# • Chapter 371-08WAC 

# PRACTICEAND PROCEDURE



# .0



# • WAC 371-08-005 371-08-010 371-08-015 371-08-020 371-08-030

371-08-031 371-08-032 371-08-035

371-08-040

371-08-045

371-08-050

371-08-055 371-08-065 371-08-071 371-08-075 371-08-080 371-08-085

371-08-095 371-08-100

371-08-102 371-08-104 371-08-105 371-08-110

0 371-08-115

371-08-120 371-08-125 371-08-130 371-08-131 371-08-132 371-08-135

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

371-08-175 371-0R--180 .l7J·OX-·'R3 .l71·0H··IK5 371-0l<- J86 .171-08-187. .l71**·m~··18X** 371-08-189

371-08-190 371-08-195 371-08-196 371-08-200

371-08-201

371-08-205 371-08-210

(7/6/83)**Membcrship~** function andjurisdiction. Board administration-Officeofthe board. Board administration-Meetingoftheboard. Board administration-Quorum. Board administration-Communicationswith the

board. Procedures applicable. Definitions. Appearance and practice before the board-Persons

who may and may not appear. Appearance and practice before theboard-Appearance by representative. Appearance and practice before the board-Noformal admission to practice. Appearance and practice before the board-Withdrawal or.substitution ofrepresentatives.

­ Appearance and practice bcfore the board-Conduct. Presiding officer-Powersandduties. Subpoenas.

. Appeals to the board-Contentsofnotice of**a~peal.** Appeals to the board-Time for filing appeals. Appeals to the board-Dismissarofappeal onjurisdictional grounds.

. Appeals to the board-Cross-appeals.

. Appeals to the board-Correction oramendment of

notice. Appeals to the board-Responsivepleadings. Appeals to the board-Stays. Conferences-Twotypes. Conferences-Purposeofinformal.conferences. Conferences--When held. Conferences-Agreementsat informal conferences. Conferences-Purpose ofprehearingconferences. Conferences-When held. Conferences-Documentaryevidence. Conferences-Excerpts from documentary evidence. Conferences-Failuretosupply prchearing

information. Conferences-Agreementsat prehcaringconferences. Procedures-Telephone. Hearings-Typesofhearings. Hearings-Election of'type ofhearings.**Hearings~Assignment** day-Time. Hearings-Noticeofhearing. Hearings-Briefs. Hearings-Continuances. hearing postponcments and

dismissal. He:uings-Setting subsequent hearings. I-Iearings--Procedures at hearings. Hearings---Standard and scope ofrC\'iew

. Hearings-Additional evidence by presidingofficer. Rules ofevidence-Admissibilitycriteria..

. Rules ofevidence-Official notice·--Mattersoflaw. Ruksofevidcnce·-Orricial**noti~c--Matr.:rial** facts

. Rules ofevidence-Tentative.admission-Exclusion-Discontinuance-Objections. Disposition ofcontested cases--Definition. Disposition ofcontested cases--Record. Disposition ofcontested cases--Transcripts. Disposition ofcontested cases-Proposed and final

decisions and orders.

. Disposition ofcontested cases-Presentation ofaddi·

tional evidence. Disposition ofcontested cases-Exceptions. Disposition ofcontested cases-Finality(Ifproposed

decisions and orders. 371-08-215 Disposition ofcontested cases-Finaldecisions and orders. 371-08-220 Appeals tothecourts-Noticeofappealtothesuperior court. 371-08-230 Appeals tothecourts-Certificationofrecord. 371-08-235 Computationoftime. 371-08-240 Petitions fordeclaratoryruling. 371-08-245 Petitions for rulemaking. 371-08-250 Review ofpermitsunderthenational pollutantdis· chargeelimination system. 371-08-225 Review ofpermitsissued underchapter 173-303 WAC. 371-08-260 ApplicabilityofSEPA guidelines.

DISPOSITION OFSECI10NSfORMERLYCODIfIED INTHIS CHAPTER

37:-08-006 Publicrecords. [Order, §371-08-006,filed 5/31/73.] Repealed by Order 74-3" filed 5/8/74. See chapter 371-12 WAC. 371-08-025 Board administration--Office oJ the clerk of the board. [Order75-1, §371-08-025. filed 1/9/75;Or· der 7{}-1. § 371-08-025, filed 12/18/70.] Repealed by 81-17-055 (Order 82,...}. Resolution**82~1),** filed 8/18/81.StatutoryAuthority: RCW43.218.170. 371-08-060 Presiding officer-Definition. l0rder 7{}-1, § 371­ 08-060, filed 12/18/70.] Repealed by Order 75-1, filed 1/9/75. 371-08-070 Pres.iding officer-Substitution of presiding officer. [Order 7{}-1. § 371-<'18-070. filed 12/18/70.] Re· pealed byOr&r75-1.filed 1/9/75. 371-08-090 Appeals to the board-Gr2inling the appeal. [Order 75-1, §**371-o8-o90~** filed 1/9/75; Order 70-1, §**37I-08~90.** filed 12/18/70.} Repealed by 81-17­ 055**(Order8~-I,** Resolution 82-1), filed 8/18/81. StatutoryAuthority: RCW43.218.170. 371-08-145 Conferences-Applicability of superior court rules, [Order75-1, § 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 8/18/81. StatutoryAuthority: RCW43.218.170. 371-08-170 Hearings-Continuances. [Order 70-1, § 371-08­ 170, filed 12/18/70.] Repealed by Ord'er 75-1. filed 1/9/75. 371-08-225 Appeals to the courts-NoticeofAppeal to thecourt ofappeals. [Order75-1, § 371-08-225. fil'ed 1/9/75; Order 7{}-1. § 371-08-225, filed 12/18/70.] Repealed by Order 77-1, filed 9/8/76. Later promulgation, seeWAC 371-08-220.

\\lAC 

### 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 thegovernor,with theadviceand consentof the senate, for a term ofsix years. The members are to be qualified by experience or training in pertinent matters pertaining to the**env~ronment,** 

### and at least one member shall be a lawyer, and not more than two members shall be ofthe samepoliticalparty. (2) Function and jurisdiction. The function of this board is to provide an expeditious and efficient disposition ofappeals from the decisions and orders ofthe department of ecology (hereinafter department) or its


### ICh. 371-08WAC-p 1]

# c 371-08-005 Practicea.nd Procedure

director; and from the decisions of air pollution control boardsor 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**term~nation** of-any permit or license issued by the department or air pollution**con~rol** 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 ofthe terms ofsuch permits. (b) The board also hasjurisdiction to hear and decide appeals from any person aggrieved by an order issued by thedepartment orby such airpollutioncontrol 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 pollutio.n boards and authorities may be authorized togrant, but exclusive 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 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 hasjurisdiction at law sh-all not constitute any waiver or 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; 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.L18/81; Order 75-1, § 371-08-010, filed 1/9/75; Order 70-1. § 371-08-010, filed 12/18/70.]

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;· a·nd 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 administ·ration--Quorum. Twomembers oftheboard 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 (RC\V 43.21B.090). One member or designated administrative 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 ofthe board. The law-

...... yer member shall be the chiefadministrative lawjudge. [Statutory Authority: RCW 43.218.170. 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.]

\\lAC 371-08-030 Board administration--Communications with the board. All written communications by parties pertaining to a particularcase, includingrequests for hearings on claimed violations of rules and regulations as specifically provided in RCW 43.21B.120; notices of appeal from orders a.nd decisions ofthe 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. Copiesofall such written communications shall be furnished to the department or other appropriate aKency and to all other interested parties or their representatives ofrecord, and the original filed with.the board shall show thereon compliance with this requirement. [Statutory Authority: RCW 43.218.170. 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 12/1 8/70.]



# . WAC 371-08-031 Procedures applicable. 

### (I) The board shall be guided in procedural matters before it by 

# (\
chapter 371-08 WAC. Chapter 371-08 WAC specifi­ !' (

. cally replaces the uniform proceduralrules chapter 1-08 \VAC, except where specificallynoted. (2) Insofar as applicable, and not in conflict with these rules, the statutes andrules regardingpretrial procedures in civil cases in the superior, courts ofthis state shall be followed. Such rules shall include but shall not be limited to those rules pertaining to discovery of evidenceby parties to civil actions. [Statutory Authority: RCW 43.218.170. 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.J

WAC 371-08-032 Definitions. As used in this chapter the following tcrms shall have the following meaning: (1) "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" referstoand meansthedepartment ofecology. (3). "Presidingofficer" or "hearingofficer" shall mean any member ofthe'boardor any person who is assigned
to conduct a conference or hearing by the chairman or by thevice-chairman in eventofthechairman'sabsence. [Statutory Authority: RCW 43.218.170. 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.] \

## "-

ICh. 371-08WAC-p 2] (7/6/83)Practice and Procedure 371-08-065

\, 

# • \\'AC 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 hearingofficer otherthan the following: 

### (1) 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 administrative agencies of such other state, and if not otherwise prohibited by our state**I~.n:.·.** (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)**L~gal** internsadmitted topracticeunderAPR 9 of therules.ofcourtmay appear beforetheboard under the conditions and limitations therein specified. (5) Noformer employeeofthedepartment 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 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-]7-055 (Order 

### 82-1, Resolution 

### 82-1), § 

### 371-08-035, filed 

### 8/18/81; Order 

### 75-1, § 

### 371-08­ 035, filed 

### 1/9/75; Order 

### 70-1, § 

### 371-08-035, filed 

### 12/18/70.]

WAC 371-08-040 Appearance and practice before the board-Appearance by representative. (1) Appearances may be made on behalfofany party by his attorney orother duly authorized representative as defined in ViAC 

### 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 appearance at the time and place ofa 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 ofthe representative. (2) Copies ofevery written notice ofappearance shall be furnished by the representative to all other parties or their representatives ofrecord at the time theoriginal is fiied 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 ofappearance and to the furnishing of copies of same to other parties and
their representatives.

(7/6/83) (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, fi:ed 

### 8/]8/8]; Order 

### 75-1. 

### § 37]-08-040, filed 

### 1/9/75; Order 

### 70-1, 

### § 37]-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 beforetheboard 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/]8/70.]

WAC 371-08-050 Appearance and practice before the board--Withdrawalorsubstitutionofrepresentatives. An attorney or otherrepresentative withdrawing from a

case shall immediatelysonotifytheboardand all parties of record in writing

.. 

### or shall state such withdrawal on the record at a conference or hearing. Any substitution ofan attorneyorrepresentative shall be accomplished by written notification to the board and to all parties of record, together with

### the written consent.ofthe prior attorney or representative, and if such consent cannot be obtained, a written statementofthereasonthereforshall be supplied. [Statutory Authority: RCW 

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

### 82-1., Resolution 

### 82-]), 

### § 371-08­**O:~O,** filed 

### 8/18/81; Order 

### 75-1, 

### § 371-08-050, filed 

### 1/9/75; Order

### 70-1,. 

### §371-08-050,filed 

### 12/18/70.]

WAC 371-08-055 Appearance and practice before the board-Conduct. 

### All persons appearing in a representative capacity in proceedings before the board shall conform to the standards ofethical 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 proceedings 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 toappear in a representative capacity in any proceeding before the board. [Statutory Authority: RCW 

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

### 82-], Resolution 

### 82-1), § 

### 371-08-055, filed 

### 8/18/81; Order 

### 75-1, § 

### 371-08-0:55, filed 

### 1/9/75; Order 

### 70-1, § 

### 371­ Og-055, filed 

### 12/T8/70.]

\\'AC 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 offic"er

.shall have the authority, subject to the other provisions ofthese rules: (I) Toadministeroaths and affirmations' (2) To issue subpoenas as provided in RCW 34.04.]05;

[Ch. 371-08 WAC-p3]I - ­



### 371-08-065 Practiceand Procedure

(3) To rule on all procedural matters, objections and '.motions; (4) To rule on alI offers ofproof and receive relevant evidence; (5) Tointerrogatewitnesses called by thepartiesin an impartial manner to develop any facts deemed necessary to fairly and adequatelydecide the appeal; (6) To**secur~** 

### 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 ordersjoiningother 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, the proceedings; (9) To consolidate appeals for hearing when such consolidation will expedite disposition ofthe 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 in**te~rogatories** 

### pursuant to these rules and to procedures available to litigants in civil cases in superior courts in the stateofWashington; (12) To cause to be submitted, written sworn statements as currently provided in WAC 1-08-470 through 1-08-500;

.

(13)To regulate thecourse ofthe hearing; (14) To take any other actio·n 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, fiI

### ed I2/I

### 8/70.]

WAC 371-08-071 Subpoenas. (I) 

### Issuance. Subpoenas may b.e 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 ofthe 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 titleof 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



### leh. 371-08 WAC-p 4) 

### allowed by law. All costs shall be paid by the party seeking the attendance ofthe witness. (4) Proofofsenice. 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 proofof service does not affect the validity ofthe 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, theboard or its presidingofficer may (a) quash,or (b) modify the subpoena ifitis unreasonableorrequires 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, lStatutory Authority: RCW 43.218.170. 8)-· 

### 17--055 (Order**8~-1,** 

### Resolution 82-1), 

### § 371-08-071, filed 8/18/81.]

WAC 371-08-075 Appeals to the board--Contents ofnoticeofappeal. The notice

### ofappeal shall contain: (1) The name, mailing address andtelephone number ofthe appealing party, andoftherepresentative, ifany; (2) The appealing party'slegal residence or principal place ofbusiness within thestate; (3) A copy of the order or decision appealed from, 

# r\

and if the order or decision followed an application, a 

# C'" 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 43.21C.030(2)(c) (SEPA), 

### three copies of any environmental impact statement ifavailableto**appellant~** 

### (5) The relief sought. including the specific nature and extent; (6) A statement that theappealingparty has read the notice and believes the contents to be true, followed by the party's signature and the signature ofthe representative, if any. If 

### the appealing party is unavailable to sign the notice ofappeal, it may

### be signed by therepresentative. [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 )71-08-080 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 ofthedepartment 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**Proce~ure,** 

### 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) 

### Ifthe appeal is of a decision or order of the department, one copy shall be filed, by mail or otherwise, with the director ofecology. 

### Ifthe decision or order 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 ofthe notice ofappeal shall also be mailed to the holder thereof. [Statutory Authority: RCW 

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

### 82-1, Resolution 

### 82-1), § 

### 371-08-080, filed 

### 8/18/8I; Order 

### 75-

### i, § 

### 371-08-080. filed 

### 1/9/75; Order

### 70-1, § 

### 371-08-080, filed 

### 12/18/70.]

WAC 

### 371-08-085 Appeals to the board--Dismissal ofappeal onjurisdictional grounds. Any party may challenge thejurisdiction of 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 sam'e rules as an appellant. unless the rule is clearly inapplicable. [Statu­ ·tory Authority: RCW 

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

### 82-1,**Reso~ution** 

### 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.]

\"AC 

### 371-08-100 Appeals to the board--Correction or amendment ofnotice. (1) If any notice ofappeal 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 Illuy 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 madeon such terms

as the board or presiding officer may prescribe. and the presiding officer may. when deemed 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 order requiring such correction. clarification or amendment to be made within a specified time. and if such requirement is not complied with, the boarq may issue an appropriate order which may include dismissal of the appeal. [Statutory Authority: RCW 

### 43.218.170.81-17-055 (Order 

### 82-1,

(7j6/SJ) Resolution 

### 82-1), § 

### 371-08-100. filed 

### 8/18/81; Order 

### 7571, § 

### 37]-08-100, filed 

### 1/9/75; Order 

### 7Q-I,§ 371­ 08-100, filed**12/18/70~]**

WAC 

### 371-08-102 AppealS to the board-Responsive pleadblgs. Respondent(s) 

### may file an answer to an· appeal with the board and serve a copy thereof upon other parties withintwenty da.ys ofreceipt ofthe notice of appeal. or such further time that the board may allow. Answers shall generally conform to the requirements ofa notice ofappeal. [Statutory Authority: RCW 

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

### 82-1, Resolution 

### 82-1), § 

### 371-08-102, filed 

### 8/18/8l.1

WAC 

### 371-08-104 Appeals

### to the board-Stays. 

### (l) The existing law relating to thestaying 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 clearlydesignated as such in the title, preferably bya separatedocument. The factual and legal reasons for the granting of a stay shall be stated, and the application shall be supported by affidavits, where**appropriate~.** Theoriginal application and one copy shall be filed 

### with the 

### boanLand onecopy shall be served on the appropriate agency and permit holder (if such holder is not the moving

### party),ifany. (3) Upon receipt of an a.pplication, 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

### onitsown 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.]

­
'\lAC 

### 371-08-105 Conferences-Two types. Conferences shall be oftwo 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 ConfeftRces-Purpose of infor

### mal conferences. The purpese

### ofan 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. If it may facilitate an agreement or a settlement, the presiding officer may leave the conference from time to time. [Statutory Authority: RCW 

### 43.218.170. 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; Or

### der 70-1. § 

### 371-08-110.filed 

### 12/18/70.]

WAC 

### 371-08-115 Conferences-When 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



### ICh. 371-08WAC-p

### 51371-08-115 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 43.21B.170. 81-17-055 (Order 82-1, Resolution 82-1), 

### § 371-08­ 115, filed 8/18/81; Order 75-1, 

### § 371-08-115, filed 1/9/75;Order-70-1, § 371-08-115, filed 12/18/70.]

WAC 371-08-120 Conferences--Agreements at informal conferences. (1) All agreements reached at informal conferences shall be stated on the record by the presiding officer andthe parties shall indicate their concurrence on 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 agreement is in accordancewith the law.

'(3) If the board decides that the agreement is not in acc·ordance with the Jaw and the facts, it may schedule another informal conference, or direct that a prehearing conference be held.

. (4) 

### Ifno 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 prehearing.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

-wiIl avoid unnecessary proof; to determine the admissibilityofexhibits; toobtain 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 the number ofexpert and lay witnesses expected tobecalled by the parties and their names when possible; to deter­

• mine 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'J71-08-130 Conferences--When held. Atany 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 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



### leh. 371-08WAC-p6] presiding officer to whom the case is assigned. may. pursuant to agreement of all parties, convene and preside at a prehearing conference at a time and place agreed upon. Such prehearing conference may also be held immediately at the conclusion of an informal conference if time permits, or, at the discretion ofthe presiding officer, may be held at a later timeon seven days' written notice to each party to the appeal. [Order 75-1, § 371-08-130,Jiled 1/9/75;Order 70'-1. §**371~8-130,** filed 12/18/70.]

WAC 371-08-131 Conferences,-Documentary evidence. (1) Theboardorits presidingofficermayrequire: (a) That all documentary evidence which is to be offered during the taking of evidence be identified at or prior to any prehearing conference. (b) That documentary evidence not identified, as required by subsection (1)(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 authenti,city of all documents so presented and examined be deemed admitted unless written objection thereto is filed priortothehearing, except that

a party will be permitted to challenge such authenticity ,at a later time upon a clear showing ofgood cause for failure to have filed such written objection. (2) The presiding officer may, upon f"mdings madeon the record, limit the documentaryevidence 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 43.21B.170. 81-17-055 (Order 82-1, Resolution 82-1), §**371~8-131,** filed 8/18/8:I; Order 75-·1, § 371-08-131, filed 1/9/75.]

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. adequatety identified, and shall supply copies ofsuch excerpts to 

### laepresidingofficer 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.**81-17~55** (Order 82-1, Resolution 82-1), 

### §**371~8-132.** filed 8/18/81; Order75-1, § 371-08-132, filed 1/9/75.]

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 necessarytoaidtheboard in properly scheduling hearings, the board or the presiding officer may suspend setting a hearing pending receipt ofthe 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.]

(7/6/83)Practice and Procedure 

### 371-08-165 

# • \VAC 

### 371-0R-140' Conferences--Agreements at prehcaring conferences. At the conclusion of a-prehearingconference. thepresidingofficerconductingthe 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 m.atlers that may expedite the subsequent hearing. The statement of agreement and issues, and rulings of the**pre~jding** officer, shall control the subsequent course of the proecedings. 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 

### 371-08-144 Procedures--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 presidingofficer may schedule such conferenceorhearing if it**appea~s** to promote the fair, speedy and economical processing of a matter 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.]

\\'AC 

### 371-08-150 Hearings--Types of hearings. The statutecreatingtheboard contemplates twokinds 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 

### 371-08-155 Hearings--Election of type of hearings. In all appeal.s 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. Ifno 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 orauthority may, within ten days after receiving a -notice ofappeal. notify theboard ofits intention thatthe hearing be formal and when such notice of intention is filed. the hearing will be formal. lOrder 

### 75-1. § 371­ OX 155. filcd 

### 1/9/75; Order 

### 70-1. § 

### 371-08--155. filed 

### 12/18/70.]

\VAC 

### 37]-08-156 Hearings--Assignment day-­ TIine. (I) As a general rule, the board, or its designee; shall assign hearingdays for casesbeforeit for review on the first Tuesday ofeach 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 m'ake 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 subsectio.n (I) above.

(7/6/83) (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 

### 371-08-160 Hearings--Noticeofhearing. 

### (1) 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 shaH identify the. appeal to be heard, the names of the parties to the appeal and their**representativ~** 

### ifany, 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. 8)-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.]

\\lAC 

### 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 otherparties ortheirattorneys. The board
may permit or require the filing of additional briefs. Pr.'posed findings may be included with the briefs.**l~latutory** Authority: RC\V 

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

### 82-1, Resolution 

### 82-1), § 371-08-163, filed 

### 8/18/81.]

\VAC 

### 371-08-165 Hearings-Continuances, hearing postponements and dismissal. (1) Continuances.

. 

### (a) 

### Pursuan"t 

### to agreements

### atprehearing conference. Ifagreement is reachedat a prehearingconference, continuances. shall be gra.nted in accordance with such agreement and no written application therefor shall be required. (b) 

### Requestspriorto

### hearing. If, prior to the hearing date. a party is not able to fully present evidence at the scheduled hearing, suchparty 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 timeof

### 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,n the party applying fOT a continuance because of the un­

. availabilityofa 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



### leh. 371-08WAC-p7J371-08-165 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 parties. 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 in 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. 

### Ifthe appealingparty fails to appear at the scheduled hearing and fails to obtain a continuance

or postponement as provided in this section, the appeal shall bedismissed 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 .218.170.81-17-055 (Order 

### 82-1, Resolution 

### 82-1), § 

### 371-08-165, filed 

### 8/18/81; Order 

### 75-1, 

### § 37,1-08-165, filed 

### 1/9/75; Order 

### 70-1, § 

### 371-08-165, filed 

### 11/18/70.]
,

WAC 371-08-175 Hearings--Setting subsequent hearings. 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 

### 43.218.170. 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. (1) 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. All 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 ofan ,app'eal from an order assessing a penalty, the department (or air pollution board), shall initially introduce all evidence necessary to its case. Rebuttal evidence will then be received. Witnesses may be called out of turn in contravention ofthis rule by agreement ofall 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 ofthe case. (5) \Vritten statement ofqualifications ofexpert 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. except 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 motionsto strike. Objectionstothe admission orexclusionofevidenceshall be in shortform, stating the legal grounds of objection relied upon, and the transcript shall not include extended argument or debate. (8) Rulings. The presidingofficer, onobjection or 

### sua sponte, shall exclude all irrelevant or unduly repetitious evidence and all rulings upon objections to the admissibility of**evidenc~** shall be made in accordance with WAC 

### 371-08-185 through 

### 371-08-189. [Statutory Authority: RCW 

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

### 82-1, Resolution 

### 82-1), 

### § 371-08-180. filed 

### 8/18/81; Order 

### 75-1. § 

### 371-08-180, filed 

### 1/9/75; Order 

### 70-1, 

### § 371­ 08-:-180, filed 

### 12/18/70.]

WAC 371-08-183 Hearings--Standard and scope of review. (1) The board 

### will apply the specific criteria provided by law in makingitsdecision oneach case. (2) Hearings shall be quasi-judicial in nature and shall be conducted de novo unless otherwiseprovided

### by law. [Statutory Authority: 

### RCW 

### 43.21B.170. 81-17­ 055 (Order 

### 82-1, Resolution82...,...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 shall be presented in an j,mpartial manner

.. and shall be received subject to full opportunity 

### for cross-examination by all parties. 

### Ifa partydesires to present rebuttal evidence 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 ofa time and place for presentation of such rebuttal evidence. [Statutory Authority: RCW 

### 43.218.170.81-17-055 (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 of the officer conducting the hearing, is the best evidence

i .**\.,~.** ICh. 371-08 WAC-p81 (7/6/83)Practiceand Procedure 

### 371-08-190 

# • reasonably obtainable, having due regard for its neces

## t..

... sity, 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 byjury in the superior courts ofthe state ofWashington. [Order 

### 75-1, 

### § 371-08-186, filed 

### 1/9/75.]

WAC 

### 371-08-187 Rules of evidence--Official notice--Mattersoflaw.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 offederal 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 ofthe 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) GOl'er'nmental 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 ofregional authorities. Rules or regulations of air**pollu~ion** 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 

### 43.218.170. 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--J\tfaterial facts

.. In the absence ofcontroverting evidence, the board and its hearing officers, upon request made before or during a hearing, or in a proposed decision, may Qfficially notice: (1) Board proceedings. The pendency of, the issues and position ofthe parties therein, a'nd the disposition of any proceeding then pending before or theretofore concluded by the board; (2) Business customs. Gener.al customs and practices followed in the transaction ofbusiness:

(3) 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 arccapable 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 pen:nitted by law to be made by any federal or stateofficer, department, or agency;

(7/6/83) (4) Technical knowledge

.. Matters within the technical knowledge ofthe board as a body ofexperts, within the scope or pertaining tothe subject matter ofits statutory duties, responsibilities orjurisdiction; (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 bywritten notice, any pleading, motion, memorandum, or briefserved upon all parties, at any time priorto a final decision; (6) Statement. Where an initial'or final decision of theboard rests in wholeor in partupon official notice of

a material fact, such fact shaH be clearly and precisely stated in such decision. In determining whether to take official notice ofmaterial facts, the hearingofficer may consult any source ofpertinent information, whether or not furnished as it may be, by any party andwhetheror not admissible under the rules:ofevidence; (7) Controversion.Anypartymaycontroverta request

or a suggestion that official notice ofa material fact be taken at the time the same is made ifit be made orally,

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

### Ifany decision is stated to rest in whole or in part upon official notice of a material fact which the parties have
nothad a prioropportunitytocontrovert, any party may controvert such fact by appropriate exceptions if such notice be taken in an initialor intermediate decision or by a petition for reconsideration 

### ifnotice ofsuch fact be taken in a final report. Such controversion shall concisely and clearly set forth the. sources, authority and other data relied upon toshow theexistence or nonexistence of the material fact assumed or denied in the decision; (8) Evaluation of evidence. Nothing herein shaH be construed to precludethe board or its authorized agents from utilizing their experience, technical competence, and specialized knowledge in the evaluation of the evidence presented to them. [Statutory Authority: RCW 

### 43.218.170.81-17-055 (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 ofevidence-Tentative admission-Exclusion-Discontinuance-Objections. When objection is madetothe admissibility ofevidence, such evidence may bereceived subject to a later ruling. The officer conducting the hearing may, either with or without objection,excludeinadmissibleevidenceororder 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 

### 43.218.170. 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.]

\VAC 

### 371-08-190 Disposition of contested cases--· Definition. As used herein. a contested case shall mean any case not previously disposed ofby agreement ofthe

lCb. 371-08WAC-p9)371-08-190 Practicea.nd Procedure

parties, or by dismissal thereof either voluntarily or for failure of prosecution, which is submitted to the board for determination ofany issue of fact or law. [Statutory Authority: 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 ofthe decision ororder appealed from, the notice of appeal therefrom,'responsive pleadings, if any, and notices of appearances; and any other written applications, motions, stipulations or requests duly filed by any party and written reports or orders ofthe presidingofficer. Such record shall alsoinclude all depositions, ifthey are admitted at the hearing, the transcript oftestimony as provided in WAC 

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

### 75-1, § 

### 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 oftherecord: (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 presiding officer have**be~n** 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 payment ofthe reasonable cost thereof. (2) Theboard, in itsdiscretion, mayat anytimecause

a transcript to beprinted.

. (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. IStatutory Authority: RCW 

### 43­ .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-]96, filed 

### 1/9/75.]

WAC 371-08-200 Disposition of contested cases-­

,Proposed and final decisions and orders. (1) 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 rinal 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 ofa final decision issued under this subsection, any party may file a peti'tion for reconsideration with the board. Such petition must be filed within eight days ofmailing ofthe final decision. Copies ofthe

ICh. 371-08WAC-p 101 petItIOn for reconsideration, and an answer, if required, shall be served on the otherparties ofrecord. Theoriginal and three copies shall be filed with the board. (c) The filing of a petition for reconsideration shall suspend the final decision ofthe board until the petition is denied by the board, or 3' modified decision is entered by the board. (d) In response to a petition for reconsideration, the board may deny it, or maymodify its decision orreopen the hearing. (e) Such final decision and order shall be the final decision ofthe board for purposesofjudicial review. (2) Proposed. When the hearingon the appeal has been heard by less than a majority ofthe boardor when less than a majority ofthe,boardconcur in the matteror when the board shall otherwise elect to do so, a written proposed final decision and order shall thereafter be prepared which shall containfindings and conclusions as to each contested issue of

### fact and law. The provision ofWAC 

### 371-Q8-205, 371-08-210, 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 pro-

. posed decision and order, as the case may be, shall be mailed by the board to eachparty to the appeal and to

,the attorney or representativeofrecord. [Statutory Authority: RCW 

### 43.218.170

.. 81-17-055 (Order 

### 82-1, Resolutit.D 

### 82-1), § 

### 371-0&-200, filed 

### 8/18/81; Order 

### 75-2, § 

### 371-08-200, filed 

### ll/5/75;Order 

### 75-1, § 

### 371­ 08-200, filed 

### 1/9/75; Order

### 70-1, 

### § 371-08-200, filed 

### 12/]8/70.]

WAC 371-08-20.1 Disposition of contested cases-­ Presentation of additional eridence.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 sharI 

### be presented in an impartial
manner, and shall be receivedsubjectto full opportunity for**cros~-examination** byaUparties. 

### Ifa partydesires to present rebuttal evidenceto'any evidenceso presented by the board, application shall 

### be made therefor immediately following the submission of such evidence. Such application will be granted. assignment ofa time and place for taking of such rebuttal evidence. [Statutory. Authority: RCW 43.218'.1.1'0. 

### 8]-17-055 (Order 

### 82-1, Resolution 

### 82-1), § 

### 371-08-201, filed 

### 8/18/81; Order 

### 75-1, § 

### 371-08-201,filed 

### 1{9/75.]

.WAC 371-08-205 Disposition of contested cases-­ Exceptions. (1) 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 orderto the partiesor 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)**Pr~ctice** and Procedure 371-08-235 

# • filed, the failure ofany party not aggrieved by, the proposed decision and order to file a statementofexceptions shall nOl be deemed a waiver by such party of any objectionsor irregularities disclosed by therecord. (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. 

### Iflegal issues areinvolved, the statement of 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 arebeing 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 briefor a statement of position regarding the matters,on. which exceptions

were taken,ortheboard may,on its own motion, require the parties to submit written briefs or statements ofposition 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 boardon exceptions. The board shall, in

a case in which it determines that a statement ofexceptions does not properly conform to the provisions ofsub­

" \ section (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 ofthe board as the decision·and order of the board on the ground that no legally sufficient statement ofexceptions had been taken to said proposed decision and order. (5) Exceptions to rulings on admissibility ofevidence. 

### Ifan 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 case to the presiding officer with appmprialc instructions. or (b) open the mattcr for furlher 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 

### 371-08-210 Disposition of contested cases-­ Finality ofproposed decisions and orders. In theevent no statcment of cxceptions is filed as provided herein. by any party, the proposed decisions and order of the presiding officer may be adopted by the board and become the final decision and order ofthe board. Such adoption

(7/6/83) ofthe proposed decision and order shall be the final decision of the 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.]

\\'AC 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 ofbriefsor presentation oforal argument,**thereon~** ifrequired. and the obtaining ofadditional evidence, ifany, as provided for in WAC**371-o8~201.** the record before the board shall be considered by at least
two ofthe members ofthe board: 

### Provided, That iftwo 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 of the department or pollution control board (or authority) will control in those cases where'the appealing party has the burden ofproof. Everyfinal decision and orderrendered 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 the'reon. A copy of the decision and order. including the findings and conclusions, shall be mailed to.each party to the appeal and to the attorneyofrecord. [StatutoryAuthority: RCW 

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

### 82-1, Resolution 

### 82-I), § 

### 371-08-215, filed 

### 8/18/81; Order 

### 75-1, 

### § 37.1-08-215, 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 superiorcourt. All appeals from orders of the board, whether after a formal or informal hearing, shall be to a superiorcourt. (See 

### Maple LeafInvestors, Inc. v. Department. of

### Ecology, 10 Wn.App. 

### 586.) The appealing party shall file with the board and 

### all parties of record a copy ofthe notice ofappeal to the superior
court. [Statutory Authority: 

### RCW 

### 43.21B.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; Order 

### 75-1, § 

### 371-08-220, filed 

### 1/9/75; Order 

### 70-1, § 

### 371-08-220, filed 

### 12/]8/70.]

.

WAC 371-08-230 Appeal's to the courts--Certification of record. Upon receipt ofa copy ofthe'notice of appeal to the superior court, the board shall certify and 'transmit to the reviewing courtthe 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: RC\V 

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

### 82-1, Resolution 

### 82-,1), 

### § 371-08-230" filed 

### 8/18/81; Order**77-J~** 

### § 37I:-08-230, filed 

### 9/8/76; Order 

### 75-1, § 

### 37]-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

leh. 371-08WAC-p 

### 111

### 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 75-1, § 371"-08-235, filed 1/9/75; Order 70-1, § 371-08-235, filed 12/18/70.]

WAC 

### 371-08-240 Petitions for declaratory ruling. (I) Right topetitionfor 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 Matterofthe Petition of (name ofpetitioning party) for

a Declaratory Ruling."Opposite the foregoing caption shall appear the word"Petition." (b) The body of the petition s'hall 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 paragraphsshall setout the stateoffacts relied upon in form similar to that applicable to complaints in civil actions before the superior courts of this state. The concfuding paragraphs shall contain the prayer of the petitioner. The petition shall be subscribed and verified in the

manner prescribed·for certification ofcomplaints in the superior courts ofthis 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 givereasonable notification totheperson ofthetimeand place for such hearing or submission, and of the issues involved. (4) Disposition ofpetition. 

### Ifa hearing is held or evidence is submitted as provided in subsection (3)(c) above, theboard shall, within a reasonabletime: (a) Issue a bindingdeclaratory 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, a!nendment, or repeal ofany rule.



### leh. 371-08WAC-p

### 121 (2) Form ofpetition. The form ofthe petition for pro-

. mulgation, amendment, or repeal of any rule shall generally adhereto the following: At the top ofthe page shall appear the wording, "Before the Pollution Control Hearings Board, state of Washington." On the left sid.e of the page below the foregoing, the following caption shall be set out: "In the Matter ofthepetition of (nameofpetitioningparty) for (state whether promulgation, amendment or repeal) of rule (or rules).n Oppositetheforegoing caption shall appear the word Petition. n 11 The body ofthe petition shall be setout in numbered paragraphs. The first paragraph shan state the name and address ofthe petitioningparty andwhetherthe 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 existingrule, shall setforlh thedesired rule in its entirety. Wherethepetition is for amendment, the new matter shall be underscored and the matter proposed to be deleted s,hall appear in double parentheses. Where the petition is for repeal of'lin existing rule, such shall be stated and the ruleproposedto be repealed shall either be set forth in full orshall 

### bereferred to by rule number. The third paragraph; shall set forth conciselythe reasons for the proposaloft.be petitioner and

. shall contain a statement as to the interest of the petitioner in the subject matter oftherule. Additional numbered paragraphs maybe usedtogive 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 paragraphorbythe petitioner's attorney. The original and twolegible

### copies ofthe petition shall be filed with the board. Petitions shall be on white paper, either 8-1/2" x 11" or 8-1/2" x 13" in size. (3) Consideration of petitions. AU petitions shall be considered by the entireboard,and theboard may, in its discretion, order an informal bearing ormeeting for the further consideration and discussion of the requested promulgation, amendment.or. repeal ofany rule. (4) Notification of disposition of petition. The board shall notify the petitioning person witbin a reasonable time ofthe disposition, ifany, ofthepetition. [Statutory Authority: RCW 43.218.170. 

### 8l-17-O55 (Order 82-1, Resolution 82-1), 

### § 371-08-245, filed 8/18/81; Order 75-1, § 371-08-245, filed 1/9/75; Or.der 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 department ofecology underthe provisions ofthe National Pollutant DischargeEliminationSystem. (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 anorder 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)Practice and**Proce~u.re** 371-08-260

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

### 75-1, § 

### 371-08-250, filed 

### 1/9/75; Order 

### 74-2, § 

### 371-D8-250, filed 

### 2/7/74.]

WAC 371-08-255 Review of permits issued under chapter 173-303WAC. (1) Theprovisions ofthis section shall apply only to review proceedings before the board pertaining to permits issued by the department of ecology underchapter 

### 173-303 WAC. (2) In theevent 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 statc 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 ofSEPA guidelines. The board has reviewed its authorized activities pursuant to WAC 

### 197-10-800(4) and has found them all to be exempt from the provisions ofchapter 

### 197-10 WAC. [Order 

### 77-2, 

### § 37i

### -08-260, filed 

### 12/6/77.]

(7/6/83) (Ch. 371-08WAC-p 13J