WSR 05-08-022



(Pollution Control Hearings Board)

[ Filed March 30, 2005, 9:00 a.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 04-15-009.

Title of Rule and Other Identifying Information: Procedural rules for hearings before the Pollution Control Hearings Board.

Hearing Location(s): Environmental Hearings Office Hearing Room, 4224 6th Avenue S.E., Building 2, Lacey, WA 98504-0903, on May 17, 2005, at 2:00 p.m.

Date of Intended Adoption: June 14, 2005.

Submit Written Comments to: Bill Clarke, Environmental Hearings Office, 4224 6th Avenue S.E., Building 2, Lacey, WA 98504-0903, e-mail, fax (360) 438-7699, by June 1, 2005.

Assistance for Persons with Disabilities: Contact Phyllis Macleod by phone at (360) 459-6327.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The 2004 legislature passed SSB 5590, amending chapter 43.21B RCW (chapter 204, Laws of 2004). The legislation modified 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. The rule making triggered by SSB 5590 provided an opportunity to revise other provisions in the PCHB procedural rules. The PCHB identified a number of topics for procedural rule revisions and sought stakeholder input on these and additional topics. The proposed rule includes procedural rule revisions with stakeholder support. These rule topics are: Authorizing electronic filing of documents, deleting provision requiring proposed order to be filed with all motions, deleting provision requiring moving party to originate phone call for telephonic hearings, and modifying the time periods for responses and replies to motions. The proposed rules will eliminate unnecessary filings with the board and conform the board's rules to the existing standards of practice.

Statutory Authority for Adoption: RCW 43.21B.170 (PCHB rule-making authority), 34.05.360.

Statute Being Implemented: Chapter 43.21B RCW.

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

Agency Comments or Recommendations, if any, as to Statutory Language, Implementation, Enforcement, and Fiscal Matters: The passage of SSB 5590 requires the Environmental Hearings Office to modify the procedural rules of the PCHB so that implementing rules are consistent with the legislation. Other rule amendments increase the efficiency of the PCHB hearings process.

Name of Proponent: Environmental Hearings Office, governmental.

Name of Agency Personnel Responsible for Drafting: Bill Clarke, 4224 6th Avenue S.E., Building 2, Lacey, WA 98504-0903, (360) 459-6327; Implementation and Enforcement: Robyn Bryant, 4224 6th Avenue S.E., Building 2, Lacey, WA 98504-0903, (360) 459-6327.

No small business economic impact statement has been prepared under chapter 19.85 RCW. The proposed rule is procedural in nature and does not place requirements on those it may affect.

A cost-benefit analysis is not required under RCW 34.05.328. The Environmental Hearings Office is not a named agency in RCW 34.05.328.

March 25, 2005

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

(((5))) (6) "Filing" of a document means actual receipt by the board during regular office hours. Any document filed with the board shall contain an affirmation that copies were served on the appropriate agency and parties. Filing by facsimile is permitted of documents ten pages or less if the original document is concurrently mailed or submitted to a commercial delivery service. Electronic filing of documents may be authorized by the presiding officer after consultation with the parties regarding format and authentication.

(((6))) (7) "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))) (8) "Person" means any individual, partnership, corporation, association, organization, governmental subdivision, agency or entity of any character.

(((8))) (9) "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))) (10) "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 rule governing the computation of time (WAC 371-08-310) shall determine how the thirty-day appeal period is calculated. The "date of receipt" of an order or decision means:

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

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

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

[Statutory Authority: RCW 43.21B.170 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)) of 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.]

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

WAC 371-08-445   Use of telephone conferences, motion hearings and hearings.   Upon the motion of any party or independently, the presiding officer may decide to conduct any conference, motion hearing or hearing by telephone call to promote the fair, speedy and economical processing of a matter. ((If the presiding officer grants a party's request for a telephone conference, the requesting party shall initiate and pay for the call.))

[Statutory Authority: RCW 43.21B.170. 96-15-003, 371-08-445, filed 7/3/96, effective 8/3/96.]

AMENDATORY SECTION(Amending WSR 02-06-012, filed 2/22/02, effective 3/25/02)

WAC 371-08-450   Motions.   (1) An application to the board for an order shall be by motion which, unless made during a hearing, shall be in writing, state with particularity the grounds therefor and set forth the relief sought. ((Each written motion shall have appended to it the order which the motion seeks.)) A proposed order shall be submitted with a motion only at the request of the presiding officer.

(2) For motions for continuance or for schedule changes, or other motions that are likely to be uncontested, the moving party shall affirmatively seek the stipulation of all parties and present a stipulated order wherever possible.

(3) If the motion is contested, any party may request that the board hold a motion hearing. The presiding officer will decide whether or not a motion hearing will be held and notify the parties accordingly. At a motion hearing, the board will consider the arguments of the parties but will not take evidence. Unless a motion hearing is requested by one or more parties, or the board independently sets a motion hearing date, the board will normally decide the motion exclusively on the parties' written submissions. ((If a motion hearing is set by the presiding officer and is to be held by phone, the moving party shall originate the telephonic hearing conference call.))

(4) Unless a scheduling letter or order provides otherwise, the following schedule governs all written motions (including any supporting affidavits, memoranda of law, or other documentation):

(a) All responses to any motion dispositive of all or part of an appeal shall be filed and served ((ten)) fourteen days from the ((date the motion is received)) receipt of the motion by the nonmoving party. The moving party shall then have ((seven)) ten days from receipt of the response to file and serve a reply.

(b) ((In cases where the moving party requests a motion hearing, all dispositive motions shall be filed and served not later than twenty-eight days before the motion hearing.)) All responses to any nondispositive motion shall be filed and served five days from receipt of the motion by the nonmoving party. The moving party shall then have three days from receipt of the response to file and serve a reply.

(c) All dispositive motions shall be filed and served not later than ((forty-five)) sixty days before the secondary hearing date, or, if no secondary date applies, the primary hearing date, unless the presiding officer by order allows otherwise.

(d) In exigent or exceptional circumstances, a party may at any time request the board to modify the above schedules by requesting a scheduling conference (which may be telephonic) with the presiding officer.

(5) The board will decide a motion on the written record unless the presiding officer orders a motion hearing.

[Statutory Authority: RCW 43.21B.170. 02-06-012, 371-08-450, filed 2/22/02, effective 3/25/02; 96-15-003, 371-08-450, filed 7/3/96, effective 8/3/96.]

Washington State Code Reviser's Office