (2) Contents. Such statement of exceptions shall set forth in detail the grounds therefor and the party or parties filing the same shall be deemed to have waived all objections or irregularities not specifically set forth therein. A general exception to findings of fact on the ground that the weight of evidence is to the contrary shall not be considered sufficient compliance, unless the exception shall refer to the evidence relied upon in support thereof. If legal issues are involved, the statementof exceptions shall set forth the legal theory relied upon and citation of authority and/or argument in support thereof. The statement ofexceptions should also contain the exceptor's proposed findings of fact and/or conclusions of law covering the factual and legal issues to which exceptions are beingtaken.



### (3) Reply to exceptions. Any party may, within ten days or such further time as the board may allow, submit a reply to exceptions, a written briefor a statement of position regarding the matters on which exceptions

weretaken.or theboard may.on its own motion, require the parties to submitwritten briefs or statements ofposition or to appear and present oral argument regarding the matters on which exceptions were taken, within such time andon such terms as may be prescribed. (4) Action byboardon exceptions. The board shall, in

a case in which itdetermines that a statementofexceptions does not properly conform to theprovisionsofsubsection (2) above, issue an order requiring the party to amend such statement of exceptions to conform to that rule, within a specified time. Failure of the party to comply with such order shall result in the board issuing

an orderadopting the proposeddecision and orderofthe board as the decision and order of the board on the ground that no legally sufficient statement ofexceptions had been taken to said proposeddecision and order. (5) Exceptions to rulings on admissibility ofevidence. 

### Ifan exception is taken to a ruling or rulings ofa presiding officer sustaining an objection to admissibility of evidence, or denying a continuance for the presentation of further evidence, and the board determines that said ruling or rulings were erroneous. the board may: (a) Return the ease to the presiding officer with appropriate instructions. or (b) open the mailer for further argument and decision by the board itself. [Statutory Authority: RCW 

### 43.21B-



### .170.81-17-055 (Order 

### 82-1, Resolution 

### 82-1), § 

### 371- 08-205, filed 

### 8/18/81: Order

### 75-1, 

### §371-08-205, filed 

### 1/9/75; Order

### 70-1. § 

### 371-08-205. filed 

### 12/18/70.]

WAC 371-118-210 Disposition ofcontested cases-- "'inalityofproposeddecisions and orders. In theevent no statement of exceptions is filed as provided herein by any party. the proposed decisions and order ofthe presiding oflicer may be adopted by the board and become the final decision and orderofthe board. Sueh adoption

(7/6/83) ofthe proposed decision and order shall be the final decision ofthe board for purposes ofjudicial review. [Order 

### 75-1, 

### § 371-08-210, filed 

### 1/9/75; Order 

### 70-1, 

### § 371-08-210. filed 

### 12/18/70.]

WAC 371-08-215 Disposition ofcontested cases-- Final decisions and orders. After the filing of a statement or statements ofexceptions. if any, and reply. if any, the filing ofbriefsor presentation oforal argument. thereon, ifrequired, and the obtaining of additional evidence, ifany. as provided for in WAC 

### 371-08-201. the record before the board shall be considered by at least
two ofthe members ofthe board: 

### Provided, That if two members cannot agree on a decision, the third member
must consider the record before the board: 

### Andfurther provided, That if two members cannot agree on a decision in any case, the substantive decision ofthe department or pollution control board (or authority) will control in those cases where the appealing party has the burden ofproof. Every final decision andorderrendered by the board shall be in writing and shall contain findings and conclusions as to each contested issue of fact and law, as well as the board's order based thereon. A
copy of the decision and order. including the findings and conclusions, shall be mailed to each party to the appeal and to the attorney ofrecord. [Statutory Authority: RCW 

### 43.218.170. 81-17-055 (Order 

### 82-1. Resolution 

### 82-1), 

### § 371-08-215. filed 

### 8/18/81; Order 

### 75-1, 

### § 371-08-215, filed 

### 1/9/75; Order 

### 70-1, 

### § 371-08-215.' filed 

### 12/18/70.]

WAC 371-08-220 Appeals to the courts--Noticeof appeal to the superior court. All appeals from orders of' the board, whether after a formal or informal hearing.; shall be to a superiorcourt. (See 

### Maple Leaflnvestors., Inc. v, 

### Department of

### Ecology, 

### 10 Wn.App. 

### 586.) The. appealing party shall file with the board and all parties ofrecord a copy ofthe notice ofappeal to the superior
court. [Statutory Authority: RCW 

### 43.218.170. 81-17- 055 (Order 

### 82-1, Resolution 

### 82-1). 

### §371-08-220. filed 

### 8/18/81; Order 

### 77-1, 

### § 371-08-220, filed 

### 9/8/76; Oro. der 

### 75-1, § 371-08-220, filed 

### 1/9/75; Order 

### 70-1. 

### § 371-08-220, filed 

### 12/18/70.]

WAC 371-08-230 Appeals to the courts--Certification ofrecord. Upon receipt ofa copy of the notice of appeal to the superior court, the board shall certify and transmit to the reviewing court the record made before the board as set forth in RCW 

### 34.04.130(4) and in accordance with WAC 

### 371-08-195 through 

### 371-08-196

. [Statutory Authority: RCW 

### 43.218.170. 81-17-055 (Order 

### 82-1, Resolution 

### 82-1), 

### § 371-08-230. filed 

### 8/18/81: Order 

### 77-1. § 

### 371-08-230. filed 

### 9/8/76; Order 

### 75-1. 

### § 371-08-230. filed 

### 1/9/75; Order 

### 70-1. 

### § 371-08-230, filed 

### 12/18/70.]

WAC 371-08-235 Computation of time. The time within which any act shall be done, as provided by these rules, shall be computed by excluding the first day and including the last, unless the last day is a Saturday. a Sunday, or a legal holiday. and then it is excluded and

[Cb.371-08WAC-p III---

### -----

- 

### ---- -

### -----**--~---**

·".-- <.

371-08-235 Practice and Procedure

the next succeeding day which is neither a Saturday, a Sunday, nor a legal holiday. is included. When the period of time prescribed or allowed is less than seven days, intermediate Saturdays. Sundays and holidays shall be excluded in the computation. [Order 75-\, § 371--08-235, filed 1/9/75; Order 70-1, 

### § 371--08-235. filed 12/18/.70.]

WAC 371-08-240 Petitions for declaratory**rulin~.** (I) Rightto petitionfor declaratory ruling. As prescribed by RCW 34.04.080, any interested person may petition theboard for a declaratory ruling. (2) Form ofpetition. The form of the petition for a declaratory ruling shall generally adhere to the following: (a) At the top ofthe page shall appear the wording "Before the Pollution control hearings Board, state of Washington." On the left side of the page below the foregoing, the following caption shall be set out: "In the Matterofthe Petition of (name ofpetitioning party) for

a Declaratory Ruling." Opposite the foregoing caption shall appearthe word"Petition." (b) The body of the petition shall be set out in numbered paragraphs. The first paragraph shall state the

name and address of the petitioning party. The second paragraph shall state all rules or statutes that may be brought into issue by the petition. Succeeding paragraphs shall set out thestateoffacts relied upon in form similar to that applicable to complaints in civil actions before the superior courts ofthis state. The concluding paragraphs shall contain the prayer of the petitioner. The petition shall be subscribed and verified in the

manner prescribed for certification ofcomplaints in the superiorcourtsofthis state. (c) The original and two legible copies shall be filed with the board. Petitions shall be on white paper, either 8-1/2" x II" or 8-1/2" x 13" in size. (3) Consideration of petition. The entire board shall considerthe petition, and within a reasonable time shall: (a) Issue a nonbindingdeclaratory ruling; or (b) Notify the person that no declaratory ruling is to be issued; or (c) Set a reasonable time and place for a hearing or for submission of written evidence on the matter, and give reasonable notification to the personofthe time and place for such hearing or submission, and ofthe issues involved

.

. (4) Disposition of petition. If a hearing is held or evidence is submitted as provided in subsection (3)(c) above, theboard shall, within a reasonable time: (a) Issue a binding declaratory ruling; or (b) Issue a nonbindingdeclaratory ruling, or (c) Notify the person that no declaratory ruling is to be issued. [Order 75-1. 

### § 371-08-240, filed 1/9/75: Order70-1, 

### § 371-08-240. filed 12/18/70.]

WAC 371-08-245 Petitions for rule making. (I)**Ri~ht** to petition for rule making. Any interested person may petition the board for the promulgation, amendmerit. or repeal ofany rule.



### leb.371-08WAC-p 12) (2) Form ofpetition. The form of the petition for promulgation. amendment, or repeal of any rule shall generally adhere to the following: At the top ofthe page shall appear the wording, "Before the Pollution Control Hearings Board, state of Washington." On the left side of the page below the foregoing, the following caption shall be set out: "In the Matter ofthe petitionof(name of petitioning party) for (state whether promulgation. amendment or repeal) of rule (or rules)." Oppositethe foregoing caption shall appear the word "Petition."

The body of the petition shall be set out in numbered paragraphs. The first paragraph shall state the name and address ofthe petitioning party and whether the petitioner seeks the promulgation of new rule or rules. or amendment or repeal of existing rule or rules. The second paragraph, in case of a proposed new rule or amendmentofan existing rule, shallset forth the desired rulein its entirety. Wherethepetition is for amendment, the new matter shall be underscored and the matter proposed to be deleted shall appear in double parentheses. Where the petition is for repeal of

### -m existing rule, such shall be stated and the rule proposed to be repealed shall either be set forth in full or shall be referred to by rule number. The third paragraph shall set forth concisely the reasons for the proposal of the petitioner and shall contain a statement as to the interest of the petitioner in the subject matterof the rule. Additional numbered paragraphs may be used to give full explanationof petitioner's reason for the action sought. Petitions shall be dated and signed by the person or entity named in the first paragraphor by the petitioner's attorney. The original and two legiblecopies of the petition shall be filed with the board. Petitions shall be on white paper, either 8-1/2" x II" or 8-1/2" x 13" in size. (3) Consideration of petitions. All petitions shall be considered by the entire board. andtheboard may. in its discretion, order an informal hearing or meeting for the further consideration and discussion of the requested promulgation, amendment. or repeal ofany rule. l4) Notification ofdisposition of petition. The boa rd shall notify the petitioning person within a reasonable time ofthe disposition. ifany. of the petition. [Statutory Authority: RCW 43.21B.170. 81-17--055 (Order 82-1, Resolution 82-1), 

### § 3'-1-08-245. filed 8/18/81; Order 75-1, 

### § 371--08-245, filed 1/9/75; Order 70-1. §371- 08-245. filed 12/18/70.]

WAC 371-08-250 Review ofpermits under the National Pollutant Discharge Elimination System. (I) The provisions ofthis section shall apply only to review proceedings before the board pertaining to permits issued by the departmentofecology under the provisions ofthe National PollutantDischarge Elimination System. (2) In those cases where the board determines that a permit issued by the department ofecology is invalid in
any respect, the board shall issue an order directing the department of ecology to reissue the permit in accordance with said order and consistent with the provisions ofsaid order and with all applicable federal statutes and

(7/6/83)

# <":'"**:~;** 

# ..

Practiceand Procedure

guidelines as well as with applicable state statutes and guidelines. [Order 

### 75-1. 

### § 371-0g-250. filed 

### 1/9/75; Order

### 74-2, § 

### 371-08-250. filed 

### 2/7/74.1

WAC 

### 371-08-255 Review of permits issued under chapter 

### 173-303WAC. 

### (I) The provisionsofthis section shall apply only to review proceedings before the board pertaining to permits issued by the department ofecology underchapter 

### 173-303 WAC. 

### (2) In the event that the board determines that a permit issued by the department ofecology under chapter 

### 173-303 WAC isinvalid in any respect, the board shall issue an order remanding the permit to the department of ecology for reconsideration and appropriate action consistent with the provisions ofsaid order and federal and state law. [Statutory Authority: RCW 

### 43.218.170. 83-14-074 (Order 

### 83-1, Resolution No. 

### 83-1), § 

### 371- 08-255. filed 

### 7/6/83.]

WAC 

### 371-08-260 ApplicabilityofSEPA guidelines. The board has reviewed its authorized activities pursuant to WAC 

### 197-IO-gOO(4) and has found them all to be exempt from the provisions ofchapter 

### 197-10 WAC. [Order

### 77-2, § 

### 371-08-260, filed 

### 12/6/77.]

(7/6/83) 

### 371-08-260

-.:. -

[eb. 371-08WAC-p 13)