• Chapter 371-08 WAC 

PRACTICE AND 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 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 bcfore the board-Conduct. 

Presiding officer-Powers and duties. 

Subpoenas. . 

Appeals to the board-Contents of notice of a~peal.

Appeals to the board-Time for filing appeals. 

Appeals to the board-Dismissar 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-Stays. 

Conferences-Two types. 

Conferences-Purpose of informal.conferences. 

Conferences--When held. 

Conferences-Agreements at informal conferences. 

Conferences-Purpose of prehearing conferences. 

Conferences-When held. 

Conferences-Documentary evidence. 

Conferences-Excerpts from documentary evidence. 

Conferences-Failure to supply prchearing 

information. 

Conferences-Agreements at prehcaring 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 postponcments and 

dismissal. 

He:uings-Setting subsequent hearings. 

I-Iearings--Procedures at hearings. 

Hearings---Standard and scope of rC\'iew. 

Hearings-Additional evidence by presiding officer. 

Rules of evidence-Admissibility criteria.. . 

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

Ruks of evidcnce·-Orricial noti~c--Matr.:rial facts . 

Rules of evidence- Tentative. admission-Exclusion-Discontinuance-Objections. 

Disposition of contested cases--Definition. 

Disposition of contested cases--Record. 

Disposition of contested cases--Transcripts. 

Disposition of contested cases-Proposed and final 

decisions and orders. . 

Disposition of contested cases-Presentation of addi· 

tional evidence. 

Disposition of contested cases-Exceptions. 

Disposition of contested cases-Finality (If proposed 

decisions and orders. 

371-08-215 Disposition of contested cases-Final decisions and 

orders. 

371-08-220 Appeals to the courts-Notice of appeal to the superior court. 

371-08-230	 Appeals to the courts-Certification of record. 

371-08-235	 Computation of time. 

371-08-240	 Petitions for declaratory ruling. 

371-08-245	 Petitions for rule making. 

371-08-250 Review of permits under the national pollutant dis· 

charge elimination system. 

371-08-225 Review of permits issued under chapter 173-303 

WAC. 

371-08-260 Applicability of SEPA guidelines. 

DISPOSITION OF SECI10NS fORMERLY CODIfIED IN THIS 

CHAPTER 

37:-08-006	 Public records. [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. [Order 75-1, § 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. Statutory Authority: RCW 43.218.170. 

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 by Or&r 75-1. 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. 

Statutory Authority: RCW 43.218.170. 

371-08-145 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 

8/18/81. Statutory Authority: RCW 43.218.170. 

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-Notice of Appeal to the court 

of appeals. [Order 75-1, § 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, see WAC 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 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 env~ronment, 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 

ICh. 371-08 WAC-p 1] 
c 

371-08-005	 Practice a.nd Procedure 

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 

43.21 B 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 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 pollutio.n 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 sh-all 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 43.21 B.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 

. 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;· 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. 

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 (RC\V 

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

yer member shall be the chief administrative law judge. 

[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 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 a.nd 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 aKency 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 43.218.170. 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, 

fi led 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 procedural rules chapter 1-08 

\VAC, 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 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 

designa ted 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 the chairman's absence. 

[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. 371-08 WAC-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 its designated hearing officer other than 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 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-]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 behalf of any party by his attorney or other duly authorized representative as defined in 

Vi AC 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 all other parties or 

their representatives of record at the time the original 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 of appearance and to 

the furnishing of copies of same to other parties and 

their represen ta tives. 

(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 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/]8/70.] 

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 43.218.170. 

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 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 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 of reprimand, and refusal to 

permit such person to appear 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 

of these rules: 

(I) To administer oaths and affirmations' 

(2) To issue subpoenas as provided in RCW 

34.04.] 05; 

[Ch. 371-08 WAC-p 3] 
I - ­

371-08-065	 Practice and Procedure 

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

'. motions; 

(4) To rule on alI 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 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 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, 

the 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 inte~rogatories 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 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, 

fi Ied I 2/ 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 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 

leh. 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 senice. 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, lStatutory Authority: RCW 43.2 18.170. 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 

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

(1) 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, r\ and if the order or decision followed an application, a C'" 

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 

43.21 C.030(2)(c) (SEPA), three copies of any environmental impact statement if available to appellant~

(5) The relief sought. including the specific nature 

and extent; 

(6) A statement that the appealing party has read the 

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 )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 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 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) 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 43.218.170. 81-17-055 

(Order 82-1, Resolution 82-1), § 371-08-080, filed 

8/18/8 I; 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 

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 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 of notice. (1) 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 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 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 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 within twenty da.ys 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 

43.21B.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 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 boanL 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 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 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.] ­

'\lAC 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 ConfeftRces-Purpose of informal conferences. The purpese 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. 

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; Order 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. 371-08 WAC-p 51 
371-08-115	 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 43.21 B.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 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 

acc·ordance with the Jaw 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 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 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 the 

number of expert and lay witnesses expected to be called 

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 

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 

leh. 371-08 WAC-p 6] 

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 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, Jiled 1/9/75; Order 70'-1. § 371~8-130,

filed 12/18/70.] 

WAC 371-08-131 Conferences,-Documentary evidence. (1) 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 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 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 f"mdings 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 43.21B.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 of such excerpts to lae 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 43.21 B.170. 81-17~55 (Order 

82-1, Resolution 82-1), § 371~8-132. filed 8/18/81; 

Order 75-1, § 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 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.] 

(7/6/83) 
Practice and Procedure	 371-08-165 

• 

\VAC 371-0R-140' Conferences--Agreements at 

prehcaring conferences. At the conclusion of a- prehearing 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 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 presiding officer may schedule such conference or hearing 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 statute creating the board contemplates two kinds of 

hearings, informal and formal, without any indication as 

to what the dist inction 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 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. 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 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 

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--Notice of hearing. (1) 

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 shaH identify the. appeal to 

be heard, the names of the parties to the appeal and 

their representativ~ 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. 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 other parties or their attorneys. 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 at prehearing conference. 

If agreement is reached at a prehearing conference, continuances. shall be gra.nted 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 time 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, n 

the party applying fOT a continuance because of the un­

. availability	 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 

leh. 371-08 WAC-p 7J 
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 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. 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

.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 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 

,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 

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. 

(5) \Vritten 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. except 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 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 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 43.21B.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 

shall be presented in an j,mpartial 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 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 43.218.170.81-17-055 (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 other provisions of these 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-p 81 (7/6/83) 
Practice and Procedure 371-08-190 

• 

reasonably obtainable, having due regard for its necest..... 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 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) 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 of regional 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 of controverting 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 of the 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 of business: 

(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 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 pen:nitted 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 shaH 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 or 

by a petition for reconsideration if notice of such fact be 

taken in a final report. Such controversion shall concisely 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 shaH be 

construed to preclude the 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 of evidence-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 43.218.170. 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 of by agreement of the 

lCb. 371-08 WAC-p 9) 
371-08-190	 Practice a.nd 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 

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 of the decision or order 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 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 75-1, § 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 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 

be~n 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. 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 of the 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 of a 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 of mailing of the final decision. Copies of the 

ICh. 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 3' 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-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 each party to the appeal and to 

, the attorney or representative of record. [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 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 sharI be presented in an impartial 

manner, and shall be received subject to full opportunity 

for cros~-examination by aU 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. assignment of a 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 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) 
Pr~ctice and Procedure	 371-08-235 

• 

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

shall nOl 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 sub­

"	 \ 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 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 case to the presiding officer with appmprialc instructions. or 

(b) open the mattcr for furl her 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 of proposed decisions and orders. In the event 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 of the board. Such 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.] 

\\'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 of briefs or presentation of oral argument, 

thereon~ if required. and the obtaining of additional evidence, if any, as provided for in WAC 371-o8~201. 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 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 attorney of record. [Statutory Authority: 

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 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 Investors, 

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 43.21 B.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 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: 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. 371-08 WAC-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 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 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 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 concfuding 

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, a!nendment, or repeal of any rule. 

leh. 371-08 WAC-p 121 

(2) Form of petition. The form of the petition for pro- . 

mulgation, 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 sid.e 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 

(state whether promulgation, amendment or repeal) of 

rule (or rules). n Opposite the foregoing caption shall appear the word 11 Petition. n

The body of the petition shall be set out in numbered 

paragraphs. The first paragraph shan 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 forlh 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 s,hall appear in double parentheses. Where the petition is for repeal of 'lin 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 t.be 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 11" or 8-1/2" x 13" in 

size. 

(3) Consideration of petitions. AU petitions shall be 

considered by the entire board, and the board may, in its 

discretion, order an informal bearing or meeting for the 

further consideration and discussion of the requested 

promulgation, amendment. or. repeal of any rule. 

(4) Notification of disposition of petition. The board 

shall notify the petitioning person witbin a reasonable 

time of the disposition, if any, of the petition. [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 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) 
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 173-303 WAC. (1) 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 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 of SEPA 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 of chapter 197-10 WAC. 

[Order 77-2, § 37 i -08-260, filed 12/6/77.] 

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