WSR 19-19-054
(Pollution Control Hearings Board)
[Filed September 13, 2019, 2:14 p.m., effective October 14, 2019]
Effective Date of Rule: Thirty-one days after filing.
Purpose: The purpose of this rule making is three fold: (1) To clarify for parties appearing before the pollution control hearings board (PCHB) on forest practices appeals that the general PCHB stay rule, WAC 371-08-415 does not apply to forest practices stays. Instead, the applicable rule is WAC 223-08-087. This has been PCHB's practice since it was assigned jurisdiction over forest practices appeals in 2010. See WSR 10-18-021; Yockey v. DNR, PCHB No. 15-031 (April 14, 2015); (2) to amend WAC 223-08-087 to conform to PCHB's current practice when handling requests for stays in forest practices appeals; and (3) to clarify that a request for a "temporary suspension or discontinuance" means a request for a stay. This rule amendment is not intended to change current practice, but instead to provide better guidance regarding what current practice is.
Citation of Rules Affected by this Order: Amending WAC 223-08-087 and 371-08-415.
Statutory Authority for Adoption: RCW 43.21B.170, 43.21B.110 (1)(j), 34.05.422(4), 34.05.479.
Adopted under notice filed as WSR 19-14-035 on June 25, 2019.
Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.
Number of Sections Adopted at the Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.
Number of Sections Adopted on the Agency's own Initiative: New 0, Amended 2, Repealed 0.
Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 2, Repealed 0.
Number of Sections Adopted using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 0, Repealed 0.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: September 10, 2019.
Kay M. Brown, Board Chair
Pollution Control Hearings Board
AMENDATORY SECTION(Amending WSR 90-23-093, filed 11/21/90, effective 12/22/90)
WAC 223-08-087Commencing an appealTemporary suspension or discontinuance (stay).
Any county appealing under RCW 76.09.050(8) or any person aggrieved appealing under RCW ((76.09.220(8)))76.09.205 may seek a ((temporary suspension))stay of the department's approval, in whole or in part, pending such appeal. Any operator, timber owner, or forest land owner appealing under RCW 76.09.080 may seek ((temporary discontinuance))a stay of the stop work order, in whole or in part, pending such appeal. The following procedure shall apply:
(1) The appellant shall file with the appeals board a motion, supported by affidavit setting forth specific facts supporting a ((temporary suspension or discontinuance))stay. Such motion may be filed with the notice commencing the appeal or at any time thereafter prior to the final decision of the appeal by the appeals board.
(2) Upon receipt of said motion, the presiding officer shall schedule a ((hearing))conference and serve notice of ((such hearing))the conference on all parties to the appeal. ((Before or after the commencement of said hearing the presiding officer may order the hearing of the merits to be consolidated with said hearing.))At the conference, a briefing schedule will be established to address the motion. Before or after the commencement or completion of briefing the presiding officer may determine that an evidentiary hearing is required. The hearing of the merits of the appeal may be consolidated with said hearing.
(3) After ((hearing))the briefing is completed, the appeals board or the presiding officer ((shall temporarily suspend))may stay the department's approval((, or temporarily discontinue the))or a stop work order, in whole or in part, or ((shall)) decline to ((suspend or discontinue))stay. Such action shall be based solely on the record ((and hearing argument)), and shall be embodied in a written order. Orders issued under this subsection shall remain effective until the final decision of the appeals board unless sooner dissolved for good cause shown.
(4) In emergency situations, a ((temporary suspension or discontinuance))stay in whole or in part may be granted by the presiding officer without a ((hearing))conference and/or briefing, only if it clearly appears from specific facts shown by affidavit that immediate and irreparable injury, loss, or damage will result to the moving party before any adverse party can be heard in opposition. A ((temporary suspension or discontinuance))stay granted without ((a hearing))briefing shall be embodied in a written order and shall expire by its terms within such time after entry, not to exceed fourteen days, as provided therein unless within the time so fixed the order, for good cause shown, is extended for a like period or unless the party against whom the order is directed consents that it may be extended for a longer period. The reasons for the extension shall be entered of record. On two days' notice to the party who obtained the ((temporary suspension or discontinuance))stay without notice or on such shorter notice to that party as the presiding officer may prescribe, the adverse party may appear and move its dissolution or modification and in that event the presiding officer or appeals board shall proceed to ((hear))review and determine such motion as expeditiously as the ends of justice require.
(5) Every order ((temporarily suspending))staying the department's approval of an application((,)) or ((temporarily discontinuing)) a stop work order, whether issued before or after ((hearing))briefing, shall set forth the reasons for its issuance and shall describe in reasonable detail the scope of ((suspension or discontinuance))the stay and shall be filed at the principal office of the appeals board and shall be binding upon all parties to the appeal, their officers, agents, servants, employees, and attorneys and upon those persons in active concert of participation with them who receive actual notice of the order.
(6) Except as otherwise provided by statute, no ((temporary suspension or discontinuance))stay shall issue except upon the giving of security by the moving party, in such sum as the presiding officer deems proper, for payment of such costs and damages as may be incurred or suffered by any party who is found to have wrongfully obtained the ((suspension or discontinuance))stay. No such security shall be required of the United States or of an officer or agency thereof. Pursuant to RCW 4.92.080 no security shall be required of the state of Washington, municipal corporations, or political subdivisions of the state of Washington.
AMENDATORY SECTION(Amending WSR 96-15-003, filed 7/3/96, effective 8/3/96)
WAC 371-08-415Stays.
(1) A person appealing an order not stayed by the issuing agency, and not issued pursuant to chapter 76.09 RCW may obtain a stay of the effectiveness of that order only as set forth in this section.
(2) An appealing party may request a stay by including such a request in the notice of appeal or in a subsequent motion. The request must be accompanied by a statement of grounds for the stay and evidence setting forth the factual basis upon which the request is based.
(3) Upon receipt of a request for a stay, the board will confer with the parties regarding its disposition. If necessary, a hearing on the motion will be held. If it appears that a hearing on the merits and issues of the case should be consolidated with the request for a stay, the board will advance the hearing date on its own initiative or by request of the parties.
(4) The ((requester))requestor makes a prima facie case for a stay if the ((requester))requestor demonstrates either a likelihood of success on the merits of the appeal or irreparable harm. Upon such a showing, the board shall grant the stay unless the agency demonstrates either:
(a) A substantial probability of success on the merits; or
(b) Likelihood of success and an overriding public interest which justifies denial of the stay.
(5) Unless otherwise stipulated by the parties, the board, after granting or denying a request for a stay, shall expedite the hearing and decision on the merits.
(6) Any party aggrieved by the grant or denial of a stay by the board may petition the superior court of Thurston County for review of that decision pending the hearing on the merits before the board.
(7) A person appealing an order not stayed by the issuing agency and issued pursuant to chapter 76.09 RCW may obtain a stay of the effectiveness of that order pursuant to WAC 223-08-087.