WSR 05-07-045

PERMANENT RULES

ENVIRONMENTAL HEARINGS OFFICE


(Environmental and Land Use Hearings Board)

[ Filed March 11, 2005, 9:04 a.m. , effective March 11, 2005 ]


Other Findings Required by Other Provisions of Law as Precondition to Adoption or Effectiveness of Rule: Under RCW 34.05.380(3) the agency for good cause finds that state law requires immediate adoption of the rule. 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.

Purpose: 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. The rules would govern the procedural operation of the new board.

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

Adopted under notice filed as WSR 04-18-015 on August 23, 2004.

Changes Other than Editing from Proposed to Adopted Version: The final rule as adopted contains certain changes designed to clarify points raised by comments received on the proposed rules. While many of the modifications are arguably editorial, they are included in this description to provide the best information for interested parties.

1. All references to ESSB 5776 were replaced with chapter 43.21L RCW.

2. The term "local government" was removed from the definitions section in WAC 199-08-305 because it is not a term defined in chapter 43.21L RCW. This resulted in renumbering of the remaining definitions.

3. A reference to declaratory rulings was deleted from WAC 199-08-310 as outside the authority granted to the board by chapter 43.21L RCW.

4. An omitted reference to record review has been added to WAC 199-08-315(2) to more accurately reflect the scope of the board's statutory jurisdiction.

5. A section relating to appearances by the Office of the Attorney General or the Department of Ecology at WAC 199-08-355 was deleted in response to a comment that it did not apply to the type of proceedings coming before the ELUHB.

6. A comment was received indicating a need to clarify references to the terms "prehearing conference" and "initial hearing." To clarify the specific procedures for each type of occurrence, prior sections WAC 199-08-427, 199-08-450, and 199-08-455 were revised. (See table below 10.) WAC 199-08-435 now contains procedures for requesting the initial hearing and raising mandatory motions. An obsolete cross-reference relating to stipulations was eliminated from prior WAC 199-08-427. WAC 199-08-440 now outlines the process for scheduling an initial hearing. Additional language in WAC 199-08-445 addresses procedures for conducting the initial hearing. WAC 199-08-450 sets forth a process for "case conferences," which is used as a more accurate term for the type of conference contemplated by the prior reference to a "prehearing conference." The motions practice described in WAC 199-08-465 was also refined to make clear the difference between motions brought as part of the initial hearing and other motions in the case.

7. The language "if available" was added to WAC 199-08-340(3) in response to a comment indicating the permit application may not always be available for inclusion with a petition for review.

8. Language allowing the board to take official notice of local government rules, ordinances and plans was added to WAC 199-08-515 in response to a comment received.

9. References to a party initiating and paying for a conference call were deleted from WAC 199-08-465 and 199-08-475 to be consistent with the board's practice, which does not require the requesting party to pay for conference calls.

10. The sections contained in the proposed rule were reordered to provide more topical groupings. This resulted in different numbers for many of the sections. The numbering changes are reflected below:


New number Original number
199-08-300 199-08-300
199-08-305 199-08-305
199-08-310 199-08-310
199-08-315 199-08-315
199-08-320 199-08-320
199-08-325 199-08-325
199-08-330 199-08-335
199-08-335 199-08-340
199-08-340 199-08-350
199-08-345 199-08-430
199-08-350 199-08-385
199-08-355 199-08-390
199-08-360 199-08-395
199-08-365 199-08-400
199-08-370 199-08-405
199-08-375 199-08-410
199-08-380 199-08-415
199-08-385 199-08-420
199-08-390 199-08-425
199-08-395 199-08-445
199-08-400 199-08-426
199-08-425 199-08-435
199-08-430 199-08-440
199-08-435 199-08-427
199-08-440 199-08-450
199-08-445 N/A
199-08-450 199-08-465
199-08-455 199-08-428
199-08-460 199-08-429
199-08-465 199-08-475
199-08-470 199-08-465
199-08-475 199-08-470
199-08-480 199-08-480
199-08-485 199-08-485
199-08-490 199-08-490
199-08-495 199-08-495
199-08-500 199-08-500
199-08-505 199-08-510
199-08-510 199-08-515
199-08-515 199-08-520
199-08-520 199-08-525
199-08-525 199-08-535
199-08-540 199-08-540
199-08-545 199-08-545
199-08-550 199-08-550
199-08-555 199-08-555
199-08-565 199-08-565
199-08-570 199-08-570
199-08-580 199-08-580

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 All [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 0, 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.

Date Adopted: March 10, 2005.

William H. Lynch, Chair

Environmental and

Land Use Hearings Board

OTS-6876.2

Chapter 199-08 WAC

PRACTICE AND PROCEDURE -- BEFORE THE ENVIRONMENTAL AND LAND USE HEARINGS BOARD

PART A

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.

[]


NEW SECTION
WAC 199-08-305   Definitions.   As used in this chapter the following terms shall have the following meanings:

(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 43.21L RCW 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) "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.

(7) "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.

(8) "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.

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

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

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

(12) "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.

(13) "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.

(14) "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.

[]


NEW SECTION
WAC 199-08-310   Computation of time.   (1) In computing any period of time prescribed or allowed by these rules or applicable statute, the day of the act after which the designated period of time begins to run is not to be included. 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 legal holidays shall be excluded in the computation.

(2) This section also pertains to the period for filing with the board any petition for review.

[]

PART B

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 to conduct de novo and record review consistent with chapter 43.21L RCW to adjudicate or determine appeals from any person aggrieved by the granting, denying or rescinding of a permit issued pursuant to chapter 43.21L RCW.

(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.

[]


NEW SECTION
WAC 199-08-320   Office hours, telephone number, telefacsimile number and address of the board.   (1) The administrative business of the board, except rule making, is performed by the environmental hearings office. To the extent necessary for rule making, the appeals board holds regular meetings at 10:00 a.m. on the second Tuesday of each month at the address set forth below.

(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.

[]


NEW SECTION
WAC 199-08-325   Public information about practice before the board and public records.   (1) Questions about board procedures may be directed to the environmental hearings office by e-mail at eho@eho.wa.gov, by regular mail or, during regular office hours, by telephone or by telefacsimile. The board's website address is: www.eho.wa.gov.

(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.

[]

PART C

FILING AN APPEAL WITH THE BOARD AND SERVICE
NEW SECTION
WAC 199-08-330   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.

[]


NEW SECTION
WAC 199-08-335   Where to file a petition for review and number of copies.   (1) Proceedings for review under this chapter shall be commenced by filing a petition with the environmental and land use hearings board. An adjudicative proceeding before the board shall be begun by filing a petition for review and one copy at the environmental hearings office. The board shall acknowledge filing of the petition for review by a stamp and the board's stamp on the petition shall be prima facie evidence of the date of filing. The board may thereafter require that additional copies be filed.

(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.

[]


NEW SECTION
WAC 199-08-340   Contents of the petition for review.   Petitions for review to the board pursuant to chapter 43.21L RCW and shall contain:

(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, if available, 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.

[]


NEW SECTION
WAC 199-08-345   Correction or amendment of notice.   (1) Within thirty days of receipt by the board, if any petition for review is found to be defective or insufficient, the board may require the party filing the petition for review to correct, clarify or amend the same to conform to the requirements of any relevant statutes 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 may include providing for dismissal of the petition upon failure to comply within a specified time.

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

[]

PART D

APPEARANCE AND PRACTICE BEFORE THE BOARD
NEW SECTION
WAC 199-08-350   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.

[]


NEW SECTION
WAC 199-08-355   Appearance by representative.   (1) An attorney or authorized representative as defined in WAC 199-08-385 may appear for a party by either of the following actions:

(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) 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.

(4) 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.

[]


NEW SECTION
WAC 199-08-360   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 for 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.

[]


NEW SECTION
WAC 199-08-365   Conduct before the board by representatives.   All persons who are representing parties before the board shall conform to the standards of ethical conduct required of attorneys before the courts of Washington even if the representative is not an attorney. Representatives who, in the opinion of the presiding officer, violate those ethical standards may be reprimanded or sanctioned. Sanctions may include, among other measures, the imposition of costs and the exclusion of the representative from the proceedings. The board may, after notifying the representative and holding a hearing, take appropriate disciplinary action including, but not limited to, barring such person from representing another party in any future board proceedings.

[]


NEW SECTION
WAC 199-08-370   Parties not represented by legal counsel -- Waiver of rules to prevent manifest injustice.   The presiding officer may waive any of these rules, other than a rule relating to jurisdiction, for any party not represented by legal counsel where necessary to avoid manifest injustice.

[]


NEW SECTION
WAC 199-08-375   Presiding officer duties and powers.   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 officer shall have the authority, subject to the other provisions of these rules:

(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 case 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.

[]


NEW SECTION
WAC 199-08-380   Mediation.   The board may, on occasion, recommend that the parties to an appeal engage in mediation. One or more parties may also recommend to the other parties or the presiding officer that mediation occur. Subject to availability, an administrative appeals judge from the environmental hearings office may serve as the mediator for the board. In the event that the mediation proves unsuccessful and the case proceeds to hearing, any administrative appeals judge who served as a mediator will neither preside over the hearing nor have any contact with the board members regarding the case other than to inform them that the mediation did not result in a settlement.

[]


NEW SECTION
WAC 199-08-385   Subpoenas.   (1) Issuance. Subpoenas may be issued by any member of the board, the presiding officer assigned to the case or by the attorney of record, as provided in the Administrative Procedure Act. Each subpoena shall be subscribed with the signature of the issuing person. Parties desiring subpoenas to be signed by the presiding officer or a board member shall make a showing of general relevance and reasonable scope of the testimony or evidence sought, shall prepare the subpoenas for issuance, shall send them to the board's office for signature, and, upon return, shall make arrangements for service.

(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.

[]

PART E

PREHEARING PRACTICE
NEW SECTION
WAC 199-08-390   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.

[]


NEW SECTION
WAC 199-08-395   Answers to petitions for review.   A party need not file an answer to a petition for review filed pursuant to these rules.

[]


NEW SECTION
WAC 199-08-400   Certification of permit applications.   (1) Within seven days after receipt of service of the petition filed pursuant to law, the project applicant shall file with the board and serve on all parties an affidavit certifying all applications for permits that the project applicant has filed with participating permit agencies for the qualifying project, provided, however, that no permit may be included that has been issued and appealed to an administrative hearings board or to court prior to the date of service of the petition filed with the board under this chapter. The board shall request verification from the participating agencies of the permit applications certified in the project applicant's affidavit and of the expected date for final decision on the permit applications. Filing of the affidavit shall toll the schedule for hearing by the board until twenty-one days after issuance of the final permit decision on the last permit required for the qualifying project that has been certified in the project applicant's affidavit and verified by a participating agency as applied for, unless the petition filed and served by the petitioner relates to the final permit decision.

[]


NEW SECTION
WAC 199-08-425   Intervention.   (1) The presiding officer may grant a petition for intervention by any person at any time, upon determining that the petitioner qualifies as an intervenor pursuant to civil rule 24, that the intervention will serve the interests of justice and that the prompt and orderly conduct of the appeal will not be impaired.

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

[]


NEW SECTION
WAC 199-08-430   Joinder of parties.   The presiding officer shall order the joinder of the permittee, permitting agency or any other interested person or entity in accordance with civil rule 19. The presiding officer may also permit the joinder of persons who are not necessary to the determination of the appeal in accordance with civil rule 20.

[]


NEW SECTION
WAC 199-08-435   Request for initial hearing, jurisdictional motions.   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 request 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 raise 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 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, 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.

[]


NEW SECTION
WAC 199-08-440   Scheduling of initial hearing and motions.   (1) Upon receipt of petitioner's request for an initial hearing, which complies with the requirements of these regulations, the board shall promptly mail to each party a scheduling letter, which sets the time and location of the initial hearing.

(2) 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 and briefing motions that must be heard at the initial hearing in accordance with WAC 199-08-435. The letter must 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 letter will control the proceedings at the initial hearing unless modified for good cause by the presiding officer.

[]


NEW SECTION
WAC 199-08-445   Initial hearing.   (1) The initial hearing shall be conducted by a presiding officer who shall conduct the hearing in an orderly manner and make all necessary procedural rulings.

(2) The presiding officer shall designate a portion of the initial hearing for oral argument for any motions raised for resolution pursuant to WAC 199-08-435, if oral argument has been granted for the motions.

(3) At the conclusion of the initial hearing, the presiding officer shall issue an order that sets the date on which the permit decision record or records of the applicable permit agency or agencies, if any, must be submitted. The order shall also set a briefing schedule, a discovery schedule if discovery is to be allowed, and the date for a hearing or hearings on the merits, unless these matters have been set in an order issued after a case conference pursuant to WAC 199-08-455. The order shall control the proceedings unless modified for good cause by the presiding officer.

[]


NEW SECTION
WAC 199-08-450   Case conferences.   The presiding officer may call case conferences to address procedures, legal issues, scheduling issues, the feasibility of settlement, and other relevant matters in the case. Orders in the case can be issued upon proceedings in a case conference, including scheduling, discovery, legal issues, witnesses, exhibits, stipulations and admissions. An order issued after a case conference shall control the proceedings with regards to the matters contained within the order unless modified for good cause by the presiding officer.

[]


NEW SECTION
WAC 199-08-455   Stays.   (1) Any party may request the board to stay or suspend an action by a participating permit agency or another party to implement the decision under review. The request must set forth a statement of grounds for the stay and the factual basis for the request.

(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.

[]


NEW SECTION
WAC 199-08-460   Discovery.   The parties may not conduct pretrial discovery except with the prior permission of the board, which may be sought by motion, subject to any applicable rules adopted by the board and RCW 34.05.446(3), at any time after service of the petition. The party requesting discovery must make a prima facie showing of need. The board shall strictly limit discovery to what is necessary for equitable and timely review of the issues.

[]


NEW SECTION
WAC 199-08-465   Motions.   (1) An application to the board for an order shall be by motion which, unless made during a hearing, shall be in writing, state with particularity the grounds therefor and set forth the relief sought. The motion and other relevant materials shall be filed with the board and served on all parties.

(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 conduct a hearing for the purpose of receiving oral argument on the motion. The board may independently set a motion hearing date. The presiding officer will decide whether or not a motion hearing will be held, and will notify the parties accordingly. If the motion pertains to an issue that must be raised for resolution at the initial hearing pursuant to WAC 199-08-435, oral argument, if granted, will take place at the initial hearing. At a motion hearing, the board will consider the arguments of the parties but will not take evidence. The board will decide a motion exclusively on the parties' written submissions unless the presiding officer orders a motion hearing.

(4) The letter that sets the dates for the initial hearing pursuant to WAC 199-08-450 shall also establish the schedule for filing and briefing motions that have been raised for resolution at the initial hearing.

(5) For motions not subject to subsection (4) of this section, the following deadlines apply:

(a) All responses to any dispositive motion shall be filed and served fourteen days from the date the motion is received. The moving party shall then have ten days from receipt of the response to file and serve a reply. The presiding officer may establish a different schedule for responses and replies by order.

(b) In cases where the moving party requests a motion hearing, 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.

(c) All dispositive motions shall be filed and served in accordance with the conference order issued by the presiding officer.

(6) In exigent or exceptional circumstances, a party may at any time request the board to modify the above schedules established in subsections (4) and (5) of this section by requesting a case conference with the presiding officer.

[]


NEW SECTION
WAC 199-08-470   Settlement and mediation agreements.   (1) Where the parties settle an appeal before hearing, the parties shall prepare a written order of dismissal to which the settlement agreement is attached, and submit that order to the board. If the agreement is in accordance with the law, the board shall enter the order and dispose of the case.

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

[]


NEW SECTION
WAC 199-08-475   Use of telephone conferences, motion hearings and hearings.   Upon the motion of any party or independently, the presiding officer may decide to conduct any conference, motion hearing or hearing by telephone conference call to promote the fair, speedy and economical processing of a matter.

[]


NEW SECTION
WAC 199-08-480   Postponements and continuances of hearings.   (1) Postponement or continuance of a hearing is within the discretion of the presiding officer, whether contested or uncontested by the parties. The board may postpone or continue a hearing on its own motion.

(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.

[]


NEW SECTION
WAC 199-08-485   Dismissal, default or withdrawal of appeal.   (1) If a party fails to attend or participate in a hearing or other stage of an adjudicative proceeding, the presiding officer may serve upon all parties a default or other dispositive order which shall include a statement of the grounds for the order. Within seven days after service of a default or dismissal order for failure to attend or participate, the party against whom it was entered may file a written motion requesting that the order be vacated and stating the grounds relied upon.

(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.

[]

PART F

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.

[]


NEW SECTION
WAC 199-08-495   Procedures for hearings on the merits.   (1) Presiding officer. All hearings on the merits 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 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 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 and arguments.

(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.

[]


NEW SECTION
WAC 199-08-500   Scope and standard of review.   (1) Hearings upon petitions for review shall be quasi-judicial in nature. The scope and standard of review shall be as follows:

(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.

[]


NEW SECTION
WAC 199-08-505   Provision of interpreters and of reasonable accommodations to individuals with special needs.   (1) Whenever any person involved in an adjudicative proceeding before the board is eligible for an interpreter, as that eligibility is defined in WAC 10-08-150, or qualifies for reasonable accommodations as an individual with disabilities, that person shall request an interpreter or other reasonable accommodations from the presiding officer not later than three weeks before the date of the hearing, conference or other situation for which the interpreter or assistance is needed. The board shall comply with WAC 10-08-150 and 10-08-160(2) regarding the provision of interpreters.

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

[]


NEW SECTION
WAC 199-08-510   Rules of evidence -- Admissibility criteria.   (1) Evidence, including hearsay evidence, is admissible if in the judgment of the presiding officer it is the kind of evidence on which reasonably prudent persons are accustomed to rely in the conduct of their affairs. All relevant evidence is admissible which, in the opinion of the presiding officer, is the best evidence reasonably obtainable, having due regard for its necessity, availability and trustworthiness. In passing upon the admissibility of evidence, the presiding officer 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.

(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.

[]


NEW SECTION
WAC 199-08-515   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:

(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.

(5) Local government rules, ordinances and plans.

[]


NEW SECTION
WAC 199-08-520   Rules of evidence -- Official notice -- Material facts.   (1) 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 officially notice:

(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 that 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.

[]


NEW SECTION
WAC 199-08-525   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.

[]

PART G

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.

[]


NEW SECTION
WAC 199-08-545   Preparation of transcripts.   (1) The board, in its discretion, may at any time cause a transcript to be printed, but will not normally do so.

(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.

[]


NEW SECTION
WAC 199-08-550   Preparation of findings, conclusions and orders.   Upon request of the board or presiding officer proposed findings, conclusions and orders shall be prepared by counsel and the same shall be based upon the board's oral or memorandum opinion. The board or presiding officer may adopt, in whole or in part, the proposed findings, conclusions and orders or the board may prepare its own findings, conclusions and orders.

[]


NEW SECTION
WAC 199-08-555   Final decisions and orders.   (1) Upon completion of the record and submission of the issues for decision and order, a written final decision and order concurred in by a majority of the board may be adopted which shall contain findings and conclusions as to each contested issue of fact and law: Provided, That in the event that the board considers the record and that four of the members cannot agree on a decision, the substantive decision under appeal will control. The board will formally adopt its final decision and order.

(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.

[]


NEW SECTION
WAC 199-08-565   Petitions for reconsideration.   (1)(a) After issuance of a final decision, any party may file a petition for reconsideration with the board. Such petition must be filed within ten days of mailing of the final decision. The board may require an answer to the petition. Copies of the petition for reconsideration, and an answer, if required, shall be served on the other parties of record.

(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.

[]

PART H

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.

[]


NEW SECTION
WAC 199-08-580   Certification of record.   Within thirty days of receipt of a copy of the petition for judicial review to the superior court or notice of acceptance of the certificate of appealability by the court of appeals, the board shall certify and transmit to the reviewing court the record made before the board. Additional time for certification and transmission of the record may be allowed by the reviewing court. Normally the record will not include a transcript of the testimony. Unless the board has caused a transcript to be printed, arrangements for and costs of the written transcript shall be the obligation of the party seeking judicial review.

[]

Washington State Code Reviser's Office