Date of Adoption: April 22, 2004.

     Purpose: During the 2003 session, the legislature adopted ESSB 5776 creating the new Environmental and Land Use Hearings Board (ELUHB) in the Environmental Hearings Office (EHO). The statute requires that the EHO adopt implementing rules. This filing provides a set of emergency implementing rules pending final rule adoption.

     Citation of Existing Rules Affected by this Order: These are new rules. No existing rules are affected.

     Statutory Authority for Adoption: Chapter 43.21L RCW (ESSB 5776) and RCW 34.05.360.

     Under RCW 34.05.350 the agency for good cause finds that state or federal law or federal rule or a federal deadline for state receipt of federal funds requires immediate adoption of a rule.

     Reasons for this Finding: During the 2003 session, the legislature adopted ESSB 5776 creating the new ELUHB in the EHO. The statute requires that the EHO adopt implementing rules. This filing provides a set of emergency implementing rules pending final rule adoption.

     Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 49, Amended 0, Repealed 0.

     Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 49, Amended 0, Repealed 0.

     Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0;      Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 0, Repealed 0.

     Other Findings Required by Other Provisions of Law as Precondition to Adoption or Effectiveness of Rule: The ELUHB rules are procedural. Procedural rules are exempt from prenotice inquiry (CR-101). RCW 34.05.310 (4)(g)(i). The emergency rules took over six months to develop after consultation with stakeholder groups. It was thought probable to adopt those emergency rules, as permanent rules without change or further stakeholder negotiations. Shortly after the emergency rules were developed the membership of the EHO board changed. At the last EHO agency meeting it was decided to open up the section on record review to further stakeholder comment - thus changing the process and timing for permanent rule adoption. RCW 34.05.350(2). These circumstances constitute changed conditions necessitating reissuance of the emergency rules.
     Effective Date of Rule: April 30, 2004.

April 22, 2004

Eric Z. Lucas

Administrative Appeals Judge

EHO Rules Coordinator

OTS-6876.1

GENERAL
NEW SECTION
WAC 199-08-300   Purpose of this chapter and applicability of the board's rules of practice to the civil rules of procedure and the rules of evidence.   (1) The purpose of chapter 199-08 WAC is to provide rules of practice before the environmental and land use hearings board (hereinafter "board"). The interpretation of these rules may be guided, where relevant, by the civil rules of superior court (hereinafter "civil rules") and the rules of evidence for the superior courts of the state of Washington, as those rules have been construed by Washington state courts.

     (2) Except where in conflict with the board's rules, Washington statutes regarding pretrial procedures, civil rules and rules of evidence shall be followed in proceedings before the board unless the presiding officer determines that the evidence, although in conflict with the rules, is admissible pursuant to WAC 199-08-515.

     (3) This chapter shall govern practice before the board. The rules in this chapter are consistent with the model rules of procedure issued by the office of administrative hearings, chapter 10-08 WAC except where specifically noted.

[]

     (1) "Agency" means any state or local governmental entity.

     (2) "Adjudicative proceeding" means a proceeding involving an opportunity for hearing before the board as defined in chapter 34.05 RCW. The terms "appeal," "adjudicative proceeding" and "case" are used interchangeably in this chapter.

     (3) "Board" means the environmental and land use hearings board, a quasi-judicial body created pursuant to chapter 43. RCW ESSB 5776 and described in WAC 199-08-315.

     (4) "Filing" of a document means actual receipt by the board during regular office hours. Any document filed with the board shall contain an affirmation that copies were served on the appropriate agency, local government and parties. Filing by facsimile is permitted of documents ten pages or less if the original document is concurrently mailed or submitted to a commercial delivery service.

     (5) "Final decision" means the highest and last decision available within the permit agency with respect to a permit application to the agency, including, but not limited to, decisions resulting from internal appeals available within the agency for the permit decision.

     (6) "Local government" means any county, incorporated city or town, which has approved, denied or conditioned any economic development project subject to ESSB 5776 and as further defined in subsection (9) of this section.

     (7) "Participating permit agency" means any permit agency in which the applicant for a qualifying project has filed an application for an environmental or land use permit that is required for the qualifying project.

     (8) "Party" means:

     (a) A person to whom any local government or agency decision is specifically directed;

     (b) A person named as a party to the appeal, or allowed to intervene or joined as a party by the board;

     (c) Any participating permit agency.

     (9) "Permit" means any license, permit, certificate, certification, approval, compliance schedule, or other similar document pertaining to any regulatory or management program related to the protection, conservation, use of, or interference with the land, air, or water in the state. This document must be required to be obtained from a state agency or local government, including, but not limited to, counties, cities, and air agencies, prior to constructing or operating a qualifying project. Local government permits include, but are not limited to, subdivisions, binding site plans, planned unit developments, shoreline permits or other approvals under RCW 90.58.140, master plan approvals, site plan approvals, permits or approvals required by critical area ordinances, conditional use permits, variances, and site-specific rezones authorized by a comprehensive plan or subarea plan or other equivalent documents however titled or denominated. Local government permits excluded under this definition include the adoption or amendment of a comprehensive plan, subarea plan, legislative actions or development regulations, certifications by local health districts of water and sewer availability, and building, grading, flood hazard, utility connection, and other nondiscretionary construction permits.

     (10) "Permit agency" means any state agency or local government, including, but not limited to, air agencies, authorized by law to issue permits.

     (11) "Person" means any individual, partnership, corporation, association, organization, governmental subdivision, agency or entity of any character.

     (12) "Petition for review" is a document that when properly filed with the board initiates an adjudicative proceeding before the board.

     (13) "Presiding officer" means any member of the board or an administrative appeals judge who is assigned to conduct a conference or hearing by the chairperson or the vice-chairperson.

     (14) "Service" of a document means delivery of the document to the other parties to the appeal. Service may be made in any of the following ways:

     (a) Personally, in accordance with the laws of the state, with a return of service or affidavit of service completed.

     (b) First-class, registered or certified mail. Service is complete upon deposit in the United States mail properly stamped and addressed.

     (c) Facsimile transmission with mailing or submission to a commercial delivery service of copies on the same day. Service by facsimile is regarded as complete by production of the confirmation of transmission and evidence of mailing or submission to a delivery service of the copies.

     (d) Commercial delivery service. Service by commercial delivery service is regarded as complete upon delivery to the delivery company with charges prepaid.

     (15) "Qualifying project" means an economic development project that is:

     (a) Located within a county that in its entirety qualifies as a distressed area as defined in RCW 43.168.020(3), and a rural natural resources impact area as defined in RCW 43.160.020;

     (b) Designed to provide at least thirty full-time year-round jobs; and

     (c) Designated as a qualifying project by the office of permit assistance established under chapter 43.42 RCW if a request for a determination of such designation is made to the office by the project applicant as provided by law.

[]

     (2) This section also pertains to the period for filing with the board any petition for review, petition for declaratory ruling or any other adjudication which this chapter authorizes.

[]

BOARD ADMINISTRATION AND JURISDICTION
NEW SECTION
WAC 199-08-315   Board membership, function and jurisdiction.   (1) Members. An environmental and land use hearings board is established within the environmental hearings office created under RCW 43.21B.005. The environmental and land use hearings board shall be composed of six members, as provided in RCW 90.58.170. The chairperson of the pollution control hearings board shall be the chairperson of the environmental and land use hearings board. The members of the environmental and land use hearings board shall receive the compensation, travel, and subsistence expenses as provided in RCW 43.03.050 and 43.03.060.

     (2) Function and jurisdiction. This board is a quasi-judicial body with powers of de novo review as authorized by chapter 43. RCW (ESSB 5776) to adjudicate or determine appeals from any person aggrieved by the granting, denying or rescinding of a permit issued pursuant to chapter 43. RCW (ESSB 5776);

     (3) Expedited review. The board shall provide expedited review of petitions filed under this chapter. Any matter reviewed on the decision record must be set for hearing within sixty days of the date set for submitting the decision record of all participating permit agencies, absent a showing of good cause for a different date or a stipulation of the parties. Any matter reviewed de novo must be set for hearing or trial no later than one hundred twenty days after the initial hearing date. The board shall issue a final decision and order within thirty days after the final hearing required in this section.

     (4) Administrative appeals judges. The chairperson may appoint any member of the board or an administrative appeals judge from the environmental hearings office to be the presiding officer.

     (5) This section is intended to be general and informational only and failure herein to list matters over which the board has jurisdiction shall not constitute a waiver or withdrawal of that jurisdiction.

[]

     (2) The board is organized within the Environmental Hearings Office, 4224 6th Avenue S.E., Building No. 2 Rowe Six, Lacey, Washington. The mailing address is:

     Environmental and Land Use Hearings Board

     4224 6th Avenue S.E., Building No. 2, Rowe Six

     P.O. Box 40903

     Lacey, WA 98504-0903

     (3) The telephone number of the board is 360-459-6327. The telefacsimile number is 360-438-7699.

     (4) The office hours of the environmental hearings office are 8:00 a.m. to 5:00 p.m., Monday through Friday, except for legal holidays.

[]

     (2) Case files of appeals pending before the board, past written opinions of the board and other public records maintained by the board under chapter 198-12 WAC are available for public inspection and copying during regular office hours at the environmental hearings office. The form for requests for public records is set forth in WAC 198-12-140. Any person seeking to make copies of such public records may copy the documents at the environmental hearings office for a reasonable charge per page.

[]

FILING AN APPEAL WITH THE BOARD AND SERVICE
NEW SECTION
WAC 199-08-335   Types of petitions before the board.   The board is empowered to hear and decide the following:

     Petitions for review of final decisions made by state agencies and local governments on permit applications for qualifying economic development projects.

[]

     (2) Such petition is barred, and the board may not grant review, unless the petition is timely filed with the board and timely served on the following persons who shall be parties to the review of the petition:

     (a) The participating permit agencies, which for purposes of the petition shall be:

     (i) If a state agency, the director thereof; and

     (ii) If a local government, the jurisdiction's corporate entity which shall be served as provided in RCW 4.28.080; and

     (b) Each of the following persons if the person is not the petitioner:

     (i) Each person identified by name and address as applicant in the application to the participating permit agencies;

     (ii) Each person identified in project application documents as an owner of the property at issue or, if none, each person identified as a taxpayer for the property at issue in the records of the county assessor.

     (3) The petition is timely if it is filed and served on all parties listed in subsection (2) of this section within twenty-one days of the issuance by the permit agency of the permit for the qualifying project.

     (4) For the purposes of this section, the date on which a permit decision is issued is:

     (a) Three days after a written decision is mailed by the permit agency to the project applicant or, if not mailed, the date on which the permit agency provides notice that a written decision is publicly available; or

     (b) If (a) of this subsection does not apply, the date the decision is entered into the public record.

     (5) Service on all parties shall be by personal service or by mail. Service by mail is effective on the date of mailing. Proof of service shall be by affidavit or declaration under penalty of perjury.

[]

     (1) The name, mailing address, telephone number and telefacsimile number (if available) of the appealing party, and of the representative, if any;

     (2) Identification of the parties, by listing in the caption or otherwise. In every case, the agency and/or the local government whose decision is being appealed and the person to whom the decision is directed shall be named as parties;

     (3) A copy of the application form without attachments, which was filed with the local government pursuant to legal requirements;

     (4) A copy of the decision or permit appealed from;

     (5) A short and plain statement showing the grounds upon which the appealing party considers such decision or permit to be unjust or unlawful;

     (6) A clear and concise statement upon which the appealing party relies to sustain his or her grounds for appeal;

     (7) A clear and concise statement of fact demonstrating that the petitioner has standing to seek board review;

     (8) A separate and concise statement of each error alleged to have been committed;

     (9) The relief sought, including the specific nature and extent;

     (10) The signature of the representative of the appealing party or of the appealing party. The signature of the representative or the appealing party shall constitute a certificate by the signatory that the signatory has read the petition and that it is consistent with civil rule 11;

     (11) All pleadings shall be so construed as to do substantial justice.

[]

APPEARANCE AND PRACTICE BEFORE THE BOARD
NEW SECTION
WAC 199-08-385   Persons who may appear before the board.   (1) Any person has the right to represent himself or herself in a proceeding before the board.

     (2) The only persons who are qualified to represent another person or entity before the board are the following:

     (a) Attorneys at law duly qualified and entitled to practice before the highest court of record of any state.

     (b) An authorized officer, partner, owner, employee or member of an association, partnership, corporation, organization, government agency or local government.

     (c) Legal interns admitted to practice under the applicable admission to practice rules of the Washington state court rules as long as the conditions and limitations of the applicable rules are satisfied.

     (d) Any other individual designated by an entity to serve as a spokesperson in a case with the approval of the board's presiding officer.

     (3) When an active part, as a representative of a participating agency, was taken in the same case or proceeding by a former employee, said former employee of:

     (a) Any participating agency; or

     (b) A member of the legal staff of a local governmental agency; or

     (c) The attorney general's staff, may not appear in a representative capacity on behalf of other parties in a formal board proceeding, except when permitted by applicable state conflict of interest laws.

     (4) No former member of the board shall, for a period of one year after the termination of his or her membership, represent a party before the board on any matter.

[]

     (a) Filing a written notice of appearance, a petition for review or another pleading containing the name of the party to be represented, and the name, address and telephone number of the representative; or

     (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 or pleading that identifies the representative shall be served by the representative on all other parties or their representatives of record at the time the original is filed with the board.

     (3) Where a petition for review has been filed with the board by the department of ecology or attorney general, the attorney general shall, unless the department or attorney general notifies the board otherwise, be deemed to have entered an appearance for the department, and the attorney general shall be exempt from the requirement of filing and serving a written notice of appearance.

     (4) After a representative appears on behalf of a party, the board shall serve all future notices, orders and correspondence upon such representative. Service upon the representative shall constitute service upon the party, except for final orders, which shall be served on both the party and the representative.

     (5) After a representative appears on behalf of a party, and gives notice to all other parties to the appeal, all future pleadings and correspondence shall be served upon that representative. Service upon the representative shall constitute service upon the party.

[]

[]

[]

[]

     (1) To administer oaths and affirmations.

     (2) To issue subpoenas and protective orders as provided in the Administrative Procedure Act.

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

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

     (5) To question witnesses called by the parties in an impartial manner to develop any facts deemed necessary for a fair and adequate decision.

     (6) To secure and present in an impartial manner such evidence, in addition to that presented by the parties, as deemed necessary to decide the matter fairly and equitably.

     (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 in the judgment of the presiding officer, when it appears that such other parties may have an interest in, or may be affected by, the proceedings.

     (9) To consolidate matters for hearing when such consolidation will expedite disposition of the matters and avoid duplication of testimony and when the rights of the parties will not be prejudiced thereby.

     (10) To hold prehearing and settlement conferences.

     (11) To permit and regulate the taking of discovery.

     (12) To regulate the course of the hearing.

     (13) To dismiss a petition for review or take other appropriate disciplinary actions, where a party or representative fails to appear or participate in a prehearing conference, hearing or at any other stage of the appeal proceeding.

     (14) To take any other action necessary and authorized by these rules and the law.

[]

[]

     (2) Form. Every subpoena shall name the environmental and land use 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 to a witness who is not party to the case shall be made by personally serving a copy of the subpoena to such person, in accordance with civil rule 45, and tendering on demand, where entitled to make such a demand, the fees for one day's attendance and the mileage allowed by law. All costs shall be paid by the party seeking the attendance of the witness.

     (4) Proof of service. The person serving the subpoena shall make proof of service by filing the subpoena and the required return, affidavit or acknowledgment 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 subpoenaed 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.

[]

PREHEARING PRACTICE
NEW SECTION
WAC 199-08-425   Dismissal of petitions for review on jurisdictional grounds.   (1) Timely filing of the petition for review, and other petitions within the board's jurisdiction is required for the board to acquire jurisdiction.

     (2) Any party may challenge the jurisdiction of the board to hear a petition for review on jurisdictional grounds, and the board may independently raise the jurisdictional issue. The board may, when satisfied that it does not have jurisdiction, dismiss the petition for review.

[]

[]

Initial hearing.

     (1) Within seven days after the expiration of the appeal period for the final permit decision on the last permit required for the qualifying project, the petitioner shall note an initial hearing on jurisdictional and other preliminary matters, and, if applicable, on other pretrial matters. This initial hearing shall be set no sooner than thirty-five days and not later than fifty days after the expiration of the appeal period for the final permit.

     (2) The parties shall note all motions on jurisdictional and procedural issues for resolution at the initial hearing, except that a motion to allow discovery may be brought sooner.

     (3) The defenses of lack of standing, untimely filing or service of the petition, lack of good faith or improper purpose in filing, and failure to join persons needed for just adjudication are waived if not raised by timely motion noted to be heard at the initial hearing, unless the board allows discovery on such issues.

     (4) The parties may waive the initial hearing by scheduling with the board a date for the hearing or hearings on the merits and filing a stipulated order that resolves the jurisdictional and procedural issues raised by the petition, including the issues identified in subsections (3) and (5) of this section.

Case schedule order.

     (5) The petitioner shall move the board for an order at the initial hearing that sets the date on which the permit decision record or records of the applicable permit agency or agencies, if any, must be submitted, sets a briefing schedule, sets a discovery schedule if discovery is to be allowed, and schedules a hearing or hearings on the merits.

[]

     (2) The board may grant a stay only if the board finds that:

     (a) The party requesting the stay is likely to prevail on the merits;

     (b) Without the stay the party requesting it will suffer irreparable harm;

     (c) The grant of a stay will not substantially harm other parties to the proceedings; and

     (d) The request for the stay is timely in light of the circumstances of the case.

     (3) The board may grant the request for a stay upon such terms and conditions, including the filing of security, as are necessary to prevent harm to other parties by the stay.

[]

[]

     (2) Other amendments and supplemental pleadings shall conform to civil rule 15.

[]

     (2) The presiding officer may impose conditions upon the intervenor's participation in the proceedings.

[]

[]

[]

     (2) In those cases where the presiding officer does not order a prehearing conference, the letter setting the initial hearing date and time will be mailed at least thirty-five days before the initial hearing date. The letter may also set the schedule for filing motions and prehearing briefs, and will notify the parties that an interpreter can be made available, upon reasonable notice to the board, for a witness or party who does not speak English or is hearing-impaired. The scheduling letter will control the subsequent proceedings, unless modified for good cause by the presiding officer.

     (3) In cases where the presiding officer decides to hold a prehearing conference, the scheduling letter will also notify the parties of the time and location of the prehearing conference. The scheduling letter will be mailed at least seven days before the prehearing conference.

[]

     (a) To determine the feasibility of a settlement of the appeal or, failing settlement;

     (b) To prepare the case for hearing by scheduling prehearing deadlines and by identifying the issues, and if possible, witnesses, exhibits, stipulations, and admissions.

     (2) Appearance by a party or by the party's representative at a prehearing conference is mandatory. If a party fails to attend a prehearing conference, that is not justified by good cause, the presiding officer may issue an order of default against the absent party or other appropriate action.

[]

[]

     (2) This section also pertains to settlement agreements reached after mediation.

[]

[]

     (2) For motions for continuance or for schedule changes, or other motions that are likely to be uncontested, the moving party shall affirmatively seek the stipulation of all parties and present a stipulated order wherever possible.

     (3) If the motion is contested, any party may request that the board hold a motion hearing. At a motion hearing, the board will consider the arguments of the parties but will not take evidence. Unless a motion hearing is requested by one or more parties, or the board independently sets a motion hearing date, the board will normally decide the motion exclusively on the parties' written submissions. The motion, proposed order and other relevant materials shall be filed and served. Where the hearing coordinator specifies that the hearing shall be telephonic, the moving party shall originate the telephonic hearing conference call. The presiding officer will decide whether or not a motion hearing will be held, and notify the parties accordingly.

     (4) Unless a scheduling letter or order provides otherwise, the following schedule governs all written motions (including any supporting affidavits, memoranda of law, or other documentation):

     (a) All responses to any motion shall be filed and served ten days from the date the motion is received. The moving party shall then have seven days from receipt of the response to file and serve a reply.

     (b) In cases where the moving party requests a motion hearing, all dispositive motions shall be filed and served not later than twenty-eight days before the motion hearing.

     (c) All dispositive motions shall be filed and served not later than two months before the hearing date, unless the presiding officer by order allows otherwise.

     (d) In exigent or exceptional circumstances, a party may at any time request the board to modify the above schedules by requesting a scheduling conference (which may be telephonic) with the presiding officer.

     (5) The board will decide a motion on the written record unless the presiding officer orders a motion hearing.

[]

     (2) The postponement or continuance of a hearing shall be sought by written motion and according to the procedure set forth in WAC 199-08-475.

[]

     (2) A petitioner may request to withdraw a petition for review. Requests before the petitioner rests its case-in-chief during the hearing are mandatory and afterwards are permissive.

[]

HEARINGS
NEW SECTION
WAC 199-08-490   Hearing briefs.   Hearing briefs, if filed, should be submitted to the board at least seven days before the time of hearing or other such time as the board may prescribe. An original and six copies must be filed. In all cases where 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.

[]

     (2) Testimony under oath. Oaths shall be administered by the presiding officer or other officer with authority to administer oaths. All testimony to be considered by the board shall be sworn or affirmed.

     (3) Recording.

     (a) An official recording of all evidentiary hearings shall be made by manual, electronic, or other type of recording device.

     (b) Unofficial use of photographic and recording equipment is permitted at hearings; however, the presiding officer shall be consulted first and may impose conditions on their use as necessary to prevent disruption of the hearing.

     (4) Order of presentation of evidence.

     (a) The presiding officer shall determine the proper order of presentation of evidence. As a general rule, the petitioning party shall initially introduce its evidence.

     (b) The opposing party shall introduce its evidence after the petitioner has rested. Rebuttal and surrebuttal evidence will be received only at the discretion of the presiding officer.

     (c) Witnesses may be called out of turn in contravention of this rule by agreement of all parties.

     (5) Opening statements. Unless the presiding officer rules otherwise, parties shall present an oral opening statement setting out briefly a statement of the basic facts, disputes and issues of the case.

     (6) Written statement of qualifications of expert witnesses. Any party who plans to introduce the testimony of any expert witness at the hearing shall submit as an exhibit to the board and all parties at the hearing a written statement of the qualifications, experience, and expertise of each such expert witness.

     (7) Former employee as an expert witness. No former employee of a participating permit agency, its legal staff or legal representative, or the board or the attorney general shall at any time after leaving the employment with a participating permit agency appear, except when permitted by applicable state conflict of interest law, 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 or board was taken.

     (8) 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.

     (9) Rulings. The presiding officer, on objection or independently, shall exclude all irrelevant or unduly repetitious evidence and all rulings upon objections to the admissibility of evidence shall be made in accordance with WAC 199-08-515 through 199-08-535.

[]

     (2) For all permit decisions being reviewed that were made by quasi-judicial bodies or permit agency officers who made factual determinations in support of the decisions, after the conduct of proceedings in which the parties had an opportunity consistent with due process to make records on the factual issues, board review of factual issues and the conclusions drawn from the factual issues shall be confined to the records created by the quasi-judicial bodies or permit agency officers, except that:

     (3) For decisions described in subsection (2) of this section, the records may be supplemented by additional evidence only if the additional evidence relates to:

     (a) Grounds for disqualification of a member of the body or of the officer that made the permit decision, when such grounds were unknown by the petitioner at the time the record was created;

     (b) Matters that were improperly excluded from the record after being offered by a party to a permit decision proceeding; or

     (c) Matters that were outside the jurisdiction of the body or officer that made the permit decision.

     (4) For permit decisions other than those described in subsection (2) of this section, the board review of the permit decision shall be de novo on issues presented as error in the petition.

     (5) The board may require or permit corrections of ministerial errors or inadvertent omissions in the preparation of the record.

[]

     (2) Information about proceedings before the board is available in alternate format upon request.

[]

     (2) The presiding officer shall exclude evidence that is excludable on constitutional or statutory grounds or on the basis of evidentiary privilege recognized in the courts of this state.

[]

     (1) 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 Washington state courts and administrative agencies; executive orders and proclamations by the governor; and all rules, orders and notices filed with the code reviser.

     (3) Governmental organization. Organization, territorial limitations, officers, departments, and general administration of the government of the state of Washington, the United States, the several states and foreign nations.

     (4) Agency organization. Participating permit agency, commission or board organization, administration, officers, personnel, official publications, and practitioners before its bar.

[]

     (a) Board proceedings. The pendency of, the issues and position of the parties therein, and the disposition of any proceeding then pending before or theretofore concluded by the board;

     (b) Business customs. General customs and practices followed in the transaction of business;

     (c) 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 are capable of immediate and accurate demonstration by resort to accessible sources of generally accepted authority, including, but not exclusively, facts stated in any publication authorized or permitted by law to be made by any federal or state officer, department, or agency;

     (d) 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.

     (2) 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.

     (3) Statement. Where an initial or final decision of the board rests in whole or in part upon official notice of a material fact, such fact shall be clearly and precisely stated in such decision. In determining whether to take official notice of material facts, the hearing officer may consult any source of pertinent information, whether or not furnished as it may be, by any party and whether or not admissible under the rules of evidence.

     (4) 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, reply or brief in response to the pleading or brief or notice in 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 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.

     (5) Evaluation of evidence. Nothing herein shall 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.

[]

[]

DECISIONS BY THE BOARD AFTER HEARING
NEW SECTION
WAC 199-08-540   Contents of the record.   The record before the board in any adjudicative proceeding shall consist of the decision or order appealed from, the petition for review 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 199-08-545, and other proceedings at the hearing, together with all exhibits admitted.

[]

     (2) When the board does not cause a transcript to be printed, it shall be the obligation of the party wishing a transcript, or portions of it, to order the same from the board reporter and assume the printing costs.

[]

[]

     (2) Copies of the final decision and order shall be mailed by the board to each party to the petition for review and to the attorney or representative of record, if any.

[]

     (b) The filing of a petition for reconsideration does not stay the effectiveness of the final decision of the board.

     (c) In response to a petition for reconsideration, the board may deny it, or may reverse or modify its decision or may reopen the hearing. The board is deemed to have denied the petition if, within twenty days from the date the petition is filed, the board does not act on the petition or specify a date by which it will act on the petition.

     (2) The time for filing a petition for judicial review does not commence until disposition of any timely petition for reconsideration. However, the filing of a petition for reconsideration is not a prerequisite for seeking judicial review.

     (3) Copies of the final decision and order and of the board's disposition of any petition for reconsideration shall be mailed by the board to each party to the appeal and to the attorney or representative of record.

[]

APPEALS FROM BOARD DECISIONS
NEW SECTION
WAC 199-08-570   Time for filing petitions for review to superior court and court of appeals.   (1) Superior court review. In order to obtain judicial review of a final decision of the environmental and land use hearings board, a party to the board case as consolidated shall timely file a petition for judicial review in the superior court for Thurston County and timely serve the board and all parties to the proceedings before the board by personal service or by mail. Such petition is timely filed and served only if it is filed and served on all parties within thirty days after the filing of the final decision and order of the board. Service by mail shall be deemed effective on the date of deposit with the United States Postal Service.

     (2) Direct review. Any party may apply for direct review by the court of appeals. An application for direct review must be filed with the superior court within ten days after the filing of the petition for judicial review. In considering an application for direct review under this chapter, it shall be presumed that:

     (a) The qualifying project presents fundamental and urgent issues affecting the public interest which require a prompt determination; and

     (b) Delay in obtaining a final and prompt determination of such issues would be detrimental to a party and the public interest.

[]

[]

© Washington State Code Reviser's Office