WSR 97-15-056

PROPOSED RULES

ENVIRONMENTAL HEARINGS OFFICE

(Pollution Control Hearings Board)

[Filed July 15, 1997, 11:40 a.m.]

Original Notice.

Exempt from preproposal statement of inquiry under RCW 34.05.310(4).

Title of Rule: Amend rules of procedure.

Purpose: To conform rules to SHB 1314 and to clarify existing language.

Statutory Authority for Adoption: RCW 43.21B.170.

Statute Being Implemented: SHB 1314 and RCW 43.21B.170.

Summary: (1) Excludes final Saturdays from computation of appeal period; (2) clarifies time and procedure for filing petitions for review of Pollution Control Hearings Board decisions to superior court; and (3) appeal period begins from mailing of agency decision.

Reasons Supporting Proposal: These measures improve public understanding of and the reasonableness of the process for filing appeals with the Pollution Control Hearings Board and also appealing Pollution Control Hearings Board decisions to superior court.

Name of Agency Personnel Responsible for Drafting and Implementation: Suzanne Skinner, Environmental Hearings Office, (360) 459-6327; and Enforcement: James A. Tupper, Jr. and Suzanne Skinner, Environmental Hearings Office, (360) 459-6327.

Name of Proponent: Environmental Hearings Office, governmental.

Rule is not necessitated by federal law, federal or state court decision.

Explanation of Rule, its Purpose, and Anticipated Effects: WAC 371-08-310, excludes Saturdays from computation of the appeal period for filing with the Pollution Control Hearings Board where the filing deadline falls on a Saturday. The following business day becomes the deadline.

WAC 371-08-555, clarifies that all petitions for review from Pollution Control Hearings Board decisions must be filed with superior court within thirty days of the decision.

WAC 371-08-335, requires that the appeal period to the Pollution Control Hearings Board begin when a copy of the agency decision being appealed is posted in the United States mail, properly addressed, postage prepaid.

Proposal Changes the Following Existing Rules: WAC 371-08-310 as it exists requires inclusion of final Saturdays in the computation of the appeal period.

WAC 371-05-335 as it exists does not conform completely with the language adopted by the legislature in SHB 1314.

No small business economic impact statement has been prepared under chapter 19.85 RCW. Exempt under RCW 34.05.310 (4)(g)(ii) as a small business economic impact statement is not required for rules that adopt, amend or repeal procedures regarding agency hearings.

RCW 34.05.328 does not apply to this rule adoption. These procedural rule changes are not significant legislative rules of any of the agencies listed in RCW 34.05.328 (5)(a)(i) and as these changes are dictated by statute and to improve clarity, the Environmental Hearings Office is not voluntarily making these rules subject to that section.

Hearing Location: Environmental Hearings Office, 4224 6th Avenue S.E., Lacey, WA, on September 8, 1997, at 9:00 a.m.

Assistance for Persons with Disabilities: Contact Suzanne Skinner by August 19, 1997.

Submit Written Comments to: Suzanne Skinner, FAX (360) 438-7699, by September 1, 1997.

Date of Intended Adoption: September 8, 1997.

July 15, 1997

Suzanne Skinner

Administrative Appeals Judge

AMENDATORY SECTION (Amending WSR 96-17-016, filed 8/12/96, effective 9/12/96)

WAC 371-08-310 Computation of time. (1) 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, Sunday or a legal holiday, and then it is excluded and the next succeeding day which is neither a Saturday, 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.

(2) This section also pertains to the period for filing an appeal with the board.

[Statutory Authority: RCW 43.21B.170 and Den Beste v. Washington, No. 13967-1-III (Div. III, April 18, 1996). 96-17-016, 371-08-310, filed 8/12/96, effective 9/12/96.]

AMENDATORY SECTION (Amending WSR 96-17-016, filed 8/12/96, effective 9/12/96)

WAC 371-08-335 Filing a timely appeal with the board. (1) An appeal before the board shall be begun by filing a notice of appeal with the board at the environmental hearings office and by serving a copy of the appeal notice on the agency whose decision is being appealed. For the board to acquire jurisdiction both such filing and such service must be timely accomplished.

(2) The notice of appeal shall be filed with the board within thirty days of the date that a copy of the order or decision is ((mailed)) posted in the United States mail, properly addressed, postage prepaid, to the appealing party. The board's rule governing the computation of time (WAC 371-08-310) shall determine how the thirty-day appeal period is calculated.

(3) An appeal is filed with the board on the date the board actually receives the notice of the appeal, not the date that the notice is mailed. Upon receiving the notice of appeal, the board will acknowledge receipt. The date stamped on the appeal notice shall be prima facie evidence of the filing date. The board may thereafter require that additional copies be filed.

[Statutory Authority: RCW 43.21B.170 and Den Beste v. Washington, No. 13967-1-III (Div. III, April 18, 1996). 96-17-016, 371-08-335, filed 8/12/96, effective 9/12/96.]

AMENDATORY SECTION (Amending WSR 96-15-003, filed 7/3/96, effective 8/3/96)

WAC 371-08-555 ((Notice of appeal to the)) Time for filing petitions for review to superior court. ((All appeals from orders of the board shall be to a superior court, unless the board certifies the order for direct review to the court of appeals. In cases of appeal to superior court, the appealing party shall file with the board and all parties of record a copy of the notice of appeal to the superior court.)) An appeal of a final board order is called a petition for review. A petition for review must be filed with superior court within thirty days of the date that the board issues its final order or decision. The petitioner shall file a copy of the petition for review to superior court with the board and all parties of record. All appeals must first be filed in superior court even if direct review to the court of appeals will be sought.