WSR 10-18-021

PERMANENT RULES

ENVIRONMENTAL HEARINGS OFFICE


(Pollution Control Hearings Board)

(Shorelines Hearings Board)

(Environmental and Land Use Hearings Board)

(Forest Practices Appeals Board)

(Hydraulics Appeals Board)

[ Filed August 23, 2010, 3:08 p.m. , effective September 23, 2010 ]


Effective Date of Rule: Thirty-one days after filing.

Purpose: The purpose of these changes is to comply with 2010 Washington laws, chapters 7, 84, 130, 210 and 285. 2010 Washington laws, chapter 210 eliminates the hydraulics appeals board (HAB) and the forest practices appeals board (FPAB), and transfers the administrative review functions of these boards to the pollution control hearings board (PCHB). 2010 Washington laws, chapter 7 eliminates the environmental and land use hearings board (ELUHB). To comply with these statutory changes, all of the HAB and ELUHB procedural rules are proposed for repeal. All of the FPAB rules, with the exception of WAC 223-08-087, the FPAB rule on temporary suspensions or discontinuances, are proposed for repeal. WAC 223-08-087 will remain in effect, and will be used by the PCHB when hearing forest practices appeals, until such time as a superseding temporary suspension or discontinuance rule is adopted for forest practices appeals before the PCHB. See 2010 Washington laws, chapter 210, section 42(2).

2010 Washington laws, chapter 210 also changes the time frames for filing appeals from certain actions of various agencies, therefore necessitating changes in the procedural rules of the PCHB and Shorelines hearings board (SHB) to conform with these statutory changes.

2010 Washington laws, chapter 210 also directs that appeals of listed decisions made by the department of natural resources, the department of fish and wildlife, the department of ecology, the commissioner of public lands, and decisions made by state agencies that are authorized public entities under RCW 79.100.010 pertaining to derelict vessels, be filed with and reviewed by the PCHB.

Additional changes include making the PCHB and SHB rules consistent with 2010 Washington laws, chapter 210 pertaining to mediations, and adding a requirement regarding submissions of subpoenas for signature to the board's presiding officer at least ten days before the hearing.

Reasons supporting proposal: All of these changes are necessary to implement 2010 Washington laws, chapters 7, 84, 130, 210, and 285, with the exception of the addition of the ten day requirement for submission of subpoenas. The addition of a time period for submission of subpoenas for signature prior to the hearing will facilitate the return of subpoenas to the requesting party sufficiently in advance of the hearing to allow time for the requesting party to serve the subpoena.

Citation of Existing Rules Affected by this Order: Repealing FPAB procedural rules chapters 223-08, 223-09 and 223-12 WAC, with the exception of WAC 223-08-087; also repealing HAB procedural rules chapter 259-04 WAC, and the ELUHB procedural rules chapter 199-08 WAC; and amending PCHB procedural rules WAC 371-08-315, 371-08-335, 371-08-395, 371-08-400, 371-08-555 and SHB procedural rules WAC 461-08-305, 461-08-340, 461-08-345, 461-08-415, 461-08-420, and 461-08-570.

Statutory Authority for Adoption: RCW 43.21B.170, 90.58.175, 2010 Washington laws, chapters 84, 130, 210 and 285.

Adopted under notice filed as WSR 10-13-173 on June 23, 2010.

Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 1, Repealed 0.

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

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

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

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

Date Adopted: August 23, 2010.

Andrea McNamara Doyle

Director of the

Environmental Hearings Office

Chair of the Pollution

Control Hearings Board

and Shorelines Hearings Board

OTS-3160.1


REPEALER
     The following chapter of the Washington Administrative Code is repealed:
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.
WAC 199-08-305 Definitions.
WAC 199-08-310 Computation of time.
WAC 199-08-315 Board membership, function and jurisdiction.
WAC 199-08-320 Office hours, telephone number, telefacsimile number and address of the board.
WAC 199-08-325 Public information about practice before the board and public records.
WAC 199-08-330 Types of petitions before the board.
WAC 199-08-335 Where to file a petition for review and number of copies.
WAC 199-08-340 Contents of the petition for review.
WAC 199-08-345 Correction or amendment of notice.
WAC 199-08-350 Persons who may appear before the board.
WAC 199-08-355 Appearance by representative.
WAC 199-08-360 Withdrawal or substitution of representatives.
WAC 199-08-365 Conduct before the board by representatives.
WAC 199-08-370 Parties not represented by legal counsel -- Waiver of rules to prevent manifest injustice.
WAC 199-08-375 Presiding officer duties and powers.
WAC 199-08-380 Mediation.
WAC 199-08-385 Subpoenas.
WAC 199-08-390 Dismissal of petitions for review on jurisdictional grounds.
WAC 199-08-395 Answers to petitions for review.
WAC 199-08-400 Certification of permit applications.
WAC 199-08-425 Intervention.
WAC 199-08-430 Joinder of parties.
WAC 199-08-435 Request for initial hearing, jurisdictional motions.
WAC 199-08-440 Scheduling of initial hearing and motions.
WAC 199-08-445 Initial hearing.
WAC 199-08-450 Case conferences.
WAC 199-08-455 Stays.
WAC 199-08-460 Discovery.
WAC 199-08-465 Motions.
WAC 199-08-470 Settlement and mediation agreements.
WAC 199-08-475 Use of telephone conferences, motion hearings and hearings.
WAC 199-08-480 Postponements and continuances of hearings.
WAC 199-08-485 Dismissal, default or withdrawal of appeal.
WAC 199-08-490 Hearing briefs.
WAC 199-08-495 Procedures for hearings on the merits.
WAC 199-08-500 Scope and standard of review.
WAC 199-08-505 Provision of interpreters and of reasonable accommodations to individuals with special needs.
WAC 199-08-510 Rules of evidence -- Admissibility criteria.
WAC 199-08-515 Rules of evidence -- Official notice -- Matters of law.
WAC 199-08-520 Rules of evidence -- Official notice -- Material facts.
WAC 199-08-525 Rules of evidence -- Tentative admission -- Exclusion -- Discontinuance -- Objections.
WAC 199-08-540 Contents of the record.
WAC 199-08-545 Preparation of transcripts.
WAC 199-08-550 Preparation of findings, conclusions and orders.
WAC 199-08-555 Final decisions and orders.
WAC 199-08-565 Petitions for reconsideration.
WAC 199-08-570 Time for filing petitions for review to superior court and court of appeals.
WAC 199-08-580 Certification of record.

OTS-3161.2


REPEALER
     The following chapter of the Washington Administrative Code is repealed:
WAC 223-08-001 Purpose and applicability.
WAC 223-08-002 Commencement of adjudicative proceedings.
WAC 223-08-005 Background information.
WAC 223-08-010 Board administration and address of the board.
WAC 223-08-020 Board administration -- Quorum.
WAC 223-08-030 Board administration -- Procedures applicable.
WAC 223-08-035 Board administration -- Definitions.
WAC 223-08-037 Board administration -- Service of documents on representatives.
WAC 223-08-040 Board administration -- Presiding officer, powers.
WAC 223-08-045 Board administration -- Computation of time.
WAC 223-08-050 Appearance and practice -- Persons who may appear.
WAC 223-08-055 Appearance and practice -- Notice of appearance.
WAC 223-08-060 Appearance and practice -- No formal admission.
WAC 223-08-065 Appearance and practice -- Withdrawal.
WAC 223-08-070 Appearance and practice -- Conduct.
WAC 223-08-072 Appearance and practice -- Parties not represented by legal counsel -- Waiver of rules to prevent manifest injustice.
WAC 223-08-075 Commencing an appeal -- Filing and service.
WAC 223-08-080 Commencing an appeal -- Forms.
WAC 223-08-085 Commencing an appeal -- Types and time limits.
WAC 223-08-090 Commencing an appeal -- Jurisdiction.
WAC 223-08-095 Commencing an appeal -- Amendment of notice.
WAC 223-08-097 Intervention.
WAC 223-08-100 Prehearing conferences.
WAC 223-08-107 Prehearing procedures -- Telephone.
WAC 223-08-148 Procedures -- Motions.
WAC 223-08-160 Hearing -- Notice of.
WAC 223-08-162 Hearing -- Primary and secondary setting.
WAC 223-08-165 Hearing -- Continuance.
WAC 223-08-171 Hearing -- Dismissal or default.
WAC 223-08-175 Hearing -- Procedures at.
WAC 223-08-177 Hearing -- Standard and scope of review.
WAC 223-08-180 Hearing -- Additional evidence.
WAC 223-08-185 Hearing -- Rules of evidence.
WAC 223-08-190 Hearing -- Admission of evidence and objections.
WAC 223-08-195 Hearing -- Excerpts from documentary evidence.
WAC 223-08-200 Hearing -- Official notice of law.
WAC 223-08-205 Hearing -- Official notice of fact.
WAC 223-08-210 Hearing -- Basis for finding of fact.
WAC 223-08-215 Hearing -- Record.
WAC 223-08-220 Hearing -- Transcripts.
WAC 223-08-250 Decision -- Final decision.
WAC 223-08-252 Decision -- Preparation of findings, conclusions and orders.
WAC 223-08-255 Petition for reconsideration.
WAC 223-08-257 Appeals to the courts -- Certification of record.
WAC 223-08-260 Appeal -- Superior court petition.
WAC 223-08-265 Appeal -- Certification of record.
WAC 223-08-270 Declaratory ruling -- Petition.
WAC 223-08-275 Rule making -- Petition.

Reviser's note: The above reference to chapter should be sections.

OTS-3162.1


REPEALER
     The following chapter of the Washington Administrative Code is repealed:
WAC 223-09-001 Statement of exemption.

OTS-3163.1


REPEALER
     The following chapter of the Washington Administrative Code is repealed:
WAC 223-12-010 Purpose.
WAC 223-12-020 Definitions.
WAC 223-12-030 Organization and operation of forest practices appeals board.
WAC 223-12-040 Public records available.
WAC 223-12-050 Public records officer.
WAC 223-12-060 Office hours.
WAC 223-12-070 Request for public records.
WAC 223-12-080 Copying.
WAC 223-12-090 Exemptions.
WAC 223-12-100 Review of denials of public records request.
WAC 223-12-110 Protection of public records.
WAC 223-12-120 Records index.
WAC 223-12-130 Communication with the appeals board.
WAC 223-12-140 Adoption of form.

OTS-3164.1


REPEALER
     The following chapter of the Washington Administrative Code is repealed:
WAC 259-04-010 Membership -- Function and jurisdiction of the hydraulic appeals board.
WAC 259-04-020 Board administration -- Office of the board.
WAC 259-04-030 Board administration -- Meeting of the board.
WAC 259-04-040 Board administration.
WAC 259-04-050 Board administration -- Communications with the board.
WAC 259-04-060 Procedures applicable.
WAC 259-04-070 Authority.

OTS-3368.2


AMENDATORY SECTION(Amending WSR 04-03-001, filed 1/7/04, effective 2/7/04)

WAC 371-08-315   Membership, function and jurisdiction.   (1) Members. The board is composed of three members appointed by the governor, with the advice and consent of the senate, for a term of six years. The members are to be qualified by experience or training in pertinent matters pertaining to the environment, and at least one member shall be a lawyer, and not more than two members shall be of the same political party.

(2) Function and jurisdiction. The function of this board is to provide an expeditious and efficient disposition of appeals from the decisions and orders of the department of agriculture pursuant to chapters 90.48 and 90.64 RCW, the department of ecology, from the decisions of air pollution control authorities established pursuant to chapter 70.94 RCW, ((and)) from the decisions of local health departments, when such orders and decisions concern matters within the jurisdiction of the board as provided in RCW 43.21B.110((:)), the decisions of the department of natural resources, the department of fish and wildlife, and the department of ecology that are reviewable under chapter 76.09 RCW, and the department of natural resources' appeals of county, city, or town objections under RCW 76.09.050(7); forest health hazard orders issued by the commissioner of public lands under RCW 76.06.180; decisions of the department of fish and wildlife to issue, deny, condition or modify a hydraulic project approval permit under chapter 77.55 RCW; decisions of the department of natural resources that are reviewable under RCW 78.44.270 and 78.44.380, and decisions of a state agency that is an authorized public entity under RCW 79.100.010 to take temporary possession or custody of a vessel or to contest the amount of reimbursement owed that are reviewable under RCW 79.100.120.

(a) Civil penalties imposed pursuant to RCW 18.104.155, 70.94.431, 70.105.080, 70.105.095, 70.107.050, 76.09.170, section 10, chapter 130, Laws of 2010, section 11, chapter 130, Laws of 2010, RCW 77.55.291, 78.44.250, section 1, chapter 84, Laws of 2010, RCW 86.16.081, 88.46.090, 90.03.600, 90.48.144, 90.56.310, 90.56.320, 90.56.330, 90.58.560 and chapter 90.64 RCW.

(b) Orders issued pursuant to RCW 18.104.043, 18.104.060, 18.104.065, 43.27A.190, 70.94.211, 70.94.332, 70.105.095, 70.107.060, 88.46.070, 90.14.130, 90.14.190, 90.48.120 and chapter 90.64 RCW.

(c) The issuance, modification, termination or denial of any permit certificate or license by the department of ecology or any air pollution control authority.

(d) The granting, denial, revocation, or suspension of a water right examiner certificate issued by the department under chapter 285, Laws of 2010.

(e) Decisions by the department disapproving a comprehensive solid waste management plan or any amendments to that plan that are appealed by the submitting entity pursuant to RCW 70.95.094.

(f) Decisions of local health departments regarding the grant or denial of solid waste permits or of biosolid permits pursuant to chapter 70.95 RCW.

(((e))) (g) Disputes between the department and the governing bodies of local governments regarding local planning requirements under RCW 70.105.220 and zone designation under RCW 70.105.225, pursuant to RCW 70.105.250.

(((f))) (h) Any other decision by the department of ecology, the administrator of marine safety or an air pollution control authority which pursuant to law must be decided as an adjudicative proceeding under chapter 34.05 RCW.

(3) This section is intended to be general and informational only, and failure herein to list matters over which the board has jurisdiction at law shall not constitute any waiver or withdrawal whatsoever from such jurisdiction.

[Statutory Authority: RCW 34.05.360 and 2003 c 325. 04-03-001, 371-08-315, filed 1/7/04, effective 2/7/04. Statutory Authority: RCW 43.21B.170. 96-15-003, 371-08-315, filed 7/3/96, effective 8/3/96.]


AMENDATORY SECTION(Amending WSR 07-03-074, filed 1/17/07, effective 2/17/07)

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

(2) The notice of appeal shall be filed with the board within thirty days of the date of receipt of the order or decision unless otherwise provided by law. The board's rule governing the computation of time (WAC 371-08-310) shall determine how the thirty-day appeal period is calculated. The "date of receipt" of an order or decision means:

(a) Five business days after the date of mailing; or

(b) The date of actual receipt, when the actual receipt date can be proven by a preponderance of the evidence. The recipient's sworn affidavit or declaration indicating the date of receipt, which is unchallenged by the agency, shall constitute sufficient evidence of actual receipt. The date of actual receipt, however, may not exceed forty-five days from the date of mailing.

(3) An appeal may be filed with the board by personal delivery, commercial delivery, facsimile, or first-class, registered or certified mail. An appeal is filed with the board on the date the board actually receives the notice of the appeal, not the date that the notice is mailed. Upon receiving the notice of appeal, the board will acknowledge receipt. The date stamped on the appeal notice shall be prima facie evidence of the filing date. The board may thereafter require that additional copies be filed.

[Statutory Authority: RCW 43.21B.170, 90.58.174, chapters 43.21B, 34.05, and 90.58 RCW. 07-03-074, 371-08-335, filed 1/17/07, effective 2/17/07. Statutory Authority: RCW 43.21B.170, chapter 34.05 RCW, and RCW 43.21B.001, [43.21B].190, [43.21B].230, [43.21B].300, [43.21B].310. 05-15-017, 371-08-335, filed 7/7/05, effective 8/7/05. Statutory Authority: RCW 43.21B.170 and 1997 c 125. 97-19-064, 371-08-335, filed 9/15/97, effective 10/16/97. Statutory Authority: RCW 43.21B.170 and Den Beste v. Washington, No. 13967-1-III (Div. III, April 18, 1996). 96-17-016, 371-08-335, filed 8/12/96, effective 9/12/96.]


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

WAC 371-08-395   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 a 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 appeal proceeds to hearing, any administrative appeals judge who served as a mediator will neither preside over the appeal hearing nor have any contact with the board members regarding the appeal other than to inform the board members that the mediation did not result in a settlement.)) In all appeals, upon request of one or more parties and with the consent of all parties, the board may assign a mediator. The mediator must be an administrative appeals judge or other duly authorized agent of the board who has received training in dispute resolution techniques or has a demonstrated history of successfully resolving disputes, as determined by the board. A person who mediates in a particular appeal may not participate in a hearing on that appeal and may not write the decision and order in the appeal. The mediator may not communicate with board members regarding the mediation other than to inform them of the pendency of the mediation and whether the case settled. Mediation provided by the environmental hearings boards must be conducted pursuant to the provisions of the Uniform Mediation Act, chapter 7.07 RCW.

[Statutory Authority: RCW 43.21B.170. 96-15-003, 371-08-395, filed 7/3/96, effective 8/3/96.]


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

WAC 371-08-400   Subpoenas.   (1) Issuance. Subpoenas may be issued by any member of the board, the presiding officer assigned to the case or an 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 at least ten days before the hearing, and, upon return, shall make arrangements for service.

(2) Form. Every subpoena shall name the pollution control hearings board and the title of the proceedings, and shall command the person to whom it is directed to attend and give testimony or produce designated books, documents, or things under that person's control at a specified time and place.

(3) Service. Service of subpoenas to a witness who is not a 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 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.

[Statutory Authority: RCW 43.21B.170. 96-15-003, 371-08-400, filed 7/3/96, effective 8/3/96.]


AMENDATORY SECTION(Amending WSR 06-07-088, filed 3/15/06, effective 4/15/06)

WAC 371-08-555   Time for filing petitions for review to superior court.   An appeal of a final board order is called a petition for review. A petition for review must be filed with superior court within thirty days ((of)) from the date of ((receipt)) service of the final order or decision. The petitioner shall file a copy of the petition for review to superior court with the board and shall serve all parties of record. All appeals must first be filed in superior court even if direct review to the court of appeals will be sought.

[Statutory Authority: RCW 43.21B.170, chapter 34.05 RCW and RCW 43.21B.190. 06-07-088, 371-08-555, filed 3/15/06, effective 4/15/06. Statutory Authority: RCW 43.21B.170 and SHB 1314. 97-19-064, 371-08-555, filed 9/15/97, effective 10/16/97. Statutory Authority: RCW 43.21B.170. 96-15-003, 371-08-555, filed 7/3/96, effective 8/3/96.]

OTS-3369.1


AMENDATORY SECTION(Amending WSR 07-03-074, filed 1/17/07, effective 2/17/07)

WAC 461-08-305   Definitions.   The following terms apply throughout this chapter and, unless the context clearly requires otherwise, have the following meanings:

(1) "Agency" means any state 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 shorelines hearings board, a quasi-judicial body created pursuant to chapter 90.58 RCW and described in WAC 461-08-315.

(4) "Date of ((filing" as used in this chapter and RCW 90.58.140(6) has different meanings depending upon the type of local government decision that is being appealed.

(a) "Date of filing" of a local government's approval or denial of a substantial development permit, or local government's denial of a variance or conditional use permit, is the date that the department actually receives a completed filing.

(b) "Date of filing" of a local government's approval of a conditional use permit or variance is the date that the department transmits its final decision or order to local government.

(c) For substantial development permits filed simultaneously with approvals of conditional use permits or variances, the "date of filing" is the date that the department transmits its final decision or order on the variance or conditional use permit to local government)) receipt" means:

(a) Five business days after the date of mailing; or

(b) The date of actual receipt, when the actual receipt date can be proven by a preponderance of the evidence. The recipient's sworn affidavit or declaration indicating the date of receipt, which is unchallenged by the agency, shall constitute sufficient evidence of actual receipt. The date of actual receipt; however, may not exceed forty-five days from the date of mailing.

(5) "Department" refers to and means the department of ecology.

(6) "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. Electronic filing of documents, other than the appeal document itself, may be authorized by the presiding officer after consultation with the parties regarding format and authentication.

(7) "Local government" means any county, incorporated city or town which contains within its boundaries any lands or water subject to chapter 90.58 RCW.

(8) "Party" means:

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

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

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

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

(11) "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.

(12) "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.

(e) Electronic service. Electronic service of documents, other than the appeal document itself, is authorized if the parties agree to electronic service or if authorized by the presiding officer.

[Statutory Authority: RCW 43.21B.170, 90.58.174, chapters 43.21B, 34.05, and 90.58 RCW. 07-03-074, 461-08-305, filed 1/17/07, effective 2/17/07. Statutory Authority: RCW 90.58.175. 96-15-002, 461-08-305, filed 7/3/96, effective 8/3/96.]


AMENDATORY SECTION(Amending WSR 07-03-074, filed 1/17/07, effective 2/17/07)

WAC 461-08-340   Where to file a petition for review and number of copies.   (1) An adjudicative proceeding before the board is initiated by filing a petition for review with the board 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 is prima facie evidence of the date of filing. The board may thereafter require that additional copies be filed.

(2) Deadlines for filing a petition for review. Different deadlines for filing a petition for review apply depending upon the type of shoreline decision or government action ((being appealed)) taken, and whether local government or the department makes the final decision.

(a) ((A petition for review by)) Any person aggrieved by ((the)) a local government's decision granting, denying or rescinding ((of a permit on shorelines of the state must be filed)) a shoreline substantial development, or its denial of a shoreline conditional use or variance must file a petition for review with the board within twenty-one days of the (("))date of ((filing" as defined in WAC 461-08-305)) receipt by the applicant of a written notice from the department that the department has received the local government's shoreline decision.

(b) ((A petition for review by)) If local government approves a shoreline conditional use or variance permit, that action will be reviewed by the department, which will make the final decision on the conditional use or variance permit. Any person aggrieved by ((a penalty assessment must be filed)) the department's decision to approve, approve with conditions or deny a conditional use or variance permit must file a petition for review with the board within ((thirty)) twenty-one days of the date ((the penalty notice is received)) of receipt by the local government or applicant of the department's decision.

(c) ((A petition for review by any person aggrieved by the department's decision to approve, reject or modify a proposed or final shoreline master program, or program amendment, by a local government that is not planning under the Growth Management Act, RCW 36.70A.300,)) When a local government simultaneously transmits to the department its decision on a shoreline substantial development with its approval of a shoreline conditional use permit and/or variance, a petition for review of the shoreline substantial development decision must be filed ((with the board within thirty)) no later than twenty-one days ((of)) from the date of ((the department's written notice of its decision to the local government)) receipt by the local government or applicant of the department's decision on the conditional use or variance permit.

(d) A petition for review by ((any)) a person ((aggrieved by any rules, regulations or guidelines adopted or approved by the department pursuant to chapter 90.58 RCW)) who has incurred a penalty assessment must be filed with the board within thirty days of the date of ((adoption or approval)) receipt of the penalty.

(e) A petition for review by any person aggrieved by the department's final decision to approve, or reject a proposed master program, or master program amendment, by a local government that is not planning under the Growth Management Act, RCW 36.70A.040, must be filed with the board within thirty days of the date of the department's written notice to the local government of its final decision.

(f) A petition for review of any rules, regulations, or guidelines adopted or approved by the department pursuant to chapter 90.58 RCW must be filed with the board within thirty days of the date of adoption or approval.

[Statutory Authority: RCW 43.21B.170, 90.58.174, chapters 43.21B, 34.05, and 90.58 RCW. 07-03-074, 461-08-340, filed 1/17/07, effective 2/17/07. Statutory Authority: RCW 90.58.175. 96-15-002, 461-08-340, filed 7/3/96, effective 8/3/96.]


AMENDATORY SECTION(Amending WSR 96-15-002, filed 7/3/96, effective 8/3/96)

WAC 461-08-345   Deadline for filing petition for review of permitting decisions by the department or attorney general.   The department or the attorney general may, pursuant to RCW 90.58.180(2), obtain review of any final decision granting a permit, or granting or denying an application for a permit issued by a local government by filing a written petition for review with the board and the appropriate local government within twenty-one days from the date of receipt of the final decision ((was filed)) as provided in RCW 90.58.140(6).

[Statutory Authority: RCW 90.58.175. 96-15-002, 461-08-345, filed 7/3/96, effective 8/3/96.]


AMENDATORY SECTION(Amending WSR 96-15-002, filed 7/3/96, effective 8/3/96)

WAC 461-08-415   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 a 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.)) In all appeals, upon request of one or more parties and with the consent of all parties, the board may assign a mediator. The mediator must be an administrative appeals judge or other duly authorized agent of the board who has received training in dispute resolution techniques or has a demonstrated history of successfully resolving disputes, as determined by the board. A person who mediates in a particular appeal may not participate in a hearing on that appeal and may not write the decision and order in the appeal. The mediator may not communicate with board members regarding the mediation other than to inform them of the pendency of the mediation and whether the case settled. Mediation provided by the pollution control hearings board or shoreline hearings board must be conducted pursuant to the provisions of the Uniform Mediation Act, chapter 7.07 RCW.

[Statutory Authority: RCW 90.58.175. 96-15-002, 461-08-415, filed 7/3/96, effective 8/3/96.]


AMENDATORY SECTION(Amending WSR 96-15-002, filed 7/3/96, effective 8/3/96)

WAC 461-08-420   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 at least ten days before the hearing, and, upon return, shall make arrangements for service.

(2) Form. Every subpoena shall name the shorelines hearings board and the title of the proceedings, and shall command the person to whom it is directed to attend and give testimony or produce designated books, documents, or things under that person's control at a specified time and place.

(3) Service. Service of subpoenas 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.

[Statutory Authority: RCW 90.58.175. 96-15-002, 461-08-420, filed 7/3/96, effective 8/3/96.]


AMENDATORY SECTION(Amending WSR 97-19-063, filed 9/15/97, effective 10/16/97)

WAC 461-08-570   Time for filing petitions for review to superior court.   An appeal of a final board order is called a petition for review. A petition for review must be filed with superior court within thirty days of the date that the board ((issues)) serves its final order or decision. The petitioner shall file a copy of the petition for review to superior court with the board and all parties of record. All appeals must first be filed in superior court even if direct review to the court of appeals will be sought.

[Statutory Authority: RCW 90.58.175 and SHB 1314. 97-19-063, 461-08-570, filed 9/15/97, effective 10/16/97. Statutory Authority: RCW 90.58.175. 96-15-002, 461-08-570, filed 7/3/96 effective 8/3/96.]

Washington State Code Reviser's Office