WSR 98-19-146
PROPOSED RULES
UTILITIES AND TRANSPORTATION
COMMISSION
[Commission Docket No. A-970591--Filed September 23, 1998, 11:47 a.m.]
Original Notice.
Preproposal statement of inquiry was filed as WSR 97-17-047; and proposal is exempt under RCW 34.05.310(4).
Title of Rule: Rules of practice and procedure; sections within chapter 480-09 WAC.
Purpose: This proposal is designed to update provisions within chapter 480-09 WAC and to adopt the results of a review of most sections of the chapter under Executive Order 97-02.
Statutory Authority for Adoption: RCW 80.01.040, 80.04.160.
Summary: See Purpose above.
Reasons Supporting Proposal: This proposal is designed to modernize language in the commission's procedural rules and to incorporate changes to simplify, clarify, and improve the rules.
Name of Agency Personnel Responsible for Drafting: C. Robert Wallis, 1300 South Evergreen Park Drive S.W., Olympia, WA 98504, (360) 664-1142; Implementation and Enforcement: Carole J. Washburn, 1300 South Evergreen Park Drive S.W., Olympia, WA 98504, (360) 664-1174.
Name of Proponent: Washington Utilities and Transportation Commission, governmental.
Rule is not necessitated by federal law, federal or state court decision.
Proposal Changes the Following Existing Rules: Many sections in the chapter contain minor proposed changes in organization and language. Some of the changes are also to rule requirements. Those are summarized briefly here.
WAC 480-09-100 Sending communications to the commission, discusses the use of telefax and e-mail to communicate with the commission and expands opportunities for electronic communication.
WAC 480-09-115 Procedure at open public meetings, clarifies the commission's authority to direct the commission secretary to sign orders implementing the commissioners' decisions at open public meetings.
WAC 480-09-120 Filing and service; filing by telefacsimile; number of copies, clarifies the commission's flexibility to authorize fax filings and reduces the number of required copies required when electronic copies are filed. Encourages courtesy copies by electronic mail to the assigned commission staff. Authorizes parties to elect service by electronic mail. Assigns risk of failure of electronic service to the person choosing it.
WAC 480-09-210 Rule making procedures, simplifies rule and adopts statutes by reference.
WAC 480-09-220 Petitions for rule making, amendment, or repeal, repeals prior provisions; acknowledges statute and OFM rule that changed the petition process and states that the OFM form is available from the commission.
WAC 480-09-420 Pleadings and briefs--Applications for authority--Protests, exempts confidentiality agreement notices from copy requirement. Establishes a charge for producing copies of documents filed by fax.
WAC 480-09-425 Pleadings--Verification, time for filing, responsive pleadings, liberal construction, amendments, confirms that an answer is not mandatory. Clarifies rule regarding replies to answers.
WAC 480-09-465 Alternate dispute resolution, authorizes the commission to direct parties to enter negotiations (but not to reach agreement).
WAC 480-09-500 Brief adjudicative proceedings, confirms parties' right to ask orally for review of initial decisions on brief adjudication, but encourages written requests for review.
WAC 480-09-730 Conduct at hearings, allows the commission to include the witness' oath on sign-in forms for public hearings.
WAC 480-09-735 Order of procedure, updates order of hearing procedures; confirms the presiding officer's right to modify the order of procedure.
WAC 480-09-736 Hearing guidelines, updates and confirms requirement for copies of evidentiary documents at hearings.
WAC 480-09-770 Briefs, sets standards for determining brief length. Sets page margin, type face, and font size requirements for briefs and requires footnotes to be in the same face as body text, no smaller than ten point type.
WAC 480-09-815 Amendment rescission or correction of order, provides means for the commission to correct obvious or ministerial errors in orders it has served and provides that the time for post-hearing review starts from the date of service of the correction.
No small business economic impact statement has been prepared under chapter 19.85 RCW. This proposal would impose no additional costs on affected businesses.
RCW 34.05.328 does not apply to this rule adoption. The law is not mandatory for rules of the Utilities and Transportation Commission, and this rule is not one of the sort to which the law applies.
Hearing Location: Commission Hearing Room, Second Floor, Chandler Plaza, 1300 South Evergreen Park Drive S.W., Olympia, WA 98504, on November 16, 1998, at 9:30 a.m.
Assistance for Persons with Disabilities: Contact Pat Valentine by November 2, 1998, TDD (360) 586-8203, or (360) 664-1133.
Submit Written Comments to: Carole J. Washburn, Secretary, P.O. Box 47250, Olympia, WA 98504, or e-mail records@wutc.wa.gov, fax (360) 586-1150, by October 16, 1998. Please include both Docket No. A-970591 and "Interconnection enforcement petition rule making" in your communication.
Date of Intended Adoption: November 16, 1998.
September 23, 1998
Terrence Stapleton
for Carole J. Washburn
Secretary
OTS-2414.1
NEW SECTION
WAC 480-09-005 Scope of this chapter--How to communicate with the commission. This chapter explains how to present written communications to the Washington utilities and transportation commission (called "the commission" in this chapter) and how various proceedings are conducted at the commission. Topics covered include how these rules operate; where and how to send letters to assure that they reach a person who can deal with them; requirements for submitting formal written documents such as pleadings; and rules that guide various proceedings.
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AMENDATORY SECTION (Amending Order R-310, Docket No. U-89-2966-R, filed 10/12/89, effective 11/12/89)
WAC 480-09-010 ((General
application--Special rules)) When this chapter applies--Exceptions.
(1) General ((rules. These rules of practice and procedure are for general))
application. This chapter applies generally to most dealings with and
proceedings before the commission.
(2) Special rules. When rules in other chapters apply to
certain classes of public service companies or to particular proceedings, those special
rules ((shall)) govern ((in the event of)) if they
conflict with ((the)) these general rules.
(3) Modifications and exceptions. ((These rules are
subject to such exceptions as may be just and reasonable in individual cases as determined
by)) The commission may make exceptions to these rules in individual
cases when doing so is just and reasonable.
[Statutory Authority: RCW 80.01.040. 89-21-036 (Order R-310, Docket No. U-89-2966-R), § 480-09-010, filed 10/12/89, effective 11/12/89.]
AMENDATORY SECTION (Amending Order R-400, Docket No. A-930517, filed 12/1/93, effective 1/1/94)
WAC 480-09-012 Incorporated
and referenced materials. Any document that is incorporated by reference in a
commission rule or order is available for public inspection at the Washington
utilities and transportation commission branch of the Washington state library, ((housed
with)). The branch library is located in commission's headquarters
office. The commission secretary will provide a copy of a referenced document upon
request, allowing reasonable time for any necessary copying, subject to any pertinent
charge and subject to copyright restrictions. The commission incorporates or references
the version of the incorporated or referenced material that is current on the day the
commission adopts a rule or enters an order that makes the incorporation or reference,
unless the commission specifies another version or unless another version is apparent from
the reference.
[Statutory Authority: RCW 80.01.040. 93-24-103 (Order R-400, Docket No. A-930517), § 480-09-012, filed 12/1/93, effective 1/1/94.]
AMENDATORY SECTION (Amending Order R-368, Docket No. A-910530, filed 3/5/92, effective 4/5/92)
WAC 480-09-100 ((Commission
address--)) Sending communications to the commission. (((1)
Address. Except as provided in chapter 480-04 WAC, all written communications and
documents should be addressed to: Office of the Secretary, Washington Utilities &
Transportation Commission, 1300 S Evergreen Park Dr SW, PO Box 47250, Olympia WA
98504-7250, and not to individual members of the commission staff.
(2) Receipt of communications. Except as provided in
chapter 480-04 WAC, all communications and documents are deemed to be officially received
only when delivered at the office of the secretary and stamped with the date and time.
Documents and communications physically received in the commission offices between 5:00
p.m. of one business day and the start of the next business day are not considered
officially received until the next business day when stamped with the date and time.
(3) Identification; one subject in a letter. Letters to
the Washington utilities and transportation commission (referred to in these rules as the
"commission") should include only one subject.
(a) Each item of pleading or correspondence which relates
to a proceeding before the commission shall set forth at the top of the first page the
docket number and name of the proceeding, if known to the writer, the title of the
pleading, and the identity of the person who submits it.
(b) Communications to the commission from the holder of
any permit, license, or certificate shall identify the exact name and the number under
which the authority is held and the name and title of the writer.
(4) Communications from the commission. Official
communications from the commission, other than orders, shall be signed by the
commissioners, secretary of the commission, or the secretary's designee.)) This
section governs communications to the commission except requests for public records, which
are governed by chapter 480-04 WAC.
(1) Limitation of content. Letters and electronic mail messages to the Washington utilities and transportation commission ("commission") must include only one subject, to assure that the message is properly handled.
(2) Required identification of sender, proceeding, and document.
(a) Identification of sender. All communications must identify the name and title or position of the sender, the name of the entity on whose behalf the communication is sent, and a return address. Any letter or other communication that the holder of any commission-issued permit, license, or certificate sends to the commission must also identify the exact name and the number (if any) under which the authority is held.
(b) Identification of proceeding. Any letter, pleading, or other communication to the commission that relates to a commission proceeding must identify the proceeding to the best of the writer's ability, at the top of the first page. The identification must include the docket number and name of the proceeding, if known to the writer, the name and position of the party for whom it is submitted.
(c) Identification of communication. Any communication that relates to a commission proceeding must identify the name of the communication (e.g., comment; motion; answer) at the top of the first page.
(3) How to address communications. All communications relating to formal proceedings must be addressed to the commission secretary. Formal communications should not be addressed to individual members of the commission staff because such documents may escape the filing and recordkeeping necessary to document control.
(a) All written communications to the commission must be addressed to: The Secretary, Washington Utilities & Transportation Commission, 1300 S. Evergreen Park Dr SW, PO Box 47250, Olympia, WA 98504-7250. The commission records center will see that the correspondence promptly reaches a person who is able to deal with it.
(b) Electronic transmissions--E-Mail and Telefacsimile transmissions.
(i) When electronic transmission may be used. Electronic mail and telefacsimile messages may be used to submit correspondence or documents for filing as specified in WAC 480-09-120, for informal communication with commission staff members, and for providing courtesy copies to staff. Electronic transmission is not acceptable for formal correspondence or documents to be filed. The commission may make exceptions to this requirement in individual cases and may impose conditions on the use of electronic transmission.
(ii) Where to send electronic submissions. All electronic mail should be addressed to records@wutc.wa.gov. All telefacsimile transmissions should be sent to (360) 586-1150 or another number designated by the commission secretary. Courtesy or informational copies may be sent to other commission telefax machines or other electronic mail addresses for individual commission staff members.
(4) Updated addresses. The addresses listed in this chapter are current at the time of rule adoption. The commission will provide current information at any time on request.
[Statutory Authority: RCW 80.01.040. 92-07-006 (Order R-368, Docket No. A-910530), § 480-09-100, filed 3/5/92, effective 4/5/92. Statutory Authority: RCW 80.01.040 and 34.05.220. 91-06-010 (Order R-336, Docket No. A-900700), § 480-09-100, filed 2/22/91, effective 3/25/91. Statutory Authority: RCW 80.01.040. 89-21-036 (Order R-310, Docket No. U-89-2966-R), § 480-09-100, filed 10/12/89, effective 11/12/89.]
NEW SECTION
WAC 480-09-101 When communications are received; required identification of sender; communications from the commission. (1) When documents are officially received. All communications and other submitted materials are officially received only when physically received in the commission records center and stamped with the date and time. Documents and communications that are received in the commission records center after 5:00 p.m. of one business day and before the start of the next business day are not considered officially received until the next business day when they are stamped with the date and time. Documents that are submitted by telefacsimile or electronic mail are officially received only when a paper copy is stamped with the date and time. The date-stamped time will determine whether a document meets any deadline that applies and will determine the timing of any later deadlines based on filing.
(a) During a meeting or hearing, the presiding officer may accept documents relating to the subject of the meeting or hearing.
(b) Requests for public records are governed in chapter 480-04 WAC.
(2) Communications from the commission. Official communications from the commission must be signed by the commissioners, the secretary of the commission, or the secretary's designee. Communications relating to an adjudication may be signed by the presiding administrative law judge or the administrative law judge's designee.
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AMENDATORY SECTION (Amending Order R-402, Docket No. A-931053, filed 11/12/93, effective 1/1/94)
WAC 480-09-115 Procedure
at open public meetings. (1) Meetings. ((Regular meetings of)) The
commission ((for the conduct of business pursuant to chapter 42.30 RCW, the Open
Public Meetings Act, shall be held beginning at 9:00 a.m., Wednesdays, except the first
and third)) will hold regular meetings for the conduct of business under
chapter 42.30 RCW, the Open Public Meetings Act. The meetings will begin at 9:30 a.m., on
the second, fourth and fifth Wednesday of each month ((and state holidays,))
in the commission's administrative offices, 1300 S. Evergreen Park Drive SW, Olympia,
Washington. If the regular meeting day is a state holiday, the regular meeting ((shall))
will be held on the next business day or on an alternate schedule published in
the Washington State Register. Regular meetings may be cancelled, and special
meetings may be convened ((from time to time pursuant to the provisions of)),
under RCW 42.30.080. The commission may change the time and place of regular
meetings from the information set out in this section. The current time and place are
published, as required, in the Washington State Register; on the commission's
Internet web site, and are available through telephone inquiry.
(2) Agenda((, orders)). The commission secretary
((shall)) will direct the preparation and distribution of an
agenda for each meeting. When feasible, the secretary ((shall)) will
identify each item scheduled for discussion and action, as relating principally to
utility regulation under Title 80 RCW; as relating principally to transportation
regulation under Title 81 RCW; or "other."((; and)) The
secretary shall group similarly identified items together on the agenda. ((When
an order is necessary to implement the commission's decision as to any agenda item, the
secretary may enter the order when directed to do so by the commission.))
(3) "No action" agenda. Any request, proposal, or other
filing which((, pursuant to statute,)) will take effect without
commission action, may be placed on a "no action required" portion of the
agenda. Any item on this portion of the agenda will be discussed upon the request of any
commissioner, and the commission may take such action on the item as the commission
desires.
(4) "Consent" agenda. ((Any item which the
secretary deems to be noncontroversial and of relatively slight public concern)) The
secretary may ((be placed)) place any item which the secretary
believes to be noncontroversial on a "consent agenda" portion of the open
meeting agenda. The commission will ask at the meeting if any person wants to address
any consent agenda item and an item ((shall)) will be removed
from the consent agenda for individual discussion and action at the request of any
commissioner. Items on the consent agenda may be collectively moved for approval by a
single motion any may be collectively approved by a single vote of the commission. ((When
directed to do so by the commission, the secretary shall enter an individual order
implementing the commission's decision as to each consent agenda item.))
(5) Orders. The secretary may enter any order or sign any document necessary to implement an open meeting decision of the commissioners, when the commission so directs.
(6) Modifications. The commission may modify the procedures set forth in this section when it deems the modification appropriate.
[Statutory Authority: RCW 80.01.040. 93-23-050 (Order R-402, Docket No. A-931053), § 480-09-115, filed 11/12/93, effective 1/1/94. Statutory Authority: RCW 80.01.040, 80.04.160, 81.04.160 and chapter 34.05 RCW. 91-22-034 (Order R-351, Docket No. A-910835), § 480-09-115, filed 10/30/91, effective 11/30/91.]
AMENDATORY SECTION (Amending Order R-400, Docket No. A-930517, filed 12/1/93, effective 1/1/94)
WAC 480-09-120 Filing and
service filing by telefacsimile; number of copies. (1) When filing is
complete. Filing of any document is complete only ((upon receipt by the
secretary or,)) when the document and the required number of copies are
received by the commission records center, printed (if printing is necessary to produce a
paper copy) and stamped with the date and time. When authorized by the presiding
officer of a proceeding before the commission, ((upon receipt by)) filing
of a document for purposes of the proceeding is complete when the presiding officer receives
the document.
(a) ((Except as provided in this rule, receipt)) When
telefacsimile filing is allowed. Receipt in the commission's telefax machine, or
similar device, does not constitute filing except as otherwise allowed in this rule.
The following documents may be filed by telefacsimile device when the filing party,
except as specifically noted, sends a hard copy ((is sent by mail,))
postmarked on the day of filing, ((and)) which is received in the
normal course of commerce((, except as specifically noted:)).
(i) Tariff filings, when a hard copy is filed the next business day, as provided in WAC 480-80-070;
(ii) Form E proof of insurance, when a hard copy is filed within ten days;
(iii) Tariff filings by solid waste companies, auto transportation
companies, steamboat companies and motor carriers; ((and))
(iv) Proposals to amend commission tariffs, as provided in WAC 480-12-295; and
(v) Other documents, when the commission specifically allows or requires filing by telefacsimile in individual instances, when required for timely consideration or for the commission's convenience. The commission may charge for making copies for internal distribution under WAC 480-09-125.
(b) Number of copies. Unless ((in a particular case))
the commission specifies a different number of copies, every original pleading
submitted to the commission shall be filed with ((three copies for transportation
matters and)) nineteen copies ((for all other matters)). Parties
who file an electronic copy of a pleading may file an original plus six paper copies. The
electronic copy must comply with (b)(ii) of this subsection. When a person files a
document by telefacsimile, the document should not be sent more than once except to cure
transmission or receiving errors. Documents may be submitted single sided or double
sided.
(i) The number of required copies is established to meet average
commission need. Parties to a proceeding ((may in writing)) should
ask the commission ((secretary)) records center or the presiding
officer whether fewer ((are)) copies may be required in a
given case. ((Parties to whom)) If the required number of copies
would be a hardship, a party may describe the hardship and request exemption
from the stated number of copies((, describing the nature of the hardship)).
(ii) The commission encourages parties submitting prefiled
testimony and exhibits, briefs, and ((other)) pleadings to submit
the document in electronic form, with the agreed number of hard copies. In some instances electronic
submissions are required, and in some instances electronic submissions will substitute
for hard copies. Unless ((other arrangements are made, text files may be submitted
in a format compatible with WordPerfect 5.1 or in ASCII format and data may be submitted
in a format compatible with Lotus 123)) the commission directs otherwise,
electronic submissions are to be provided on a 3½ inch IBM formatted high-density disk,
in WordPerfect version 5.1, 6.0, or 6.1, labeled with the docket number of the proceeding,
the name of the company and/or individual submitting the document, and type of software
used.
(c) Filing and service are different. Filing a document with the commission does not constitute service upon the office of the attorney general or any other party. Likewise, service on the office of the attorney general does not constitute a filing with the commission.
(d) ((The filing of)) Certificate of service.
Filing a pleading with the commission is not complete unless service has been made
upon all parties to a proceeding, evidenced by a valid certificate of service or its
equivalent as provided in subsection (2)(f) of this rule.
(e) The commission encourages each party to provide courtesy copies of documents that it files in rulemakings and adjudications to presiding officers and other staff persons by electronic mail. Providing such copies does not relieve a party of the obligation to otherwise file or serve documents.
(2) Service.
(a) Except as otherwise provided, when any party has appeared by
an attorney or other authorized representative in a proceeding before the commission,
service of documents required to be served ((shall)) must be made
upon the representative. Service upon the representative is valid service upon the party.
(b) Service by parties. ((Service by parties shall be made))
Parties must serve documents by delivering one copy to each other party by
one of the following methods: In person; by mailing, properly addressed with first
class postage prepaid; by commercial parcel delivery company properly tendered with
fees prepaid, or by telefacsimile transmission, ((where)) when
originals are mailed simultaneously. Service by mail ((shall be)) is
complete when a ((true)) copy of the document is properly addressed and
stamped and deposited in the United States mail. Service by commercial parcel delivery
company ((shall be)) is complete when accepted for delivery by the
company.
(c) Service by commission. All notices, complaints, petitions,
findings of fact, opinions, and orders required to be served by the commission may be
served in person((,)); by mail((,)); by
commercial parcel delivery company, properly tendered with fees prepaid((,));
or by telefacsimile transmission, when originals are mailed simultaneously. Service ((thereof
shall be)) is complete when a ((true)) copy of the
document, properly addressed and stamped, is deposited in the United States mail with
first class postage affixed, or accepted for delivery by the parcel delivery company.
(d) Electronic mail. A party may consent to receive service by electronic mail. The consent, which waives the party's right to other forms of service, must be in writing and filed with the commission in the docket for which consent is given.
(e) The risk of failure of service by electronic means falls upon the person choosing that form of service.
(f) Certificate of service. ((There shall appear))
Each person filing a pleading with the commission must include on the original of
((every)) the pleading ((when filed with the commission in
accordance with)) under this subsection (2) of this section((,))
either an acknowledgment of service((,)) or the following certificate:
| "I hereby certify that I (( Dated at . . . . . . . . this . . . . day of . . . . . . . . . . . . . . . (signature) |
[Statutory Authority: RCW 80.01.040. 93-24-103 (Order R-400, Docket No. A-930517), § 480-09-120, filed 12/1/93, effective 1/1/94. Statutory Authority: RCW 80.01.040, 80.04.160, 81.04.160 and chapter 34.05 RCW. 91-22-034 (Order R-351, Docket No. A-910835), § 480-09-120, filed 10/30/91, effective 11/30/91. Statutory Authority: RCW 80.01.040 and 34.05.220. 91-06-010 (Order R-336, Docket No. A-900700), § 480-09-120, filed 2/22/91, effective 3/25/91. Statutory Authority: RCW 80.01.040. 89-21-036 (Order R-310, Docket No. U-89-2966-R), § 480-09-120, filed 10/12/89, effective 11/12/89.]
AMENDATORY SECTION (Amending Order R-339, Docket No. A-900425, filed 3/14/91, effective 4/14/91)
WAC 480-09-125 Failure to
file sufficient copies--Costs of copying. (1) ((When)) If
a person files fewer than the required number of copies of a document, the commission may
reject the filing. If needed for administrative convenience, the commission will make the
additional copies for distribution and processing within the commission.
"Administrative convenience" means that not having access to the documents would
((prejudice)) hamper the commission in fulfilling its duties.
(2) ((When)) If the commission makes
copies to meet the total number required, the commission will bill the filing person at a
rate of thirty cents per page, plus current sales tax. This rate compensates for the loss
of the worker's attention to assigned duties, the unscheduled use of equipment, and the
fully allocated cost of materials.
(3) The commission may assess a penalty against any person who, within twelve months, again fails to file the required number of copies of any document.
[Statutory Authority: RCW 80.01.040. 91-07-026 (Order R-339, Docket No. A-900425), § 480-09-125, filed 3/14/91, effective 4/14/91.]
AMENDATORY SECTION (Amending Order R-310, Docket No. U-89-2966-R, filed 10/12/89, effective 11/12/89)
WAC 480-09-130 Computation
of time. The time for doing an act governed by this chapter shall be computed by
excluding the first day and including the last, unless the last day is a holiday,
Saturday, or Sunday, and then ((it)) the last day is excluded from
the computation.
[Statutory Authority: RCW 80.01.040. 89-21-036 (Order R-310, Docket No. U-89-2966-R), § 480-09-130, filed 10/12/89, effective 11/12/89.]
AMENDATORY SECTION (Amending Order R-310, Docket No. U-89-2966-R, filed 10/12/89, effective 11/12/89)
WAC 480-09-135 Variation
from time limits. (1) Time set by chapter 34.05 RCW. The commission in
individual instances may lengthen or shorten the time stated in chapter 34.05 RCW for
action ((may be lengthened or shortened by the commission in its discretion in
individual instances pursuant to)) in its discretion, under RCW 34.05.080.
(2) Time set by the commission rule. The commission may
lengthen or shorten the time stated in these rules for action ((may be
lengthened or shortened by the commission)) in its discretion.
[Statutory Authority: RCW 80.01.040. 89-21-036 (Order R-310, Docket No. U-89-2966-R), § 480-09-135, filed 10/12/89, effective 11/12/89.]
AMENDATORY SECTION (Amending Order R-376, Docket No. 920379, filed 9/1/92, effective 10/2/92)
WAC 480-09-140 Ex parte
communications. (1) General. After ((the commencement of)) an
adjudicative proceeding begins and ((prior to)) before a
final determination ((therein)), no party to the proceeding, or ((its))
counsel for a party or other person on behalf of a party, shall discuss the merits
of the proceeding with the commissioners, the presiding officer or the commissioners'
staff assistants assigned to advise the commissioners in the decisional process in that
proceeding, unless reasonable notice is given to all parties ((who have appeared
therein, to enable them to be present at)) to the proceeding, so that they may
attend the conference. When a party initiates correspondence with a presiding or
reviewing officer regarding any pending proceeding, the party shall serve a copy of the
correspondence upon all parties of record and furnish proof of ((such)) that
service to the commission.
(2) Communications necessary to procedural aspects of maintaining an orderly process, such as scheduling, are not ex parte communications prohibited by RCW 34.05.455 or by this rule.
(3) The commission may prescribe appropriate sanctions, including default, for any violation of RCW 34.05.455 or this section.
[Statutory Authority: RCW 80.01.040. 92-18-081 (Order R-376, Docket No. 920379), § 480-09-140, filed 9/1/92, effective 10/2/92; 89-21-036 (Order R-310, Docket No. U-89-2966-R), § 480-09-140, filed 10/12/89, effective 11/12/89.]
AMENDATORY SECTION (Amending Order R-310, Docket No. U-89-2966-R, filed 10/12/89, effective 11/12/89)
WAC 480-09-150 Informal
complaints. (1) ((Informal complaints may be made by letter or other
communication. Informal)) (a) How to make an informal complaint. Persons may
make informal complaints to the commission about any business that the commission
regulates by letter, sent by mail, telefax, or electronic mail, or by telephone. See WAC
480-09-100 and 480-09-101 for general information about addressing correspondence. Persons
may also register an informal complaint by telephone with a commission service examiner.
(b) Commission response; result. Commission staff may discuss
the subjects of informal complaints ((may be taken up by the commission))
with the affected persons, by correspondence or otherwise, to ((bring about a
resolution of)) assist the parties to resolve the complaint by
agreement without formal hearing or order. The commission encourages the informal
settlement of disputes whenever possible. (See WAC 480-09-465.) An informal complaint
may not result in an order that compels a person to do something or forbids a person from
doing something.
(2) Contents. An informal complaint should ((contain))
present all facts ((essential to a disposition of)) needed to
resolve the complaint, including a description, with all relevant dates, of the
((dates of)) acts or omissions ((complained against)) that
led to the complaint. The complaint should cite to all relevant statutes or
rules should be cited if ((known to)) the writer knows them.
(3) ((No mandatory or prohibitory order may result from an
informal complaint. Matters instituted by)) Making an informal complaint
((shall be without prejudice to the right of)) does not prevent
any party, or the commission ((to file and prosecute)), from
filing a formal complaint with the commission. See WAC 480-09-420 and 480-09-425.
[Statutory Authority: RCW 80.01.040. 89-21-036 (Order R-310, Docket No. U-89-2966-R), § 480-09-150, filed 10/12/89, effective 11/12/89.]
AMENDATORY SECTION (Amending Order R-310, Docket No. U-89-2966-R, filed 10/12/89, effective 11/12/89)
WAC 480-09-200 Interpretive
and policy statements. (1) General. Upon the petition of any interested person ((subject
to its jurisdiction)), or upon its own motion, the commission may((, when
it appears to be in the public interest,)) make and issue interpretive and policy
statements when necessary to ((terminate)) end a controversy or to
remove a substantial uncertainty ((as)) to about to the
application of statutes or rules of the commission.
(2) The commission ((shall)) will maintain
a roster of interested persons, consisting of persons who have requested in writing to be
notified of all interpretive and policy statements issued by the commission. The ((roster
shall be updated once each year)) commission will update the roster
periodically. ((Whenever)) When the commission issues an
interpretive or policy statement, it ((shall)) will send a copy of
the statement to each person ((listed)) on the roster.
(3) The commission ((shall)) will maintain
a file and an index of all currently effective interpretive and policy statements. The
statements ((shall be)) are available for inspection and copying
at the records center in the commission's Olympia headquarters office.
[Statutory Authority: RCW 80.01.040. 89-21-036 (Order R-310, Docket No. U-89-2966-R), § 480-09-200, filed 10/12/89, effective 11/12/89.]
AMENDATORY SECTION (Amending Order R-400, Docket No. A-930517, filed 12/1/93, effective 1/1/94)
WAC 480-09-210 Rule
making((--Notice of proposed rule)) procedures--Rules coordinator.
(1) ((In any proposed rule making, the commission may solicit comments from the
public on the subject of possible rule making under active consideration within the agency
by causing notice to be published in the state register of the subject matter and
indicating where, when, and how persons may comment.)) The commission will
conduct rule-making proceedings in compliance with the requirements of RCW 34.05.310
through 34.05.395.
(2) ((At least twenty days before the rule-making hearing
at which the agency receives public comment regarding adoption of a rule, the agency shall
cause notice of the hearing to be published in the State Register. The
publication shall contain information as provided in RCW 34.05.320 and shall constitute
the proposal of a rule. The commission shall submit a small business economic impact
statement for publication in the State Register when required to do so by chapter
19.85 RCW, the Regulatory Fairness Act.
(3) Within a reasonable time after the publication of the
notice of a proposed rule in the State Register, any person may request a copy of
the notice by writing to the secretary of the commission.
(4) Petitions for adoption, amendment, or repeal of a rule
shall be made pursuant to WAC 480-09-220.
(5) Upon filing notice of a proposed rule with the code
reviser, the commission shall have copies of the proposal on file and available for public
inspection. The commission will mail a copy to each industry association or trade group,
whose members may be affected, that has asked to receive such notices.
(6))) The commission maintains a list of
persons interested in potential rule-making proceedings. The list is subdivided by
regulated industries and other areas of potential interest. The commission sends notice of
rule-making proceedings to persons on the list. Any person may be listed by asking in
writing that the commission put the person on the relevant list or lists for the person's
area of interest. The commission may by order establish a fee for this service.
(3) Inquiries regarding rules being proposed or being
prepared within the commission for proposal may be made to Office of the Secretary, Rules
Coordinator((, Washington Utilities & Transportation Commission, 1300 S
Evergreen Park Dr SW, PO Box 47250, Olympia WA 98504-7250)) at the address
listed in WAC 480-09-100.
(((7) Persons may receive notice of proposed rule makings
for all commission rules, or for those affecting specific industries, by sending a request
in writing to the rules coordinator. The commission may establish a fee for this service
based on the estimated actual cost of providing the service. It may decline to establish a
fee for specific groupings, and it may group industries together, for efficiency or
administrative convenience.))
[Statutory Authority: RCW 80.01.040. 93-24-103 (Order R-400, Docket No. A-930517), § 480-09-210, filed 12/1/93, effective 1/1/94; 92-18-081 (Order R-376, Docket No. 920379), § 480-09-210, filed 9/1/92, effective 10/2/92; 92-07-006 (Order R-368, Docket No. A-910530), § 480-09-210, filed 3/5/92, effective 4/5/92; 89-21-036 (Order R-310, Docket No. U-89-2966-R), § 480-09-210, filed 10/12/89, effective 11/12/89.]
AMENDATORY SECTION (Amending Order R-400, Docket No. A-930517, filed 12/1/93, effective 1/1/94)
WAC 480-09-220 Petitions for rule making, amendment, or repeal. (1) Any interested person may petition the commission requesting the promulgation, amendment, or repeal of any rule.
(2) ((When the petition requests the promulgation of a
rule, the requested or proposed rule must be set out in full. The petition must also
include all the reasons for the requested rule. When the petition requests the amendment
or repeal of a rule presently in effect, the rule or portion of the rule in question must
be set out as well as a suggested amended form, if any. The petition must include all
reasons for the requested amendment or repeal of the rule. Any petition for promulgation,
amendment, or repeal of a rule shall be accompanied by briefs of any applicable law, and
shall contain an assessment of economic values affected by the proposed promulgation,
amendment, or repeal.
(3) All petitions shall be considered by the commission
which may, in its discretion, order a hearing for the further consideration and discussion
of the requested promulgation, amendment, repeal, or modification of any rule.
(4) Within sixty days after submission of a petition, the
commission shall:
(a) Deny the petition in writing, stating its reasons for
the denial, and serve a copy of the denial upon the petitioner; or
(b) Initiate rule-making proceedings in accordance with
chapter 34.05 RCW.
(5) In rule-making proceedings initiated by interested
persons on petition, as well as by the commission on its own motion, the commission will
include in its order determining the proceedings its assessment of economic values
affected by the rule making involved. In addition, the notice of intention to effect any
rule making will contain a solicitation of data, views, and arguments from interested
persons on the economic values which may be affected by such rule making)) Petitions
for new rules or for the amendment or repeal of existing rules are governed by RCW
34.05.330 and chapter 82-05 WAC.
(3) The commission will provide on request a copy of chapter 82-05 WAC and the form for petitioning for adoption, amendment, or repeal of a state administrative rule.
[Statutory Authority: RCW 80.01.040. 93-24-103 (Order R-400, Docket No. A-930517), § 480-09-220, filed 12/1/93, effective 1/1/94; 89-21-036 (Order R-310, Docket No. U-89-2966-R), § 480-09-220, filed 10/12/89, effective 11/12/89.]
AMENDATORY SECTION (Amending Order R-351, Docket No. A-910835, filed 10/30/91, effective 11/30/91)
WAC 480-09-230 Declaratory
orders. As prescribed by RCW 34.05.240, any interested person may petition the
commission for a declaratory order. The commission ((shall)) will
consider the petition ((and within fifteen days after its receipt give notice of
the petition to all persons to whom notice is required by law and to any other person it
deems desirable)). Within ((thirty)) fifteen days ((of
receipt of a)) after receiving the petition ((for declaratory
order)), the commission ((shall)) will give notice of the
petition to all persons required by law and to any other person the commission deems
desirable. Within thirty days of receipt of a petition for declaratory order, the
commission will:
(1) Enter a declaratory order; or
(2) Notify the petitioner that no declaratory order is to be entered and state reasons for the action; or
(3) Set a specified time, no later than ninety days after the day the petition was filed, by which the commission will enter a declaratory order; or
(4) Set a reasonable time and place for a hearing ((to be
held no more than ninety days after receipt of the petition or call for the submission of
a statement of fact upon the matter)). If a hearing is held, it must be held
no more than ninety days after receipt of the petition. If a hearing is held, the
commission will give ((not less than)) at least seven days'
notification to the petitioner, all persons to whom notice is required by law and any
other person it deems desirable ((of the time and place for such hearing and of)).
The notice must include the time, place, and the issues involved.
(5) The commission may upon a finding of good cause extend the
times specified in subsections (3) and (4) of this section ((for entry of an order
or for holding a hearing)).
(6) If a hearing is held or statements of fact are submitted, as provided in subsection (4) of this section, the commission shall within a reasonable time:
(a) Enter a declaratory order; or
(b) Notify the petitioner that no declaratory order is to be entered and state the reasons for the action.
The commission ((shall)) will serve its
order upon all persons ((to whom notice is)) who are required ((by))
to receive notice under subsection (4) of this section.
[Statutory Authority: RCW 80.01.040, 80.04.160, 81.04.160 and chapter 34.05 RCW. 91-22-034 (Order R-351, Docket No. A-910835), § 480-09-230, filed 10/30/91, effective 11/30/91. Statutory Authority: RCW 80.01.040. 89-21-036 (Order R-310, Docket No. U-89-2966-R), § 480-09-230, filed 10/12/89, effective 11/12/89.]
AMENDATORY SECTION (Amending Order R-436, Docket No. A-950243, filed 1/3/96, effective 2/3/96)
WAC 480-09-340 Compliance filings. (1) A compliance filing is a tariff filing that is made to comply with an order authorizing or requiring a specific subsequent later filing. A compliance order is an order approving, suspending, or rejecting a compliance filing.
(a) ((A)) The person making compliance
filing and any accompanying work papers ((shall be served)) must serve
a copy on the attorney of each party to the proceeding in which the compliance filing
was authorized or required. Service ((shall)) must be made in a
manner to be received by the parties no later than the date filed with the commission
unless such service on a party is infeasible because of its size or the timing of the
filing, in which case delivery on the day following filing is permissible.
(b) A compliance filing ((shall)) must be
strictly limited in scope to the subjects and the tariffs that are necessary to comply
with, or that are authorized by, the order leading to the filing.
(c) A cover letter accompanying each compliance filing ((shall))
must identify the order with which the filing is intended to comply.
(2) If the order authorizing or requiring a filing does not state
the number of business days required for commission examination of the proposed compliance
tariff between its filing and its stated effective date, the filing is subject to all
pertinent requirements for tariff filings of the industry and ((shall)) must
be made with the required statutory notice period unless the order provides otherwise. ((Such
a filing shall be docketed)) The commission will docket such a filing
under its own docket number and ((shall)) will not ((be
considered)) consider it a continuation of the prior proceeding.
(3) A compliance filing made on less than statutory notice,
whether or not a shortened period is authorized or directed in the order leading to the
filing, does not become effective automatically on its stated effective date, but requires
a commission order of approval. In the absence of an order of approval, the tariff filing
does not become effective on the stated effective date, but remains pending until the
commission has completed its review. On completing that review, the commission ((shall))
must immediately enter an order under subsection (4) of this section. A compliance
filing made on statutory notice is subject to all statutory and regulatory provisions
regarding suspension.
(4) If the commission believes that a compliance filing varies from the requirements or conditions of the order authorizing or requiring it, either by falling short of or by exceeding the authorization, conditions, or requirements of the order, the commission will not approve the tariff unless it has preapproved the variance.
(a) The commission may enter an order in the proceeding in which the filing was authorized or required, to (i) suspend a noncomplying filing or any portion that apparently fails to comply, and assign a docket number for processing, or (ii) reject the noncomplying filing, or any portion that apparently fails to comply, without prejudice to the company's refiling a new or original tariff provision under otherwise pertinent law and regulation. The commission may attach such conditions on compliance refiling as it believes appropriate.
(b) The commission may suspend any filing under its own docket number by otherwise pertinent process.
(c) The commission may delegate to the secretary the authority to enter a compliance order in specific proceedings by written authorization; by oral authority later reduced to writing; or by action in an open public meeting.
(d) Failure to identify noncompliance with the relevant commission order before approval does not preclude the commission from taking later steps as authorized by law to secure compliance.
[Statutory Authority: RCW 80.01.040. 96-02-083 (Order R-436, Docket No. A-950243), § 480-09-340, filed 1/3/96, effective 2/3/96; 89-21-036 (Order R-310, Docket No. U-89-2966-R), § 480-09-340, filed 10/12/89, effective 11/12/89.]
AMENDATORY SECTION (Amending Order R-436, Docket No. A-950243, filed 1/3/96, effective 2/3/96)
WAC 480-09-390 Objections
to closures of highway-railroad grade crossings. (1) Filing. Objections to
closures of highway-railroad grade crossings under RCW 81.53.060 ((shall))
must be filed in writing within twenty days of publication of notice of the
proposed closure, setting forth the full names and mailing addresses of persons objecting
to the closure, the particular crossing which is the subject of the objection, the
commission cause number, if known, and a statement of the objection. Communications which
do not meet these requirements, other than the requirement of stating the commission cause
number, will not be treated as objections for the purpose of requiring a hearing upon the
proposed closure to be held as provided by RCW 81.53.060.
(2) Party status - appearances - service of final order. ((No))
A person who fails to enter an appearance as prescribed by WAC 480-09-720, will not
be entitled to party status to a proceeding under RCW 81.53.060 after the close of the
period for the taking of appearances if a hearing is held, even though ((such))
the person may have filed an objection to a proposed crossing closure under the
provisions of subsection (1) of this section, ((and no such person will))
the person will not be entitled to service of the final order of the commission in
the matter unless party status is reestablished through intervention under the provisions
of WAC 480-09-430, although ((such)) the commission may send the
person ((may be sent)) a courtesy copy of the ((proposed))
initial or final order.
(3) Interested persons who lack party status, ((as defined
herein, shall)) will be provided an opportunity to be heard and offer
evidence as required by RCW 81.53.060. They may not call witnesses, cross-examine
witnesses or otherwise participate as a party. Interested persons who lack party status
lack standing to file petitions for administrative review of initial orders or to file
petitions for reconsideration of final orders.
[Statutory Authority: RCW 80.01.040. 96-02-083 (Order R-436, Docket No. A-950243), § 480-09-390, filed 1/3/96, effective 2/3/96.]
AMENDATORY SECTION (Amending Order R-376, Docket No. 920379, filed 9/1/92, effective 10/2/92)
WAC 480-09-400 Applications
for adjudicative proceedings. (1) Persons involved in an actual case or
controversy within the jurisdiction of the commission to resolve may apply to the
commission for an adjudicative proceeding to secure an order resolving disputed
matters ((at issue)). Each application should specify every issue to be
adjudicated in the proceeding.
(2) The following, when properly and timely filed, are applications for adjudicative proceedings except:
(a) When specified to the contrary in statute or rule;
(b) When the document is presented during an existing adjudication; or
(c) When the subject is not required to be resolved in an adjudication as defined in chapter 34.05 RCW: Petitions, when the action sought requires adjudication, formal complaints, protests, and requests for review of the denial of unprotested authority, when properly and timely filed, constitute applications for adjudicative proceedings except when specified to the contrary in statute or rule, when the document is presented during an existing adjudication, or when the subject is not required to be resolved in an adjudication as defined in chapter 34.05 RCW.
(3) The commission may, in its discretion, treat unprotested applications for authority as applications for adjudicative proceedings and set them for hearing.
(4) Within thirty days after ((receipt of)) receiving
an application for an adjudicative proceeding, the commission ((shall)) will
notify the applicant of any obvious errors or omissions, request any additional
information it requires and is permitted by law to require regarding the application for
adjudicative proceeding, and notify the applicant of the name, mailing address, and
telephone number of a person on the commission staff that may be contacted
regarding the application.
(5) Within ninety days after receipt of the application or receipt of the response to a timely request made under subsection (2) of this section, the commission shall:
(a) Approve or deny the petition or protest on the basis of brief or emergency adjudicative proceedings;
(b) Commence an adjudicative proceeding by serving the parties with a notice of hearing pursuant to RCW 34.05.434 and WAC 480-09-700; or
(c) Decide not to conduct an adjudicative proceeding and furnish the applicant with a copy of its decision in writing, with a brief statement of its reasons for doing so and of any administrative review available.
[Statutory Authority: RCW 80.01.040. 92-18-081 (Order R-376, Docket No. 920379), § 480-09-400, filed 9/1/92, effective 10/2/92; 89-21-036 (Order R-310, Docket No. U-89-2966-R), § 480-09-400, filed 10/12/89, effective 11/12/89.]
AMENDATORY SECTION (Amending Order R-310, Docket No. U-89-2966-R, filed 10/12/89, effective 11/12/89)
WAC 480-09-410 Parties.
(1) General. "Person" when used in this chapter means ((any)) an
individual((,)); corporation((,));
partnership((,)); association, or ((any)) body
politic((,)); agency((,)); or municipal
corporation. A "party" is ((any)) a person ((which))
that has complied with all requirements for establishing and maintaining party
status in any proceeding before the commission.
(2) Classification of parties. Parties to proceedings before the
commission ((shall)) will be ((styled)) called
applicants, complainants, petitioners, respondents, intervenors, or protestants, according
to the nature of the proceeding and the relationship of the parties ((thereto)).
((When an appearance has been entered for)) The commission ((and/or
for)) staff and the public counsel division of the attorney general's
office((, they shall respectively be considered parties to the proceeding for all
purposes)) become parties to an adjudicative proceeding for all purposes upon
entering an appearance.
(3) Applicants.
(a) Persons applying for any right or authority ((which))
that the commission has jurisdiction to grant ((shall be styled)) are
"applicants."
(b) Applicants for adjudicative proceedings under chapter 34.05
RCW ((shall)) will be ((styled)) described
according to their roles as defined in this section.
(4) Complainants. Persons who ((complain to)) file
a formal complaint with the commission ((of any act or omission by any other
person shall be styled)) are "complainants." ((In any
proceeding which)) When the commission brings an adjudication on
its own motion, ((it shall be styled)) the commission is the
"complainant."
(5) Petitioners. Persons petitioning for relief ((shall be
styled)) are "petitioners." Persons filing a motion for
relief are "movants" or "moving parties."
(6) Respondents. Persons against whom any complaint, petition,
or motion is filed ((shall be styled)) are
"respondents."
(7) Intervenors. Persons permitted to intervene ((pursuant
to this chapter shall be styled)) are "intervenors."
(8) Protestants. Persons opposing applications who have complied
with the requirements for the filing of protests ((shall be styled)) are
"protestants."
[Statutory Authority: RCW 80.01.040. 89-21-036 (Order R-310, Docket No. U-89-2966-R), § 480-09-410, filed 10/12/89, effective 11/12/89.]
AMENDATORY SECTION (Amending Order R-400, Docket No. A-930517, filed 12/1/93, effective 1/1/94)
WAC 480-09-420 Pleadings and
briefs--Applications for authority--Protests. Pleadings. Pleadings ((before
the commission)) include formal complaints, petitions, answers, replies, applications
for authority, protests, and written motions.
(1) Legibility; size; length; service. All pleadings ((shall))
and briefs must be legible and, unless the commission authorizes a different
size ((is required by the nature of the pleading)), must be
submitted on 8-1/2 x 11 inch paper. ((Pleadings shall not)) Parties
may not submit pleadings or briefs that exceed sixty pages without prior
permission from the commission. ((Unless otherwise required for a specific
pleading,)) Each party must serve a copy ((shall be served))
of each of its pleadings upon each party to the proceeding.
(2) Errors in pleadings. ((When it finds a pleading to be
defective or insufficient,)) The commission may return ((the))
a pleading to the party filing it for correction when the commission finds the
pleading to be defective or insufficient. ((Typographical errors or errors in
captions or spelling of names of parties may be corrected by)) The
commission may correct typographical errors, errors in captions, or errors in spelling
of names of parties.
(3) Form. Every pleading ((before the commission shall
generally)) must conform with the following form.
At the top of the first page ((shall)) must
appear the phrase, "Before the Washington Utilities and Transportation
Commission." On the left side of the page, next below, the caption of the proceeding
((shall)) must be set out or, if no caption exists, the following:
"In the Matter of the (Complaint, Petition, Motion, ((Answer,))
etc.) of (name of the pleading party) for (identify relief sought)." On the right
side of the page, opposite the ((foregoing)) caption ((shall))
must appear the words (Petition, Motion, Reply, etc., of (([))(role
of party: e.g., petitioner, respondent, protestant, etc., and name of the party if more
than one party has the same role in the proceeding((])))).
The body of the pleading ((shall)) must be
set out in numbered paragraphs. The first paragraph ((shall)) must
state the name and address of the pleading party. The second paragraph ((shall))
must state all rules or statutes that may be brought into issue by the pleading.
Succeeding paragraphs ((shall)) must set out the statement of
facts relied upon in form similar to ((that applicable to)) complaints in
civil actions before the superior courts of this state. The concluding paragraphs ((shall))
must contain the prayer of the pleading party.
(4) Number of copies; size. Unless, in a particular case, the
commission specifies a different number of copies, the pleading or briefing party must
file with the commission an original and ((three)) the number of
legible copies of each pleading in transportation matters except transportation rate
cases, and nineteen copies ((in all other matters including transportation rate
cases, shall be filed with the commission)) that is required in WAC 480-09-120
(1)(b). Copies ((shall)) must be on three-hole punched white
paper, 8-1/2" x 11" in size. Notices of "confidentiality
agreements" are distributed within the commission via e-mail, so only an original
needs to be filed. If a pleading is received by the commission via telefacsimile, the
commission will make the required number of copies unless other arrangements are made, and
will charge the costs of the copies to the party as specified in WAC 480-09-120. After
filing by telefacsimile, the party must file only the original of the pleading with the
commission and need not file additional copies.
(5) Complaints.
(a) Defined. Formal complaints are ((those))
complaints that are filed in accordance with RCW 80.04.110 and 81.04.110,
complaints filed ((pursuant to)) under RCW 80.54.030, or
complaints in proceedings designated by the commission as formal proceedings.
(b) Contents. Formal complaints must be in writing setting forth
clearly and concisely the ground ((of)) for the complaint and the
relief requested. The complaint must state facts constituting the basis of the
complaint, including relevant dates, ((should be stated,)) together with
citations ((of the)) to relevant statutes or commission
rules ((of the commission involved)). The name and address of the person
complained against must be stated in full. The name and address of the complainant and the
name and address of complainant's attorney, if any, must appear upon the complaint.
In ((a)) proceedings under RCW 80.04.110
or 81.04.110, the provisions of the respective statutes ((shall))
also apply.
(6) Protests. A person whose interests would be adversely affected
by the granting of an application ((or by a rate change)) may file a
protest. Protests to applications must conform to the requirements of any special rules ((relative))
that apply to the type of the application being protested. A protestant must serve
a copy of the protest upon the applicant ((or person requesting a rate change.
Protestants are not entitled, as a matter of right, to a hearing upon the matter being
protested, but a protest may contain a request for a hearing. The commission may, whether
or not a protest contains such a request, set the matter in question for hearing)).
(7) Petitions.
(a) Defined. All pleadings seeking relief (other than complaints
or answers) ((shall be styled)) are "petitions."
(b) Petitions - contents. A petition ((shall)) must
set forth all facts upon which the request for relief is based, with the dates of all
relevant occurrences and a citation of the statutes((, rules,)) and
regulations ((of the commission)) upon which the petition is based.
(8) Motions.
Motions ((shall)) must be filed separately
from any other ((filing and will not be considered if merely stated within the
text of correspondence or a different)) pleading. The commission will not
consider motions that are merely stated within the text of correspondence or in the body
of another pleading. The commission may refer to the rules in the superior court of
Washington as guidelines for handling ((of)) motions.
(9) Responsive pleadings.
(a) Answer. Except as otherwise provided in WAC 480-09-425 and
480-09-810(4), any party who desires to respond to a complaint, motion, or petition shall
file with the commission and serve upon all other parties an answer. ((If an
answer is not filed, the complaint or petition shall be deemed to be denied by the
respondent.)) Answers ((shall)) must fully and completely
disclose the nature of the defense and ((shall)) must admit or
deny specifically, and in detail, all material allegations of the complaint
or petition. ((Matters alleged by way of affirmative defense shall be)) A
respondent must separately ((stated)) state and ((numbered))
number affirmative defenses.
(b) Reply. The response to an answer is ((styled))
a reply. Unless otherwise specified, replies may not be filed without authorization by the
commission upon a showing of cause.
[Statutory Authority: RCW 80.01.040. 93-24-103 (Order R-400, Docket No. A-930517), § 480-09-420, filed 12/1/93, effective 1/1/94; 92-18-081 (Order R-376, Docket No. 920379), § 480-09-420, filed 9/1/92, effective 10/2/92; 89-21-036 (Order R-310, Docket No. U-89-2966-R), § 480-09-420, filed 10/12/89, effective 11/12/89.]
NOTES:
Reviser's Note: The brackets and enclosed material in the text of the above section occurred in the copy filed by the agency.
AMENDATORY SECTION (Amending Order R-400, Docket No. A-930517, filed 12/1/93, effective 1/1/94)
WAC 480-09-425 Pleadings--Verification,
time for filing, responsive pleadings, liberal construction, amendments. (1)
Verification. All pleadings, except motions and complaints brought upon the commission's
own motion, ((shall)) must be dated and signed by at least one
attorney or representative of record in his or her individual name, stating his or her
address((,)); or by the party, if the party is not
represented.
Pleadings of a party who is not represented by an attorney ((shall))
must contain a statement that the pleading is true and correct to the best of the
signer's belief.
(2) Time for motions. Unless good cause is shown for a delay, a
party opposing a pleading must file any motion directed to ((a)) the
pleading ((must be filed)) no later than the time the responsive pleading
is due. If no responsive pleading is provided for, the motion must be filed within ten
days after service of the pleading. Filing a motion to dismiss a pleading, or seeking a
similar remedy, does not ((stay)) extend the time for answering
the pleading. Other motions ((shall)) must be filed within the
times specified in WAC 480-09-420 or 480-09-736.
(3) Answers; time for answer; reply.
(a) An answer is not mandatory. A party answering a pleading
must ((be filed)) file the answer within twenty days after the
service of the pleading ((against)) to which it is directed. ((The
filing of an answer is not mandatory.)) During a hearing, the time for answers to
interlocutory pleadings is governed by WAC 480-09-736 and the discretion of the presiding
officer.
(b) A party may request permission to reply to an
answer. The request must be filed within ten days after service of the answer to
which it is directed. During a hearing, the presiding officer may shorten the time for
requesting leave to reply or may rule from the bench on such requests. A party requesting
leave to reply may attach a proposed reply to the request. Requests should address whether
the answer raises new material requiring response, or other reason why a reply is
necessary. A request to file a reply is deemed denied unless specifically granted by
the commission. If the commission allows a reply, ((it)) the
commission will set the time for filing the reply.
(c) ((Whenever)) The commission may
alter the time allowed for any answer or reply if it believes that the public interest
so requires((, it may alter the time allowed for any answer)).
(4) Liberal construction. ((All)) The
commission will construe pleadings ((shall be)) liberally ((construed))
with a view to effect justice among the parties. The commission will, at every stage of
any proceeding, disregard errors or defects in the pleadings or proceeding ((which))
that do not affect the substantial rights of the parties.
(5) Amendments. The commission may allow amendments to the pleadings or other relevant documents at any time upon such terms as may be lawful and just.
[Statutory Authority: RCW 80.01.040. 93-24-103 (Order R-400, Docket No. A-930517), § 480-09-425, filed 12/1/93, effective 1/1/94; 92-18-081 (Order R-376, Docket No. 920379), § 480-09-425, filed 9/1/92, effective 10/2/92. Statutory Authority: RCW 80.01.040, 80.04.160, 81.04.160 and chapter 34.05 RCW. 91-22-034 (Order R-351, Docket No. A-910835), § 480-09-425, filed 10/30/91, effective 11/30/91. Statutory Authority: RCW 80.01.040. 89-21-036 (Order R-310, Docket No. U-89-2966-R), § 480-09-425, filed 10/12/89, effective 11/12/89.]
AMENDATORY SECTION (Amending Order R-436, Docket No. A-950243, filed 1/3/96, effective 2/3/96)
WAC 480-09-426 Motion for
summary disposition. (1) Motion to dismiss. A party may move to dismiss an
opposing party's pleading, including the documents initiating the case, if the
pleading fails to state a claim on which the commission may grant relief. In ((considering))
ruling upon a motion made under this subsection, the commission will consider the
standards applicable to a motion made under CR 12 (b)(6), 12(c), or 50, as applicable, of
the civil rules for superior court.
(2) Motion for summary determination. A party may move for summary determination if the pleadings filed in the proceeding, together with any properly admissible evidentiary support, show that there is no genuine issue as to any material fact and the moving party is entitled to summary determination in its favor. In considering a motion made under this subsection, the commission will consider the standards applicable to a motion made under CR 56 of the civil rules for superior court.
(3) Presentation of a motion for summary disposition ((shall))
will not automatically stay any scheduled procedures. ((Without leave))
Except with permission from the commission, motions for summary disposition ((shall
not)) must be presented ((later)) more than thirty
days prior to the next applicable hearing session. Responses ((shall)) must
comply with WAC 480-09-425 and 480-09-736. The commission may order a continuance of any
procedure and may order oral or written response on a schedule consistent with any
established hearing schedule in the proceeding.
[Statutory Authority: RCW 80.01.040. 96-02-083 (Order R-436, Docket No. A-950243), § 480-09-426, filed 1/3/96, effective 2/3/96.]
AMENDATORY SECTION (Amending Order R-310, Docket No. U-89-2966-R, filed 10/12/89, effective 11/12/89)
WAC 480-09-430 Intervention. (1) General intervention.
(a) Who may petition; when petitions must be filed. Any
person, other than the original parties to any proceeding before the commission, who
desires to appear and participate, and who does not desire to broaden the issues of the
proceeding, may((:
(a))) petition in writing for leave to
intervene at least five days prior to((, or at)) the time((,))
it is initially called for hearing or prehearing conference, whichever occurs first; or (((b)))
petition orally for leave to intervene at the time of the initial hearing or
prehearing conference, whichever occurs first. No such petition shall be filed or made
after the proceeding is underway((, except for good cause shown)).
(b) Contents of petition. The petition to intervene must
disclose the name and address of the ((person intervening)) petitioner;
the name and address of ((his or her)) petitioner's attorney, if
any; ((his or her)) petitioner's interest in the proceeding; and
((his or her)) petitioner's position in regard to the matter in
controversy. Petitions for intervention must be filed with the commission and served on
the original parties to the proceeding. In utility rate cases, the original parties are
the company seeking a rate change, commission staff, and public counsel.
A form petition for intervention is available on request from the
secretary of the commission. The commission encourages use of the form ((is
encouraged)) to ensure ((receipt of)) that the petitioner
provides adequate information.
(2) Special intervention--broadening the issues.
(a) Who may petition; when petitions must be filed. Any
person other than the original parties ((of record)) to any
proceeding before the commission, who desires to appear and participate in the proceeding
and who desires to broaden the issues in the proceeding, may petition for ((leave
to intervene)) special intervention in the proceeding. The petition must
be in writing ((and)), filed with the commission, and ((copies))
served upon the parties of record to the proceeding, at least ten days prior to the date
of the prehearing conference or((, if there is no conference, at least ten days
prior to the date of the)) initial hearing session, whichever occurs
first. The commission may, for good cause ((shown)), shorten the
ten-day filing period. When there is no prejudice to other parties, the commission may ((grant))
consider an oral petition ((without the ten-day requirement)) that
is filed less than ten days in advance.
(b) Contents of petition. The petition must disclose the
name and address of the ((party intervening)) petitioner; the name
and address of ((his or her)) the petitioner's attorney, if any;
((his or her)) the petitioner's interest in the proceeding; and ((his
or her)) the petitioner's position in regard to the matter in controversy.
The petitioner must attach to the petition an affidavit or declaration
setting forth clearly and concisely the facts supporting the relief sought ((shall
be attached to the petition)).
(3) Disposition of petitions to intervene. The commission may
consider petitions to intervene ((may be considered)) at hearings ((and))
or prehearing conferences, ((or may be set for prior hearing. An))
or, if persons entitled to respond to the petition have done so, before or after a
hearing or prehearing conference. The commission will allow parties the opportunity ((shall
be afforded the parties)) to be heard upon the petition. ((Intervention
may be granted in the absence of appearance by petitioner. A late-filed petition to
intervene may be ruled upon without a hearing if all parties have been granted an
opportunity to respond.)) If the petition discloses a substantial interest in the
subject matter of the hearing, or if the participation of the petitioner is in the public
interest, the commission may grant the petition orally, at the hearing or prehearing
conference, or in writing. Limitations may be imposed upon interventions in
accordance with RCW 34.05.443(2). If the commission grants intervention, the
petitioner ((then)) becomes a party to the proceeding ((and
becomes known)) as, an "intervenor." ((Whenever it
appears,)) If the commission determines, during ((the course of))
a proceeding, that an intervenor has no substantial interest in the proceeding, ((and))
or that the public interest will not be served by the intervention ((therein)),
the commission may dismiss the intervenor from the proceeding((: Provided,
however, That a party whose intervention has been allowed shall not be dismissed)).
The commission may dismiss an intervenor from a proceeding except ((upon))
only after notice and a reasonable opportunity to be heard. ((A)) The
commission may review the decision by an administrative law judge regarding a petition
to intervene ((is subject to commission review)) or dismissal of an
intervenor pursuant to WAC 480-09-760.
(((4) Limitation of intervention under certain
circumstances. Notwithstanding the provisions of subsections (1) and (2) of this section,
if the commission determines that the orderly and prompt conduct of any proceeding so
requires, the making or filing of petitions for leave to intervene may be limited to the
time of a prehearing conference, for general intervention, or ten days prior to such
prehearing conference, for special intervention, where the commission has given not less
than twenty days' written notice of the prehearing conference to all parties and caused
the same to be published in a newspaper or newspapers of general circulation in the area
affected by the proceeding.))
[Statutory Authority: RCW 80.01.040. 89-21-036 (Order R-310, Docket No. U-89-2966-R), § 480-09-430, filed 10/12/89, effective 11/12/89.]
AMENDATORY SECTION (Amending Order R-336, Docket No. A-900700, filed 2/22/91, effective 3/25/91)
WAC 480-09-440 Continuances--Extensions
of time. (1) General. ((Postponements, continuances and extensions of
time, called "continuances" in this section, may be requested by any party, upon
notice to all other parties, and may be granted upon a showing of good and sufficient
cause. Continuances may be directed by the commission or the presiding officer without the
request of any party when doing so is in the public interest or furthers administrative
needs of the commission. The date which is sought to be continued is called the
"deadline" in this section.)) In this section, continuances include
postponements and extensions of time. With notice to all other parties, any party may
request a continuance. The commission may grant a continuance if the requesting party
demonstrates good cause for the continuance. The commission or the presiding office may
direct a continuance without the request of any party when doing so is in the public
interest or furthers administrative needs of the commission. In this section,
"deadline" means any date that is sought to be continued.
(2) Procedure. Subject to subsection (3) of this section, requests
for continuances may be made orally on the record during a hearing. Whenever possible,
requests ((shall)) should be made by letter. ((Requests
may be decided orally in hearing, or by letter, by)) The presiding officer
or the commission may rule upon requests orally at a prehearing conference or hearing
session, or by letter or order. Requests may be granted; granted, with modification or
upon condition; or denied.
(3) Timing. Oral requests must be made at least five days ((prior
to)) before the deadline sought to be continued. Written requests must be
filed with the commission, and served upon other parties so as to be received, no less
than five days prior to the deadline which is sought to be continued. Responses must be
filed no less than four days after service of the request, or two days prior to the
deadline which is sought to be continued; whichever is earlier. Response ((shall))
must be made orally when a related hearing is held prior to the stated response
deadline. ((Requests which are made prior to the deadline, but which are not made
within the time specified in this subsection, must specify the nature of the circumstances
which prevented making a timely request.)) The commission may consider
requests for continuance that are made after the deadline stated in this rule if the
requester demonstrates good cause that prevented a timely request.
(4) Content. A request for continuance must contain the following information:
(a) The name of the requesting party and its role in the proceeding (e.g., applicant, respondent, intervenor, etc.);
(b) Whether the requestor or any other party has previously requested a continuance in the proceeding and whether any continuance has been granted;
(c) Whether the requestor has discussed the request with other parties and whether, upon discussion, all other parties agree;
(d) The proposed new deadline, and whether the new deadline poses scheduling problems for any party;
(e) The reason for the request and for requesting the proposed new deadline;
(f) What efforts have been made to avoid a continuance and to minimize the length of the delay sought;
(g) If the continuance is to allow time to acquire a transcript, the date the transcript was ordered, when delivery is expected, and the length of the transcript or the length of the hearing;
(h) If the request relates to an application for transportation operating authority, whether the applicant is presently providing all or part of the requested service, and whether an application for temporary authority has been filed and the status of the application; and
(i) Any other factor which may bear upon whether ((allowing))
the continuance is consistent with the public interest.
(5) Date certain--Dismissal. ((Continuances should be
granted)) The commission will grant continuances to a specified
date ((certain)). A party seeking an indefinite continuance must
demonstrate why a specific date ((certain)) is not feasible. Each
ninety days after the initial request for an indefinite continuance is granted, the
party making the request must (a) file a statement with the commission describing the
status of the proceeding and why it is still infeasible to establish a specific
date ((certain)), or must (b) request a specific date ((certain)).
Failure to file the statement required in this subsection is grounds for dismissal without
further notice. The commission may at any time rescind ((the)) an
indefinite continuance and set the proceeding for hearing.
(6) Agreed requests. An "agreed request" is a
request for a continuance ((as to which)) that all parties
agree ((is an "agreed request.")) to. Agreed requests
for continuances other than hearings may be made orally ((until)) before
the deadline, ((provided)) if a confirming letter is served and
sent for filing on the same day. A first agreed request, timely made, will be granted
unless it is inconsistent with the public interest or commission administrative needs.
[Statutory Authority: RCW 80.01.040 and 34.05.220. 91-06-010 (Order R-336, Docket No. A-900700), § 480-09-440, filed 2/22/91, effective 3/25/91. Statutory Authority: RCW 80.01.040. 89-21-036 (Order R-310, Docket No. U-89-2966-R), § 480-09-440, filed 10/12/89, effective 11/12/89.]
AMENDATORY SECTION (Amending Order R-436, Docket No. A-950243, filed 1/3/96, effective 2/3/96)
WAC 480-09-460 Prehearing
and other conferences. (1) General. ((When issues are joined)) In
any ((formal)) proceeding the commission may, by written notice or by
oral notice on the record of the hearing, request or direct all ((interested
persons)) parties and persons requesting party status to attend a
prehearing or other conference for the purpose of determining the feasibility of
settlement, or of formulating the issues in the proceeding and determining other matters
to aid in its disposition. The notice of the conference ((shall)) must
provide reasonable notice of the time and place established for the conference and the
matters to be addressed. The notice may provide that failure to attend may result in the
dismissal of a party, the finding of a party in default, or the refusal to consider a
later petition for intervention except upon a showing of good cause for the failure to
attend. ((A party's failure to attend the conference,)) In the
absence of a showing of good cause ((for that failure)) a party's
failure to attend the conference, will constitute the party's waiver of all objections
to any order or ruling arising out of the conference or any agreement reached at
conference. A commissioner, an administrative law judge((, or an employee of the
commission designated by the commission,)) shall preside at ((such))
each conference, to consider:
(a) Simplification of the issues;
(b) The necessity or desirability of amendments to the pleadings;
(c) The possibility of obtaining admissions of fact and of documents which will avoid unnecessary proof;
(d) Limitations on the number and consolidation of the examination of witnesses;
(e) The procedure at the hearing;
(f) The need for and timing of distribution of written testimony and exhibits to the parties prior to the hearing; and
(g) ((Such)) Any other matters ((as))
that may aid in the disposition of the proceeding, ((or)) whether
by commission decision or by settlement ((thereof)).
The disposition of petitions for leave to intervene in the proceeding filed pursuant to WAC 480-09-430 may be ruled upon at a prehearing conference.
(2) A statement describing the action taken at the conference and
the agreements made by the parties concerning all of the matters considered ((shall))
may be made orally on the record or ((in writing, and)) by a
conference order served upon the parties((,)) for approval. If no
objection to the oral statement is made on the record, or no objection to the written
statement is filed within ten days after the date the statement is served, it shall be
deemed to be approved, subject to commission review. The result of the prehearing
conference will control the subsequent course of the proceeding unless rejected by the
commission or modified to prevent manifest injustice.
(3) Recessing hearing for conference. In any proceeding the
presiding officer may((, in his or her discretion,)) call the parties
together for a conference prior to the taking of testimony, or may recess the hearing for
((such)) a conference, ((with a view to carrying)) to
carry out the purpose of this section. The presiding officer shall state on the record
the results of ((such)) a conference.
(4) Discovery conference. In addition to the mechanisms set out in
WAC 480-09-480 for obtaining information, the commission may request or direct the parties
to an adjudication in which the discovery rule has been invoked to attend a conference
along with designated witnesses for the purpose of discussing with each other questions
about the party's position or evidence and the availability of supporting information.
Subject to making satisfactory arrangements for dealing with documents, attendance by
telephone shall be permitted in the absence of a demonstration that telephonic attendance
will substantially reduce the effectiveness of the conference. The purposes of a discovery
conference are to allow witnesses and advisers to talk directly and informally ((and)),
to reduce or avoid the need for written data requests and time for their preparation, to
allow discussions of potential stipulations regarding individual facts and settlement of
individual issues to occur in an informal setting, to discuss the availability of
supporting information, and to enhance the parties' ability to acquire or expand their
knowledge about the case of one or more designated other parties. The conference will not
be reported. Statements made by participants at a discovery conference are not admissible
for evidentiary purposes. Parties shall determine a process to confirm among themselves
the results of the discussions. The commission may designate ((a person, who shall
not be associated with any party, with commission advisory staff as to that proceeding, or
with commission advocacy staff, to facilitate a discovery conference,)) an
administrative law judge to preside at a discovery conference. On its own motion or on
the request of ((any)) a party, the commission may designate a
person, who is not associated with any party, with commission advisory staff as to that
proceeding, or with commission advocacy staff, to facilitate a discovery conference.
(5) Order conference. On the commission's own motion or at the
request of ((any)) a party, the commission may schedule an order
conference at which parties may ask clarification of the meaning of a final order entered
or to be entered by the commission or discuss disagreements about the commission order.
The commissioners may attend the conference personally or may designate one or more staff
persons to attend on their behalf. The purposes of the conference are to allow parties to
ask clarification of the meaning of an order so that compliance may be enhanced ((and)),
so any compliance filing may be accurately prepared and presented, and to discover
technical changes that may be required to correct the application of principle to data or
to correct patent error without the need for parties to request reconsideration and
without delaying post-order compliance. ((Such a)) An order
conference will not stay the effect of the order, the time for compliance, the time for
securing post-order review, or the time for judicial review, unless the conference results
in a supplemental commission order which then becomes a final order subject to review. ((Such
a)) An order conference does not constitute a formal interpretation of the
order. The order itself will remain the sole expression of the commission's opinion unless
supplemented through an additional order. The presiding officer will determine whether
an order conference will ((not)) be reported. The conference is not a
forum for discussing or challenging the evidentiary or policy decisions expressed in the
order. Those remedies may be pursued through a petition for reconsideration or other means
under pertinent rule or statute.
[Statutory Authority: RCW 80.01.040. 96-02-083 (Order R-436, Docket No. A-950243), § 480-09-460, filed 1/3/96, effective 2/3/96; 92-18-081 (Order R-376, Docket No. 920379), § 480-09-460, filed 9/1/92, effective 10/2/92; 89-21-036 (Order R-310, Docket No. U-89-2966-R), § 480-09-460, filed 10/12/89, effective 11/12/89.]
AMENDATORY SECTION (Amending Order R-436, Docket No. A-950243, filed 1/3/96, effective 2/3/96)
WAC 480-09-465 Alternate dispute resolution. The commission supports parties' efforts to resolve disputes without the need for litigation when doing so is lawful and consistent with the public interest. Alternate dispute resolution (ADR) includes any mechanism to resolve disagreement without hearings or litigation.
(1) The commission will not delegate to parties the power to make final decisions, but will retain the authority to approve any proposed settlement or agreement.
(2) Parties to a dispute or disagreement on a matter that is under the commission's jurisdiction may agree to negotiate with any other parties at any time without commission oversight. The commission may direct parties to meet or consult under WAC 480-09-466(1) and may establish a collaborative process under WAC 480-09-467. The commission encourages parties to use and experiment with other forms of ADR subject to the commission's approval.
(3) The ((decision to engage in negotiation or
collaboration is the voluntary decision of each participant)) commission may
direct parties to a proceeding to enter negotiations aimed at resolving issues in the
proceeding.
(4) In any negotiation, the following apply unless all participants agree otherwise:
(a) The parties ((are encouraged)), as
their first joint act ((to)) will consider the ((elements
of the)) commission's guidelines for negotiations, set out in a policy
statement adopted pursuant to RCW 34.05.230, and determine the ground rules governing
the negotiation;
(b) No statement, admission, or offer of settlement shall be admissible in evidence in any formal hearing before the commission without the consent of the participants or unless necessary to address the process of the negotiations;
(c) Parties may agree that information be treated as confidential
to the extent provided in a commission protective order ((patterned after the
order entered in the matter of Electric Lightwave, Inc., Docket No. UT-901029)); and
(d) Participants should advise each other, any mediator or facilitator, and the commission, if the negotiation is sanctioned by the commission, if the negotiation is without substantial prospects of resolving the issue or issues under negotiation.
[Statutory Authority: RCW 80.01.040. 96-02-083 (Order R-436, Docket No. A-950243), § 480-09-465, filed 1/3/96, effective 2/3/96; 89-21-036 (Order R-310, Docket No. U-89-2966-R), § 480-09-465, filed 10/12/89, effective 11/12/89.]
AMENDATORY SECTION (Amending Order R-436, Docket No. A-950243, filed 1/3/96, effective 2/3/96)
WAC 480-09-466 Settlement conference; settlements. The commission favors the voluntary settlement of disputes within its jurisdiction. It will approve settlements when doing so is lawful and when the result is appropriate and consistent with the public interest in light of all the information available to the commission.
(1) In ((furtherance)) support of a
voluntary settlement of any dispute within the commission's jurisdiction, the commission
may((, in its discretion,)) invite or direct the parties to confer among
themselves or with a designated person. Settlement conferences shall be informal and
without prejudice to the rights of the parties. Any resulting settlement or stipulation
shall be stated on the record of the conference or submitted to the commission in writing
and is subject to approval by the commission.
(2) Settlements. A settlement is an agreement among ((the))
two or more parties to a proceeding to resolve one or more issues ((is a
settlement)).
(a) ((Any proposed settlement may be accepted by))
The commission may exercise discretion whether to accept a proposed settlement
for its review ((in the commission's discretion)). If the commission
accepts a settlement for review in an adjudication, the commission will schedule a time at
a hearing session for parties to present the settlement and for the commissioners
to inquire ((into)) about it, unless the commission believes such
a session to be unnecessary for it to exercise informed judgment upon the proposal.
(b) Partial settlement. An agreement of all parties on some issues may be presented as a partial settlement for commission review, and remaining matters may be litigated.
(c) Multiparty settlement. An agreement of some, but not all, parties on one or more issues may be offered as their position in the proceeding, with the evidentiary proof that they believe appropriate to support it, for commission review. Nonsettling parties may offer evidence and argument in opposition.
(d) Parties shall advise the commission when they have reached a partial or multiparty settlement and may suggest preferred procedural alternatives for review of the settlement. The commission will determine the appropriate procedure.
[Statutory Authority: RCW 80.01.040. 96-02-083 (Order R-436, Docket No. A-950243), § 480-09-466, filed 1/3/96, effective 2/3/96.]
AMENDATORY SECTION (Amending Order R-436, Docket No. A-950243, filed 1/3/96, effective 2/3/96)
WAC 480-09-467 Collaboratives.
(1) A collaborative is a negotiation sanctioned by the commission in which interested
persons work with each other and representatives of commission staff to achieve consensus
on one or more issues assigned to or identified by the collaborative participants.
Membership in the collaborative ((shall)) must reflect the
interests reasonably expected to be substantially affected by the result of the
collaborative.
(2) ((In)) When beginning a collaborative,
participants ((shall)) must address procedural guidelines for
negotiations that the commission has set out in a policy statement. Communication between
the commission and the collaborative participants may be made through the commission
secretary. Changes in the orientation or membership of the collaborative, the issues it
will address, or similar matters, may be made with commission knowledge and consent by
letter from the secretary or by other means with the agreement of collaborative
participants and the commission.
[Statutory Authority: RCW 80.01.040. 96-02-083 (Order R-436, Docket No. A-950243), § 480-09-467, filed 1/3/96, effective 2/3/96.]
AMENDATORY SECTION (Amending Order R-436, Docket No. A-950243, filed 1/3/96, effective 2/3/96)
WAC 480-09-470 Stipulation
as to facts. A stipulation is an agreement among parties as to one or more
operative facts in a proceeding. ((Stipulations)) The commission
encourages parties to enter stipulation of fact ((are encouraged)).
The parties to any proceeding or investigation before the commission may((, by
stipulation in writing filed with the commission or entered orally into the record,))
agree upon the facts or any portion ((thereof)) of the facts
involved in the controversy. The parties to a stipulation may file it in writing or
enter it orally into the record. This stipulation, if accepted by the commission,
shall be binding upon the parties ((thereto and may be used by the commission)).
The parties may present the stipulation as evidence at the hearing. The commission may
reject the stipulation or require proof of the stipulated facts, despite the parties'
agreement to the stipulation.
[Statutory Authority: RCW 80.01.040. 96-02-083 (Order R-436, Docket No. A-950243), § 480-09-470, filed 1/3/96, effective 2/3/96; 89-21-036 (Order R-310, Docket No. U-89-2966-R), § 480-09-470, filed 10/12/89, effective 11/12/89.]
AMENDATORY SECTION (Amending Order R-310, Docket No. U-89-2966-R, filed 10/12/89, effective 11/12/89)
WAC 480-09-475 Subpoenas.
General. ((Subpoenas may be issued by)) A commissioner, an
administrative law judge, or the attorney of any party to the proceeding may issue a
subpoena. Witnesses are required to comply with subpoenas in the manner prescribed in
Title 80 or 81 RCW and chapter 34.05 RCW. Witnesses shall be paid ((in the same
manner)) as provided in RCW 34.05.446(7). Each subpoena ((shall))
must bear the name of the party requesting or issuing the subpoena and the party
responsible for paying ((the)) witness fees.
[Statutory Authority: RCW 80.01.040. 89-21-036 (Order R-310, Docket No. U-89-2966-R), § 480-09-475, filed 10/12/89, effective 11/12/89.]
AMENDATORY SECTION (Amending Order R-400, Docket No. A-930517, filed 12/1/93, effective 1/1/94)
WAC 480-09-500 Brief
adjudicative proceedings. (1) ((Pursuant to RCW 34.05.482,)) The
commission may use brief adjudicative proceedings ((where not violative of))
under RCW 34.05.482 when doing so does not violate the law, and ((where))
when protection of the public interest does not require the commission to give
notice and an opportunity to participate to persons other than the parties and when the
commission believes that the brief adjudication is consistent with the public interest.
Those circumstances ((may)) include, but are not limited to:
(a) Review of denials or partial denials of applications that are not protested;
(b) Contested applications for temporary authority;
(c) Proceedings ((which)) that could lead
to suspension, cancellation, or revision of authority for failure to maintain tariffs, pay
fees, or file required documents;
(d) Formal complaints in which notice and an opportunity to participate in the proceeding need not be given to persons other than the parties; and
(e) ((In addition, the commission may hear any other
adjudicative matter in a brief adjudication upon the request or consent of all parties to
the proceeding, when notice and an opportunity to participate need not be given to persons
other than the parties and when the commission believes that the brief adjudication is
consistent with the public interest.)) Petitions for mitigation of penalty
assessments, including any challenge to the validity of a penalty assessment or the
existence of an underlying violation.
In exercising its discretion to conduct a brief adjudication, the
commission will consider the benefits for the parties and the commission to be gained from
a brief adjudication, the nature of issues involved and whether the commission ((desires))
may desire to consider further or in depth an issue that is raised, the likelihood
that review in a brief adjudication will provide a more sound decision than considering
the issues without the brief adjudication, and whether alternative means of resolving the
issues are sufficient and appropriate to satisfy the parties' and the commission's
interests.
(2) ((Application may be made)) Any person may
apply for a brief adjudicative proceeding by filing a letter of request stating
reasons why a brief adjudication should be used and a certificate of service upon
all other identified or necessary parties with the secretary of the commission. If ((it))
the commission grants the request, ((the commission shall)) it
will designate ((a review judge, a hearing examiner, the director of its
transportation division,)) an administrative law judge or the director ((of
its utilities division)) or deputy director of regulator services as a
presiding officer ((in specified brief adjudicative proceedings)). The
commission may set a matter for brief adjudication on its own motion when doing so will
not prejudice the rights of any party. Each applicant for a brief adjudicative proceeding
shall submit a written explanation of its view of the matter along with its application.
Parties may file written submissions as provided in the commission's notice that it will
conduct the brief adjudicative proceeding. ((In the discretion of)) The
commission or the presiding officer((, oral comments offered by parties))
may ((be considered)) decide whether to consider oral comments from
the parties.
(a) ((If)) A party to a brief adjudicative
proceeding who desires an opportunity to make an oral statement((, the))
may request ((should be made)) oral statements in the
application or in the response to the application if the commission has not provided
for oral statements. (((b) A request to make an oral statement may be granted))
If the presiding officer believes ((such a)) an oral
statement would ((benefit him or her)) be beneficial in reaching a
decision, the presiding officer may grant a request to make an oral statement or may
ask the parties to make oral statements.
(b) The commission shall serve upon the parties a notice of the time and place for the brief adjudicative proceeding and the name and telephone number of the scheduled presiding officer at least seven days before the proceeding.
(3) If the party is present at the time any unfavorable action is
taken, the presiding officer shall make a brief statement of the reasons for the decision.
The action on the application ((shall)) must be expressed in a
brief written statement, which shall be served upon all parties within ten days after the
date of the brief adjudication.
(4) The brief written statement is an initial order. If no party
seeks review of the initial order, it ((shall)) will become the
final order only ((on adoption)) if it is adopted by the
commission by means of a commission order.
(5) Service of the initial order ((shall)) must
be made pursuant to WAC 480-09-120.
(6) ((The commission shall conduct a review of an initial
order resulting from a brief adjudicative proceeding upon the written or oral request of a))
If a party ((if the commission receives the request)) requests
review of the initial order, in writing or orally, within twenty-one days after
service of the initial order, the commission will review it. If no request is
timely filed, the commission may adopt, modify, or reject the initial order.
(7) The commission encourages written requests for review so
parties have the greatest opportunity to state reasons for their views. A written
request for review of an initial order ((shall)) should contain an
explanation of the party's view of the matter, with a statement of reasons why the initial
order is incorrect, and a certificate of service. Responses to a request for review of an
initial order ((shall)) must be filed with the commission and
served upon the other parties within ten days after service of the request for review.
(8) The order on review must be in writing, must include a brief
statement of the reasons for the decision, and must be entered within twenty days after
the deadline for requesting review or of the request for review, whichever is later. The
order ((shall)) must include a description of any further
available administrative review or, if none is available, a notice that judicial review
may be available.
(9) ((A request for administrative review is deemed to
have been denied if the agency does not make a disposition of the matter within thirty
days after the request is filed.
(10))) The record in a brief adjudicative
proceeding shall consist of any documents regarding the matter that were considered or
prepared by the presiding officer for the brief adjudicative proceeding or by the
reviewing officer for any review.
[Statutory Authority: RCW 80.01.040. 93-24-103 (Order R-400, Docket No. A-930517), § 480-09-500, filed 12/1/93, effective 1/1/94; 92-18-081 (Order R-376, Docket No. 920379), § 480-09-500, filed 9/1/92, effective 10/2/92. Statutory Authority: RCW 80.01.040 and 34.05.220. 91-06-010 (Order R-336, Docket No. A-900700), § 480-09-500, filed 2/22/91, effective 3/25/91. Statutory Authority: RCW 80.01.040. 89-21-036 (Order R-310, Docket No. U-89-2966-R), § 480-09-500, filed 10/12/89, effective 11/12/89.]
AMENDATORY SECTION (Amending Order R-336, Docket No. A-900700, filed 2/22/91, effective 3/25/91)
WAC 480-09-510 Emergency
adjudicative proceedings. (1) ((Pursuant to RCW 34.05.479,)) The
commission ((shall)) may use emergency adjudicative proceedings pursuant
to RCW 34.05.479 to suspend or cancel authority, to require that a dangerous condition
be terminated or corrected, or to require immediate action in any situation((s))
involving an immediate danger to the public health, safety, or welfare requiring immediate
action by the commission. Such situations ((shall)) include, but are
not limited to:
(a) Failure to possess insurance;
(b) Inadequate service by a gas, water, or electric company when the inadequacy involves an immediate danger to the public health, safety, or welfare; and
(c) Violations of law, rule, or order related to public safety, when the violation involves an immediate danger to the public health, safety, or welfare.
(2) The ((matter shall be heard and the order shall be
entered by the)) commission shall hear the matter and enter an order. If a
majority of the commissioners is not available, a commissioner shall hear the matter. If
no commissioner is available, a commission ((review)) administrative
law judge shall hear the matter((s)).
(3) The commission's decision shall be based upon the written
submissions of the parties and upon oral comments by the parties if the presiding officer
has allowed oral comments. The order ((shall)) must include a
brief statement of findings of fact, conclusions of law, and justification for the
determination of an immediate danger to the public health, safety, or welfare. The order
((shall be)) is effective when entered. ((Service of))
The commission must serve the order ((shall be made)) pursuant to
WAC 480-09-120.
[Statutory Authority: RCW 80.01.040 and 34.05.220. 91-06-010 (Order R-336, Docket No. A-900700), § 480-09-510, filed 2/22/91, effective 3/25/91. Statutory Authority: RCW 80.01.040. 89-21-036 (Order R-310, Docket No. U-89-2966-R), § 480-09-510, filed 10/12/89, effective 11/12/89.]
AMENDATORY SECTION (Amending Order R-310, Docket No. U-89-2966-R, filed 10/12/89, effective 11/12/89)
WAC 480-09-600 Conversion
of proceedings. (1) Upon application by any person or upon its own motion, the
commission shall consider whether ((the conversion of)) to convert
a proceeding pursuant to RCW 34.05.070 ((should be made)).
(2) ((Commencement)) The start of the new
proceeding ((shall be determined to be)) is the time ((of
commencement of)) the original proceeding began, provided that all
statutory and regulatory requirements for the new proceeding ((shall be))
are met.
[Statutory Authority: RCW 80.01.040. 89-21-036 (Order R-310, Docket No. U-89-2966-R), § 480-09-600, filed 10/12/89, effective 11/12/89.]
AMENDATORY SECTION (Amending Order R-336, Docket No. A-900700, filed 2/22/91, effective 3/25/91)
WAC 480-09-610 Consolidation
of proceedings. ((Two or more proceedings in which the facts or
principles of law are related)) The commission may ((be
consolidated for hearing or disposition in the)) in its discretion ((of
the commission)), consolidate two or more proceedings in which the facts or
principles of law are related.
(1) Parties must address a motion for consolidation or for
the severance of consolidated matters ((shall be addressed)) to the
commission. The commission may rule on the motion or may refer the motion ((to the
office of administrative hearings)) an administrative law judge for
resolution.
(2) The commission may on its own motion consolidate matters for hearing, or sever consolidated matters, when it believes that the action is appropriate.
[Statutory Authority: RCW 80.01.040 and 34.05.220. 91-06-010 (Order R-336, Docket No. A-900700), § 480-09-610, filed 2/22/91, effective 3/25/91. Statutory Authority: RCW 80.01.040. 89-21-036 (Order R-310, Docket No. U-89-2966-R), § 480-09-610, filed 10/12/89, effective 11/12/89.]
AMENDATORY SECTION (Amending Order R-310, Docket No. U-89-2966-R, filed 10/12/89, effective 11/12/89)
WAC 480-09-620 Joint
hearings. ((General.)) (1) Federal. In any proceeding in
which the commission participates jointly with ((the Interstate Commerce
Commission or other)) a federal ((regulatory)) agency,
the rules of practice and procedure of the federal agency shall govern.
(2) State. In any proceeding in which the commission
participates jointly with the administrative body of another state or states, the rules of
the state in which the hearing is held shall govern the proceeding, unless otherwise
agreed upon by the participating agencies((: Provided, That any)).
(3) Who may appear. Any person entitled to appear in a representative capacity before any of the agencies involved in a joint hearing may appear in the joint hearing.
[Statutory Authority: RCW 80.01.040. 89-21-036 (Order R-310, Docket No. U-89-2966-R), § 480-09-620, filed 10/12/89, effective 11/12/89.]
AMENDATORY SECTION (Amending Order R-376, Docket No. 920379, filed 9/1/92, effective 10/2/92)
WAC 480-09-700 Hearings--Notice and failure to appear. (1) Notice.
(a) Initial hearing notice. The time and place of ((hearings))
the first hearing session or prehearing conference in any adjudication will be set
by the commission ((and)) in a notice ((thereof))
served upon all parties at least twenty days in advance of the ((initial))
hearing ((date, unless the)) or conference. The commission ((finds))
may establish a shorter notice if it believes that good cause exists ((for
the hearing to be held upon shorter notice)). An effort will be made to set all
hearings sufficiently in advance so that all parties will have a reasonable time to
prepare their cases, and so that need for continuances will be minimized.
(b) Continued hearing sessions. When a hearing is not concluded
in one day, the time and place of continued hearing sessions may ((also))
be set:
(i) Upon the record without further written notice to the parties;
((or))
(ii) By letter or formal notice of hearing from the secretary of the commission; or
(iii) By letter from the presiding officer.
((In such instances,)) The commission need not
give twenty days' prior notice ((is not required)) of continued
hearing sessions.
(2) The initial notice of hearing shall state that, if a limited English-speaking or hearing-impaired party needs an interpreter, a qualified interpreter will be appointed at no cost to the party or witness. The notice shall include a form for a party to indicate whether he or she needs an interpreter and to identify the primary language or hearing impaired status of the party.
(3) Failure to appear - default - dismissal.
(a) At the time and place set for hearing, if a party fails to
appear, the commission may dismiss the party or find the party in default. The
presiding officer may recess the hearing for a brief period to enable the party to attend
the hearing((, but if at the time set for the resumption of the hearing)).
If the party is not present or represented when the hearing resumes, the
commission may dismiss the party or find the party in default.
(b) ((Default shall be implemented)) When the
commission finds a party in default, it will implement the default by a default order
or by a default provision in the order disposing of the issues in the proceeding, pursuant
to RCW 34.05.440. Default may be appropriate in instances where the party is the initiator
of the proceeding, such as an applicant, a petitioner, or a complainant.
(c) ((Dismissal shall be implemented)) When
the commission dismisses a party from a proceeding it will do so by an order of dismissal
or by a dismissal provision in the order disposing of the issues in the proceeding. ((Dismissal
may be contested by the filing of a)) A person who is dismissed may contest a
dismissal order by seeking interlocutory review. If interlocutory review is denied, or if
the dismissal is a provision of an initial or final order, the person who is dismissed may
petition for reopening until the close of the time for filing a petition for
administrative review of an initial order or, if no initial order is entered, until the
close of the period for filing a petition for reconsideration. ((The person who is
dismissed may support the petition for reopening by showing good cause for failure to
appear, for failure to seek a continuance, and for failure to earlier seek an excuse for
failure to appear.))
(4) Sanctions for failure to appear. Except when a hearing is
otherwise required by law, an applicant for operating authority or for transfer or
acquisition of control of operating authority, a protestant to such an application((,
or an applicant for a rate change under WAC 480-12-295 shall)) must appear
at any scheduled adjudicative hearing ((pursuant to this chapter))
session unless:
(a) The application or protest is withdrawn at least five days prior to the date set; or
(b) Appearance is otherwise excused by the commission or presiding officer in writing.
Failure to comply with this subsection may result in assessment of civil penalties.
[Statutory Authority: RCW 80.01.040. 92-18-081 (Order R-376, Docket No. 920379), § 480-09-700, filed 9/1/92, effective 10/2/92; 89-21-036 (Order R-310, Docket No. U-89-2966-R), § 480-09-700, filed 10/12/89, effective 11/12/89.]
AMENDATORY SECTION (Amending Order R-310, Docket No. U-89-2966-R, filed 10/12/89, effective 11/12/89)
WAC 480-09-705 Notice to
limited-English-speaking parties. When the commission has knowledge that a
limited-English-speaking person is a party in an adjudicative proceeding, all notices
concerning the hearing, including notices of hearing, continuances, and dismissals, ((shall))
must either be in the primary language of the party or ((shall)) must
include a notice in the primary language of the party that describes the significance of
the notice and how the party may receive assistance in understanding and responding to the
notice.
[Statutory Authority: RCW 80.01.040. 89-21-036 (Order R-310, Docket No. U-89-2966-R), § 480-09-705, filed 10/12/89, effective 11/12/89.]
AMENDATORY SECTION (Amending Order R-310, Docket No. U-89-2966-R, filed 10/12/89, effective 11/12/89)
WAC 480-09-710 Appearance
and practice before commission. (1) ((General. In all proceedings in
which pleadings are filed and a hearing is held involving the taking of testimony on a
record subject to review by the courts, the following persons may appear in a
representative capacity:)) Minimum qualifications. No person may appear before
the commission as a representative of a party to an adjudicative proceeding without
meeting one of the following qualifications:
(a) ((Attorneys at law duly qualified and entitled to
practice before the supreme court of the state of Washington;)) Membership in
good standing in the Washington State Bar Association;
(b) ((Attorneys at law duly qualified and entitled))
Admission to practice, in good standing before the highest court of any
other state;
(c) ((Persons not attorneys at law who have been duly
authorized to practice before the Interstate Commerce Commission;
(d))) Upon permission of the presiding officer ((at
such hearing)), an officer or employee of a party or person seeking party status;
(((e))) (d) Legal interns admitted to
limited practice under Rule 9 of the Washington state Supreme Court's Admission to
Practice Rules. ((However,)) No legal intern may appear without
the presence of a supervising lawyer unless ((the legal intern has attended at
least ten commission hearing sessions with the presence of a supervising lawyer))
the presiding officer approves the intern's appearance in advance.
The presiding officer may expel a person who does not have the requisite degree of legal training, experience, or skill to appear in a representative capacity.
(2) Notices of appearance and withdrawal ((of attorneys)).
Attorneys or other authorized representatives appearing on behalf of a party or
withdrawing from a proceeding ((shall)) must immediately ((so))
notify the commission and all parties to the proceeding.
(3) Unethical conduct. ((All)) Persons
appearing in proceedings before the commission in a representative capacity ((shall))
must conform to the standards of ethical conduct required of attorneys before the
courts of Washington. If any representative fails to conform to ((these))
those standards, the commission may expel the person from the proceeding and
decline to permit the person to appear before it in a representative capacity in
any future proceeding ((before the commission)).
(4) Former employees. Former employees of the commission((,
office of administrative hearings, and office of the attorney general)) are
subject to the provisions of chapter 42.18 RCW.
[Statutory Authority: RCW 80.01.040. 89-21-036 (Order R-310, Docket No. U-89-2966-R), § 480-09-710, filed 10/12/89, effective 11/12/89.]
AMENDATORY SECTION (Amending Order R-400, Docket No. A-930517, filed 12/1/93, effective 1/1/94)
WAC 480-09-720 Appearances--Party
status. (1) General. ((Parties shall enter their appearances at the
beginning of the hearing or prehearing conference by giving)) All persons who
will be representing a party in a formal proceeding must give their names and
addresses in writing to the court reporter ((who will include the same in the
record of the hearing or prehearing conference)) immediately before the first
hearing session in which they appear. The presiding officer conducting the hearing or
prehearing conference ((may, in addition,)) will require
appearances to be stated orally at the initial hearing session, and may also ask for
oral appearances at subsequent sessions in the same proceeding, so that all persons
attending the hearing will know the identity and interest of all parties present ((will
be known to those in attendance. Appearance may be made on behalf of any party by his or
her attorney or other authorized representative, as defined in WAC 480-09-710(1))).
(2) The commission will not grant party status ((may
not be accorded)) to a person who fails to appear at the earliest prehearing
conference, if one is held, or hearing session, if there is no prehearing conference,
without a showing of good cause for failing to timely appear.
[Statutory Authority: RCW 80.01.040. 93-24-103 (Order R-400, Docket No. A-930517), § 480-09-720, filed 12/1/93, effective 1/1/94; 89-21-036 (Order R-310, Docket No. U-89-2966-R), § 480-09-720, filed 10/12/89, effective 11/12/89.]
AMENDATORY SECTION (Amending Order R-310, Docket No. U-89-2966-R, filed 10/12/89, effective 11/12/89)
WAC 480-09-730 Conduct at
hearings. (1) No smoking. Smoking ((shall not be permitted)) is
prohibited at hearings of the commission.
(2) Testimony under oath. ((Before a)) The
presiding officer shall administer an oath or affirmation to each witness who is heard in
an adjudicative proceeding before the witness takes the stand ((in an
adjudicative proceeding held under chapter 34.05 RCW, an)). The oath or
affirmation shall be administered as follows: The ((person who swears or affirms
holds up)) prospective witness shall stand and raise his or her hand,
while the ((person administering the oath or affirmation thus addresses him or her))
presiding officer asks the following, or its equivalent: "Do you solemnly
swear or affirm that the evidence you shall give in the matter now pending before the
commission shall be the truth, the whole truth and nothing but the truth, so help you
God?"
(3) When members of the public testify about their sentiments on a proposal that is the subject of an agency adjudication, the commission may provide a form of oath for witnesses on sign-up sheets in lieu of an oral oath.
[Statutory Authority: RCW 80.01.040. 89-21-036 (Order R-310, Docket No. U-89-2966-R), § 480-09-730, filed 10/12/89, effective 11/12/89.]
AMENDATORY SECTION (Amending Order R-376, Docket No. 920379, filed 9/1/92, effective 10/2/92)
WAC 480-09-735 Order of procedure. (1) General. Evidence will ordinarily be received in the following order:
(a) ((Upon investigation on motion of the commission:
(i) Commission's staff;
(ii) Respondent; and
(iii) Rebuttal by commission's staff.)) The
party having the burden of proof;
(b) ((In investigation and suspension proceedings:
(i) Respondent;
(ii) Commission's staff;
(iii) Protestants against suspended schedules; and
(iv) Rebuttal by respondent.)) Commission
staff, if it supports the party having the burden of proof;
(c) ((Upon applications and petitions:
(i) Applicants or petitioners;
(ii) Protestants;
(iii) Commission's staff; and
(iv) Rebuttal by applicant or petitioner.)) Parties
supporting the party having the burden of proof;
(d) ((Upon formal complaints:
(i) Complainant;
(ii) Respondent;
(iii) Commission's staff; and
(iv) Rebuttal by complainant.)) Commission
staff, if it opposes the party having the burden of proof;
(e) ((Upon order to show cause:
(i) Commission's staff;
(ii) Respondent; and
(iii) Rebuttal by commission's staff.)) Other
parties opposing the party having the burden of proof;
(f) ((In docket hearings: At the discretion of presiding
officer.)) The commission staff, if it does not oppose the party having the
burden of proof;
(g) Rebuttal by the party having the burden of proof;
(h) Response by other parties to any new material received on rebuttal;
(i) Response by the party having burden of proof to any new material received from others.
(2) Modification of procedure. The ((order of presentation
prescribed above for hearings shall be followed, except when the)) presiding
officer ((directs otherwise)) may direct a modified order of
proceeding. When hearing several proceedings ((upon)) on a
consolidated record, or when parties do not oppose or support all of another party's
positions, the presiding officer ((shall)) will designate ((who
shall open and close. Intervenors shall follow the party in whose behalf the intervention
is made. If the intervention is not in support of any original party, the presiding
officer shall designate at what stage the intervenor shall be heard. When two causes are
set for hearing at the same time and place, the cause having the lowest number shall be
heard first, if all parties are ready: Provided, That the presiding officer may
direct a different order to suit the convenience of the parties)) the order of
presentations, considering the parties' preferences.
[Statutory Authority: RCW 80.01.040. 92-18-081 (Order R-376, Docket No. 920379), § 480-09-735, filed 9/1/92, effective 10/2/92; 89-21-036 (Order R-310, Docket No. U-89-2966-R), § 480-09-735, filed 10/12/89, effective 11/12/89.]
AMENDATORY SECTION (Amending Order R-400, Docket No. A-930517, filed 12/1/93, effective 1/1/94)
WAC 480-09-736 Hearing guidelines. These guidelines are of a general nature and are provided to assist the presiding officer in regulating the course of the proceeding. The presiding officer may when appropriate suspend or modify the guidelines or use measures not specified in this rule.
(1) Starting times will be strictly observed. The proceeding may go forward in the absence of counsel parties or witnesses who are late.
(2) Motions related to evidence or to the procedural course of the
hearing, but not involving dismissal of a party or a part of the proceeding, will be
stated and argued at the start of the day, unless they arise from matters emerging during
the hearing that are not reasonably foreseeable. The presiding officer ((should))
must be notified no later than the start of the hearing session of any motion that counsel
anticipates may be presented during the hearing, such as one that may require
foundation regarding the admissibility of evidence. The presiding officer shall set a time
prior to the start of the presentation of evidence for marking, distribution, and argument
regarding exhibits to be offered during the day and for arguing other matters.
(3) All counsel are expected to address comments, objections, and statements to the presiding officer rather than to other counsel. Questions will be addressed to the witnesses rather than to counsel.
(4) ((There will be no)) Counsel who request
off-the-record discussions ((at the request of counsel unless counsel asks))
must ask leave to go off the record and state((s)) the purpose for
the request.
(5) Extended colloquies regarding procedural issues ((may))
should be conducted off the record. Each attorney will ((be given))
have the opportunity to state for the record a summary of his or her view on behalf
of his or her client when the record resumes.
(6) Predistribution of evidence. The commission may require that parties distribute their proposed evidence to other parties before the start of the hearing.
(a) Number of copies. When predistribution of evidence is
required, each party shall file twenty copies of its evidence with the commission((.
For predistributed evidence only, parties need not also serve copies on)) unless
the commission specifies a different number. Because a smaller number may satisfy
commission needs in some proceedings, and because electronic copies may substitute for
paper copies, parties should inquire at a prehearing conference or directly of the
presiding officer about the number of required copies. Because the required number of
filed copies includes copies for the commission staff, the accounting adviser, and
the administrative law judge, ((or the assistant attorney general)) parties
need not provide additional copies for those persons. ((Each party is
responsible for having two revised, corrected copies of its exhibits ready for marking and
inclusion in the official case file at the hearing itself. One set of copies should also
be brought to the hearing for the court reporter. To advise the parties of corrections, an
errata sheet may be used to indicate the corrections to copies that have been
predistributed.))
(b) Changes or corrections. Each party must advise other
parties of substantive corrections to evidence that has been prefiled as soon as the need
for change is discovered. Parties should prepare an errata sheet or a revised exhibit for
submission at the hearing to reflect changes from prefiled testimony. Counsel should
not ask ((the)) a witness on the stand to correct obvious
typographical errors in the prefiled testimony or to make more than three substantive
changes--if more than three corrections are required, ((but should)) the
party must submit an errata sheet or revised documents. ((The original and
required number of copies of the errata sheet or corrected text shall be submitted at the
hearing. Substantive revisions shall be disclosed to other parties as soon as need for the
revision is discovered.))
(c) Distribution at hearing. When a party offers new exhibits, revised exhibits, or errata sheets at a hearing, the party must provide sufficient copies for all parties and for the commission's distribution requirements. Corrections and revisions should be made upon or attached to all documents distributed at the hearing before the copies are distributed. Subsection (10) of this section governs other aspects of revising and offering predistributed testimony and exhibits. Each party should bring two complete sets of current exhibits to the hearing, one for the court reporter and one for the official record.
(7) Prefiled testimony may be accompanied by exhibits. Parties should not preassign numbers to their own prefiled testimony and exhibits. Instead the following system should be used, including the witness's initials, and marked serially. For John Q. Witness's prefiled testimony and accompanying exhibits:
Ex . . . . (JQW-T) Ex . . . . (JQW-2)
Ex . . . . (JQW-1) Ex . . . . (JQW-3)
Counsel unfamiliar with this method of identification should ((contact))
ask the presiding officer for further guidance. The ((official)) presiding
officer will assign exhibit numbers for the case ((will be assigned by the
administrative law judge)) at the hearing session.
(8) Each witness should present a short summary of his or her remarks on the opening page or two of prepared testimony. Counsel will be expected to ask as a foundation question the subjects that will be covered by the witness. This foundation question should request, and the witness' response should include only a statement of the subjects to be covered by the witness, e.g., rate of return, and not a summary of the witness's positions on those subjects.
(9) All prepared testimony, exhibits, and pleadings ((shall))
must be 8-1/2 by 11 inches in size, reduced to that size, or folded to that size if
reduction would be illegible, and punched for insertion into three-ring binders. Line
numbers ((shall)) must be set out on all prepared testimony to
facilitate transcript or exhibit references. Large documents may be used at the hearing
for illustrative purposes so long as a reduction is provided for inclusion in the record.
(10) ((Any)) Revisions to exhibits. Parties
submitting revisions to predistributed or previously admitted testimony or exhibits ((shall
be)) must prominently ((labeled)) label them
"REVISED" ((and bear)), stating the date of the
revision. The revised portions ((shall)) must be highlighted, in
legislative style or other manner clearly indicating the change for comparison with the
original submissions. This practice should be followed even ((as to)) with
minor changes that involve only one page of an exhibit. Counsel should identify partial
revisions by page and date, or identify the revision of the exhibit, at the time an
exhibit is presented for identification, sponsored, or offered into evidence, as
appropriate. Subsection (6) of this section governs other aspects of revising and
presenting predistributed exhibits.
(11) ((Cross-examination will be limited)) The
presiding officer will limit cross-examination to two rounds ((except upon a
showing)) unless counsel demonstrates that good cause exists for asking
additional questions. ((Witnesses)) Counsel should not ((be
asked)) ask witnesses to perform calculations or extract detailed data while
the witness is on the stand. Counsel should provide such questions ((should
be provided)) to the witness in advance ((or asked)), should
ask the witness to provide the answer to the record later in the hearing session, or
should provide an answer and ask the witness to accept it "subject to
check." When a witness ((answers)) accepts information
"subject to check," the witness must perform the "check" as soon as
possible. A response given "subject to check" will be ((deemed))
considered accurate unless ((disputed by)) the witness disputes
it in writing, stating reasons. Counsel for the party sponsoring the witness must provide
the witness' statement and serve a copy on each party prior to the closing of the record
or within ten days ((of)) after distribution of the transcript
((or prior to the closing of the record,)) whichever occurs first.
(12) At the beginning of a hearing session for the purpose of taking testimony from members of the public, public counsel may inform the public of the major contested issues.
(13) Parties must address all case-related correspondence
((should be addressed)) to the secretary of the commission, under
commission rules. The parties are cautioned that correspondence that is addressed
directly to an individual may not be logged in, may not be inserted in the case file, and
may not constitute a part of the official record for appeal or for other purposes.
(14) Parties must file petitions or motions seeking the
dismissal of any party or any portion of a proceeding, or any other pleading that
in the moving party's judgment ((require)) requires the submission
of a written motion, petition, brief or statement of authorities, ((shall be filed
with the commission)) and ((served)) serve them on other
parties no later than one week prior to the first scheduled hearing session after grounds
for the petition or motion become apparent((, unless)); the
commission ((finds that)) may approve later filing ((is
reasonable under the circumstances)) upon a showing of good cause. ((Answers
shall be filed with the commission)) A party answering such a pleading shall
file the answer and ((served)) serve it on other parties at
least three days prior to the hearing. The commission may allow oral argument ((may
be allowed on the record)) in the commission's discretion. (((This
guideline does not require personal service. Petitions or motions, if mailed, should be
served)) Parties must serve pleadings so as to effect actual receipt
within the required time.(()))
(15) When a party requests that the commission ((is
requested to)) take some action prior to the next hearing session, the petitioner
or movant shall ((effect service upon)) serve all other parties.
Responses are due ((in the office of the secretary of the commission)) no
later than the close of the fifth business day following service, except as provided in
WAC 480-09-425(3).
(16) The presiding officer shall confer with the parties at the
conclusion of the hearing about post-hearing process. The presiding officer ((will))
shall determine whether oral argument, briefs, or both will be required, taking
into consideration the parties' preferences. If briefs are required, the presiding officer
shall determine a format to be used by all parties. ((Briefs shall not exceed
sixty pages, including appendices and attachments but excluding the cover and index pages,
without permission from the presiding officer. Longer or shorter limits may be established
by the presiding officer when good cause is shown. Number and complexity of the issues
shall be considered in varying the allowed length of briefs.)) Briefs ((shall))
must comply with WAC 480-09-770.
(17) Each party will bear its own costs for transcripts or tape
recordings, including charges for expedited service when ((requested)) a
party requests it.
(18) For planning purposes, counsel should be prepared to provide time estimates for cross-examination of witnesses.
(19) ((Documents provided by or on behalf of members of
the public at a public hearing will ordinarily be placed with the hearing file or may be
offered)) When a witness presenting testimony as a member of the public
presents a document in conjunction with his testimony, the document, the commission may
receive the document as an illustrative exhibit. ((Letters)) The
commission may receive as illustrative of the opinions of correspondents any letters that
have been received by the secretary of the commission and by public counsel from
members of the public ((may be offered into evidence as illustrative of the
opinions of the correspondents)) regarding a proceeding. Documents ((which))
presented by a public witness that are exceptional in their detail or their
probative nature may be ((offered)) received into evidence
separately, provided that a sponsoring witness is available for cross-examination. Only
exhibits and testimony ((offered and)) received in evidence are
part of the record and subject to consideration by the commission in its decision.
(20) The presiding officer need not specifically ask each representative whether that party objects to an offer of evidence or other motion or proposed action. Instead, the presiding officer may ask generally whether there are objections, and persons having objections shall state them. Failure to respond or object means that the party does not object, and shall constitute a waiver of the right to object.
[Statutory Authority: RCW 80.01.040. 93-24-103 (Order R-400, Docket No. A-930517), § 480-09-736, filed 12/1/93, effective 1/1/94. Statutory Authority: RCW 80.01.040 and chapter 80.36 RCW. 92-01-135 (Order R-362, Docket No. A-911231), § 480-09-736, filed 12/19/91, effective 1/19/92. Statutory Authority: RCW 80.01.040 and 34.05.220. 91-06-010 (Order R-336, Docket No. A-900700), § 480-09-736, filed 2/22/91, effective 3/25/91. Statutory Authority: RCW 80.01.040. 89-21-036 (Order R-310, Docket No. U-89-2966-R), § 480-09-736, filed 10/12/89, effective 11/12/89.]
AMENDATORY SECTION (Amending Order R-310, Docket No. U-89-2966-R, filed 10/12/89, effective 11/12/89)
WAC 480-09-740 Evidence.
The presiding officer may receive evidence as provided by RCW 34.05.452. WAC 480-09-745
and 480-09-750 provide guidelines for receipt and handling of evidence in commission
proceedings ((before the commission)).
[Statutory Authority: RCW 80.01.040. 89-21-036 (Order R-310, Docket No. U-89-2966-R), § 480-09-740, filed 10/12/89, effective 11/12/89.]
AMENDATORY SECTION (Amending Order R-310, Docket No. U-89-2966-R, filed 10/12/89, effective 11/12/89)
WAC 480-09-745 Exhibits
and documentary evidence. (1) Designation of part of document as evidence. ((When
a relevant and material matter offered in evidence by any party is contained in a book,
paper, or document which also contains other matter not material or relevant, the party
offering the evidence)) A party who offers evidence that consists of a portion
of a document, must ((also)) designate the portion ((which))
that is offered. If irrelevant matter would unnecessarily encumber the record, ((such
book, paper, or)) the document will not be received in evidence, but ((may
be marked for identification, and, if properly authenticated,)) the relevant or
material matter may be read into the record, or((, if)) the presiding
officer ((so directs,)) may receive a ((true))
copy ((may be received)) of the excerpt as an exhibit. If only a
portion is offered or received, other parties shall be afforded an opportunity to examine
the ((book, paper or)) document, and to offer other portions in evidence
((in like manner)).
(2) Official records. An official ((rule, report, order,
record or other)) document, prepared and issued by any governmental authority((,
when admissible for any purpose,)) may be evidenced by a certified copy. When ((such))
official records, otherwise admissible, are contained in official publications or
publications by nationally recognized reporting services which are in general circulation
and readily accessible to all parties, they may be introduced by reference((:)),
provided, ((however, That proper and definite reference to))
that the party offering the document clearly identifies the record ((in
question is made by the party offering the same)). The party offering the
evidence may be required to provide a copy to the record and to all parties.
(3) Commission's files.
(a) ((Papers and)) The presiding officer may
receive documents on file with the commission((, if otherwise admissible, and
whether or not the commission has authority to take official notice of them under WAC
480-09-750(2), may be introduced)) by reference to number, date, or by any other
method of identification satisfactory to the presiding officer. If only a portion of ((such))
a ((paper or)) document is offered in evidence, the part offered ((shall))
must be clearly designated. The presiding officer may require the party
offering the evidence ((may be required)) to provide a copy to the record
and to ((all parties)) each party.
(b) Intra-office commission memoranda and reports, to the extent
permitted by RCW 42.17.310, are not public records subject to inspection((, nor
shall such documents be introduced)) and the commission may not receive them
into evidence without a waiver of the protections of the law.
(4) Records in other proceedings. ((In case any portion of
the record in any other proceeding is admissible for any purpose and is offered in
evidence, a true copy of such portion shall be presented for the record in the form of an
exhibit unless:
(a) The party offering the same agrees to supply such
copies later at his or her own expense, if and when required by the commission; and
(b) The portion is specified with particularity in such
manner as to be readily identified; and
(c) The parties represented at the hearing stipulate upon
the record that such portion may be incorporated by reference, and that any portion
offered by any other party may be incorporated by like reference; and
(d) The presiding officer directs such incorporation.))
A portion of the record of any other commission proceeding, in the discretion of the
presiding officer, may be received as an exhibit in the form of a copy; by citation to the
transcript or exhibit number; or by incorporation into the transcript of the current
proceeding.
(5) Objections. Any evidence offered((, whether in the
form of exhibit, introduced by reference or offered in the form of testimony,))
shall be subject to appropriate and timely objection.
(6) Copies of exhibits ((to opposing counsel)).
((When)) A party offering documentary exhibits ((are
offered in evidence, copies)) must ((be furnished)) furnish
copies to opposing counsel, the presiding officers and the reporter, unless the
presiding officer otherwise directs. ((Whenever practicable,)) The
presiding officer may require the distribution of exhibits, including exhibits that may be
introduced on cross-examination, before the hearing. The parties should exchange
copies of exhibits before((, or at the commencement of,)) the hearing starts.
[Statutory Authority: RCW 80.01.040. 89-21-036 (Order R-310, Docket No. U-89-2966-R), § 480-09-745, filed 10/12/89, effective 11/12/89.]
AMENDATORY SECTION (Amending Order R-436, Docket No. A-950243, filed 1/3/96, effective 2/3/96)
WAC 480-09-750 Rules of
evidence; official notice; resolutions. (1) General. Subject to the other
provisions of this section, all relevant evidence is admissible ((which))
that, in the opinion of the presiding officer, is the best evidence reasonably
obtainable, having due regard to its necessity, availability, and trustworthiness. In
ruling upon the admissibility of evidence, the presiding officer shall give consideration
to, but shall not be bound to follow, the rules of evidence governing general civil
proceedings, in matters not involving trial by jury, in the courts of the state of
Washington.
((The presiding officer may, in his or her discretion,
either with or without objection, exclude inadmissible evidence or order cumulative
evidence discontinued.)) Irrelevant, duplicative, and inadmissible evidence
burdens the commission and all parties. To minimize that burden, the presiding officer
shall to the extent possible exclude evidence that is irrelevant, repetitive, or
inadmissible, whether or not ((an objection is posed)) a party objects
to the evidence. Parties objecting to the introduction of evidence ((shall))
must state the grounds ((of such)) for the objection at the
time ((such)) the evidence is offered. The presiding officer
may permit the party offering rejected evidence ((may be permitted))
to describe briefly for the record its nature and purpose as an offer of proof.
(2) Official notice.
(a) The commission may take official notice ((may
be taken)) of:
(i) Any judicially cognizable fact. Examples of ((judicially
cognizable)) such facts include, but are not limited to:
(A) Rules, regulations, administrative rulings and orders, exclusive of findings of fact, of the commission and other governmental agencies;
(B) Contents of certificates, permits, and licenses issued by the commission; and
(C) Tariffs, classifications, and schedules regularly established by or filed with the commission as required or authorized by law.
(ii) Technical or scientific facts within the commission's specialized knowledge; and
(iii) Codes or standards that have been adopted by an agency of the United States, or this state or of another state, or by a nationally recognized organization or association.
(b) In addition, the commission may, in its discretion((,
upon the request of all parties to a proceeding,)) upon notice to all parties,
inspect physical conditions that are at issue and take official notice of the results
of its ((own)) inspection ((of the physical conditions at issue)).
(c) Parties shall be notified ((either)) before
or during the hearing, or by reference in preliminary reports or otherwise, of ((the))
material ((so)) officially noticed and ((the)) its
sources ((thereof, including any staff memoranda and data)), and ((they
shall be afforded)) the presiding officer must afford parties an
opportunity to contest ((the)) facts and material so noticed. ((A))
The presiding officer may require the party proposing ((that))
official notice ((be taken may be required)) to provide copies of
officially noted matter to the record and to all other parties.
(3) Resolutions. ((Properly)) The presiding
officer may receive in evidence authenticated resolutions of the governing bodies of
((cities, towns, counties, and other)) municipal corporations and of
chambers of commerce, boards of trade, commercial, mercantile, agricultural, or
manufacturing societies and other civic organizations ((may be received in
evidence)). ((Recitals)) Any recital of facts contained
in ((resolutions shall)) a resolution may not be ((deemed))
considered as proof of those facts.
[Statutory Authority: RCW 80.01.040. 96-02-083 (Order R-436, Docket No. A-950243), § 480-09-750, filed 1/3/96, effective 2/3/96; 89-21-036 (Order R-310, Docket No. U-89-2966-R), § 480-09-750, filed 10/12/89, effective 11/12/89.]
AMENDATORY SECTION (Amending Order R-436, Docket No. A-950243, filed 1/3/96, effective 2/3/96)
WAC 480-09-751 Witness
panels. ((Upon the request of a party or on its own motion,)) The
commission may direct or allow two or more witnesses to take the stand simultaneously when
doing so allows a benefit such as the integrated response to a line of questions,
minimizing referral of questions from one witness to another, or comparing witnesses'
positions. ((Individual)) The presiding officer shall also allow
cross-examination ((shall also be allowed)) of each witness upon
matters within the witnesses' direct evidence ((that are not related to the topic
or topics addressed by witnesses in a panel)).
[Statutory Authority: RCW 80.01.040. 96-02-083 (Order R-436, Docket No. A-950243), § 480-09-751, filed 1/3/96, effective 2/3/96.]
AMENDATORY SECTION (Amending Order R-399, Docket No. A-930792, filed 12/1/93, effective 1/1/94)
WAC 480-09-760 Interlocutory orders. The commission has discretion to accept or decline review of interim or interlocutory orders in an adjudication.
(1) ((Except where otherwise provided,)) The
commission may review such orders when it finds that:
(a) A party's participation is terminated by the ruling and the
party's inability to participate thereafter could cause it substantial and irreparable
harm; ((or))
(b) A review is necessary to prevent substantial prejudice to a party that would not be remediable by post-hearing reviewing; or
(c) A review could save the commission and the parties substantial effort or expense, or some other factor is present that outweighs the costs in time and delay of exercising review.
(2) Any aggrieved party may petition for review of an
interlocutory order. Petitions for interlocutory review must be filed with the commission
and served on other parties within ten days after entry of the order or issuance of the
ruling for which review is requested, stating clearly why the ((order))
ruling is in error and citing reasons in support of the petition. Answers must be
filed within ten days after the petition is filed. The commission may alter these filing
deadlines when doing so is consistent with the public interest.
[Statutory Authority: RCW 80.01.040. 93-24-101 (Order R-399, Docket No. A-930792), § 480-09-760, filed 12/1/93, effective 1/1/94; 89-21-036 (Order R-310, Docket No. U-89-2966-R), § 480-09-760, filed 10/12/89, effective 11/12/89.]
AMENDATORY SECTION (Amending Order R-400, Docket No. A-930517, filed 12/1/93, effective 1/1/94)
WAC 480-09-770 Briefs.
The commission may require the parties to an adjudication to present their
arguments and authority orally at the close of the hearing, by written brief, or both. The
argument should set out the leading facts and conclusions ((which)) that
the evidence tends to prove, point out the particular evidence relied upon to support the
conclusions urged, and cite legal authority. Briefs may be printed, or typewritten (size
8-1/2 inches by 11 inches on three-hole punched paper). All copies ((shall))
must be clearly legible. Briefs ((may)) must not exceed
sixty pages ((without prior authorization from the commission)) without
permission from the presiding officer for good cause shown. The presiding officer will
consider the number and complexity of the issues in varying the allowed length of briefs.
Briefs must be presented in 12 point Times New Roman or Arial typeface or equivalent, with
margins at least one inch from each edge of the page. Footnotes must be presented in the
same font, no smaller than 10 point type. Unless the commission specifies a
different number ((is specified by the commission,)) of copies,
parties offering briefs must file an original and ((three legible copies of
each brief in transportation matters and)) nineteen copies ((in all other
matters including transportation rate cases shall be filed)) with the secretary
of the commission and must serve one copy ((shall be served)) on
each party ((before)) not later than the ((due))
date set for filing. ((Proof)) Parties must furnish proof of
service ((shall be furnished)) to the commission as provided in WAC
480-09-120(2).
[Statutory Authority: RCW 80.01.040. 93-24-103 (Order R-400, Docket No. A-930517), § 480-09-770, filed 12/1/93, effective 1/1/94; 89-21-036 (Order R-310, Docket No. U-89-2966-R), § 480-09-770, filed 10/12/89, effective 11/12/89.]
AMENDATORY SECTION (Amending Order R-400, Docket No. A-930517, filed 12/1/93, effective 1/1/94)
WAC 480-09-780 Entry of
initial and final orders--Administrative review. (1) General. Whenever the
presiding officer enters an order ((in accordance with the provisions of))
under RCW 34.05.461, he or she must serve a copy of the order upon each
party of record and upon the party's attorney, or other authorized representative
((shall be served with a copy of the order)) pursuant to ((the
provisions of)) WAC 480-09-120(2).
(2) Petitions for administrative review - time for filing - who may file - required copies.
(a) Any party to an adjudicative proceeding may ((within
twenty days after entry of the initial order)) file a petition for administrative
review within twenty days after entry of the initial order.
(b) Unless the commission authorizes a different number ((is
directed by the commission)) a petitioner for administrative review must file,
an original and ((three copies of petitions for administrative review of an
initial order in transportation matters other than transportation rate cases and))
nineteen copies ((in all other matters including transportation rate cases must be
filed)) of the petition with the secretary of the commission and must
serve one copy ((served)) upon each other party to the
adjudication. The petitioner must provide proof of service ((must be
made)) in accordance with WAC 480-09-120(2).
(3) ((Petitions for administrative review)) Contents
- length(( - contents)). Petitions must clearly identify ((the))
each nature of the challenge to the initial order, the evidence, law, rule or
other authority that the petitioner relied upon to support the challenge, and the ((nature
of the)) remedy ((urged by the petition)) that the petitioner
seeks. Petitions for review of initial orders ((shall)) must
be specific ((and separate contentions must be separately stated and numbered.
Petitions for review of findings of)). The petitioner must separately state
and number every contention. A petition that challenges a finding of fact must ((be
supported by a reference)) provide citations to the pertinent page or part
of the record or ((by a statement of)) must otherwise state the
evidence relied upon to support the petition, and should ((be accompanied by))
include a recommended finding of fact. ((Petitions for review of))
A petition that challenges conclusions of law ((should be supported by
reference to)) must cite the appropriate statute, rule, or case involved
and should ((be accompanied by)) include a recommended conclusion
of law. ((When)) A petition that challenges the summary or
discussion portion of an initial order((, the petition shall)) must
include a statement showing the legal or factual justification for the challenge, together
with a statement of how the ((alleged)) asserted defect ((in
the summary)) affects the findings of fact, the conclusions of law, ((or))
and the ultimate decision. Petitions for administrative review shall not exceed
sixty pages, without prior permission from the commission.
(4) Answers.
(a) ((Answers to)) Any party to the
adjudication may answer a petition for administrative review ((may be filed by
any party)).
(b) Unless the commission authorizes filing a different
number ((is required)) an answering party must file with the secretary
of the commission, the original plus ((the number of)) nineteen
copies ((required in subsection (2)(b) of this section, must be filed with the
secretary of the commission,)) and must serve a copy ((served upon))
on each other party to the proceeding within ten days after the service of the
petition. The commission may designate a different time for filing answers to petitions.
(c) A party who did not file a petition for administrative review of an initial order may challenge the order or portions thereof in its answer to the petition of another party.
(5) Oral argument. The commission may, in its discretion, hear oral argument upon a petition for review at a time and place to be designated by it upon notice to all parties to the proceeding. A party who desires to present oral argument may move for argument, stating why the oral argument will assist the commission in making its decision and why written presentations will be insufficient.
(6) Final order. After reviewing the initial order and any
petitions for review, answers, replies, briefs, and oral arguments, and the record or such
portions thereof as may be cited by the parties, the commission may by final order adopt,
modify, or reject an initial order. The statutory time for judicial review proceedings
shall not commence until the date of the commission's final order or, if a petition for
reconsideration has been filed, the date the petition is ((deemed)) considered
denied or is otherwise disposed of.
[Statutory Authority: RCW 80.01.040. 93-24-103 (Order R-400, Docket No. A-930517), § 480-09-780, filed 12/1/93, effective 1/1/94; 92-18-081 (Order R-376, Docket No. 920379), § 480-09-780, filed 9/1/92, effective 10/2/92; 89-21-036 (Order R-310, Docket No. U-89-2966-R), § 480-09-780, filed 10/12/89, effective 11/12/89.]
AMENDATORY SECTION (Amending Order R-376, Docket No. 920379, filed 9/1/92, effective 10/2/92)
WAC 480-09-800 Stay.
((A)) Any party to an adjudication may ((file with
the commission a)) petition for stay of effectiveness of a final order within ten
days after its service unless otherwise provided by statute or stated in the final order.
The commission may stay the effect of a final order on its own motion.
[Statutory Authority: RCW 80.01.040. 92-18-081 (Order R-376, Docket No. 920379), § 480-09-800, filed 9/1/92, effective 10/2/92; 89-21-036 (Order R-310, Docket No. U-89-2966-R), § 480-09-800, filed 10/12/89, effective 11/12/89.]
AMENDATORY SECTION (Amending Order R-400, Docket No. A-930517, filed 12/1/93, effective 1/1/94)
WAC 480-09-810 Reconsideration.
(1) General. Any party to an adjudicative proceeding may ((file a))
petition for reconsideration of ((a)) the final order ((of
the commission)) within ten days after ((the date)) the order is
served.
(2) Number of copies - filing - service. Unless the commission
has authorized filing a different number ((has been ordered by the commission,))
of copies, the person filing a petition for reconsideration must file an original
and ((three copies of the petition in transportation matters other than
transportation rate cases, and)) nineteen copies ((in all other matters
including transportation rate cases, shall be filed)) with the commission and must
serve a copy of the petition ((shall be served by petitioner)) upon
each party of record.
(3) Contents. The petition ((shall state with
particularity)) must clearly identify each portion ((or portions))
of the challenged order ((contended to be)) that the petitioner
contends is erroneous or incomplete, ((and shall)) must cite
those portions of the record and ((the laws or rules)) each law or
rule of the commission ((relied)) that the petitioner relies
upon to support the petition, ((together with)) and must present
brief argument in support of the petition.
(4) Answers. No party ((shall)) may file
an answer unless requested by the commission((: Provided, That)).
If the commission ((determines)) after examining the petition
believes that reconsideration involving a possible change in a significant term of
the order may be appropriate, ((involving more than the correction of obvious
error and involving a possible change in a significant term of the order,)) it
shall request answers from the other affected parties. The commission may grant without
seeking answers a petition for reconsideration that asks the correction of obvious or
ministerial errors.
(5) ((Except upon specific direction of the commission, no))
Oral argument. Oral argument ((shall)) will not be ((permitted))
heard on petitions for reconsideration except on request of the commission.
(6) Disposition. The petition is deemed denied if, within twenty days from the date the petition is filed, the commission does not either:
(a) ((Dispose of)) Enter an order resolving
the petition; or
(b) Serve the parties with a written notice specifying the date by which it will act on the petition.
(7) Action. If the commission grants the petition ((is
granted)), the commission may modify its prior order or take such other action as
it ((may deem appropriate)) believes to be proper. ((No
petition for reconsideration of an order on reconsideration will be accepted by the
commission. No petition for reconsideration may stay the effectiveness of an order.))
(8) Stay. Filing a petition for reconsideration does not stay the effectiveness of an order.
(9) Reconsideration of reconsideration. No party may petition for reconsideration of an order on reconsideration.
[Statutory Authority: RCW 80.01.040. 93-24-103 (Order R-400, Docket No. A-930517), § 480-09-810, filed 12/1/93, effective 1/1/94; 92-18-081 (Order R-376, Docket No. 920379), § 480-09-810, filed 9/1/92, effective 10/2/92; 89-21-036 (Order R-310, Docket No. U-89-2966-R), § 480-09-810, filed 10/12/89, effective 11/12/89.]
AMENDATORY SECTION (Amending Order R-310, Docket No. U-89-2966-R, filed 10/12/89, effective 11/12/89)
WAC 480-09-815 Amendment
((or)), rescission or correction of order. ((Pursuant
to RCW 80.04.210 and 81.04.210,)) (1) Amendment or rescission. The
commission may on its own motion amend or rescind any order ((or rule))
which it has ((made)), entered((, issued or promulgated, upon))
under RCW 80.04.210 or 81.04.210, after notice to the public service company or
companies affected, and after allowing an opportunity for hearing as in the case of
complaints.
(2) Correction. The commission on its own motion or on the request of any party may correct obvious or ministerial errors by letter from the secretary or by subsequent order. The time for any available posthearing review shall begin with the service of the correction, as to the matter corrected.
[Statutory Authority: RCW 80.01.040. 89-21-036 (Order R-310, Docket No. U-89-2966-R), § 480-09-815, filed 10/12/89, effective 11/12/89.]
AMENDATORY SECTION (Amending Order R-351, Docket No. A-910835, filed 10/30/91, effective 11/30/91)
WAC 480-09-820 Rehearing
or reopening. (1) Rehearing. ((A petition for rehearing may be filed with
the commission by)) Any person affected by ((any)) a
final order of the commission((, pursuant to)) may file a petition for
rehearing under RCW 80.04.200 ((and)) or 81.04.200. ((The
commission will grant the petition:
(a) If there are changed circumstances injurious to the
petitioner since the entry of the final order which were not considered by the commission;
or
(b) To correct defects in the order; or
(c) For any good and sufficient cause which, for any
reason, was not considered and determined in the original order.
The commission may, in its discretion, permit the filing
of a petition for rehearing at any time after the conclusion of the proceeding.))
(2) Reopening. Any party to an adjudication may file a
petition for reopening ((may be filed)) with the commission ((by
any party to a proceeding)) at any time after the close of the record and before
entry of the final order.
(a) In uncontested proceedings, ((a petition may be
granted)) the commission may grant reopening to correct failure to allow
receipt of written evidence when otherwise permissible.
(b) In contested proceedings, the commission may grant a
petition ((may be granted)) to permit receipt of evidence which is
essential to a decision and which was unavailable and not reasonably discoverable with
due diligence at the time of the hearing ((with due diligence,)) or
for any other good and sufficient cause.
[Statutory Authority: RCW 80.01.040, 80.04.160, 81.04.160 and chapter 34.05 RCW. 91-22-034 (Order R-351, Docket No. A-910835), § 480-09-820, filed 10/30/91, effective 11/30/91. Statutory Authority: RCW 80.01.040. 89-21-036 (Order R-310, Docket No. U-89-2966-R), § 480-09-820, filed 10/12/89, effective 11/12/89.]
REPEALER
The following section of the Washington Administrative Code is repealed:
WAC 480-09-830 Compliance with orders.