WSR 05-05-005



[ Filed February 4, 2005, 12:50 p.m. , effective February 4, 2005 ]

Purpose: The 2004 legislature passed SSB 5590, amending chapter 43.21B RCW (chapter 204, Laws of 2004), modifying the basis for calculating the time period for appeals to the Pollution Control Hearings Board (PCHB). Rule making is necessary so the PCHB's procedural rules, chapter 371-08 WAC, are consistent with the 2004 legislation. A previously adopted emergency rule expired, this emergency rule adoption is consistent with RCW 34.05.350(2) in that conditions have changed and the Environmental Hearings Office (EHO) is actively undertaking appropriate procedures to adopt a permanent rule. The EHO has sought and received stakeholder input on a number of other changes to the PCHB's procedural rules, and is developing a rule revision that will adopt this emergency rule as a permanent rule, along with other rule changes.

Citation of Existing Rules Affected by this Order: Amending WAC 371-08-305, 371-08-335, and 371-08-345.

Statutory Authority for Adoption: RCW 43.21B.170 (PCHB rule-making authority), chapter 34.05 RCW.

Other Authority: RCW 43.21B.001, [43.21B].190, [43.21B].230, [43.21B].300, [43.21B].310 (sections amended by SSB 5590).

Under RCW 34.05.350 the agency for good cause finds that immediate adoption, amendment, or repeal of a rule is necessary for the preservation of the public health, safety, or general welfare, and that observing the time requirements of notice and opportunity to comment upon adoption of a permanent rule would be contrary to the public interest.

Reasons for this Finding: The effective date of SSB 5590 was June 10, 2004. A previous emergency rule on this subject matter expired, and the EHO is preparing a permanent rule. Immediate rule amendment ensures that the PCHB's procedural rules are consistent with this legislation.

Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 3, Repealed 0.

Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 0, Repealed 0.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 0, Repealed 0.

Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 0, Repealed 0.

Date Adopted: January 31, 2005.

W. W. Clarke

for William H. Lynch



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

WAC 371-08-305   Definitions.   As used in this chapter the following terms shall have the following meaning:

(1) "Adjudicative proceeding" means a proceeding involving an opportunity for hearing before the board as defined in RCW 34.05.010. The term "adjudicative proceeding" is used interchangeably with the terms "case" and "appeal" in this chapter.

(2) "Agency" means any state governmental entity, air pollution control authority, local health department or other agency whose decisions are subject to the board's jurisdiction.

(3) "Board" means the pollution control hearings board, a quasi-judicial board created pursuant to chapter 43.21B RCW and described in WAC 371-08-315. Where appropriate, the term "board" also refers to the designated agents of the pollution control hearings board.

(4) "Business days" means Monday through Friday exclusive of any state or federal holidays.

(5) "Date of receipt" means:

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

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

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

(((5))) (7) "Filing" of a document means actual receipt by the board during regular office hours. Any document filed with the board shall contain an affirmation that copies were served on the appropriate agency and parties. Filing by facsimile is permitted of documents ten pages or less if the original document is concurrently mailed or submitted to a commercial delivery service.

(((6))) (8) "Party" means:

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

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

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

(((8))) (10) "Presiding officer" means a member of the board or an administrative appeals judge who is assigned to conduct a conference or hearing by the chairperson or vice-chairperson.

(((9))) (11) "Service" of a document means delivery of the document to the other parties to the appeal. Service may be made in any of the following ways:

(a) Personally, in accordance with the laws of the state, with a return of service or affidavit of service completed.

(b) First-class, registered or certified mail. Service is complete upon deposit in the United States mail properly stamped and addressed.

(c) Facsimile transmission with mailing or submission to commercial delivery service of copies on the same day. Service by facsimile is regarded as complete by production of the confirmation of transmission and evidence of mailing or submission to delivery service of the copies.

(d) Commercial parcel delivery service. Service by commercial parcel delivery service is regarded as complete upon delivery to the parcel delivery company with charges prepaid.

[Statutory Authority: RCW 43.21B.170. 96-15-003, 371-08-305, filed 7/3/96, effective 8/3/96.]

AMENDATORY SECTION(Amending WSR 97-19-064, filed 9/15/97, effective 10/16/97)

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

(2) The notice of appeal shall be filed with the board within thirty days of the date ((that a copy)) of receipt of the order or decision ((is posted in the United States mail, properly addressed, postage prepaid, to the appealing party)). The board's definitions of "business days" and "date of receipt" (WAC 371-08-305) shall determine when the thirty-day appeal period begins, and the board's rule governing the computation of time (WAC 371-08-310) shall determine how the thirty-day appeal period is calculated.

(3) An appeal is filed with the board on the date the board actually receives the notice of the appeal, not the date that the notice is mailed. Upon receiving the notice of appeal, the board will acknowledge receipt. The date stamped on the appeal notice shall be prima facie evidence of the filing date. The board may thereafter require that additional copies be filed.

[Statutory Authority: RCW 43.21B.170 and 1997 c 125. 97-19-064, 371-08-335, filed 9/15/97, effective 10/16/97. Statutory Authority: RCW 43.21B.170 and Den Beste v. Washington, No. 13967-1-III (Div. III, April 18, 1996). 96-17-016, 371-08-335, filed 8/12/96, effective 9/12/96.]

AMENDATORY SECTION(Amending WSR 96-17-016, filed 8/12/96, effective 9/12/96)

WAC 371-08-345   Service of the notice of appeal on the agency and other interested parties.   (1) Within thirty days of ((the date that a copy)) receipt of the agency's order or decision ((is mailed to the appellant)), the appellant shall also serve a copy of the notice of appeal on the agency whose order or decision is being appealed. Proof of service may be made by certificate or affidavit filed with the board.

(2) A copy of the notice of appeal shall also be served on all other persons named as parties to the appeal. There is no time limit on when such service must be made.

[Statutory Authority: RCW 43.21B.170 and Den Beste v. Washington, No. 13967-1-III (Div. III, April 18, 1996). 96-17-016, 371-08-345, filed 8/12/96, effective 9/12/96.]

Washington State Code Reviser's Office