Washington Administrative Code

The number of board members required to make a decision on a case differs depending on the type of case.(1) Short-board appeals. Pursuant to RCW 43.21B.305, an appeal that involves a penalty of fifteen thousand dollars or less imposed by the department of ecology, another state a…

(1) An appeal before the board is initiated by filing a notice of appeal with the board 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.(…

The notice of appeal shall contain:(1) The name, mailing address, telephone number, fax number (if available), and email address of the appealing party, and of the representative, if any;(2) Identification of the parties, by listing in the caption or otherwise. In every case, the…

(1) Within 30 days of the date of receipt of the agency's order or decision, 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 …

Service of any document required to be served on a party to a case, including final decisions of the board, may be made by serving the party's representative in the matter.[Statutory Authority: RCW 43.21B.170. WSR 96-15-003, § 371-08-350, filed 7/3/96, effective 8/3/96.]

(1) As prescribed by RCW 34.05.240, any interested person may petition the board for a declaratory ruling. The board shall consider any petition for declaratory ruling in accordance with these rules and the Administrative Procedure Act.(2) Two members of the board shall constitut…

(1) As prescribed by RCW 34.05.330, any person may petition the board to promulgate, amend or rescind the board's administrative rules, as set forth in this chapter. The provisions of these rules and the Administrative Procedure Act shall apply to petitions for rule making.(2) Tw…

(1) Statutory provisions limit or prevent disclosure of certain information provided to the board. This rule addresses how to designate documents as containing exempt or confidential information when filing with the board. WAC 371-08-451 governs access to, and exchange of, such i…

(1) Any person has the right to represent himself or herself in a proceeding before the board.(2) The only persons who are qualified to represent another person or entity before the board are the following:(a) Attorneys at law duly qualified and entitled to practice before the hi…

(1) An attorney or authorized representative as defined in WAC 371-08-365 may appear for a party by either of the following actions:(a) Filing a notice of appeal, another pleading or a written notice of appearance containing the name of the party to be represented, and the name, …

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…

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 t…

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. WSR 96-15-003, § 371-08-385, filed 7/3/96, effective 8/…

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 is…

(1) The presiding officer may consolidate appeals when consolidation will:(a) Expedite disposition of the appeals;(b) Avoid duplication of testimony; and(c) Not prejudice the rights of the parties.(2) Where multiple permits for the same underlying clean energy project, as defined…

In all appeals, upon request of one or more parties and with the consent of all parties, the board may assign a mediator. The mediator must be an administrative appeals judge or other duly authorized agent of the board who has received training in dispute resolution techniques or…

(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 sub…

(1) Timely filing of the notice of appeal with the board and timely service of the notice of appeal on the appropriate agency are required for the board to acquire jurisdiction.(2) Any party may challenge the jurisdiction of the board to hear an appeal, and the board may independ…

(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…

(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 notic…

(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 …

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 i…

(1) Upon receipt of a notice of appeal which complies with the requirements of these regulations, the board shall issue 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 ide…

(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 to each party to the appeal, at a time and place fixed by the board. The purpose of the prehearing conference is to prepare the case for hearing b…

(1) Where the parties settle an appeal before hearing, the parties shall prepare and submit to the board a request for an order of dismissal, submit that request to the board, and the board shall enter an order and dismiss the case.(2) This section also pertains to settlement agr…

Upon the motion of any party or independently, the presiding officer may decide to conduct any conference, motion hearing or hearing by telephone call or other electronic means to promote the fair, speedy and economical processing of a matter.[Statutory Authority: RCW 43.21B.170,…

(1) An application to the board for an order must be by motion which, unless made during a hearing, must be in writing, state with particularity the grounds therefor and set forth the relief sought. A moving party is not required to submit a proposed order with a motion unless re…

(1) Pursuant to the Administrative Procedure Act, chapter 34.05 RCW, the board may issue a protective order when the board finds that filings will require information designated as confidential or exempt as defined in WAC 371-08-361 to be disclosed in the proceeding. The board on…

(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 wi…

(1) Postponement or continuance of a hearing is within the discretion of the presiding officer, whether contested or uncontested by the parties. The board may postpone or continue a hearing on its own motion.(2) A party may seek the postponement or continuance of a hearing by wri…

(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 …

Hearing briefs, if filed, must be submitted to the board at least seven days before the hearing or such other time as directed by the presiding officer. The brief must be filed with the board and served on the other parties or their attorneys. The board may permit or require the …

Hearing exhibits must be formatted and filed in accordance with the board's electronic exhibit requirements, which are available at the ELUHO website at www.eluho.wa.gov.[Statutory Authority: RCW 43.21B.170. WSR 25-12-063, s 371-08-471, filed 5/30/25, effective 6/30/25.]

(1) Presiding officer. All hearings are 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. All testimony to be considered by the board must be sworn or affirmed. …

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 i…

(1) Hearings shall be 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 ha…

(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 a…

(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, 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 p…

(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 p…

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 introdu…

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 fi…

(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 th…

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 …

(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 …

(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 …

(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 …

Waivers and extensions of deadline. For appeals of clean energy projects consolidated pursuant to RCW 43.21B.340, the board shall issue a decision within 240 days from the date of the last filed consolidated appeal, unless waived by all parties. The board may extend the 240-day t…

(1)(a) After issuance of a final decision, any party may file a petition for reconsideration with the board. Such petition must be filed and served on all parties within 10 days of the board serving the final decision under WAC 371-08-535(3). The board may require an answer, or p…

An appeal of a final board order is called a petition for review. A petition for review must be filed with superior court within 30 days from the date of service of the final order or decision as provided in RCW 34.05.542. The petitioner shall file a copy of the petition for revi…