LAND USE HEARINGS OFFICE

(Pollution Control Hearings Board)

[Filed June 25, 2019, 3:01 p.m.]

Proposal is exempt under RCW 34.05.310(4) or 34.05.330(1).

Title of Rule and Other Identifying Information: WAC 223-08-087 Commencing an appeal—Temporary suspension or discontinuance, this rule is a procedural rule which establishes the process for an appellant to request, and the board to consider, the temporary suspension or discontinuance (stay) of an approved forest practices application or a stop work order.

WAC 371-08-415 Stays, this rule is the general rule addressing the process for requesting a stay from the pollution control hearings board (PCHB).

Hearing Location(s): On August 20, 2019, at 2:00 p.m., at the Environmental and Land Use Hearings Office, 1111 Israel Road S.W., Suite 301, Tumwater, WA 98501.

Date of Intended Adoption: September 10, 2019, at 10:00 a.m.

Submit Written Comments to: Nancy Coverdell, P.O. Box 40903, Olympia, WA 98503, email nancy.coverdell@eluho.wa.gov, fax 360-586-2253, by August 16, 2019.

Assistance for Persons with Disabilities: Contact Nancy Coverdell, phone 360-664-9171, fax 360-586-2253, TTY 711, email nancy.coverdell@eluho.wa.gov, by August 13, 2019.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: Jurisdiction over forest practices appeals was assigned to PCHB in 2010, when the forest practices appeals board (FPAB) was abolished. See section 19, chapter 210, Laws of 2010. At that time, both boards had rules addressing stays, although FPAB's rule called the process a "temporary suspension and discontinuance" instead of a stay. The rules are dissimilar in several ways.

The PCHB rule, WAC 371-08-415, sets out a standard for granting a stay based on RCW 43.21B.320. The FPAB rule, WAC 223-08-087, does not contain a standard except for emergency situations. WAC 223-08-087(4). When applying WAC 223-08-087, FPAB relied on case law for the standard for granting a preliminary injunction. See Tyler Pipe Indus. v. Dept. of Revenue, 96 Wn.2d 785, 638 P.2d 1213 (1982). The Tyler Pipe standard is different than the standard in RCW 43.21B.320.

Another significant difference between the two stay rules is that the PCHB rule does not require posting of security, while the FPAB rule does.

After abolition of FPAB, PCHB retained WAC 223-08-087 and applied it only to forest practices appeals. PCHB continued to apply WAC 371-08-415, to requests for stays in all matters except forest practices appeals.

The purpose of this rule making is threefold: (1) To clarify for parties appearing before PCHB on forest practices appeals that the general PCHB stay rule, WAC 371-08-415, does not apply to forest practices stays. Instead, the applicable rule is WAC 223-08-087. This has been PCHB's practice since it was assigned jurisdiction over forest practices appeals in 2010. See WSR 10-18-021; Yockey v. DNR, PCHB No. 15-031 (April 14, 2015). (2) To amend WAC 223-08-087 to conform to PCHB's current practice when handling requests for stays in forest practices appeals. (3) To clarify that a request for a "temporary suspension or discontinuance" means a request for a stay. This rule amendment is not intended to change current practice, but instead to provide better guidance regarding what current practice is.

Reasons Supporting Proposal: The board believes that clarifying which stay rule is applicable to forest practices, and what the board's current practices are for processing forest practices stay requests, is helpful to parties appearing before the board.

Statutory Authority for Adoption: RCW 43.21B.170, 43.21B.110 (1)(j), 34.05.422(4), 34.05.479.

Statute Being Implemented: RCW 43.21B.170.

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

Name of Proponent: Environmental and land use hearings office, PCHB, governmental.

Name of Agency Personnel Responsible for Drafting, Implementation, and Enforcement: Kay M. Brown, Board Chair, 1111 Israel Road S.W., Suite 301, Tumwater, 98501, 360-664-9174.

A school district fiscal impact statement is not required under RCW 28A.305.135.

A cost-benefit analysis is not required under RCW 34.05.328. This rule is not covered by subsection (5) of RCW 34.05.328, and therefore no cost-benefit analysis is required. This rule is a procedural rule pursuant to RCW 34.05.328 (5)(c)(i)(A).

This rule proposal, or portions of the proposal, is exempt from requirements of the Regulatory Fairness Act because the proposal:

Is exempt under RCW 19.85.025(3) as the rules adopt, amend, or repeal a procedure, practice, or requirement relating to agency hearings; or a filing or related process requirement for applying to an agency for a license or permit.

Kay M. Brown, Board Chair

Pollution Control Hearings Board

AMENDATORY SECTION(Amending WSR 90-23-093, filed 11/21/90, effective 12/22/90)

WAC 223-08-087Commencing an appeal—Temporary suspension or discontinuance (stay).

Any county appealing under RCW 76.09.050(8) or any person aggrieved appealing under RCW ((76.09.220(8)))76.09.205 may seek a ((temporary suspension))stay of the department's approval, in whole or in part, pending such appeal. Any operator, timber owner, or forest land owner appealing under RCW 76.09.080 may seek ((temporary discontinuance))a stay of the stop work order, in whole or in part, pending such appeal. The following procedure shall apply:

(1) The appellant shall file with the appeals board a motion, supported by affidavit setting forth specific facts supporting a ((temporary suspension or discontinuance))stay. Such motion may be filed with the notice commencing the appeal or at any time thereafter prior to the final decision of the appeal by the appeals board.

(2) Upon receipt of said motion, the presiding officer shall schedule a ((hearing))conference and serve notice of ((such hearing))the conference on all parties to the appeal. ((Before or after the commencement of said hearing the presiding officer may order the hearing of the merits to be consolidated with said hearing.))At the conference, a briefing schedule will be established to address the motion. Before or after the commencement or completion of briefing the presiding officer may determine that an evidentiary hearing is required. The hearing of the merits of the appeal may be consolidated with said hearing.

(3) After ((hearing))the briefing is completed, the appeals board or the presiding officer ((shall temporarily suspend))may stay the department's approval((, or temporarily discontinue the))or a stop work order, in whole or in part, or ((shall)) decline to ((suspend or discontinue))stay. Such action shall be based solely on the record ((and hearing argument)), and shall be embodied in a written order. Orders issued under this subsection shall remain effective until the final decision of the appeals board unless sooner dissolved for good cause shown.

(4) In emergency situations, a ((temporary suspension or discontinuance))stay in whole or in part may be granted by the presiding officer without a ((hearing))conference and/or briefing, only if it clearly appears from specific facts shown by affidavit that immediate and irreparable injury, loss, or damage will result to the moving party before any adverse party can be heard in opposition. A ((temporary suspension or discontinuance))stay granted without ((a hearing))briefing shall be embodied in a written order and shall expire by its terms within such time after entry, not to exceed fourteen days, as provided therein unless within the time so fixed the order, for good cause shown, is extended for a like period or unless the party against whom the order is directed consents that it may be extended for a longer period. The reasons for the extension shall be entered of record. On two days' notice to the party who obtained the ((temporary suspension or discontinuance))stay without notice or on such shorter notice to that party as the presiding officer may prescribe, the adverse party may appear and move its dissolution or modification and in that event the presiding officer or appeals board shall proceed to ((hear))review and determine such motion as expeditiously as the ends of justice require.

(5) Every order ((temporarily suspending))staying the department's approval of an application((,)) or ((temporarily discontinuing)) a stop work order, whether issued before or after ((hearing))briefing, shall set forth the reasons for its issuance and shall describe in reasonable detail the scope of ((suspension or discontinuance))the stay and shall be filed at the principal office of the appeals board and shall be binding upon all parties to the appeal, their officers, agents, servants, employees, and attorneys and upon those persons in active concert of participation with them who receive actual notice of the order.

(6) Except as otherwise provided by statute, no ((temporary suspension or discontinuance))stay shall issue except upon the giving of security by the moving party, in such sum as the presiding officer deems proper, for payment of such costs and damages as may be incurred or suffered by any party who is found to have wrongfully obtained the ((suspension or discontinuance))stay. No such security shall be required of the United States or of an officer or agency thereof. Pursuant to RCW 4.92.080 no security shall be required of the state of Washington, municipal corporations, or political subdivisions of the state of Washington.

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

WAC 371-08-415Stays.

(1) A person appealing an order not stayed by the issuing agency, and not issued pursuant to chapter 76.09 RCW may obtain a stay of the effectiveness of that order only as set forth in this section.

(2) An appealing party may request a stay by including such a request in the notice of appeal or in a subsequent motion. The request must be accompanied by a statement of grounds for the stay and evidence setting forth the factual basis upon which the request is based.

(3) Upon receipt of a request for a stay, the board will confer with the parties regarding its disposition. If necessary, a hearing on the motion will be held. If it appears that a hearing on the merits and issues of the case should be consolidated with the request for a stay, the board will advance the hearing date on its own initiative or by request of the parties.

(4) The ((requester))requestor makes a prima facie case for a stay if the ((requester))requestor demonstrates either a likelihood of success on the merits of the appeal or irreparable harm. Upon such a showing, the board shall grant the stay unless the agency demonstrates either:

(a) A substantial probability of success on the merits; or

(b) Likelihood of success and an overriding public interest which justifies denial of the stay.

(5) Unless otherwise stipulated by the parties, the board, after granting or denying a request for a stay, shall expedite the hearing and decision on the merits.

(6) Any party aggrieved by the grant or denial of a stay by the board may petition the superior court of Thurston County for review of that decision pending the hearing on the merits before the board.

(7) A person appealing an order not stayed by the issuing agency and issued pursuant to chapter 76.09 RCW may obtain a stay of the effectiveness of that order pursuant to WAC 223-08-087.