Chapter 43.21B RCW
Environmental hearings office  --  pollution control hearings board
                                                                               
Chapter Listing | RCW Dispositions

RCW Sections
43.21B.001
Definitions.
43.21B.005
Environmental hearings office created -- Composition -- Administrative appeals judges -- Contracts for services.
43.21B.010
Pollution control hearings board created -- Purpose.
43.21B.020
Members -- Qualifications -- Appointment.
43.21B.030
Members -- Terms -- Filling vacancies, term.
43.21B.040
Removal of member, procedure -- As disqualification for reappointment.
43.21B.050
Governor to determine basis for operation -- Compensation if part-time basis, limitation -- Reimbursement of travel expenses.
43.21B.060
Restrictions upon conduct while member and upon termination of membership.
43.21B.080
Chair, biennial election of.
43.21B.090
Principal office -- Quorum -- Hearings -- Board powers and duties.
43.21B.100
Board to make findings of fact and written decisions on each case considered -- Effective upon signing and filing -- Public information.
43.21B.110
Pollution control hearings board jurisdiction.
43.21B.130
Administrative procedure act to apply to appeal of board rules and regulations -- Scope of board action on decisions and orders of others.
43.21B.160
Appeals -- Generally.
43.21B.170
Proceedings conducted in accordance with published board rules and regulations.
43.21B.180
Judicial review -- Director's right of review of decisions pursuant to RCW 43.21B.110.
43.21B.190
Judicial review -- Appeal from board's order.
43.21B.230
Appeals of agency actions.
43.21B.240
Department -- Air authorities -- Adjudicative proceedings, may not conduct.
43.21B.250
Challenges to consistency of rules adopted pursuant to RCW 43.21C.110 and 43.21C.120 -- Procedure -- Finality.
43.21B.260
Regulations and amendments of activated air pollution control authorities -- Filing with hearings board authorized -- Evidence.
43.21B.300
Penalty procedures.
43.21B.305
Appeals involving penalties of fifteen thousand dollars or less.
43.21B.310
Appeal of orders, permits, and licenses.
43.21B.320
Stays of orders.
43.21B.330
Summary procedures.
43.21B.900
Savings -- Other powers and duties not affected -- Permits, standards not affected -- Severability -- Effective date -- 1970 ex.s. c 62.



43.21B.001
Definitions.

     *** CHANGE IN 2010 *** (SEE 2935-S.SL) ***

The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.

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

     (2) "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.

     (3) "Department" means the department of ecology.

     (4) "Director" means the director of ecology. 
[2004 c 204 § 1; 1987 c 109 § 4.]
Notes: 
     Purpose -- 1987 c 109: "The purposes of this act are to:

     (1) Simplify and clarify existing statutory and administrative procedures for appealing decisions of the department of ecology and air pollution control authorities in order to (a) expedite those appeals, (b) insure that those appeals are conducted with a minimum of expense to save state and private resources, and (c) allow the appellate authorities to decide cases on their merits rather than on procedural technicalities.

     (2) Clarify existing statutes relating to the environment but which refer to numerous agencies no longer in existence.

     (3) Eliminate provisions no longer effective or meaningful and abbreviate statutory provisions which are unnecessarily long and confusing." [1987 c 109 § 1.] 
     Short title -- 1987 c 109: "This act may be referred to as the "ecology procedures simplification act of 1987." [1987 c 109 § 2.] 
     Construction -- 1987 c 109: "Unless otherwise specifically intended, this act shall not be construed to change existing substantive or procedural law; it should only clarify and standardize existing procedures." [1987 c 109 § 3.] 
     Rules -- 1987 c 109: "The department of ecology shall amend its rules by June 30, 1988, to effect the purposes of this act." [1987 c 109 § 160.] 
     Severability -- 1987 c 109: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [1987 c 109 § 161.] 
     Captions -- 1987 c 109: "As used in this act, bill headings and section captions constitute no part of the law." [1987 c 109 § 162.] 



43.21B.005
Environmental hearings office created  --  Composition  --  Administrative appeals judges  --  Contracts for services.

     *** CHANGE IN 2010 *** (SEE 2935-S.SL) ***

     *** CHANGE IN 2010 *** (SEE 2617-S2.SL) ***

(1) There is created an environmental hearings office of the state of Washington. The environmental hearings office shall consist of the pollution control hearings board created in RCW 43.21B.010, the forest practices appeals board created in RCW 76.09.210, the shorelines hearings board created in RCW 90.58.170, the environmental and land use hearings board created in chapter 43.21L RCW, and the hydraulic appeals board created in *RCW 77.55.170. The chair of the pollution control hearings board shall be the chief executive officer of the environmental hearings office. Membership, powers, functions, and duties of the pollution control hearings board, the forest practices appeals board, the shorelines hearings board, and the hydraulic appeals board shall be as provided by law.

     (2) The chief executive officer of the environmental hearings office may appoint an administrative appeals judge who shall possess the powers and duties conferred by the administrative procedure act, chapter 34.05 RCW, in cases before the boards comprising the office. The administrative appeals judge shall have a demonstrated knowledge of environmental law, and shall be admitted to the practice of law in the state of Washington. Additional administrative appeals judges may also be appointed by the chief executive officer on the same terms. Administrative appeals judges shall not be subject to chapter 41.06 RCW.

     (3) The administrative appeals judges appointed under subsection (2) of this section are subject to discipline and termination, for cause, by the chief executive officer. Upon written request by the person so disciplined or terminated, the chief executive officer shall state the reasons for such action in writing. The person affected has a right of review by the superior court of Thurston county on petition for reinstatement or other remedy filed within thirty days of receipt of such written reasons.

     (4) The chief executive officer may appoint, discharge, and fix the compensation of such administrative or clerical staff as may be necessary.

     (5) The chief executive officer may also contract for required services. 
[2003 c 393 § 18; 2003 c 39 § 22; 1999 c 125 § 1; 1990 c 65 § 1; 1986 c 173 § 3; 1979 ex.s. c 47 § 2.]
Notes: 
     Reviser's note: *(1) RCW 77.55.170 was recodified as RCW 77.55.301 pursuant to 2005 c 146 § 1001.

     (2) This section was amended by 2003 c 39 § 22 and by 2003 c 393 § 18, each without reference to the other. Both amendments are incorporated in the publication of this section under RCW 1.12.025(2). For rule of construction, see RCW 1.12.025(1). 
     Implementation -- Effective date -- 2003 c 393: See RCW 43.21L.900 and 43.21L.901. 
     Intent -- 1979 ex.s. c 47: "It is the intent of the legislature to consolidate administratively the pollution control hearings board, the forest practices appeals board, and the shorelines hearings board into one agency of state government with minimum disturbance to these boards. It is not the intent of the legislature in consolidating these boards to change the existing membership of these boards.

     All full-time employees of the pollution control hearings board and the full-time employee of the forest practices appeals board shall be full-time employees of the environmental hearings office without loss of rights. Property and obligations of these boards and the shorelines hearings board shall be property and obligations of the environmental hearings office." [1979 ex.s. c 47 § 1.] 



43.21B.010
Pollution control hearings board created  --  Purpose.

     *** CHANGE IN 2010 *** (SEE 2935-S.SL) ***

There is hereby created within the environmental hearings office a pollution control hearings board of the state of Washington.

     The purpose of the pollution control hearings board is to provide for a more expeditious and efficient disposition of appeals with respect to the decisions and orders of the department and director and with respect to all decisions of air pollution control boards or authorities established pursuant to chapter 70.94 RCW. 
[1979 ex.s. c 47 § 3; 1970 ex.s. c 62 § 31.]
Notes: 
     Intent -- 1979 ex.s. c 47: See note following RCW 43.21B.005. 



43.21B.020
Members  --  Qualifications  --  Appointment.
The hearings board shall consist of three members qualified by experience or training in pertinent matters pertaining to the environment, and at least one member of the hearings board shall have been admitted to practice law in this state and engaged in the legal profession at the time of his or her appointment. The hearings board shall be appointed by the governor with the advice and consent of the senate, and no more than two of whom at the time of appointment or during their term shall be members of the same political party. 
[2009 c 549 § 5091; 1970 ex.s. c 62 § 32.]



43.21B.030
Members  --  Terms  --  Filling vacancies, term.
Members of the hearings board shall be appointed for a term of six years and until their successors are appointed and have qualified. In case of a vacancy, it shall be filled by appointment by the governor for the unexpired portion of the term in which said vacancy occurs: PROVIDED, That the terms of the first three members of the hearings board shall be staggered so that one member shall be appointed to serve until July 1, 1972, one member until July 1, 1974, and one member until July 1, 1976. 
[1970 ex.s. c 62 § 33.]



43.21B.040
Removal of member, procedure  --  As disqualification for reappointment.
Any member of the hearings board may be removed for inefficiency, malfeasance and misfeasance in office, under specific written charges filed by the governor, who shall transmit such written charges to the member accused and to the chief justice of the supreme court. The chief justice shall thereupon designate a tribunal composed of three judges of the superior court to hear and adjudicate the charges. Such tribunal shall fix the time of the hearing which shall be public, and the procedure for the hearing, and the decision of such tribunal shall be final and not subject to review by the supreme court. Removal of any member of the hearings board by the tribunal shall disqualify such member for reappointment. 
[1970 ex.s. c 62 § 34.]



43.21B.050
Governor to determine basis for operation  --  Compensation if part-time basis, limitation  --  Reimbursement of travel expenses.
The hearings board shall operate on either a part-time or a full-time basis, as determined by the governor. If it is determined that the hearings board shall operate on a full-time basis, each member of the hearings board shall receive an annual salary to be determined by the governor pursuant to RCW 43.03.040. If it is determined the hearings board shall operate on a part-time basis, each member of the hearings board shall receive compensation on the basis of seventy-five dollars for each day spent in performance of his or her duties but such compensation shall not exceed ten thousand dollars in a fiscal year. Each hearings board member shall receive reimbursement for travel expenses incurred in the discharge of his or her duties in accordance with RCW 43.03.050 and 43.03.060 as now existing or hereafter amended. 
[2009 c 549 § 5092; 1975-'76 2nd ex.s. c 34 § 101; 1970 ex.s. c 62 § 35.]
Notes: 
     Effective date -- Severability -- 1975-'76 2nd ex.s. c 34: See notes following RCW 2.08.115. 



43.21B.060
Restrictions upon conduct while member and upon termination of membership.
Each member of the hearings board: (1) Shall not be a candidate for nor hold any other public office or trust, and shall not engage in any occupation or business interfering with or inconsistent with his or her duty as a member of the hearings board, nor shall he or she serve on or under any committee of any political party; and (2) shall not for a period of one year after the termination of his or her membership on the hearings board, act in a representative capacity before the hearings board on any matter. 
[2009 c 549 § 5093; 1970 ex.s. c 62 § 36.]



43.21B.080
Chair, biennial election of.
The hearings board shall as soon as practicable after the initial appointment of the members thereof, meet and elect from among its members a chair, and shall at least biennially thereafter meet and elect such a chair. 
[2009 c 549 § 5094; 1970 ex.s. c 62 § 38.]



43.21B.090
Principal office  --  Quorum  --  Hearings  --  Board powers and duties.
The principal office of the hearings board shall be at the state capitol, but it may sit or hold hearings at any other place in the state. A majority of the hearings board shall constitute a quorum for making orders or decisions, promulgating rules and regulations necessary for the conduct of its powers and duties, or transacting other official business, and may act though one position of the hearings board be vacant. One or more members may hold hearings and take testimony to be reported for action by the hearings board when authorized by rule or order of the hearings board. The hearings board shall perform all the powers and duties specified in this chapter or as otherwise provided by law. 
[1990 c 65 § 2; 1974 ex.s. c 69 § 1; 1970 ex.s. c 62 § 39.]



43.21B.100
Board to make findings of fact and written decisions on each case considered  --  Effective upon signing and filing  --  Public information.
The hearings board shall make findings of fact and prepare a written decision in each case decided by it, and such findings and decisions shall be effective upon being signed by two or more members of the hearings board and upon being filed at the hearings board's principal office, and shall be open for public inspection at all reasonable times. 
[1970 ex.s. c 62 § 40.]



43.21B.110
Pollution control hearings board jurisdiction. (Effective until June 30, 2019.)

     *** CHANGE IN 2010 *** (SEE 6634-S.SL) ***

     *** CHANGE IN 2010 *** (SEE 2935-S.SL) ***

(1) The hearings board shall only have jurisdiction to hear and decide appeals from the following decisions of the department, the director, local conservation districts, and the air pollution control boards or authorities as established pursuant to chapter 70.94 RCW, or local health departments:

     (a) Civil penalties imposed pursuant to RCW 18.104.155, 70.94.431, 70.105.080, 70.107.050, 88.46.090, 90.03.600, 90.46.270, 90.48.144, 90.56.310, and 90.56.330.

     (b) Orders issued pursuant to RCW 18.104.043, 18.104.060, 43.27A.190, 70.94.211, 70.94.332, 70.105.095, 86.16.020, 88.46.070, 90.14.130, 90.46.250, 90.48.120, and 90.56.330.

     (c) A final decision by the department or director made under chapter 183, Laws of 2009.

     (d) Except as provided in RCW 90.03.210(2), the issuance, modification, or termination of any permit, certificate, or license by the department or any air authority in the exercise of its jurisdiction, including the issuance or termination of a waste disposal permit, the denial of an application for a waste disposal permit, the modification of the conditions or the terms of a waste disposal permit, or a decision to approve or deny an application for a solid waste permit exemption under RCW 70.95.300.

     (e) Decisions of local health departments regarding the grant or denial of solid waste permits pursuant to chapter 70.95 RCW.

     (f) Decisions of local health departments regarding the issuance and enforcement of permits to use or dispose of biosolids under RCW 70.95J.080.

     (g) Decisions of the department regarding waste-derived fertilizer or micronutrient fertilizer under RCW 15.54.820, and decisions of the department regarding waste-derived soil amendments under RCW 70.95.205.

     (h) Decisions of local conservation districts related to the denial of approval or denial of certification of a dairy nutrient management plan; conditions contained in a plan; application of any dairy nutrient management practices, standards, methods, and technologies to a particular dairy farm; and failure to adhere to the plan review and approval timelines in RCW 90.64.026.

     (i) Any other decision by the department or an air authority which pursuant to law must be decided as an adjudicative proceeding under chapter 34.05 RCW.

     (2) The following hearings shall not be conducted by the hearings board:

     (a) Hearings required by law to be conducted by the shorelines hearings board pursuant to chapter 90.58 RCW.

     (b) Hearings conducted by the department pursuant to RCW 70.94.332, 70.94.390, 70.94.395, 70.94.400, 70.94.405, 70.94.410, and 90.44.180.

     (c) Appeals of decisions by the department under RCW 90.03.110 and 90.44.220.

     (d) Hearings conducted by the department to adopt, modify, or repeal rules.

     (e) Appeals of decisions by the department as provided in chapter 43.21L RCW.

     (3) Review of rules and regulations adopted by the hearings board shall be subject to review in accordance with the provisions of the administrative procedure act, chapter 34.05 RCW. 
[2009 c 456 § 16; 2009 c 332 § 18; 2009 c 183 § 17; 2003 c 393 § 19; 2001 c 220 § 2. Prior: 1998 c 262 § 18; 1998 c 156 § 8; 1998 c 36 § 22; 1993 c 387 § 22; prior: 1992 c 174 § 13; 1992 c 73 § 1; 1989 c 175 § 102; 1987 c 109 § 10; 1970 ex.s. c 62 § 41.]
Notes: 
     Reviser's note: This section was amended by 2009 c 183 § 17, 2009 c 332 § 18, and by 2009 c 456 § 16, each without reference to the other. All amendments are incorporated in the publication of this section under RCW 1.12.025(2). For rule of construction, see RCW 1.12.025(1). 
     Application -- 2009 c 332: See note following RCW 90.03.110. 
     Expiration date -- 2009 c 183: See note following RCW 90.92.010. 
     Implementation -- Effective date -- 2003 c 393: See RCW 43.21L.900 and 43.21L.901. 
     Intent -- 2001 c 220: "The legislature intends to assure that appeals of department of ecology decisions regarding changes or transfers of water rights that are the subject of an ongoing general adjudication of water rights are governed by an appeals process that is efficient and eliminates unnecessary duplication, while fully preserving the rights of all affected parties. The legislature intends to address only the judicial review process for certain decisions of the pollution control hearings board when a general adjudication is being actively litigated. The legislature intends to fully preserve the role of the pollution control hearings board, except as specifically provided in this act." [2001 c 220 § 1.] 
     Construction -- 2001 c 220: "Nothing in this act shall be construed to affect or modify any treaty or other federal rights of an Indian tribe, or the rights of any federal agency or other person or entity arising under federal law. Nothing in this act is intended or shall be construed as affecting or modifying any existing right of a federally recognized Indian tribe to protect from impairment its federally reserved water rights in federal court." [2001 c 220 § 6.] 
     Effective date -- 2001 c 220: "This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect immediately [May 9, 2001]." [2001 c 220 § 7.] 
     Effective date -- 1998 c 262: See RCW 90.64.900. 
     Intent -- 1998 c 36: See RCW 15.54.265. 
     Short title -- 1998 c 36: See note following RCW 15.54.265. 
     Effective date -- 1993 c 387: See RCW 18.104.930. 
     Effective dates -- Severability -- 1992 c 73: See RCW 82.23B.902 and 90.56.905. 
     Effective date -- 1989 c 175: See note following RCW 34.05.010. 
     Purpose -- Short title -- Construction -- Rules -- Severability -- Captions -- 1987 c 109: See notes following RCW 43.21B.001. 
Order for compliance with oil spill contingency or prevention plan not subject to review by pollution control hearings board: RCW 90.56.270. 
     
43.21B.110
Pollution control hearings board jurisdiction. (Effective June 30, 2019.)

     *** CHANGE IN 2010 *** (SEE 6634-S.SL) ***

     *** CHANGE IN 2010 *** (SEE 2935-S.SL) ***

(1) The hearings board shall only have jurisdiction to hear and decide appeals from the following decisions of the department, the director, local conservation districts, and the air pollution control boards or authorities as established pursuant to chapter 70.94 RCW, or local health departments:

     (a) Civil penalties imposed pursuant to RCW 18.104.155, 70.94.431, 70.105.080, 70.107.050, 88.46.090, 90.03.600, 90.46.270, 90.48.144, 90.56.310, and 90.56.330.

     (b) Orders issued pursuant to RCW 18.104.043, 18.104.060, 43.27A.190, 70.94.211, 70.94.332, 70.105.095, 86.16.020, 88.46.070, 90.14.130, 90.46.250, 90.48.120, and 90.56.330.

     (c) Except as provided in RCW 90.03.210(2), the issuance, modification, or termination of any permit, certificate, or license by the department or any air authority in the exercise of its jurisdiction, including the issuance or termination of a waste disposal permit, the denial of an application for a waste disposal permit, the modification of the conditions or the terms of a waste disposal permit, or a decision to approve or deny an application for a solid waste permit exemption under RCW 70.95.300.

     (d) Decisions of local health departments regarding the grant or denial of solid waste permits pursuant to chapter 70.95 RCW.

     (e) Decisions of local health departments regarding the issuance and enforcement of permits to use or dispose of biosolids under RCW 70.95J.080.

     (f) Decisions of the department regarding waste-derived fertilizer or micronutrient fertilizer under RCW 15.54.820, and decisions of the department regarding waste-derived soil amendments under RCW 70.95.205.

     (g) Decisions of local conservation districts related to the denial of approval or denial of certification of a dairy nutrient management plan; conditions contained in a plan; application of any dairy nutrient management practices, standards, methods, and technologies to a particular dairy farm; and failure to adhere to the plan review and approval timelines in RCW 90.64.026.

     (h) Any other decision by the department or an air authority which pursuant to law must be decided as an adjudicative proceeding under chapter 34.05 RCW.

     (2) The following hearings shall not be conducted by the hearings board:

     (a) Hearings required by law to be conducted by the shorelines hearings board pursuant to chapter 90.58 RCW.

     (b) Hearings conducted by the department pursuant to RCW 70.94.332, 70.94.390, 70.94.395, 70.94.400, 70.94.405, 70.94.410, and 90.44.180.

     (c) Appeals of decisions by the department under RCW 90.03.110 and 90.44.220.

     (d) Hearings conducted by the department to adopt, modify, or repeal rules.

     (e) Appeals of decisions by the department as provided in chapter 43.21L RCW.

     (3) Review of rules and regulations adopted by the hearings board shall be subject to review in accordance with the provisions of the Administrative Procedure Act, chapter 34.05 RCW. 
[2009 c 456 § 16; 2009 c 332 § 18; 2003 c 393 § 19; 2001 c 220 § 2. Prior: 1998 c 262 § 18; 1998 c 156 § 8; 1998 c 36 § 22; 1993 c 387 § 22; prior: 1992 c 174 § 13; 1992 c 73 § 1; 1989 c 175 § 102; 1987 c 109 § 10; 1970 ex.s. c 62 § 41.]
Notes: 
     Reviser's note: This section was amended by 2009 c 332 § 18 and by 2009 c 456 § 16, each without reference to the other. Both amendments are incorporated in the publication of this section under RCW 1.12.025(2). For rule of construction, see RCW 1.12.025(1). 
     Application -- 2009 c 332: See note following RCW 90.03.110. 
     Implementation -- Effective date -- 2003 c 393: See RCW 43.21L.900 and 43.21L.901. 
     Intent -- 2001 c 220: "The legislature intends to assure that appeals of department of ecology decisions regarding changes or transfers of water rights that are the subject of an ongoing general adjudication of water rights are governed by an appeals process that is efficient and eliminates unnecessary duplication, while fully preserving the rights of all affected parties. The legislature intends to address only the judicial review process for certain decisions of the pollution control hearings board when a general adjudication is being actively litigated. The legislature intends to fully preserve the role of the pollution control hearings board, except as specifically provided in this act." [2001 c 220 § 1.] 
     Construction -- 2001 c 220: "Nothing in this act shall be construed to affect or modify any treaty or other federal rights of an Indian tribe, or the rights of any federal agency or other person or entity arising under federal law. Nothing in this act is intended or shall be construed as affecting or modifying any existing right of a federally recognized Indian tribe to protect from impairment its federally reserved water rights in federal court." [2001 c 220 § 6.] 
     Effective date -- 2001 c 220: "This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect immediately [May 9, 2001]." [2001 c 220 § 7.] 
     Effective date -- 1998 c 262: See RCW 90.64.900. 
     Intent -- 1998 c 36: See RCW 15.54.265. 
     Short title -- 1998 c 36: See note following RCW 15.54.265. 
     Effective date -- 1993 c 387: See RCW 18.104.930. 
     Effective dates -- Severability -- 1992 c 73: See RCW 82.23B.902 and 90.56.905. 
     Effective date -- 1989 c 175: See note following RCW 34.05.010. 
     Purpose -- Short title -- Construction -- Rules -- Severability -- Captions -- 1987 c 109: See notes following RCW 43.21B.001. 
Order for compliance with oil spill contingency or prevention plan not subject to review by pollution control hearings board: RCW 90.56.270. 



43.21B.130
Administrative procedure act to apply to appeal of board rules and regulations  --  Scope of board action on decisions and orders of others.
The administrative procedure act, chapter 34.05 RCW, shall apply to the appeal of rules and regulations adopted by the board to the same extent as it applied to the review of rules and regulations adopted by the directors and/or boards or commissions of the various departments whose powers, duties and functions were transferred by section 6, chapter 62, Laws of 1970 ex. sess. to the department. All other decisions and orders of the director and all decisions of air pollution control boards or authorities established pursuant to chapter 70.94 RCW shall be subject to review by the hearings board as provided in this chapter. 
[1990 c 65 § 3; 1970 ex.s. c 62 § 43.]



43.21B.160
Appeals  --  Generally.
In all appeals, the hearings board shall have all powers relating to administration of oaths, issuance of subpoenas, and taking of depositions as are granted to agencies in chapter 34.05 RCW, the Administrative Procedure Act. The hearings board, and each member thereof, shall be subject to all duties imposed upon, and shall have all powers granted to, an agency by those provisions of chapter 34.05 RCW relating to adjudicative proceedings. In the case of appeals within the jurisdiction of the hearings board, the hearings board, or any member thereof, may obtain such assistance, including the making of field investigations, from the staff of the director as the hearings board, or any member thereof, may deem necessary or appropriate. Any communication, oral or written, from the staff of the director to the hearings board shall be presented only in an open hearing. 
[1995 c 382 § 2; 1990 c 65 § 5; 1989 c 175 § 103; 1974 ex.s. c 69 § 3; 1970 ex.s. c 62 § 46.]
Notes: 
     Effective date -- 1989 c 175: See note following RCW 34.05.010. 



43.21B.170
Proceedings conducted in accordance with published board rules and regulations.
All proceedings before the hearings board or any of its members shall be conducted in accordance with such rules of practice and procedure as the hearings board may prescribe. The hearings board shall publish such rules and arrange for the reasonable distribution thereof. 
[1995 c 382 § 3; 1970 ex.s. c 62 § 47.]



43.21B.180
Judicial review  --  Director's right of review of decisions pursuant to RCW 43.21B.110.

     *** CHANGE IN 2010 *** (SEE 2935-S.SL) ***

Judicial review of a decision of the hearings board may be obtained only pursuant to RCW 34.05.510 through 34.05.598. The director shall have the same right of review from a decision made pursuant to RCW 43.21B.110 as does any person. 
[1994 c 253 § 6; 1989 c 175 § 104; 1970 ex.s. c 62 § 48.]
Notes: 
     Effective date -- 1989 c 175: See note following RCW 34.05.010. 



43.21B.190
Judicial review  --  Appeal from board's order.

     *** CHANGE IN 2010 *** (SEE 2935-S.SL) ***

After the final decision and order of the hearings board has been received by the parties, any party aggrieved by the decision and order of the hearings board may appeal to the superior court within thirty days from the date of receipt of the final decision and order. 
[2004 c 204 § 2; 1995 c 382 § 4; 1994 c 253 § 7; 1988 c 202 § 43; 1970 ex.s. c 62 § 49.]
Notes: 
     Severability -- 1988 c 202: See note following RCW 2.24.050. 



43.21B.230
Appeals of agency actions.

     *** CHANGE IN 2010 *** (SEE 2935-S.SL) ***

Consistent with RCW 43.21B.110, any person having received notice of denial of a petition, a notice of determination, or notice of an order made by the department may appeal to the hearings board, within thirty days from the date of receipt of the notice of such denial, order, or determination by the appealing party. The appeal shall be perfected by serving a copy of the notice of appeal upon the department or air pollution authority established pursuant to chapter 70.94 RCW, as the case may be, within the time specified herein and by filing the original thereof with proof of service with the clerk of the hearings board. 
[2004 c 204 § 3; 1997 c 125 § 2; 1994 c 253 § 8; 1990 c 65 § 6; 1970 ex.s. c 62 § 53.]



43.21B.240
Department  --  Air authorities  --  Adjudicative proceedings, may not conduct.
The department and air authorities shall not have authority to hold adjudicative proceedings pursuant to the Administrative Procedure Act, chapter 34.05 RCW. Such hearings shall be held by the pollution control hearings board. 
[1989 c 175 § 105; 1987 c 109 § 9; 1970 ex.s. c 62 § 54.]
Notes: 
     Effective date -- 1989 c 175: See note following RCW 34.05.010. 
     Purpose -- Short title -- Construction -- Rules -- Severability -- Captions -- 1987 c 109: See notes following RCW 43.21B.001. 



43.21B.250
Challenges to consistency of rules adopted pursuant to RCW 43.21C.110 and 43.21C.120  --  Procedure  --  Finality.
(1) All challenges in regard to the consistency of the rules adopted pursuant to RCW 43.21C.120 and with the rules and guidelines adopted pursuant to RCW 43.21C.110 shall be initiated by filing a petition for review with the pollution control hearings board in accordance with rules of practice and procedures promulgated by the hearings board.

     (2) All challenges to the hearings board provided under this section shall be decided on the basis of conformance of rules, with the applicable rules and guidelines adopted pursuant to RCW 43.21C.110. The board may in its discretion require briefs, testimony, and oral arguments.

     (3) The decisions of the hearings board authorized under this section shall be final. 
[1974 ex.s. c 179 § 9.]
Notes: 
     Purpose -- 1974 ex.s. c 179: See note following RCW 43.21C.080. 
     Severability -- 1974 ex.s. c 179: See RCW 43.21C.910. 



43.21B.260
Regulations and amendments of activated air pollution control authorities  --  Filing with hearings board authorized  --  Evidence.
Activated air pollution control authorities, established under chapter 70.94 RCW, may file certified copies of their regulations and amendments thereto with the pollution control hearings board of the state of Washington, and the hearings board shall take judicial note of the copies so filed and the said regulations and amendments shall be received and admitted, by reference, in all hearings before the board, as prima facie evidence that such regulations and amendments on file are in full force and effect. 
[1974 ex.s. c 69 § 5.]



43.21B.300
Penalty procedures.

     *** CHANGE IN 2010 *** (SEE 6634-S.SL) ***

     *** CHANGE IN 2010 *** (SEE 2935-S.SL) ***

(1) Any civil penalty provided in RCW 18.104.155, 70.94.431, 70.95.315, 70.105.080, 70.107.050, 88.46.090, 90.03.600, 90.46.270, 90.48.144, 90.56.310, and 90.56.330 and chapter 90.76 RCW shall be imposed by a notice in writing, either by certified mail with return receipt requested or by personal service, to the person incurring the penalty from the department or the local air authority, describing the violation with reasonable particularity. Within thirty days after the notice is received, the person incurring the penalty may apply in writing to the department or the authority for the remission or mitigation of the penalty. Upon receipt of the application, the department or authority may remit or mitigate the penalty upon whatever terms the department or the authority in its discretion deems proper. The department or the authority may ascertain the facts regarding all such applications in such reasonable manner and under such rules as it may deem proper and shall remit or mitigate the penalty only upon a demonstration of extraordinary circumstances such as the presence of information or factors not considered in setting the original penalty.

     (2) Any penalty imposed under this section may be appealed to the pollution control hearings board in accordance with this chapter if the appeal is filed with the hearings board and served on the department or authority thirty days after the date of receipt by the person penalized of the notice imposing the penalty or thirty days after the date of receipt of the notice of disposition of the application for relief from penalty.

     (3) A penalty shall become due and payable on the later of:

     (a) Thirty days after receipt of the notice imposing the penalty;

     (b) Thirty days after receipt of the notice of disposition on application for relief from penalty, if such an application is made; or

     (c) Thirty days after receipt of the notice of decision of the hearings board if the penalty is appealed.

     (4) If the amount of any penalty is not paid to the department within thirty days after it becomes due and payable, the attorney general, upon request of the department, shall bring an action in the name of the state of Washington in the superior court of Thurston county, or of any county in which the violator does business, to recover the penalty. If the amount of the penalty is not paid to the authority within thirty days after it becomes due and payable, the authority may bring an action to recover the penalty in the superior court of the county of the authority's main office or of any county in which the violator does business. In these actions, the procedures and rules of evidence shall be the same as in an ordinary civil action.

     (5) All penalties recovered shall be paid into the state treasury and credited to the general fund except those penalties imposed pursuant to RCW 18.104.155, which shall be credited to the reclamation account as provided in RCW 18.104.155(7), RCW 70.94.431, the disposition of which shall be governed by that provision, RCW 70.105.080, which shall be credited to the hazardous waste control and elimination account created by RCW 70.105.180, RCW 90.56.330, which shall be credited to the coastal protection fund created by RCW 90.48.390, and RCW 90.76.080, which shall be credited to the underground storage tank account created by RCW 90.76.100. 
[2009 c 456 § 17; 2009 c 178 § 2; 2007 c 147 § 9; 2004 c 204 § 4; 2001 c 36 § 2; 1993 c 387 § 23; 1992 c 73 § 2; 1987 c 109 § 5.]
Notes: 
     Reviser's note: This section was amended by 2009 c 178 § 2 and by 2009 c 456 § 17, each without reference to the other. Both amendments are incorporated in the publication of this section under RCW 1.12.025(2). For rule of construction, see RCW 1.12.025(1). 
     Effective date -- 1993 c 387: See RCW 18.104.930. 
     Effective dates -- Severability -- 1992 c 73: See RCW 82.23B.902 and 90.56.905. 
     Purpose -- Short title -- Construction -- Rules -- Severability -- Captions -- 1987 c 109: See notes following RCW 43.21B.001. 



43.21B.305
Appeals involving penalties of fifteen thousand dollars or less.
In an appeal that involves a penalty of fifteen thousand dollars or less, the appeal may be heard by one member of the board, whose decision shall be the final decision of the board. The board shall define by rule alternative procedures to expedite appeals involving penalties of fifteen thousand dollars or less. These alternatives may include: Mediation, upon agreement of all parties; submission of testimony by affidavit; or other forms that may lead to less formal and faster resolution of appeals. 
[2005 c 34 § 2; 1994 c 253 § 5.]



43.21B.310
Appeal of orders, permits, and licenses.

     *** CHANGE IN 2010 *** (SEE 2935-S.SL) ***

(1) Except as provided in RCW 90.03.210(2), any order issued by the department or local air authority pursuant to RCW 43.27A.190, 70.94.211, 70.94.332, 70.95.315, 70.105.095, 86.16.020, 88.46.070, 90.46.250, or 90.48.120(2) or any provision enacted after July 26, 1987, or any permit, certificate, or license issued by the department may be appealed to the pollution control hearings board if the appeal is filed with the board and served on the department or authority within thirty days after the date of receipt of the order. Except as provided under chapter 70.105D RCW and RCW 90.03.210(2), this is the exclusive means of appeal of such an order.

     (2) The department or the authority in its discretion may stay the effectiveness of an order during the pendency of such an appeal.

     (3) At any time during the pendency of an appeal of such an order to the board, the appellant may apply pursuant to RCW 43.21B.320 to the hearings board for a stay of the order or for the removal thereof.

     (4) Any appeal must contain the following in accordance with the rules of the hearings board:

     (a) The appellant's name and address;

     (b) The date and docket number of the order, permit, or license appealed;

     (c) A description of the substance of the order, permit, or license that is the subject of the appeal;

     (d) A clear, separate, and concise statement of every error alleged to have been committed;

     (e) A clear and concise statement of facts upon which the requester relies to sustain his or her statements of error; and

     (f) A statement setting forth the relief sought.

     (5) Upon failure to comply with any final order of the department, the attorney general, on request of the department, may bring an action in the superior court of the county where the violation occurred or the potential violation is about to occur to obtain such relief as necessary, including injunctive relief, to insure compliance with the order. The air authorities may bring similar actions to enforce their orders.

     (6) An appealable decision or order shall be identified as such and shall contain a conspicuous notice to the recipient that it may be appealed only by filing an appeal with the hearings board and serving it on the department within thirty days of the date of receipt. 
[2009 c 456 § 18; 2009 c 178 § 3; 2004 c 204 § 5. Prior: 2001 c 220 § 4; 2001 c 36 § 3; 1992 c 73 § 3; 1989 c 2 § 14 (Initiative Measure No. 97, approved November 8, 1988); (1987 3rd ex.s. c 2 § 49 repealed by 1989 c 2 § 24, effective March 1, 1989); 1987 c 109 § 6.]
Notes: 
     Reviser's note: This section was amended by 2009 c 178 § 3 and by 2009 c 456 § 18, each without reference to the other. Both amendments are incorporated in the publication of this section under RCW 1.12.025(2). For rule of construction, see RCW 1.12.025(1). 
     Intent -- Construction -- Effective date -- 2001 c 220: See notes following RCW 43.21B.110. 
     Effective dates -- Severability -- 1992 c 73: See RCW 82.23B.902 and 90.56.905. 
     Short title -- Construction -- Existing agreements -- Effective date -- Severability -- 1989 c 2: See RCW 70.105D.900 and 70.105D.910 through 70.105D.921, respectively. 
     Purpose -- Short title -- Construction -- Rules -- Severability -- Captions -- 1987 c 109: See notes following RCW 43.21B.001. 



43.21B.320
Stays of orders.

     *** CHANGE IN 2010 *** (SEE 2935-S.SL) ***

(1) A person appealing to the hearings board an order of the department or an authority, 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 appeal document, in a subsequent motion, or by such other means as the rules of the hearings board shall prescribe. The request must be accompanied by a statement of grounds for the stay and evidence setting forth the factual basis upon which request is based. The hearings board shall hear the request for a stay as soon as possible. The hearing on the request for stay may be consolidated with the hearing on the merits.

     (3) The applicant may make a prima facie case for stay if the applicant demonstrates either a likelihood of success on the merits of the appeal or irreparable harm. Upon such a showing, the hearings board shall grant the stay unless the department or authority demonstrates either (a) a substantial probability of success on the merits or (b) likelihood of success on the merits and an overriding public interest which justifies denial of the stay.

     (4) Unless otherwise stipulated by the parties, the hearings board, after granting or denying an application for a stay, shall expedite the hearing and decision on the merits.

     (5) Any party or other person aggrieved by the grant or denial of a stay by the hearings board may petition the superior court for Thurston county for review of that decision pursuant to chapter 34.05 RCW pending the appeal on the merits before the board. The superior court shall expedite its review of the decision of the hearings board. 
[1987 c 109 § 7.]
Notes: 
     Purpose -- Short title -- Construction -- Rules -- Severability -- Captions -- 1987 c 109: See notes following RCW 43.21B.001. 



43.21B.330
Summary procedures.
The hearings board shall develop procedures for summary procedures, consistent with the rules of civil procedure for superior court on summary judgment, to decide cases before it. Such procedures may include provisions for determinations without an oral hearing or hearing by telephonic means. 
[1987 c 109 § 8.]
Notes: 
     Purpose -- Short title -- Construction -- Rules -- Severability -- Captions -- 1987 c 109: See notes following RCW 43.21B.001. 



43.21B.900
Savings  --  Other powers and duties not affected  --  Permits, standards not affected  --  Severability  --  Effective date  --  1970 ex.s. c 62.
See notes following RCW 43.21A.010. 


