WSR 11-22-090

EXPEDITED RULES

ENVIRONMENTAL AND

LAND USE HEARINGS OFFICE

[ Filed November 1, 2011, 3:37 p.m. ]

Title of Rule and Other Identifying Information: The environmental and land use hearings office (ELUHO) is repealing chapters 198-12 and 242-04 WAC. Because of the administrative consolidation of the environmental hearing[s] office and the growth management hearings office, these rules are redundant and obsolete. The successor agency (ELUHO) is in the process of adopting new public records rules for the entire agency which will be promulgated as a new chapter 198-14 WAC.

ELUHO is also amending WAC 371-08-320, 371-08-325, and 198-09-010 to correct the agency address and name, and to correct outdated internal citations within the rules.

ELUHO and the growth management hearings board are also correcting typographical errors in chapter 242-03 WAC.

NOTICE

THIS RULE IS BEING PROPOSED UNDER AN EXPEDITED RULE-MAKING PROCESS THAT WILL ELIMINATE THE NEED FOR THE AGENCY TO HOLD PUBLIC HEARINGS, PREPARE A SMALL BUSINESS ECONOMIC IMPACT STATEMENT, OR PROVIDE RESPONSES TO THE CRITERIA FOR A SIGNIFICANT LEGISLATIVE RULE. IF YOU OBJECT TO THIS USE OF THE EXPEDITED RULE-MAKING PROCESS, YOU MUST EXPRESS YOUR OBJECTIONS IN WRITING AND THEY MUST BE SENT TO Kay Brown, Rules Coordinator, ELUHO, P.O. Box 40903, Tumwater, WA 98504, e-mail Kayb@Eluho.Wa.Gov , AND RECEIVED BY January 23, 2012.


Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The purpose of the amendments which repeal chapters 198-12 and 242-04 WAC is to remove public records rules pertaining to two previously existing separate agencies (environmental hearings office and growth management hearings board). New public records rules for the successor agency (ELUHO) are in process.

The purpose of the rule amendments to WAC 371-08-320, 371-08-325, and 198-09-010 is to update the name and address of the agency.

The purpose of the amendments to chapter 242-03 WAC is to correct typographical errors in order to make the rules more readable and understandable.

Reasons Supporting Proposal: Repeal of chapters 198-12 and 242-04 WAC eliminates unnecessary, outdated, and redundant rules from the Washington Administrative Code. Other changes make rules more accurate and readable.

Statutory Authority for Adoption: RCW 43.21B.005, 43.21B.090, 36.70A.270(7).

Statute Being Implemented: RCW 43.21B.005, 36.70A.270.

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

Name of Proponent: ELUHB, governmental.

Name of Agency Personnel Responsible for Drafting: Kay Brown, Tumwater, Washington, (360) 664-9174; Implementation and Enforcement: ELUHO, Tumwater, Washington, (360) 664-9160.

November 1, 2011

Kathleen D. Mix

Agency Director

Nina Carter, Chair

Growth Management Hearings Board

OTS-4446.1


AMENDATORY SECTION(Amending Order 79-1, filed 11/16/79)

WAC 198-09-010   Statement of exemption.   The environmental and land use hearings office has reviewed its authorized activities and found them all to be exempt under the provisions of WAC ((197-10-170(7))) 197-11-800 (11)(b). This section is adopted for compliance with the State Environmental Policy Act, chapter 43.21C RCW and WAC 197-11-904(4).

[Statutory Authority: RCW 34.04.940, 42.17.250, 42.30.070 and 43.21C.120. 79-12-025 (Order 79-1), 198-09-010, filed 11/16/79.]

OTS-4129.1


REPEALER
     The following chapter of the Washington Administrative Code is repealed:
WAC 198-12-010 Purpose.
WAC 198-12-020 Definitions.
WAC 198-12-030 Organization, operation and public meeting.
WAC 198-12-040 Public records available.
WAC 198-12-050 Public records officer.
WAC 198-12-060 Office hours.
WAC 198-12-070 Request for public records.
WAC 198-12-080 Copying.
WAC 198-12-090 Exemptions.
WAC 198-12-100 Review of denials of public records request.
WAC 198-12-110 Protection of public records.
WAC 198-12-120 Records index.
WAC 198-12-130 Communication with the hearings office.
WAC 198-12-140 Adoption of form.

OTS-4444.1


AMENDATORY SECTION(Amending WSR 11-13-109, filed 6/21/11, effective 7/22/11)

WAC 242-03-025   Jurisdiction.   Subject matter jurisdiction. The board shall hear and determine:

(1) Petitions alleging that a state agency, county, or city is not in compliance with the requirements of:

(a) The Growth Management Act; or

(b) Chapter 90.58 RCW as it relates to the adoption or amendment of shoreline master programs, including the department of ecology's approval or denial of such adoption or amendment ((by)) but excluding the department of ecology's adoption of a shoreline master program by rule pursuant to RCW 90.58.070(2); or

(c) Chapter 43.21C RCW as it relates to plans, development regulations, and amendments adopted under the act or chapter 90.58 RCW; or

(2) Petitions from cities or the governor relating to an adopted county-wide planning policy; or

(3) Petitions alleging that the twenty-year growth management planning projections adopted by the office of financial management pursuant to RCW 43.62.035 should be adjusted.

[Statutory Authority: RCW 36.70A.270(7). 11-13-109, 242-03-025, filed 6/21/11, effective 7/22/11.]


AMENDATORY SECTION(Amending WSR 11-13-109, filed 6/21/11, effective 7/22/11)

WAC 242-03-230   Petition for review -- Filing and service.   (1) Filing a Petition for Review. A petition for review shall be filed with the board by electronic mail, as provided in WAC 242-03-240, unless a petitioner does not have the technological capacity to do so. The original and ((four)) three copies of the petition for review shall be filed with the board personally, or by first class, certified, or registered mail. Filings may also be made with the board by telefacsimile transmission as provided in WAC 242-03-240. A petition for review is deemed filed on the date the board receives it by electronic mail by 5:00 p.m. provided that the original and ((four)) three copies are postmarked and mailed on the same date as the electronic filing.

(2) Service of petition for review.

(a) A copy of the petition for review shall be served upon the named respondent(s) and must be received by the respondent(s) on or before the date filed with the board. Service of the petition for review may be by mail or personal service, so long as the petition is received by respondent on or before the date filed with the board.

(b) When a county is a respondent, the petition for review shall be served on the county auditor in noncharter counties and the agent designated by the legislative authority in charter counties. When a city is a respondent, the mayor, city manager, or city clerk shall be served. When the state of Washington is a respondent, the office of the attorney general shall be served at its main office in Olympia unless service upon the state is otherwise provided by law. In a challenge to the adoption of, or amendment to, a shoreline master program approved by the department of ecology, the department of ecology shall be named as a respondent and served.

(3) Proof of service shall be filed with the board pursuant to WAC 242-03-245.

(4) The board may dismiss a case for failure to substantially comply with this section.

[Statutory Authority: RCW 36.70A.270(7). 11-13-109, 242-03-230, filed 6/21/11, effective 7/22/11.]


AMENDATORY SECTION(Amending WSR 11-13-109, filed 6/21/11, effective 7/22/11)

WAC 242-03-240   Filing and service of all other papers.   (1) Filing of papers: All pleadings and briefs shall be filed with the board by electronic mail unless a petitioner does not have the technological capacity to do so. The original and ((four)) three copies of all documents shall be filed with the board personally, or by first class, certified, or registered mail and must be postmarked and mailed on the same date as the electronic filing. Filings less than fifteen pages may be made by telefacsimile transmission. The original and ((four)) three copies must be mailed on the same date as the telefacsimile transmission to be deemed filed.

Filings made by electronic mail and/or telefacsimile transmission shall be deemed filed upon actual receipt during office hours of 8:00 a.m. to 5:00 p.m. excluding Saturdays, Sundays, and legal holidays. Any transmission not completed before 5:00 p.m. will be stamped received on the following business day. The date and time indicated by the board's telefacsimile machine or receiving computer shall be presumptive evidence of the date and time of receipt of transmission. All papers will be deemed filed with the board on the date received by electronic mail provided that the original document and ((four)) three copies are mailed and postmarked on the same date as the telefacsimile transmission or electronic mail filing.

(2) Service: Parties shall serve copies of all filings on all other named parties by electronic mail, on or before the date filed with the board, unless a party lacks technical capability. Service is accomplished when the document is transmitted electronically, or, by agreement among the parties or exception granted by the presiding officer, is deposited in the mail and postmarked by the required date.

[Statutory Authority: RCW 36.70A.270(7). 11-13-109, 242-03-240, filed 6/21/11, effective 7/22/11.]


AMENDATORY SECTION(Amending WSR 11-13-109, filed 6/21/11, effective 7/22/11)

WAC 242-03-970   Appeals of a board's final decision.   (1) Any party aggrieved by a final decision of the board may appeal the decision to superior court as provided in RCW 34.05.514 or 36.01.050 within thirty days of service of the final decision of the board.

(2) In the event that direct appellate review is sought, within thirty days of the filing of a petition for review in the superior court, a party may request a certificate of appealability for direct review by the court of appeals. If the issue on review is the jurisdiction of the board, the board may file an application for direct review. Application for direct review of a decision of the board is governed by the procedures and criteria of RCW ((35.04.518 [34.05.518])) 34.05.518.

[Statutory Authority: RCW 36.70A.270(7). 11-13-109, 242-03-970, filed 6/21/11, effective 7/22/11.]

OTS-4130.1


REPEALER
     The following chapter of the Washington Administrative Code is repealed:
WAC 242-04-010 Purpose.
WAC 242-04-020 Definitions.
WAC 242-04-030 Description of organization and public meetings.
WAC 242-04-040 Public records available.
WAC 242-04-050 Communications with the board.
WAC 242-04-060 Public records officer.
WAC 242-04-070 Office hours.
WAC 242-04-080 Requests for public records.
WAC 242-04-090 Responses to requests for public records.
WAC 242-04-100 Copying.
WAC 242-04-110 Exemptions.
WAC 242-04-120 Review of denials of public records requests.
WAC 242-04-130 Protection of public records.
WAC 242-04-140 Records index.
WAC 242-04-150 Adoption of form.

OTS-4445.1


AMENDATORY SECTION(Amending WSR 02-06-011, filed 2/22/02, effective 3/25/02)

WAC 371-08-320   Environmental hearings office hours, telephone number and address.   (1) The administrative business of the board, except rule making, is performed by the environmental and land use hearings office. The board holds meetings at 10:00 a.m. on the second Tuesday of each month at the address set forth below.

(2) The board is housed at the Environmental and Land Use Hearings Office, ((4224 6th Avenue S.E., Building 2, Rowe Six, Lacey,)) 1111 Israel Road S.W., Tumwater, Washington 98501. The principal hearing room used by the board is located at the same address, although many hearings are held near the site of the dispute at issue.

(3) The mailing address of the board is:


Pollution Control Hearings Board

((4224 6th Avenue S.E., Building 2, Rowe Six))

P.O. Box 40903

((Lacey)) Olympia, WA 98504-0903


(4) The telephone number of the board is (((360) 459-6327)) 360-664-9160. The telefacsimile number is (((360) 438-7699)) 360-586-2253.

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

[Statutory Authority: RCW 43.21B.170. 02-06-011, 371-08-320, filed 2/22/02, effective 3/25/02; 96-15-003, 371-08-320, filed 7/3/96, effective 8/3/96.]


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

WAC 371-08-325   Public information about practice before the board and public records.   (1) Questions about practicing before the board may be directed to the environmental and land use hearings office by mail or, during regular office hours, by telephone ((or by)), telefacsimile, or e-mail.

(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)) 198-14 WAC are available for public inspection and copying during regular office hours at the environmental and land use 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)) on the agency's web site at eluho@eluho.wa.gov.

(3) The environmental and land use hearings office maintains a web site with information on the pollution control hearings board, including information about the board members, the board hearings calendar, past decisions of the board, a handbook with helpful information for practice before the board, sample forms, and links to the board's rules of practice and other pertinent statutes and rules. This web site may be accessed via the internet at ((http://www.eho.wa.gov)) http://www.eluho.wa.gov.

[Statutory Authority: RCW 43.21B.170, 90.58.174, chapters 43.21B, 34.05, and 90.58 RCW. 07-03-074, 371-08-325, filed 1/17/07, effective 2/17/07. Statutory Authority: RCW 43.21B.170. 96-15-003, 371-08-325, filed 7/3/96, effective 8/3/96.]

Washington State Code Reviser's Office