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Chapter 371-08 WAC

PRACTICE AND PROCEDURE

DISPOSITION OF SECTIONS FORMERLY CODIFIED IN THIS

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

appointed by the governor.with the advice and consent of

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

member shall be a lawyer. and not more than two members shall be of the same political party.

(2) Function and jurisdiction. The function of this

board is to provide an expeditious and efficient disposition of appeals from the decisions and orders of the department of ecology (hereinafter department) or its

[Cb. 371-08 WAC-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 and jurisdiction.

Board administration-Office of the board.

Board administration-Meeting of the board.

Board administration-Quorum.

Board administration-Communications with the

board.

Procedures applicable.

Definitions.

Appearance and practice before the board-Persons

who may and may not appear.

Appearance and practice before the board-Appearance by representative.

Appearance and practice before the board-No formal admission to practice.

Appearance and practice before the board-Withdrawal or substitution of representatives.

Appearance and practice before the board-Conduct.

Presiding officer-Powers and duties.

Subpoenas.

Appeals to the board-Contents of notice of appeal.

Appeals to the board-Time for filing appeals'. '.

Appeals to the board-Dismissal of appeal on JUrISdictional grounds.

Appeals to the board-Cross-appeals.

Appeals to the board-Correction or amendment of

notice.

Appeals to the board-Responsive pleadings.

Appeals to the board-s-Stays.

Conferences-Two types.

Conferences-Purpose of informal conferences.

Conferences-When held.

Conferences-Agreements at informal conferences.

Conferences-Purpose of preheating conferences.

Conferences--When held.

Conferences-Documentary evidence.

Conferences-Excerpts from documentary evidence.

Conferences-Failure to supply prehearing

information.

Conferences-Agreements at prehearing conferences.

Procedures-Telephone.

Hearings-Types of hearings.

Hearings-Election of type of hearings.

Hearings-Assignment day-Time.

Hearings-Notice of hearing.

Hearings-Briefs.

Hearings-Continuances. hearing postponcmcnts and

dismissal.

Hearings-v-Seu ing subsequcnt hearings.

Hcarings-v-Proccdurcs at hearings.

Hearings- Standard and scope of review.

Hcarings-Additional evidence by presiding officer.

Rulcs of cvidencc-c-Adrnissibility criteria.

Rules of evidence·-..Official notice·--Matlers of law.

Rules of evidence ..·Official notice--Material facts .

Rulcs of evidence-- Tentative admission-Exclusion-Discontin uance-Objections.

Disposition of contested eascs--Definition.

Disposition of contested cascs-v-Reccrd.

Disposition of contested cases--Transcripts.

Disposition of contestcd cases-Proposed and final

decisions and orders. .

Disposition of contested cases-Presentation of additional evidence.

Disposition of contested cases-Exceptions.

Disposition of contested cases-Finality pf proposed

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 of contested cases-Final decisions and

orders.

Appeals to the courts-Notice of appeal to the superior court.

Appeals to the courts-Certification of record.

Computation of time. .

Petitions for declaratory ruling.

Petitions for rule making.

Review of permits under the national pollutant discharge elimination system.

Review of permits issued under chapter 173-303

WAC.

Applicability of SEPA guidelines.

Public records. [Order, § 371-08-o06,fiIed 5/31/73.)

Repealed by Order 74-3, filed 5/8/74. See chapter

371-12 WAC.

Board administration-Office of the clerk of the

board. [Order 75-1, § 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

8/18/8 I. Statutory Authority: 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 by Order 75-1, 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 8/18/8 I.

Statutory Authority: RCW 43.21 B.170.

Conferences-Applicability of superior court rules.

[Order 75-1, § 371-08-145, filed 1/9/75; Order 70-

I, § 371-08-145. filed 12/18/70.} Repealed by 81-

17-055 (Order 82-1. Resolution 82-1). filed

8/18/8 I. Statutory Authority: RCW 43.21 B.170.

Hearings-Continuances. [Order 70-1. § 371-08-

170. filed 12/1 8/70.] Repealed by Order 75-1, filed

1/9/75.

Appeals to the courts-Notice of Appeal to the court

of appeals. [Order 75-1, § 371-08-225, filed 1/9/75;

Order 70-1, § 371-08-225. filed 12/18/70.J Repealed by Order 77-1. filed 9/8/76. Later promulgation. see WAC 371-08-220.
371-08-005 Practice and Procedure

rr-;

director; and from the decisions of air pollution control

boards or authorities established pursuant to chapter 70-

.94 RCW. when such orders and decisions concern matters within the jurisdiction of the board as provided in

the act creating it or any subsequent legislation (chapter

43.21B RCW).

(a) Appeals will lie from the issuance, 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 of the application for

such permits, or the denial of an application for the

modification of the terms of such permits.

(b) The board also has jurisdiction to hear and decide

appeals from any person aggrieved by an order issued by

the department or by such air pollution control boards or

authorities with respect to violations of any 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, but exclusive of appeals 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

the department 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 waiver or withdrawal whatsoever from such jurisdiction. [Statutory Authority: RCW 43.21 B.170. 81-

17-055 (Order 82-1, Resolution 82-1), § 371-08-005.

filed 8/18/81; Order 75-1, § 371-08-005, filed 1/9/75;

Order 70-1, § 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

of the 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.

Two members of the board shall constitute a quorum 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

43.21 B.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 a quorum of the board. The law- .

yer member shall be the chief administrative law judge.

[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 particular case, 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. Copies of 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 procedural rules chapter 1-08

WAC. except where 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 and means the department

of ecology.

(3) "Presiding officer" or "hearing officer" shall mean

any member of the board or any person who is assigned

to conduct a conference or hearing by the chairman or

by the vice-chairman in event of tl)e chairman's absence.

[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'''''

...... -,

...-.'
.'

Practice and 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 its designated hearing officer other than 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 of any state,

if the attorneys at law of the state of Washington are

permitted to appear in a representative capacity before

..dministrativc agencies of such other state, and if not

otherwise prohibited by our state law.

(3) A bona fide officer, partner or 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 admitted to practice under APR 9 of

the rules of court may appear before the board under the

conditions and limitations therein specified.

(5) No former employee of the department or member

of the attorney general's staff may, at any time after

leaving the employment of the department or the attorney general, appear, except when permitted by RCW

42.18.220, in a representative capacity on behalf of other

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 behalf of any party by his attorney or other duly authorized representative as defined in

WAC 371-08-035, by

(a) Filing a written notice of appearance containing

the name of the party to be represented, and the name,

address and telephone number of the representative, or

by

(b) Entering an appearance at the time and place of a

conference or hearing on the appeal, and notifying the

presiding officer conducting the same of the party to be

represented and the name. address and telephone number of the representative.

(2) Copies of every written notice of appearance shall

be furnished by the representative to 311 other parties or

their representatives of record 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

their representatives.

(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 the board without a formal request or

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

the board--Withdrawal or substitution of representatives.

An attorney or other representative withdrawing from a

case shall immediately so notify the board and all parties

of record in writing, or shall state such withdrawal on

the record at a conference or hearing. Any substitution

of an attorney or representative shall be accomplished by

written notification to the board and to all parties of.:

record, together with the written consent of the prior attorney or representative, and if such consent cannot be

obtained, a written statement of the reason therefor shall

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 of ethical conduct required of

attorneys before the courts of Washington. If any 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 of reprimand, 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

of these rules:

(I) To administer oaths and affirmations;

(2) To issue subpoenas as provided in RCW

34.04.105;

[eb. 371-08 WAC-p 3J
371-08-065 Practice and Procedure

"

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

motions;

. (4) To rule on all offers of proof and receive relevant

evidence;

(5) To interrogate witnesses called by the 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

the appeal;

(7) To take appropriate disciplinary action with respect to representatives of parties appearing before the

board;

(8) To issue orders joining other parties, on motion of

any party, or sua sponte when it appears that such other

parties may have an interest in, or may be affected by,

thc proceedings;

(9) To consolidate appeals for hearing when such

consolidation will expedite disposition 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 of the 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

the state of Washington;

(12) To cause to be submitted, written sworn statements as currently provided in WAC 1-08-470 through

1-08-500;

(13) To regulate the course of 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 of general

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 time and place.

(3) Service. Service of subpoenas shall be made by

delivering a copy of the subpoena to such person and

tendering on demand, where entitled to make such a demand, the fees for one day's attendance and the mileage

(Cb. 371-08 WAC-p 4)

allowed by law. All costs shall be paid by the party

seeking the attendance of the witness.

(4) Proof of service. The person serving the subpoena

shall make proof of 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 proof of service does not affect the validity of the service.

(5) Quashing. Upon motion made promptly (at or 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 board or its presiding officer 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. XI

17--055 (Order 82-1, Resolution 82-1), § 371':"'08-071,

filed 8/18/81.]

WAC 371:"'08-075 Appeals to the board--Contents

of notice of appeal. The notice of appeal shall contain:

( I) The name, mailing address and telephone number

of the appealing party, and of the representative, if any;

(2) The appealing party's legal residence or principal

place of business within the state;

(3) A copy of the order or decision appealed from,

and if the order or decision followed an application, a

copy of the 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 if available to 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 of appeal. 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 of the 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)

- -~- -..
Practice and Procedure 371-08-115

stamp placed thereon shall be prima facie evidence of

the date of receipt. The board may thereafter require

additional copies 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 the director of ecology. If the decision or order appealed from is made by another agency or an air pollution control board (or authority). a notice of appeal 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 be mailed to the holder thereof.

[Statutory Authority: RCW 43.21 B.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 on jurisdictional grounds. Any party may challenge the jurisdiction of the board to hear an appeal on

jurisdictional grounds. and the board may sua sponte

raise the jurisdictional issue. The board may. when satisfied that it does not have jurisdiction. 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 is clearly 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 of appeal

is found by the board to be defective or insufficient. the

board may require the party filing said notice of appeal

to correct. clarify or amend the same to conform to the

requirements of the statute and the board's rules. The

board may refuse to schedule any conference or hearing

thereon until compliance with 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 officer may. when deemed necessary. in justice

to all parties. require correction. clarification or amendment of a notice of appeal before allowing any hearing

thereon to proceed. or may issue an order requiring such

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) may file an answer to an

appeal with the board and serve a copy thereof upon

other parties within twenty days of receipt of the notice

of appeal. or such further time that the board may allow. Answers shall generally conform to the requirements of a notice of appeal. [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 of appealed 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 be clearly designated as. such in

the title. preferably by a separate document. The factual

and legal reasons for the granting of a stay shall be

stated. and the application shall be supported by affidavits, where appropriate. The original application and one,

copy shall be filed with the board. and one copy shall be

served on the appropriate agency and permit holder (if

such holder is 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."

will advance the hearing date on its own initiative, 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.

[Order 75-1. § 371-08-105. filed 1/9/75; Order 70-1. §

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--Wben held. At any

time prior to hearing on an appeal. any party thereto

may file a written application with the board, requesting

an informal conference. The board 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. 371-08 WAC-p 5)
371-08-115

rr-.

Practice and 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

presiding officer and the parties shall indicate their concurrence on the record.

(2) If an agreement concerning final disposition of the

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

agreement is in accordance with the law.

(3) If the 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

conference be 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 of facts 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 of obtaining admissions of facts and authenticity of documents which

will avoid unnecessary proof: to determine the admissibility of exhibits; 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 thenumber of expert 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--When held. 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

prehearing conference on not less than seven 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..{)8 WAC-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 later time on 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) The board or its presiding officer may require:

(a) That all documentary evidence which is to be offered during the taking of evidence be identified at or

prior to any prchearing con ference.

(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 thereto is filed prior to 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 findings made on

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 supply copies of such excerpts to the presiding officer 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 in properly

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)

... -" ",

'-I
Practice and 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 of hearing, or other such time as the board may

prescribe. When briefs are filed, a copy shall also be

served on the other parties or their attorneys. 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--Notice of hearing. (I·)

Time. If the board schedules a hearing, it shall mail a

written notice thereof to 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 of hearing, 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 and dismissal. (1) Continuances.

(a) Pursuant to agreements at prehearing conference.

If agreement is reached at a prehearing conference, continuances shall be granted in accordance with such

agreement and no written application therefor shall be

required.

(b) Requests prior 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) Requests at lime of hearing. If reasons requiring a

continuance of a hearing are not known in time to permit compliance with subsection (b) of this section, application therefor may be made orally at the hearing.

(d) When granted. Applications for a continuance

made pursuant to subsections (b) or (c) above shall only

be granted upon a proper showing of good cause to prevent manifest injustice. In order to show •good cause,"

the party applying for a continuance because of the unavailability of a 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 their unavailability, and shall identify the

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 conference or hearing, or any

part thereof. provided in these rules by telephone conference call. Upon a timely request. the board or its presiding officer may schedule such conference or 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 of a prchcaring conference. the presiding officer conducting the same

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

other matters that may expedite the subsequent hearing.

The statement of agreement and issues, and rulings of

the presiding officer, shall control the subsequent course

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 has jurisdiction, the party taking the appeal may elect a formal

or informal hearing. If different parties appeal from the

same order and one elects a formal hearing, the hearing

will be formal. If no party taking an appeal of an order

makes an election. the hearing will be informal. However, notwithstanding any election of a party taking an

appeal, the department or any air pollution control

board or authority may. within ten days after receiving a

notice of appeal. notify the board of its intention that the

hearing be formal and when such notice of intention 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.

The statute creating the board contemplates two kinds of

hearings, informal and formal, without any indication as

to what the distinction should be, but with very different

provisions for the review of order entered. The procedures in conducting these two types of hearings 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.

shall assign hearing days for cases before it for review on

the first Tuesday of each month: Provided, That if such

day falls on a legal holiday. the assignment day shall be

the next working day. The board in its discretion may

make such 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 in subsection (I) above.

(7/6/83) (eb. 371-08 WAC-p 7)
371-08-165 Practice and 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 of hearing: Provided. That written objections

are filed within ten days of the receipt of such notice.

Copies of such request shall be served on all other parlies. If the request is granted. 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 accordance with WAC 371-08-175.

(3) Dismissal. If the 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 of dismissal. [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 place as 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 under oath. Oaths shall be administered

by the presiding officer. 1\11 testimony to be considered

by the board 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

of evidence. 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 air pollution 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

of this 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 of the case.

ICb. 371-08 WAC-p 81

(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 of each such expert witness.

(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 behalf of other parties in a formal proceeding

in which an active part in the investigation as a representative of the department was taken.

(7) Objections and motions to strike. Objections to the

admission or exclusion of evidence shall be in short form,

stating the legal grounds of objection relied upon, and

the transcript shall not include extended argument or

debate.

(8) Rulings. The presiding officer, 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 presiding officer 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 of such 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.other provisions of these rules, all

relevant evidence is admissible which, in the opinion or

the officer conducting the hearing, is the best evidence

(7/6/'(,3)

.......-..
.'

Practice and Procedure 371-08-190

reasonably obtainable. having due regard for its necessity. availability and trustworthiness. In passing upon 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 in matters not involving trial by jury in the

superior courts of the state of Washington. [Order 75-1,

§ 371-08-186, filed 1/9/75.]

WAC 371-08-187 Rules of evidence--Official notice--Matters of law. The board and its hearing officers,

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) Agency organization. The department. commission

or board organization. administration. officers, personnel, official publications, and practitioners before 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--Material facts. In the absence of controverting evidence. the board and its hearing officers, upon request

made before or during a hearing. or in a proposed decision. may officially 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 of business:

(]) Notorious facts. facts so generally and widely

known to all well-informed persons as not to be subject

to reasonable dispute, 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 or state officer. department. or agency;

(7/6/83)

(4) Technical knowledge. Matters within the technical

knowledge of the board as a body of experts, within the

scope or pertaining to the subject matter of its statutory.

duties. responsibilities or jurisdiction;

(5) Request or suggestion. Any party may request, or

the presiding officer may suggest. that official notice be

taken of 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 brief served upon all parties, at any time prior to a final decision;

(6) Statement. Where an initial or final decision of

the board rests in whole or in part upon official notice of

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 of pertinent information, whether or

not furnished as it may be. by any party and whether or

not admissible under the rules of evidence;

(7) Controversion. Any party may controvert a request

or a suggestion that official notice of a material fact be

taken at the time the same is made if it be made orally,

or by a pleading, which the same is made or suggested.

If any decision is stated to rest in whole or in part upon'.

official notice of a material fact which the parties have

not had a prior opportunity to controvert. any party may

controvert such fact by appropriate exceptions if such

notice be taken in an initial or intermediate decision orby a petition for reconsideration if notice of such fact be .

taken in a final report. Such controversion shall con-.»

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

other data relied upon to show the existence or nonexistence of the material fact assumed or denied in the -

decision;

(8) Evaluation of evidence. Nothing herein shall beconstrued to preclude the board or 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 admissibility of evidence.

such evidence may be received subject to a later ruling.

The officer conducting the hearing may, either with or

without objection. exclude inadmissible evidence or order

cumulative evidence discontinued. Parties objecting to

the introduction of evidence shall state the precise

grounds of such 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 agreement of the

ICh. 371-08 WAC-p 91
371-08-190 Practice and Procedure

.~

parties, or by dismissal thereof either voluntarily or for

failure of prosecution, which is submitted to the board

for determination of any issue of fact 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 of contested cases--

Record. The record before the board in any contested

case shall consist of the decision or order appealed from.

the notice of appeal 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 include all depositions.

if they are admitted at the hearing, the transcript of testimony as provided in WAC 371-08-196. and other

proceedings at the hearing, together with all exhibits offered. No part of the department's record or other documents 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 of the record:

(1) If less than two or no members of the board are

present at the hearing and if exceptions to the proposed

decision and order of the board or presiding officer have

been timely filed as provided by WAC 371-08-205, the

board shall cause a transcript to be printed for review by

the board. Any party may obtain a transcript upon payment of the reasonable cost thereof.

(2) The board, in its discretion. may at any time cause

a transcript to be printed.

(3) In any case when the board shall not cause a

transcript to be printed, it shall be the obligation of the

party wishing 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 of the 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 issuance of a final decision issued under this

subsection. any party may file a petition for reconsideration with the board. Such petition must be filed within

eight days of mailing of the final decision. Copies of the

leb. 371--08 WAC-p 101

petition for reconsideration, and an answer, if required,

shall be served on the other parties of record. The original and three copies 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

is denied by the board, or a modified decision is entered

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 of the board for purposes of judicial review.

(2) Proposed, When the hearing on the appeal has

been heard by less than a majority of the board or when

less than a majority of the board concur in the matter or

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 of fact and law.

The provision of WAC 371-08-205. 37 i -08-21 0, 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 of the 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 subject to full opportunity

for cross-examination by all parties. If a party desires to

present rebuttal evidence to any evidence so presented 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)

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Practice and Procedure 371-08-235

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filed, the failure of any party not aggrieved by the proposed decision and order to file a statement of exceptions

shall not be deemed a waiver by such party of any objections or irregularities disclosed by 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 statement of

exceptions shall set forth the legal theory relied upon

and citation of authority and/or argument in support

thereof. The statement of exceptions 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 being taken.

(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 brief or a statement

of position regarding the matters on which exceptions

were taken. or the board may. on its own motion, require

the parties to submit written briefs or statements of position or to appear and present oral argument regarding

the matters on which exceptions were taken, within such

time and on such terms as may be prescribed.

(4) Action by board on exceptions. The board shall, in

a case in which it determines that a statement of exceptions does not properly conform to the provisions of subsection (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 order adopting the proposed decision and order of the

board as the decision and order of the board on the

ground that no legally sufficient statement of exceptions

had been taken to said proposed decision and order.

(5) Exceptions to rulings on admissibility of evidence.

If an exception is taken to a ruling or rulings of a 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 43.21 B-

.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 of contested cases--

"'inality of proposed decisions and orders. In the event no

statement of exceptions is filed as provided herein by

any party. the proposed decisions and order of the presiding oflicer may be adopted by the board and become

the final decision and order of the board. Sueh adoption

(7/6/83)

of the proposed decision and order shall be the final decision of the board for purposes of judicial 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 of contested cases--

Final decisions and orders. After the filing of a statement or statements of exceptions. if any, and reply. if

any, the filing of briefs or presentation of oral argument.

thereon, if required, and the obtaining of additional evidence, if any. as provided for in WAC 371-08-201. the

record before the board shall be considered by at least

two of the members of the board: Provided, That if two

members cannot agree on a decision, the third member

must consider the record before the board: And further

provided, That if two members cannot agree on a decision in any case, the substantive decision of the department or pollution control board (or authority) will

control in those cases where the appealing party has the

burden of proof. Every final decision and order rendered

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 of record. [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--Notice of

appeal to the superior court. All appeals from orders of'

the board, whether after a formal or informal hearing.;

shall be to a superior court. (See Maple Leaf lnvestors.,

Inc. v, Department of Ecology, 10 Wn.App. 586.) The.

appealing party shall file with the board and all parties

of record a copy of the notice of appeal 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 of record. Upon receipt of a 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. 371-08 WAC-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) Right to petition for declaratory ruling. As prescribed

by RCW 34.04.080, any interested person may petition

the board for a declaratory ruling.

(2) Form of petition. The form of the petition for a

declaratory ruling shall generally adhere to the

following:

(a) At the top of the 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 of the Petition of (name of petitioning party) for

a Declaratory Ruling." Opposite the foregoing caption

shall appear the 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 the state of facts relied upon in form

similar to that applicable to complaints in civil actions

before the superior courts of this state. The concluding

paragraphs shall contain the prayer of the petitioner.

The petition shall be subscribed and verified in the

manner prescribed for certification of complaints in the

superior courts of this 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

consider the petition, and within a reasonable time shall:

(a) Issue a nonbinding declaratory 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 person of the time and

place for such hearing or submission, and of the issues

involved.

. (4) Disposition of petition. If a hearing is held or evidence is submitted as provided in subsection (3)(c)

above, the board shall, within a reasonable time:

(a) Issue a binding declaratory ruling; or

(b) Issue a nonbinding declaratory ruling, or

(c) Notify the person that no declaratory ruling is to

be issued. [Order 75-1. § 371-08-240, filed 1/9/75:

Order 70-1, § 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 of any rule.

leb. 371-08 WAC-p 12)

(2) Form of petition. The form of the petition for promulgation. amendment, or repeal of any rule shall generally adhere to the following:

At the top of the 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 of the petition of (name of petitioning party) for

(sta te whether promulgation. amendment or repeal) of

rule (or rules)." Opposite the 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 of the 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

amendment of an existing rule, shall set forth the desired

rule in its entirety. Where the petition 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 matter of the rule. Additional numbered paragraphs may be used to give full explanation of

petitioner's reason for the action sought.

Petitions shall be dated and signed by the person or

entity named in the first paragraph or by the petitioner's

attorney. The original and two legible copies 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. and the board may. in its

discretion, order an informal hearing or meeting for the

further consideration and discussion of the requested

promulgation, amendment. or repeal of any rule.

l4) Notification of disposition of petition. The boa rd

shall notify the petitioning person within a reasonable

time of the disposition. if any. 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 of permits under the National Pollutant Discharge Elimination System. (I) The

provisions of this section shall apply only to review proceedings before the board pertaining to permits issued

by the department of ecology under the provisions of the

National Pollutant Discharge Elimination System.

(2) In those cases where the board determines that a

permit issued by the department of ecology 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

of said order and with all applicable federal statutes and

(7/6/83)
<":'"

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.. Practice and 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 173-303 WAC. (I) The provisions of this section

shall apply only to review proceedings before the board

pertaining to permits issued by the department of ecology under chapter 173-303 WAC.

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

173-303 WAC is invalid 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 of said 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 Applicability of SEPA 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 of chapter 197-10 WAC.

[Order 77-2, § 371-08-260, filed 12/6/77.]

(7/6/83)

371-08-260

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[eb. 371-08 WAC-p 13)