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371-08-375
Withdrawal or substitution of representatives.
An attorney or other representative withdrawing from a case shall immediately so notify the board and all parties of record in writing, or shall state such withdrawal on the record at a conference or hearing. Any substitution of an attorney or representative shall be accomplished by written notification to the board and to all parties of record, together with the written consent of the prior attorney or representative, and if such consent cannot be obtained, a written statement of the reason therefor shall be supplied.
[Statutory Authority: RCW 43.21B.170. 96-15-003, § 371-08-375, filed 7/3/96, effective 8/3/96.]
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371-08-380
Conduct before the board by representatives.
All persons who are representing parties before the board shall conform to the standards of ethical conduct required of attorneys before the courts of Washington even if the representative is not an attorney. Representatives who, in the opinion of the presiding officer, violate those ethical standards may be reprimanded or sanctioned as appropriate. Sanctions may include, among other measures, the imposition of costs and the exclusion of the representative from the proceedings. The board may, after notifying the representative and holding a hearing, take appropriate disciplinary action including, but not limited to, barring such person from representing any party in any future proceedings before the board.
[Statutory Authority: RCW 43.21B.170. 96-15-003, § 371-08-380, filed 7/3/96, effective 8/3/96.]
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371-08-385
Parties not represented by legal counsel — Waiver of rules to prevent manifest injustice.
The presiding officer may waive any of these rules, other than a rule relating to jurisdiction, for any party not represented by legal counsel where necessary to avoid manifest injustice.
[Statutory Authority: RCW 43.21B.170. 96-15-003, § 371-08-385, filed 7/3/96, effective 8/3/96.]
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371-08-390
Presiding officer — Powers and duties.
It shall be the duty of the presiding officer to conduct conferences or hearings in cases assigned in an impartial and orderly manner. The presiding officer shall have the authority, subject to the other provisions of these rules:
(1) To administer oaths and affirmations;
(2) To issue subpoenas and enter protective orders as provided in the Administrative Procedure Act;
(3) To rule on all procedural matters, objections and motions;
(4) To rule on all offers of proof and receive relevant evidence;
(5) To question witnesses called by the parties in an impartial manner to develop any facts deemed necessary to fairly and adequately decide the appeal;
(6) To secure and present in an impartial manner such evidence, in addition to that presented by the parties, as deemed necessary to fairly and equitably decide the appeal;
(7) To take appropriate disciplinary action with respect to representatives of parties appearing before the board;
(8) To issue orders joining other parties, on motion of any party or in the judgment of the presiding officer, when it appears that such other parties may have an interest in, or may be affected by, the proceedings;
(9) To consolidate appeals for hearing when such consolidation will expedite disposition of the appeals and avoid duplication of testimony and when the rights of the parties will not be prejudiced thereby;
(10) To hold prehearing conferences and settlement conferences;
(11) To permit and regulate the taking of discovery;
(12) To regulate the course of the hearing;
(13) To dismiss an appeal or take other appropriate actions if a party or representative fails to appear at a prehearing conference, hearing or at any other stage of the appeal proceeding;
(14) To take any other action necessary and authorized by these rules and the law.
[Statutory Authority: RCW 43.21B.170. 96-15-003, § 371-08-390, filed 7/3/96, effective 8/3/96.]
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371-08-395
Mediation.
The board may on occasion recommend that the parties to an appeal engage in mediation. One or more parties may also recommend to the other parties or the presiding officer that a mediation occur. Subject to availability, an administrative appeals judge from the environmental hearings office may serve as the mediator for the board. In the event that the mediation proves unsuccessful and the appeal proceeds to hearing, any administrative appeals judge who served as a mediator will neither preside over the appeal hearing nor have any contact with the board members regarding the appeal other than to inform the board members that the mediation did not result in a settlement.
[Statutory Authority: RCW 43.21B.170. 96-15-003, § 371-08-395, filed 7/3/96, effective 8/3/96.]
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371-08-400
Subpoenas.
(1) Issuance. Subpoenas may be issued by any member of the board, the presiding officer assigned to the case or an attorney of record, as provided in the Administrative Procedure Act. Each subpoena shall be subscribed with the signature of the issuing person. Parties desiring subpoenas to be signed by the presiding officer or a board member shall make a showing of general relevance and reasonable scope of the testimony or evidence sought, shall prepare the subpoenas for issuance, shall send them to the board's office for signature, and, upon return, shall make arrangements for service.
(2) Form. Every subpoena shall name the pollution control hearings board and the title of the proceedings, and shall command the person to whom it is directed to attend and give testimony or produce designated books, documents, or things under that person's control at a specified time and place.
(3) Service. Service of subpoenas to a witness who is not a party to the case shall be made by personally serving a copy of the subpoena to such person, in accordance with civil rule 45, and tendering on demand, where entitled to make such a demand, the fees for one day's attendance and the mileage allowed by law. All costs shall be paid by the party seeking the attendance of the witness.
(4) Proof of service. The person serving the subpoena shall make proof of service by filing the subpoena and the required return, affidavit or acknowledgment of service with the board or presiding officer of the case. Failure to make proof of service does not affect the validity of the service.
(5) Quashing. Upon motion made promptly (at or before the time specified in the subpoena for compliance) by the person subpoenaed and upon notice to the party for whom the subpoena was issued, the presiding officer may:
(a) Quash; or
(b) Modify the subpoena if it is unreasonable or requires evidence not relevant to any matter in issue; or
(c) Condition denial of the motion upon just and reasonable conditions.
(6) Geographical scope. Attendance of witnesses and production of evidence may be required from any place in the state of Washington, at any designated place of hearing.
[Statutory Authority: RCW 43.21B.170. 96-15-003, § 371-08-400, filed 7/3/96, effective 8/3/96.]
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371-08-405
Jurisdictional requirements of the board — Dismissal on jurisdictional grounds.
(1) Timely filing of the notice of appeal with the board and timely service of the notice of appeal on the appropriate agency must both be accomplished for the board to acquire jurisdiction.
(2) Any party may challenge the jurisdiction of the board to hear an appeal, and the board may independently raise the jurisdictional issue. The board shall, when satisfied that it does not have jurisdiction, dismiss an appeal.
[Statutory Authority: RCW 43.21B.170. 96-15-003, § 371-08-405, filed 7/3/96, effective 8/3/96.]
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371-08-410
Correction or amendment of notice.
(1) If any notice of appeal is found to be defective or insufficient, the board may require the party filing said notice of appeal to correct, clarify or amend the same to conform to the requirements of the board's rules. The board may refuse to schedule any conference or hearing thereon until compliance with such requirements, or may issue an appropriate order which may include providing for dismissal of such appeal upon failure to comply within a specified time.
(2) Other amendments and supplemental pleadings shall conform to civil rule 15.
[Statutory Authority: RCW 43.21B.170. 96-15-003, § 371-08-410, filed 7/3/96, effective 8/3/96.]
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371-08-415
Stays.
(1) A person appealing an order not stayed by the issuing agency 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 makes a prima facie case for a stay if the requester 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.
[Statutory Authority: RCW 43.21B.170. 96-15-003, § 371-08-415, filed 7/3/96, effective 8/3/96.]
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371-08-420
Intervention.
(1) The presiding officer may grant a petition for intervention at any time, upon determining that the petitioner qualifies as an intervenor pursuant to civil rule 24, that the intervention will serve the interests of justice and that the prompt and orderly conduct of the appeal will not be impaired.
(2) The presiding officer may impose conditions upon the intervenor's participation in the proceedings.
[Statutory Authority: RCW 43.21B.170. 96-15-003, § 371-08-420, filed 7/3/96, effective 8/3/96.]
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371-08-425
Joinder of parties.
The presiding officer shall order the joinder of the permittee, permitting agency or any other interested person or entity in accordance with civil rule 19. The presiding officer may also permit the joinder of the persons who are not necessary to the determination of the appeal in accordance with civil rule 20.
[Statutory Authority: RCW 43.21B.170. 96-15-003, § 371-08-425, filed 7/3/96, effective 8/3/96.]
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371-08-430
Scheduling letter.
(1) Upon receipt of a notice of appeal which complies with the requirements of these regulations, the board shall mail written notice to each party of the primary and, if applicable, the secondary hearing dates. The notice or scheduling letter will identify the case to be heard, the identity of the parties and the time and location of the hearing. The letter shall also state that an interpreter can be made available upon reasonable notice to the board for any witness or party who is hearing impaired or who does not speak English.
(2) The letter may set out a filing schedule for motions and prehearing briefs. Where the presiding officer decides to hold a prehearing conference, the letter shall also state the date, time and location of the prehearing conference.
(3) The scheduling letter shall control the subsequent course of the appeal unless modified for good cause by subsequent order of the board or the presiding officer.
[Statutory Authority: RCW 43.21B.170. 96-15-003, § 371-08-430, filed 7/3/96, effective 8/3/96.]
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371-08-435
Prehearing conferences.
(1) The board may, upon written request by a party or on its own, schedule a prehearing conference on not less than seven days notice mailed to each party to the appeal, at a time and place fixed by the board. At the prehearing conference, parties may engage in settlement negotiations. Where settlement proves unavailing, the presiding officer may schedule all deadlines for motions and discovery and memorialize those dates in a prehearing order. The prehearing order may also identify the issues to be tried, stipulations, admissions, witnesses and exhibits for the hearing.
(2) The issues which the prehearing order identifies for the hearing shall control the subsequent course of the appeal, and shall be the only issues to be tried at the hearing, unless modified for good cause by subsequent order of the board or the presiding officer.
(3) Appearance by a party or by the party's representative at the prehearing conference is mandatory. If a party fails to attend a prehearing conference, that is not justified by good cause, the presiding officer may issue an order of default against the absent party or take other appropriate action.
[Statutory Authority: RCW 43.21B.170. 96-15-003, § 371-08-435, filed 7/3/96, effective 8/3/96.]
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371-08-440
Settlement and mediation agreements.
(1) Where the parties settle an appeal before hearing, the parties shall prepare and submit to the board a written order of dismissal to which the written settlement agreement is attached. If the agreement is in accordance with the law, the board shall enter the order and dismiss the case.
(2) This section also pertains to settlement agreements reached during mediation.
[Statutory Authority: RCW 43.21B.170. 96-15-003, § 371-08-440, filed 7/3/96, effective 8/3/96.]
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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.
[Statutory Authority: RCW 43.21B.170, chapter 34.05 RCW, and RCW 43.21B.001, [43.21B].190, [43.21B].230, [43.21B].300,[43.21B].310 . 05-15-017, § 371-08-445, filed 7/7/05, effective 8/7/05. Statutory Authority: RCW 43.21B.170. 96-15-003, § 371-08-445, filed 7/3/96, effective 8/3/96.]
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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. 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.
(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 fourteen days from the receipt of the motion by the nonmoving party. The moving party shall then have ten days from receipt of the response to file and serve a reply.
(b) 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 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, chapter 34.05 RCW, and RCW 43.21B.001, [43.21B].190, [43.21B].230, [43.21B].300,[43.21B].310 . 05-15-017, § 371-08-450, filed 7/7/05, effective 8/7/05. 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.]
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371-08-455
Setting primary and secondary hearing dates.
(1) Each case shall be assigned a primary hearing date. A case has first priority for hearing on that date.
(2) Each case may be assigned a secondary hearing date. That date will precede the primary hearing date. A case has second priority for hearing on the secondary date, and will proceed to hearing only if the primary case does not proceed. The parties to a primary case shall inform the hearing coordinator for the board as soon as any settlement occurs. The parties to a secondary case may contact the hearing coordinator to learn whether or not the primary case will proceed. The parties to a secondary case may also contact directly the parties to a primary case to learn whether or not the primary case will proceed.
[Statutory Authority: RCW 43.21B.170. 96-15-003, § 371-08-455, filed 7/3/96, effective 8/3/96.]
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371-08-460
Postponements or continuances of hearings.
(1) Postponement or continuance of a hearing is within the discretion of the board, whether contested or uncontested by the parties. The board may postpone or continue a hearing on its own motion.
(2) The postponement or continuance of a hearing shall be sought by written motion and according to the procedure set forth in WAC 371-08-450.
[Statutory Authority: RCW 43.21B.170. 96-15-003, § 371-08-460, filed 7/3/96, effective 8/3/96.]
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371-08-465
Dismissal, default or withdrawal of the appeal.
(1) If a party fails to attend or participate in a hearing or other stage of an adjudicative proceeding, the presiding officer may serve upon all parties a default or dismissal order which shall include a statement of the grounds for the order. Within seven days after service of a default or dismissal order for failure to attend or participate, the party against whom it was entered may file a written motion requesting that the order be vacated and stating the grounds relied upon.
(2) An appellant may request to withdraw an appeal. Requests before the appellant rests its case-in-chief during the hearing are mandatory and afterwards are permissive.
[Statutory Authority: RCW 43.21B.170. 96-15-003, § 371-08-465, filed 7/3/96, effective 8/3/96.]
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371-08-470
Hearing briefs.
Hearing briefs, if filed, shall be submitted to the board at least seven days before the hearing or such other time as the board may prescribe. An original and three copies of the brief shall be filed with the board and a copy served on the other parties or their attorneys. The board may permit or require the filing of additional briefs.
[Statutory Authority: RCW 43.21B.170. 96-15-003, § 371-08-470, filed 7/3/96, effective 8/3/96.]
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371-08-475
Procedures at hearings.
(1) Presiding officer. All hearings shall be conducted by a presiding officer who shall conduct the hearing in an orderly manner and rule on all procedural matters, objections and motions.
(2) Testimony under oath. Oaths shall be administered by the presiding officer or other officer with authority to administer oaths. All testimony to be considered by the board shall be sworn or affirmed.
(3) Recording.
(a) An official record of all evidentiary hearings shall be made by manual, electronic, or other type of recording device.
(b) Unofficial use of photographic and recording equipment is permitted at hearings; however, the presiding officer shall be consulted first and may impose conditions on their use as necessary to prevent disruption of the hearing.
(4) Order of presentation of evidence.
(a) The presiding officer shall determine the proper order of presentation of evidence. As a general rule, the appealing party shall initially introduce its evidence, except that in case of an appeal from a regulatory order or an order assessing a penalty, the agency shall initially introduce all evidence necessary to its case.
(b) The opposing party shall present its evidence after the party initially presenting evidence has rested.
(c) Rebuttal and surrebuttal evidence will be received only at the discretion of the presiding officer.
(d) Witnesses may be called out of turn in contravention of this rule by agreement of all parties.
(5) Opening statements. Unless the presiding officer rules otherwise, parties may present an oral opening statement setting out briefly a statement of the basic facts, disputes and issues of the case.
(6) Written statement of qualifications of expert witnesses. Any party who plans to introduce the testimony of any expert witness at the hearing shall submit as an exhibit to the board and all parties at the hearing a written statement of the qualifications, experience, and expertise of each such expert witness.
(7) Former employee as an expert witness. No former employee of the department shall at any time after leaving the employment of the department appear, except when permitted by applicable state conflict of interest law, as an expert witness on behalf of other parties in a formal proceeding in which an active part in the investigation as a representative of the department was taken.
(8) Objections and motions to strike. Objections to the admission or exclusion of evidence shall be in short form stating the legal grounds of objection relied upon.
(9) Rulings. The presiding officer, on objection or independently, shall exclude all irrelevant or unduly repetitious evidence and all rulings upon objections to the admissibility of evidence shall be made in accordance with WAC 371-08-480 through 371-08-515.
[Statutory Authority: RCW 43.21B.170. 96-15-003, § 371-08-475, filed 7/3/96, effective 8/3/96.]
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371-08-480
Additional evidence by presiding officer.
The presiding officer may, when all parties have rested, present such evidence, in addition to that presented by the parties, as deemed necessary to decide the appeal fairly and equitably. Any such evidence secured and presented by the presiding officer shall be presented in an impartial manner, and shall be received subject to full opportunity for cross-examination by all parties. If a party desires to present rebuttal evidence to any evidence so presented by the presiding officer, application shall be made therefor immediately following the conclusion of such evidence. Such application shall be granted by assignment of a time and place for presentation of such rebuttal evidence.
[Statutory Authority: RCW 43.21B.170. 96-15-003, § 371-08-480, filed 7/3/96, effective 8/3/96.]
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371-08-485
Standard and scope of review and burden of proof at hearings.
(1) Hearings shall be formal and quasi-judicial in nature. The scope and standard of review shall be de novo unless otherwise provided by law.
(2) The board shall make findings of fact based on the preponderance of the evidence unless otherwise required by law.
(3) The issuing agency shall have the initial burden of proof in cases involving penalties or regulatory orders. In other cases, the appealing party shall have the initial burden of proof.
[Statutory Authority: RCW 43.21B.170. 02-06-013, § 371-08-485, filed 2/22/02, effective 3/25/02; 96-15-003, § 371-08-485, filed 7/3/96, effective 8/3/96.]
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371-08-490
Provision of interpreters and of reasonable accommodations to individuals with special needs.
(1) Whenever any person involved in an adjudicative proceeding is eligible for an interpreter, as that eligibility is defined in WAC 10-08-150, or qualifies for reasonable accommodations as a person with disabilities, that person shall request an interpreter or other reasonable accommodation from the presiding officer not later than three weeks before the date of the hearing, conference or other situation for which the interpreter or accommodation is needed. The board shall comply with the provisions of WAC 10-08-150 and 10-08-160(2) regarding interpreters.
(2) Information about proceedings before the board is available in alternate format upon request.
[Statutory Authority: RCW 43.21B.170. 96-15-003, § 371-08-490, filed 7/3/96, effective 8/3/96.]
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371-08-500
Rules of evidence — Admissibility criteria.
(1) Evidence, including hearsay evidence, is admissible if in the judgment of the presiding officer it is the kind of evidence on which reasonably prudent persons are accustomed to rely in the conduct of their affairs. All relevant evidence is admissible which, in the opinion of the presiding officer, is the best evidence reasonably obtainable, having due regard for its necessity, availability and trustworthiness. In passing upon the admissibility of evidence, the presiding officer shall give consideration to, but shall not be bound to follow, the rules of evidence governing civil proceedings in matters not involving trial by jury in the superior courts of the state of Washington.
(2) The presiding officer shall exclude evidence that is excludable on constitutional or statutory grounds or on the basis of evidentiary privilege recognized in the courts of this state.
[Statutory Authority: RCW 43.21B.170. 96-15-003, § 371-08-500, filed 7/3/96, effective 8/3/96.]
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371-08-505
Rules of evidence — Official notice — Matters of law.
The presiding officer, upon request made before or during a hearing, will officially notice:
(1) Federal law. The Constitution; congressional acts, resolutions, records, journals and committee reports; decisions of federal courts and administrative agencies; executive orders and proclamations; and all rules, orders and notices published in the Federal Register.
(2) State law. The Constitution of the state of Washington; acts of the legislature, resolutions, records, journals and committee reports; decisions of Washington state courts and administrative agencies; executive orders and proclamations by the governor; and all rules, orders and notices filed with the code reviser.
(3) Governmental organization. Organization, territorial limitations, officers, departments, and general administration of the government of the state of Washington, the United States, the several states and foreign nations.
(4) Agency organization. The department, commission or board organization, administration, officers, personnel, and official publications.
(5) Rules of regional authorities. Rules or regulations of air pollution control boards or authorities established pursuant to chapter 70.94 RCW, when such rules or regulations are filed with the board pursuant to RCW 43.21B.260.
[Statutory Authority: RCW 43.21B.170 and Den Beste v. Washington, No. 13967-1-III (Div. III, April 18, 1996). 96-17-016, § 371-08-505, filed 8/12/96, effective 9/12/96.]
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371-08-510
Rules of evidence — Official notice — Material facts.
(1) In the absence of controverting evidence, the presiding officer, upon request made before or during a hearing, or in a proposed decision, may officially notice:
(a) Board proceedings. The pendency of, the issues and position of the parties therein, and the disposition of any proceeding then pending before or theretofore concluded by the board;
(b) Business customs. General customs and practices followed in the transaction of business;
(c) Notorious facts. Facts so generally and widely known to all well-informed persons as not to be subject to reasonable dispute, or specific facts which are capable of immediate and accurate demonstration by resort to accessible sources of generally accepted authority, including but not exclusively, facts stated in any publication authorized or permitted by law to be made by any federal or state officer, department, or agency;
(d) Technical knowledge. Matters within the technical knowledge of the board as a body of experts, within the scope or pertaining to the subject matter of its statutory duties, responsibilities or jurisdiction.
(2) Request or suggestion. Any party may request, or the presiding officer may suggest, that official notice be taken of a material fact, which shall be clearly and precisely stated, orally on the record, at any prehearing conference or oral hearing or argument, or may make such request or suggestion by written notice, any pleading, motion, memorandum, or brief served upon all parties, at any time prior to a final decision.
(3) Statement. Where a final decision of the board rests in whole or in part upon official notice of a material fact, such fact shall be clearly and precisely stated in such decision. In determining whether to take official notice of material facts, the presiding officer may consult any source of pertinent information, whether or not furnished as it may be, by any party and whether or not admissible under the rules of evidence.
(4) Controversion. Any party may controvert a request or a suggestion that official notice of a material fact be taken at the time the same is made if it be made orally, or by a pleading, which the same is made or suggested. If any decision is stated to rest in whole or in part upon official notice of a material fact which the parties have not had a prior opportunity to controvert, any party may controvert such fact by a petition for reconsideration. Such controversion shall concisely and clearly set forth the sources, authority and other data relied upon to show the existence or nonexistence of the material fact assumed or denied in the decision.
(5) Evaluation of evidence. Nothing herein shall be construed to preclude the board from utilizing their experience, technical competence, and specialized knowledge in the evaluation of the evidence presented to them.
[Statutory Authority: RCW 43.21B.170. 96-15-003, § 371-08-510, filed 7/3/96, effective 8/3/96.]
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371-08-515
Rules of evidence — Tentative admission — Exclusion — Discontinuance — Objections.
When objection is made to the admissibility of evidence, such evidence may be received subject to a later ruling. The presiding officer may, either with or without objection, exclude inadmissible evidence or order cumulative evidence discontinued. Parties objecting to the introduction of evidence shall state the precise grounds of such objection at the time such evidence is offered.
[Statutory Authority: RCW 43.21B.170. 96-15-003, § 371-08-515, filed 7/3/96, effective 8/3/96.]
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371-08-520
Contents of the record.
The record before the board in any adjudicative proceeding shall consist of the decision or order appealed from, the notice of appeal therefrom, responsive pleadings, if any, and notices of appearances, and any other written applications, motions, stipulations or requests duly filed by any party and written reports or orders of the presiding officer. Such record shall also include all depositions, if they are admitted at the hearing, the transcript of testimony as provided in WAC 371-08-525, and other proceedings at the hearing, together with all exhibits admitted. No part of the department's record or other documents shall be made part of the record of the board unless admitted in evidence.
[Statutory Authority: RCW 43.21B.170. 96-15-003, § 371-08-520, filed 7/3/96, effective 8/3/96.]
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371-08-525
Preparation of transcripts.
(1) The board, in its discretion, may at any time cause a transcript to be printed, but will not normally do so.
(2) When the board does not cause a transcript to be printed, it shall be the obligation of the party wishing a transcript, or portions of it, to order the same from the board reporter and assume the printing costs.
[Statutory Authority: RCW 43.21B.170. 96-15-003, § 371-08-525, filed 7/3/96, effective 8/3/96.]
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371-08-530
Preparation of findings, conclusions and orders.
Upon request of the board or presiding officer, findings, conclusions and orders shall be prepared by counsel and be based upon the board's oral or memorandum opinion. The board or presiding officer may adopt, in whole or in part, the parties' findings, conclusions and orders or the board may prepare its own findings, conclusions and orders.
[Statutory Authority: RCW 43.21B.170. 96-15-003, § 371-08-530, filed 7/3/96, effective 8/3/96.]
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371-08-535
Final decisions and orders.
(1) When the hearing on the appeal has been concluded, and upon completion of the record and submission of the issues for decision and order, a written final decision and order concurred in by a majority of the board may be adopted which shall contain findings and conclusions as to each contested issue of fact and law.
(2) The record before the board shall be considered by at least two of the members of the board: Provided, That if two members cannot agree on a decision, the third member must consider the record before the board: And provided further, That if two members cannot agree on a decision in any case, the substantive decision of the agency (or authority) will control in those cases where the appealing party has the burden of proof.
(3) Copies of the final decision and order shall be mailed by the board to each party to the appeal or to the attorney or representative of record, if any. Service upon the representative shall constitute service upon the party.
[Statutory Authority: RCW 43.21B.170. 96-15-003, § 371-08-535, filed 7/3/96, effective 8/3/96.]
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371-08-540
Review of permits under the National Pollutant Discharge Elimination System.
(1) The provisions of this section shall apply only to review proceedings before the board pertaining to permits issued by the department under the provisions of the National Pollutant Discharge Elimination System.
(2) In those cases where the board determines that the department issued a permit that is invalid in any respect, the board shall order the department to reissue the permit as directed by the board and consistent with all applicable statutes and guidelines of the state and federal governments.
[Statutory Authority: RCW 43.21B.170. 96-15-003, § 371-08-540, filed 7/3/96, effective 8/3/96.]
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371-08-545
Review of permits issued under chapter 173-303 WAC.
(1) This section shall only apply to the board's review of permits issued by the department under chapter 173-303 WAC.
(2) In the event that the board determines that a department permit under chapter 173-303 WAC is invalid in any respect, the board shall remand the permit to the department for reconsideration and appropriate action consistent with the board's order and federal and state law.
[Statutory Authority: RCW 43.21B.170. 96-15-003, § 371-08-545, filed 7/3/96, effective 8/3/96.]
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371-08-550
Petitions for reconsideration.
(1)(a) After issuance of a final decision, any party may file a petition for reconsideration with the board. Such petition must be filed within ten days of mailing of the final decision. The board may require an answer to the petition. Copies of the petition for reconsideration, and an answer, if required, shall be served on the other parties of record.
(b) The filing of a petition for reconsideration does not stay the effectiveness of the final decision of the board.
(c) In response to a petition for reconsideration, the board may deny it, or may reverse or modify its decision or may reopen the hearing. The board is deemed to have denied the petition if, within twenty days from the date the petition is filed, the board does not act on the petition or specify a date by which it will act on the petition.
(2) The time for filing a petition for judicial review does not commence until disposition of the petition for reconsideration. However, the filing of a petition for reconsideration is not a prerequisite for seeking judicial review.
(3) Copies of the final decision and order and of the board's disposition of any petition for reconsideration shall be mailed by the board to each party to the appeal or to the attorney or representative of record. Service on the representative shall be deemed to be service on the party.
[Statutory Authority: RCW 43.21B.170. 96-15-003, § 371-08-550, filed 7/3/96, effective 8/3/96.]
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371-08-555
Time for filing petitions for review to superior court.
An appeal of a final board order is called a petition for review. A petition for review must be filed with superior court within thirty days of the date of receipt of the final order or decision. The petitioner shall file a copy of the petition for review to superior court with the board and shall serve all parties of record. All appeals must first be filed in superior court even if direct review to the court of appeals will be sought.
[Statutory Authority: RCW 43.21B.170, chapter 34.05 RCW and RCW 43.21B.190. 06-07-088, § 371-08-555, filed 3/15/06, effective 4/15/06. Statutory Authority: RCW 43.21B.170 and SHB 1314. 97-19-064, § 371-08-555, filed 9/15/97, effective 10/16/97. Statutory Authority: RCW 43.21B.170. 96-15-003, § 371-08-555, filed 7/3/96, effective 8/3/96.]
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371-08-560
Direct review to the court of appeals upon certification by the board.
(1) Within thirty days after filing the petition for review with the superior court, a party may file an application for direct review with the superior court and must serve the board and all parties of record. The application for direct review shall request the board to file a certificate of appealability.
(2) If the board's jurisdiction is among the issues on review to the superior court, the board may, on its own motion, file an application for direct review with the superior court on the jurisdictional issue.
(3) From the date the board is served a copy of the application for direct review under subsection (1) of this section, the board shall have thirty days to grant or deny the request to file a certificate of appealability. The board shall file the certificate of appealability, or its decision denying the certificate, together with the board's final order being appealed, with the superior court and serve the parties of record.
(4) The board may issue a certificate of appealability if it finds that delay in obtaining a final and prompt determination of the issues would be detrimental to any party or the public interest, and either of the following:
(a) Fundamental and urgent statewide or regional issues are raised; or
(b) The proceeding is likely to have significant precedential value.
(5) The board shall state in the certificate of appealability, or in its decision denying the certificate, which criteria set forth in subsection (4) of this section it applied and how those criteria were or were not met.
(6) Where the board issues a certificate of appealability, the parties shall have fifteen days from the date the certificate is served to file a notice of discretionary review in the superior court. The notice shall include a copy of both the certificate of appealability and the final order or decision of the board.
(7) If the appellate court accepts review, the certificate of appealability shall be transmitted to the court of appeals as part of the certified record.
(8) If the certificate of appealability is denied, review of the board's decision shall be by the superior court. The superior court's decision may be appealed to the court of appeals.
[Statutory Authority: RCW 43.21B.170. 96-15-003, § 371-08-560, filed 7/3/96, effective 8/3/96.]
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371-08-565
Certification of record.
Within thirty days of receipt of a copy of the petition for judicial review to the superior court or notice of acceptance of the certificate of appealability by the court of appeals, the board shall certify and transmit to the reviewing court the record made before the board. Additional time for certification and transmission of the record may be allowed by the reviewing court. Normally the record will not include a transcript of the testimony. Unless the board has caused a transcript to be printed, arrangements for and costs of the written transcript shall be the obligation of the party seeking judicial review.
[Statutory Authority: RCW 43.21B.170. 96-15-003, § 371-08-565, filed 7/3/96, effective 8/3/96.]
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371-08-570
Applicability of SEPA guidelines.
The board has reviewed its authorized activities pursuant to the SEPA rules and has found them all to be exempt from that chapter.
[Statutory Authority: RCW 43.21B.170. 96-15-003, § 371-08-570, filed 7/3/96, effective 8/3/96.]