WSR 02-06-013

PERMANENT RULES

POLLUTION CONTROL

HEARINGS BOARD

[ Filed February 22, 2002, 10:43 a.m. ]

Date of Adoption: February 21, 2002.

Purpose: The purpose of this rule is to clarify that the scope of review is de novo and that the standard of proof is preponderance of the evidence.

Citation of Existing Rules Affected by this Order: Amending WAC 371-08-485.

Statutory Authority for Adoption: RCW 43.21B.170.

Adopted under notice filed as WSR 01-20-020 on September 24, 2001.

Changes Other than Editing from Proposed to Adopted Version: Changes clarifying that the preponderance of the evidence standard is a burden of proof standard were made. These changes were made in response to comments received. The language originally proposed stated: "The standard of review shall be preponderance of the evidence unless otherwise required by law.["] The substitute language states: "The board shall make findings of fact based on the preponderance of the evidence unless otherwise required by law." The adopted version also retained the word standard of review where the earlier proposal had proposed eliminating that word. The substance of the amendment has not changed but the changes do provide more clarity.

Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.

Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 1, Repealed 0.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 1, Repealed 0.

Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 0, Repealed 0.
Effective Date of Rule: Thirty-one days after filing.

February 21, 2002

Robert V. Jensen

Chair

OTS-5502.1


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

WAC 371-08-485   Standard and scope of review and burden of proof at hearings.   (1) Hearings shall be formal and quasi-judicial in nature. The scope and standard of review shall be de novo unless otherwise provided by law.

(2) The board shall make findings of fact based on the preponderance of the evidence unless otherwise required by law.

(3) The issuing agency shall have the initial burden of proof in cases involving penalties or regulatory orders. In other cases, the appealing party shall have the initial burden of proof.

[Statutory Authority: RCW 43.21B.170. 96-15-003, 371-08-485, filed 7/3/96, effective 8/3/96.]

Washington State Code Reviser's Office