STATUTORY OR OTHER AUTHORITY: The Washington Utilities and Transportation Commission takes this action under Notice No. WSR 98-19-146, filed with the code reviser on September 22 [23], 1998. The commission brings this proceeding pursuant to RCW 34.05.220 and 80.01.040.

STATEMENT OF COMPLIANCE: This proceeding complies with the Open Public Meetings Act (chapter 42.30 RCW), the Administrative Procedure Act (chapter 34.05 RCW), the State Register Act (chapter 34.08 RCW), the State Environmental Policy Act of 1971 (chapter 34.21 RCW), and the Regulatory Fairness Act (chapter 19.85 RCW).

DATE OF ADOPTION: The commission adopted this rule on November 16, 1998.

CONCISE STATEMENT OF PURPOSE AND EFFECT OF THE RULE: The proposal revises many of the sections of the commission's procedural rules to render them easier to understand and to update the rules' requirements.

REFERENCE TO AFFECTED RULES: This rule repeals, amends, or suspends the following sections of the Washington Administrative Code:

WAC 480-09-830 is repealed; new sections WAC 480-09-005 and 480-09-101 are adopted, and existing sections WAC 480-09-010, 480-09-012, 480-09-100, 480-09-115, 480-09-120, 480-09-125, 480-09-135, 480-09-140, 480-09-150, 480-09-200, 480-09-210, 480-09-220, 480-09-230, 480-09-340, 480-09-390, 480-09-400, 480-09-410, 480-09-420, 480-09-425, 480-09-426, 480-09-430, 480-09-440, 480-09-460, 480-09-465, 480-09-466, 480-09-467, 480-09-475, 480-09-500, 480-09-510, 480-09-600, 480-09-610, 480-09-620, 480-09-700, 480-09-705, 480-09-710, 480-09-720, 480-09-730, 480-09-735, 480-09-736, 480-09-740, 480-09-745, 480-09-750, 480-09-751, 480-09-760, 480-09-770, 480-09-780, 480-09-800, 480-09-810, 480-09-815, and 480-09-820 are amended and adopted.

PREPROPOSAL STATEMENT OF INQUIRY AND ACTIONS THEREUNDER: The commission filed a Preproposal Statement of Inquiry (CR-101) on August 14, 1997, at WSR 97-17-047.

ADDITIONAL NOTICE AND ACTIVITY PURSUANT TO PREPROPOSAL STATEMENT: The statement advised interested persons that the commission was considering entering a rule making to revise and update the commission's procedural rules. The commission also informed persons of the inquiry into this matter by providing notice of the subject and the CR-101 to all persons on the commission's list of persons requesting such information pursuant to RCW 34.05.320(3) and by sending notice to all persons who have requested to receive information about commission rule makings. Pursuant to the notice, the commission did engage in one workshop meeting and received comments on the topic. Staff produced and circulated draft revisions to persons who commented before the commission filed the notice of Proposed Rule Making (CR-102).

NOTICE OF PROPOSED RULE MAKING: The commission filed a notice of Proposed Rule Making (CR-102) on September 23, 1998, at WSR 98-19-146. The commission scheduled this matter for oral comment and adoption under Notice No. WSR 98-19-146 at 9:00 a.m., Wednesday, November 16, 1998, in the Commission's Hearing Room, Second Floor, Chandler Plaza Building, 1300 South Evergreen Park Drive S.W., Olympia, WA. The notice provided interested persons the opportunity to submit written comments to the commission.

MEETINGS OR WORKSHOPS; ORAL COMMENTS: No workshops were held in light of the broad circulation of the proposal and the lack of objections to it.

COMMENTERS (WRITTEN COMMENTS): The commission received written comments from Northwest Industrial Gas Users (NWIGU) and GTE.

RULE-MAKING HEARING: The rule proposal was considered for adoption, pursuant to the notice, at the adoption hearing on November 16, 1998, before Chair Anne Levinson, Commissioner Richard Hemstad, and Commissioner William R. Gillis. The record was opened at 9:30 a.m. before Administrative Law Judge C. Robert Wallis; no persons were present to comment on the proposal and it was continued on the record for further hearing at the same location at 1:30 p.m. or as soon thereafter as it could be heard. It was reopened at the later time before the commissioners. The commission heard oral comments from C. Robert Wallis, representing commission staff. No other interested person made oral comments.

SUGGESTIONS FOR CHANGE THAT ARE REJECTED: GTE suggested that the commission approve electronic filing. Several issues remain to be resolved before electronic filing may be accomplished; the rules do expand parties' options and expand the ease of filing and the use of electronic media and delivery for formal and informal purposes.

COMMISSION ACTION: After considering all of the information regarding this proposal, the commission repealed and adopted the proposed new and amended rules with the changes noted below.

CHANGES FROM PROPOSAL: The commission adopted the proposal with the following changes from the text noticed at WSR 98-17-146. Several typographical corrections are made. In addition, consistent with suggestions from NWIGU and Public Counsel, a proposal in WAC 480-09-430(a) that would have deleted the statement that late interventions may be allowed on a showing of cause is rescinded to avoid any impression that late interventions might never be allowed.

STATEMENT OF ACTION; STATEMENT OF EFFECTIVE DATE: In reviewing the entire record, the commission determines that the WAC sections identified in the appendix to this order should be repealed, amended, and adopted respectively, to read as set forth in Appendix A, as rules of the Washington Utilities and Transportation Commission, to take effect pursuant to RCW 34.05.380(2) on the thirty-first day after filing with the code reviser.

Number of Sections Adopted in Order to Comply with Federal Statute: New 0, amended 0, repealed 0; Federal Rules or Standards: New 0, amended 0, repealed 0; or Recently Enacted State Statutes: New 0, amended 0, repealed 0.

Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, amended 0, repealed 0.

Number of Sections Adopted on the Agency's own Initiative: New 0, amended 0, repealed 0.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, amended 0, repealed 0.

Number of Sections Adopted using Negotiated Rule Making: New 0, amended 0, repealed 0; Pilot Rule Making: New 0, amended 0, repealed 0; or Other Alternative Rule Making: New 0, amended 0, repealed 0.

1. WAC 480-09-830 is repealed; WAC 480-09-005 and 480-09-101 are adopted, and WAC 480-09-010, 480-09-012, 480-09-100, 480-09-115, 480-09-120, 480-09-125, 480-09-135, 480-09-140, 480-09-150, 480-09-200, 480-09-210, 480-09-220, 480-09-230, 480-09-340, 480-09-390, 480-09-400, 480-09-410, 480-09-420, 480-09-425, 480-09-426, 480-09-430, 480-09-440, 480-09-460, 480-09-465, 480-09-466, 480-09-467, 480-09-475, 480-09-500, 480-09-510, 480-09-600, 480-09-610, 480-09-620, 480-09-700, 480-09-705, 480-09-710, 480-09-720, 480-09-730, 480-09-735, 480-09-736, 480-09-740, 480-09-745, 480-09-750, 480-09-751, 480-09-760, 480-09-770, 480-09-780, 480-09-800, 480-09-810, 480-09-815, and 480-09-820 are amended and adopted to read as set forth in Appendix A, as rules of the Washington Utilities and Transportation Commission, to take effect on the thirty-first day after the date of filing with the code reviser pursuant to RCW 34.05.380(2).

2. This order and the rules set out below, after being recorded in the register of the Washington Utilities and Transportation Commission, shall be forwarded to the code reviser for filing pursuant to chapters 80.01 and 34.05 RCW and chapter 1-21 WAC.

3. The commission adopts the commission staff memoranda, presented when the commission considered filing a Preproposal Statement of Inquiry, when it considered filing the formal notice of Proposed Rule Making, and when it considered adoption of this proposal, in conjunction with the text of this order, as its concise explanatory statement of the reasons for adoption and for rejection of proposed changes, as required by RCW 34.05.025.

DATED at Olympia, Washington, this 6th day of February 1999.

Washington Utilities and Transportation Commission

Anne Levinson, Chair

Richard Hemstad, Commissioner

William R. Gillis, Commissioner

OTS-2414.4

NEW SECTION
WAC 480-09-005
Scope of this chapter--How to communicate with the commission.

This chapter explains how to present written communications to the Washington utilities and transportation commission (called "the commission" in this chapter) and how various proceedings are conducted at the commission. Topics covered include how these rules operate; where and how to send letters to assure that they reach a person who can deal with them; requirements for submitting formal written documents such as pleadings; and rules that guide various proceedings.

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(1) General ((rules.  These rules of practice and procedure are for general)) application. This chapter applies generally to most dealings with and proceedings before the commission.

(2) Special rules.  When rules in other chapters apply to certain classes of public service companies or to particular proceedings, those special rules ((shall)) govern ((in the event of)) if they conflict with ((the)) these general rules.

(3) Modifications and exceptions.  ((These rules are subject to such exceptions as may be just and reasonable in individual cases as determined by)) The commission may make exceptions to these rules in individual cases when doing so is just and reasonable.

[Statutory Authority: RCW 80.01.040.  89-21-036 (Order R-310, Docket No. U-89-2966-R), § 480-09-010, filed 10/12/89, effective 11/12/89.]

Any document that is incorporated by reference in a commission rule or order is available for public inspection at the Washington utilities and transportation commission branch of the Washington state library, ((housed with)). The branch library is located in commission's headquarters office.  The commission secretary will provide a copy of a referenced document upon request, allowing reasonable time for any necessary copying, subject to any pertinent charge and subject to copyright restrictions. The commission incorporates or references the version of the incorporated or referenced material that is current on the day the commission adopts a rule or enters an order that makes the incorporation or reference, unless the commission specifies another version or unless another version is apparent from the reference.

[Statutory Authority: RCW 80.01.040.  93-24-103 (Order R-400, Docket No. A-930517), § 480-09-012, filed 12/1/93, effective 1/1/94.]

Reviser's note: The typographical error in the above section occurred in the copy filed by the agency and appears in the Register pursuant to the requirements of RCW 34.08.040.
AMENDATORY SECTION(Amending Order R-368, Docket No. A-910530, filed 3/5/92, effective 4/5/92)

WAC 480-09-100
((Commission address--)) Sending communications to the commission.

(((1) Address.  Except as provided in chapter 480-04 WAC, all written communications and documents should be addressed to: Office of the Secretary, Washington Utilities & Transportation Commission, 1300 S Evergreen Park Dr SW, PO Box 47250, Olympia WA 98504-7250, and not to individual members of the commission staff.

(2) Receipt of communications.  Except as provided in chapter 480-04 WAC, all communications and documents are deemed to be officially received only when delivered at the office of the secretary and stamped with the date and time.  Documents and communications physically received in the commission offices between 5:00 p.m. of one business day and the start of the next business day are not considered officially received until the next business day when stamped with the date and time.

(3) Identification; one subject in a letter.  Letters to the Washington utilities and transportation commission (referred to in these rules as the "commission") should include only one subject.

(a) Each item of pleading or correspondence which relates to a proceeding before the commission shall set forth at the top of the first page the docket number and name of the proceeding, if known to the writer, the title of the pleading, and the identity of the person who submits it.

(b) Communications to the commission from the holder of any permit, license, or certificate shall identify the exact name and the number under which the authority is held and the name and title of the writer.

(4) Communications from the commission.  Official communications from the commission, other than orders, shall be signed by the commissioners, secretary of the commission, or the secretary's designee.)) This section governs communications to the commission except requests for public records, which are governed by chapter 480-04 WAC.

(1) Limitation of content. Letters and electronic mail messages to the Washington utilities and transportation commission ("commission") must include only one subject, to assure that the message is properly handled.

(2) Required identification of sender, proceeding, and document.

(a) Identification of sender. All communications must identify the name and title or position of the sender, the name of the entity on whose behalf the communication is sent, and a return address. Any letter or other communication that the holder of any commission-issued permit, license, or certificate sends to the commission must also identify the exact name and the number (if any) under which the authority is held.

(b) Identification of proceeding. Any letter, pleading, or other communication to the commission that relates to a commission proceeding must identify the proceeding to the best of the writer's ability, at the top of the first page. The identification must include the docket number and name of the proceeding, if known to the writer, the name and position of the party for whom it is submitted.

(c) Identification of communication. Any communication that relates to a commission proceeding must identify the name of the communication (e.g., comment; motion; answer) at the top of the first page.

(3) How to address communications. All communications relating to formal proceedings must be addressed to the commission secretary. Formal communications should not be addressed to individual members of the commission staff because such documents may escape the filing and recordkeeping necessary to document control.

(a) All written communications to the commission must be addressed to: The Secretary, Washington Utilities & Transportation Commission, 1300 S. Evergreen Park Dr SW, PO Box 47250, Olympia, WA 98504-7250. The commission records center will see that the correspondence promptly reaches a person who is able to deal with it.

(b) Electronic transmissions--E-Mail and Telefacsimile transmissions.

(i) When electronic transmission may be used. Electronic mail and telefacsimile messages may be used to submit correspondence or documents for filing as specified in WAC 480-09-120, for informal communication with commission staff members, and for providing courtesy copies to staff. Electronic transmission is not acceptable for formal correspondence or documents to be filed. The commission may make exceptions to this requirement in individual cases and may impose conditions on the use of electronic transmission.

(ii) Where to send electronic submissions. All electronic mail should be addressed to records@wutc.wa.gov. All telefacsimile transmissions should be sent to (360) 586-1150 or another number designated by the commission secretary. Courtesy or informational copies may be sent to other commission telefax machines or other electronic mail addresses for individual commission staff members.

(4) Updated addresses. The addresses listed in this chapter are current at the time of rule adoption. The commission will provide current information at any time on request.

[Statutory Authority: RCW 80.01.040.  92-07-006 (Order R-368, Docket No. A-910530), § 480-09-100, filed 3/5/92, effective 4/5/92.  Statutory Authority: RCW 80.01.040 and 34.05.220.  91-06-010 (Order R-336, Docket No. A-900700), § 480-09-100, filed 2/22/91, effective 3/25/91.  Statutory Authority: RCW 80.01.040.  89-21-036 (Order R-310, Docket No. U-89-2966-R), § 480-09-100, filed 10/12/89, effective 11/12/89.]

(1) When documents are officially received. All communications and other submitted materials are officially received only when physically received in the commission records center and stamped with the date and time. Documents and communications that are received in the commission records center after 5:00 p.m. of one business day and before the start of the next business day are not considered officially received until the next business day when they are stamped with the date and time. Documents that are submitted by telefacsimile or electronic mail are officially received only when a paper copy is stamped with the date and time. The date-stamped time will determine whether a document meets any deadline that applies and will determine the timing of any later deadlines based on filing.

(a) During a meeting or hearing, the presiding officer may accept documents relating to the subject of the meeting or hearing.

(b) Requests for public records are governed in chapter 480-04 WAC.

(2) Communications from the commission. Official communications from the commission must be signed by the commissioners, the secretary of the commission, or the secretary's designee. Communications relating to an adjudication may be signed by the presiding administrative law judge or the administrative law judge's designee.

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(1) Meetings.  ((Regular meetings of)) The commission ((for the conduct of business pursuant to chapter 42.30 RCW, the Open Public Meetings Act, shall be held beginning at 9:00 a.m., Wednesdays, except the first and third)) will hold regular meetings for the conduct of business under chapter 42.30 RCW, the Open Public Meetings Act. The meetings will begin at 9:30 a.m., on the second, fourth and fifth Wednesday of each month ((and state holidays,)) in the commission's administrative offices, 1300 S. Evergreen Park Drive SW, Olympia, Washington.  If the regular meeting day is a state holiday, the regular meeting ((shall)) will be held on the next business day or on an alternate schedule published in the Washington State Register.  Regular meetings may be cancelled, and special meetings may be convened ((from time to time pursuant to the provisions of)), under RCW 42.30.080. The commission may change the time and place of regular meetings from the information set out in this section. The current time and place are published, as required, in the Washington State Register; on the commission's Internet web site, and are available through telephone inquiry.

(2) Agenda((, orders)).  The commission secretary ((shall)) will direct the preparation and distribution of an agenda for each meeting.  When feasible, the secretary ((shall)) will identify each item scheduled for discussion and action, as relating principally to utility regulation under Title 80 RCW; as relating principally to transportation regulation under Title 81 RCW; or "other."((; and)) The secretary shall group similarly identified items together on the agenda.  ((When an order is necessary to implement the commission's decision as to any agenda item, the secretary may enter the order when directed to do so by the commission.))

(3) "No action" agenda.  Any request, proposal, or other filing which((, pursuant to statute,)) will take effect without commission action, may be placed on a "no action required" portion of the agenda.  Any item on this portion of the agenda will be discussed upon the request of any commissioner, and the commission may take such action on the item as the commission desires.

(4) "Consent" agenda.  ((Any item which the secretary deems to be noncontroversial and of relatively slight public concern)) The secretary may ((be placed)) place any item which the secretary believes to be noncontroversial on a "consent agenda" portion of the open meeting agenda.  The commission will ask at the meeting if any person wants to address any consent agenda item and an item ((shall)) will be removed from the consent agenda for individual discussion and action at the request of any commissioner.  Items on the consent agenda may be collectively moved for approval by a single motion ((any)) and may be collectively approved by a single vote of the commission.  ((When directed to do so by the commission, the secretary shall enter an individual order implementing the commission's decision as to each consent agenda item.))

(5) Orders. The secretary may enter any order or sign any document necessary to implement an open meeting decision of the commissioners, when the commission so directs.

(6) Modifications.  The commission may modify the procedures set forth in this section when it deems the modification appropriate.

[Statutory Authority: RCW 80.01.040.  93-23-050 (Order R-402, Docket No. A-931053), § 480-09-115, filed 11/12/93, effective 1/1/94.  Statutory Authority: RCW 80.01.040, 80.04.160, 81.04.160 and chapter 34.05 RCW.  91-22-034 (Order R-351, Docket No. A-910835), § 480-09-115, filed 10/30/91, effective 11/30/91.]

(1) When filing is complete.  Filing of any document is complete only ((upon receipt by the secretary or,)) when the document and the required number of copies are received by the commission records center, printed (if printing is necessary to produce a paper copy) and stamped with the date and time. When authorized by the presiding officer of a proceeding before the commission, ((upon receipt by)) filing of a document for purposes of the proceeding is complete when the presiding officer receives the document.

(a) ((Except as provided in this rule, receipt)) When telefacsimile filing is allowed. Receipt in the commission's telefax machine, or similar device, does not constitute filing except as otherwise allowed in this rule.  The following documents may be filed by telefacsimile device when the filing party, except as specifically noted, sends a hard copy ((is sent by mail,)) postmarked on the day of filing, ((and)) which is received in the normal course of commerce((, except as specifically noted:)).

(i) Tariff filings, when a hard copy is filed the next business day, as provided in WAC 480-80-070;

(ii) Form E proof of insurance, when a hard copy is filed within ten days;

(iii) Tariff filings by solid waste companies, auto transportation companies, steamboat companies and motor carriers; ((and))

(iv) Proposals to amend commission tariffs, as provided in WAC 480-12-295; and

(v) Other documents, when the commission specifically allows or requires filing by telefacsimile in individual instances, when required for timely consideration or for the commission's convenience. The commission may charge for making copies for internal distribution under WAC 480-09-125.

(b) Number of copies. Unless ((in a particular case)) the commission specifies a different number of copies, every original pleading submitted to the commission shall be filed with ((three copies for transportation matters and)) nineteen copies ((for all other matters)).  Parties who file an electronic copy of a pleading may file an original plus six paper copies. The electronic copy must comply with (b)(ii) of this subsection. When a person files a document by telefacsimile, the document should not be sent more than once except to cure transmission or receiving errors. Documents may be submitted single sided or double sided.

(i) The number of required copies is established to meet average commission need.  Parties to a proceeding ((may in writing)) should ask the commission ((secretary)) records center or the presiding officer whether fewer ((are)) copies may be required in a given case.  ((Parties to whom)) If the required number of copies would be a hardship, a party may describe the hardship and request exemption from the stated number of copies((, describing the nature of the hardship)).

(ii) The commission encourages parties submitting prefiled testimony and exhibits, briefs, and ((other)) pleadings to submit the document in electronic form, with the agreed number of hard copies.  In some instances electronic submissions are required, and in some instances electronic submissions will substitute for hard copies.  Unless ((other arrangements are made, text files may be submitted in a format compatible with WordPerfect 5.1 or in ASCII format and data may be submitted in a format compatible with Lotus 123)) the commission directs otherwise, electronic submissions are to be provided on a 3 1/2 inch IBM formatted high-density disk, in WordPerfect version 5.1, 6.0, or 6.1, labeled with the docket number of the proceeding, the name of the company and/or individual submitting the document, and type of software used.

(c) Filing and service are different. Filing a document with the commission does not constitute service upon the office of the attorney general or any other party.  Likewise, service on the office of the attorney general does not constitute a filing with the commission.

(d) ((The filing of)) Certificate of service. Filing a pleading with the commission is not complete unless service has been made upon all parties to a proceeding, evidenced by a valid certificate of service or its equivalent as provided in subsection (2)(f) of this rule.

(e) The commission encourages each party to provide courtesy copies of documents that it files in rulemakings and adjudications to presiding officers and other staff persons by electronic mail. Providing such copies does not relieve a party of the obligation to otherwise file or serve documents.

(2) Service.

(a) Except as otherwise provided, when any party has appeared by an attorney or other authorized representative in a proceeding before the commission, service of documents required to be served ((shall)) must be made upon the representative.  Service upon the representative is valid service upon the party.

(b) Service by parties.  ((Service by parties shall be made)) Parties must serve documents by delivering one copy to each other party by one of the following methods: In person; by mailing, properly addressed with first class postage prepaid; by commercial parcel delivery company properly tendered with fees prepaid, or by telefacsimile transmission, ((where)) when originals are mailed simultaneously.  Service by mail ((shall be)) is complete when a ((true)) copy of the document is properly addressed and stamped and deposited in the United States mail.  Service by commercial parcel delivery company ((shall be)) is complete when accepted for delivery by the company.

(c) Service by commission.  All notices, complaints, petitions, findings of fact, opinions, and orders required to be served by the commission may be served in person((,)); by mail((,)); by commercial parcel delivery company, properly tendered with fees prepaid((,)); or by telefacsimile transmission, when originals are mailed simultaneously.  Service ((thereof shall be)) is complete when a ((true)) copy of the document, properly addressed and stamped, is deposited in the United States mail with first class postage affixed, or accepted for delivery by the parcel delivery company.

(d) Electronic mail. A party may consent to receive service by electronic mail. The consent, which waives the party's right to other forms of service, must be in writing and filed with the commission in the docket for which consent is given.

(e) The risk of failure of service by electronic means falls upon the person choosing that form of service.

(f) Certificate of service.  ((There shall appear)) Each person filing a pleading with the commission must include on the original of ((every)) the pleading ((when filed with the commission in accordance with)) under this subsection (2) of this section((,)) either an acknowledgment of service((,)) or the following certificate:

[Statutory Authority: RCW 80.01.040.  93-24-103 (Order R-400, Docket No. A-930517), § 480-09-120, filed 12/1/93, effective 1/1/94.  Statutory Authority: RCW 80.01.040, 80.04.160, 81.04.160 and chapter 34.05 RCW.  91-22-034 (Order R-351, Docket No. A-910835), § 480-09-120, filed 10/30/91, effective 11/30/91.  Statutory Authority: RCW 80.01.040 and 34.05.220.  91-06-010 (Order R-336, Docket No. A-900700), § 480-09-120, filed 2/22/91, effective 3/25/91.  Statutory Authority: RCW 80.01.040.  89-21-036 (Order R-310, Docket No. U-89-2966-R), § 480-09-120, filed 10/12/89, effective 11/12/89.]

(1) ((When)) If a person files fewer than the required number of copies of a document, the commission may reject the filing.  If needed for administrative convenience, the commission will make the additional copies for distribution and processing within the commission.  "Administrative convenience" means that not having access to the documents would ((prejudice)) hamper the commission in fulfilling its duties.

(2) ((When)) If the commission makes copies to meet the total number required, the commission will bill the filing person at a rate of thirty cents per page, plus current sales tax.  This rate compensates for the loss of the worker's attention to assigned duties, the unscheduled use of equipment, and the fully allocated cost of materials.

(3) The commission may assess a penalty against any person who, within twelve months, again fails to file the required number of copies of any document.

[Statutory Authority: RCW 80.01.040.  91-07-026 (Order R-339, Docket No. A-900425), § 480-09-125, filed 3/14/91, effective 4/14/91.]

The time for doing an act governed by this chapter shall be computed by excluding the first day and including the last, unless the last day is a holiday, Saturday, or Sunday, and then ((it)) the last day is excluded from the computation.

[Statutory Authority: RCW 80.01.040.  89-21-036 (Order R-310, Docket No. U-89-2966-R), § 480-09-130, filed 10/12/89, effective 11/12/89.]

(1) Time set by chapter 34.05 RCW. The commission in individual instances may lengthen or shorten the time stated in chapter 34.05 RCW for action ((may be lengthened or shortened by the commission in its discretion in individual instances pursuant to)) in its discretion, under RCW 34.05.080.

(2) Time set by the commission rule. The commission may lengthen or shorten the time stated in these rules for action ((may be lengthened or shortened by the commission)) in its discretion.

[Statutory Authority: RCW 80.01.040.  89-21-036 (Order R-310, Docket No. U-89-2966-R), § 480-09-135, filed 10/12/89, effective 11/12/89.]

(1) General.  After ((the commencement of)) an adjudicative proceeding begins and ((prior to)) before a final determination ((therein)), no party to the proceeding, or ((its)) counsel for a party or other person on behalf of a party, shall discuss the merits of the proceeding with the commissioners, the presiding officer or the commissioners' staff assistants assigned to advise the commissioners in the decisional process in that proceeding, unless reasonable notice is given to all parties ((who have appeared therein, to enable them to be present at)) to the proceeding, so that they may attend the conference.  When a party initiates correspondence with a presiding or reviewing officer regarding any pending proceeding, the party shall serve a copy of the correspondence upon all parties of record and furnish proof of ((such)) that service to the commission.

(2) Communications necessary to procedural aspects of maintaining an orderly process, such as scheduling, are not ex parte communications prohibited by RCW 34.05.455 or by this rule.

(3) The commission may prescribe appropriate sanctions, including default, for any violation of RCW 34.05.455 or this section.

[Statutory Authority: RCW 80.01.040.  92-18-081 (Order R-376, Docket No. 920379), § 480-09-140, filed 9/1/92, effective 10/2/92; 89-21-036 (Order R-310, Docket No. U-89-2966-R), § 480-09-140, filed 10/12/89, effective 11/12/89.]

(1) ((Informal complaints may be made by letter or other communication.  Informal)) (a) How to make an informal complaint. Persons may make informal complaints to the commission about any business that the commission regulates by letter, sent by mail, telefax, or electronic mail, or by telephone. See WAC 480-09-100 and 480-09-101 for general information about addressing correspondence. Persons may also register an informal complaint by telephone with a commission service examiner.

(b) Commission response; result. Commission staff may discuss the subjects of informal complaints ((may be taken up by the commission)) with the affected persons, by correspondence or otherwise, to ((bring about a resolution of)) assist the parties to resolve the complaint by agreement without formal hearing or order.  The commission encourages the informal settlement of disputes whenever possible.  (See WAC 480-09-465.) An informal complaint may not result in an order that compels a person to do something or forbids a person from doing something.

(2) Contents.  An informal complaint should ((contain)) present all facts ((essential to a disposition of)) needed to resolve the complaint, including a description, with all relevant dates, of the ((dates of)) acts or omissions ((complained against)) that led to the complaint.  The complaint should cite to all relevant statutes or rules ((should be cited)) if ((known to)) the writer knows them.

(3) ((No mandatory or prohibitory order may result from an informal complaint.  Matters instituted by)) Making an informal complaint ((shall be without prejudice to the right of)) does not prevent any party, or the commission ((to file and prosecute)), from filing a formal complaint with the commission. See WAC 480-09-420 and 480-09-425.

[Statutory Authority: RCW 80.01.040.  89-21-036 (Order R-310, Docket No. U-89-2966-R), § 480-09-150, filed 10/12/89, effective 11/12/89.]

(1) General.  Upon the petition of any interested person ((subject to its jurisdiction)), or upon its own motion, the commission may((, when it appears to be in the public interest,)) make and issue interpretive and policy statements when necessary to ((terminate)) end a controversy or to remove a substantial uncertainty ((as to)) about the application of statutes or rules of the commission.

(2) The commission ((shall)) will maintain a roster of interested persons, consisting of persons who have requested in writing to be notified of all interpretive and policy statements issued by the commission.  The ((roster shall be updated once each year)) commission will update the roster periodically.  ((Whenever)) When the commission issues an interpretive or policy statement, it ((shall)) will send a copy of the statement to each person ((listed)) on the roster.

(3) The commission ((shall)) will maintain a file and an index of all currently effective interpretive and policy statements.  The statements ((shall be)) are available for inspection and copying at the records center in the commission's Olympia headquarters office.

[Statutory Authority: RCW 80.01.040.  89-21-036 (Order R-310, Docket No. U-89-2966-R), § 480-09-200, filed 10/12/89, effective 11/12/89.]

(1) ((In any proposed rule making, the commission may solicit comments from the public on the subject of possible rule making under active consideration within the agency by causing notice to be published in the state register of the subject matter and indicating where, when, and how persons may comment.)) The commission will conduct rule-making proceedings in compliance with the requirements of RCW 34.05.310 through 34.05.395.

(2) ((At least twenty days before the rule-making hearing at which the agency receives public comment regarding adoption of a rule, the agency shall cause notice of the hearing to be published in the State Register. The publication shall contain information as provided in RCW 34.05.320 and shall constitute the proposal of a rule.  The commission shall submit a small business economic impact statement for publication in the State Register when required to do so by chapter 19.85 RCW, the Regulatory Fairness Act.

(3) Within a reasonable time after the publication of the notice of a proposed rule in the State Register, any person may request a copy of the notice by writing to the secretary of the commission.

(4) Petitions for adoption, amendment, or repeal of a rule shall be made pursuant to WAC 480-09-220.

(5) Upon filing notice of a proposed rule with the code reviser, the commission shall have copies of the proposal on file and available for public inspection.  The commission will mail a copy to each industry association or trade group, whose members may be affected, that has asked to receive such notices.

(6))) The commission maintains a list of persons interested in potential rule-making proceedings. The list is subdivided by regulated industries and other areas of potential interest. The commission sends notice of rule-making proceedings to persons on the list. Any person may be listed by asking in writing that the commission put the person on the relevant list or lists for the person's area of interest. The commission may by order establish a fee for this service.

(3) Inquiries regarding rules being proposed or being prepared within the commission for proposal may be made to Office of the Secretary, Rules Coordinator((, Washington Utilities & Transportation Commission, 1300 S Evergreen Park Dr SW, PO Box 47250, Olympia WA 98504-7250)) at the address listed in WAC 480-09-100.

(((7) Persons may receive notice of proposed rule makings for all commission rules, or for those affecting specific industries, by sending a request in writing to the rules coordinator.  The commission may establish a fee for this service based on the estimated actual cost of providing the service.  It may decline to establish a fee for specific groupings, and it may group industries together, for efficiency or administrative convenience.))

[Statutory Authority: RCW 80.01.040.  93-24-103 (Order R-400, Docket No. A-930517), § 480-09-210, filed 12/1/93, effective 1/1/94; 92-18-081 (Order R-376, Docket No. 920379), § 480-09-210, filed 9/1/92, effective 10/2/92; 92-07-006 (Order R-368, Docket No. A-910530), § 480-09-210, filed 3/5/92, effective 4/5/92; 89-21-036 (Order R-310, Docket No. U-89-2966-R), § 480-09-210, filed 10/12/89, effective 11/12/89.]

(1) Any interested person may petition the commission requesting the promulgation, amendment, or repeal of any rule.

(2) ((When the petition requests the promulgation of a rule, the requested or proposed rule must be set out in full.  The petition must also include all the reasons for the requested rule.  When the petition requests the amendment or repeal of a rule presently in effect, the rule or portion of the rule in question must be set out as well as a suggested amended form, if any.  The petition must include all reasons for the requested amendment or repeal of the rule.  Any petition for promulgation, amendment, or repeal of a rule shall be accompanied by briefs of any applicable law, and shall contain an assessment of economic values affected by the proposed promulgation, amendment, or repeal.

(3) All petitions shall be considered by the commission which may, in its discretion, order a hearing for the further consideration and discussion of the requested promulgation, amendment, repeal, or modification of any rule.

(4) Within sixty days after submission of a petition, the commission shall:

(a) Deny the petition in writing, stating its reasons for the denial, and serve a copy of the denial upon the petitioner; or

(b) Initiate rule-making proceedings in accordance with chapter 34.05 RCW.

(5) In rule-making proceedings initiated by interested persons on petition, as well as by the commission on its own motion, the commission will include in its order determining the proceedings its assessment of economic values affected by the rule making involved.  In addition, the notice of intention to effect any rule making will contain a solicitation of data, views, and arguments from interested persons on the economic values which may be affected by such rule making)) Petitions for new rules or for the amendment or repeal of existing rules are governed by RCW 34.05.330 and chapter 82-05 WAC.

(3) The commission will provide on request a copy of chapter 82-05 WAC and the form for petitioning for adoption, amendment, or repeal of a state administrative rule.

[Statutory Authority: RCW 80.01.040.  93-24-103 (Order R-400, Docket No. A-930517), § 480-09-220, filed 12/1/93, effective 1/1/94; 89-21-036 (Order R-310, Docket No. U-89-2966-R), § 480-09-220, filed 10/12/89, effective 11/12/89.]

As prescribed by RCW 34.05.240, any interested person may petition the commission for a declaratory order.  The commission ((shall)) will consider the petition ((and within fifteen days after its receipt give notice of the petition to all persons to whom notice is required by law and to any other person it deems desirable)).  Within ((thirty)) fifteen days ((of receipt of a)) after receiving the petition ((for declaratory order)), the commission ((shall)) will give notice of the petition to all persons required by law and to any other person the commission deems desirable. Within thirty days of receipt of a petition for declaratory order, the commission will:

(1) Enter a declaratory order; or

(2) Notify the petitioner that no declaratory order is to be entered and state reasons for the action; or

(3) Set a specified time, no later than ninety days after the day the petition was filed, by which the commission will enter a declaratory order; or

(4) Set a reasonable time and place for a hearing ((to be held no more than ninety days after receipt of the petition or call for the submission of a statement of fact upon the matter)).  If a hearing is held, it must be held no more than ninety days after receipt of the petition. If a hearing is held, the commission will give ((not less than)) at least seven days' notification to the petitioner, all persons to whom notice is required by law and any other person it deems desirable ((of the time and place for such hearing and of)). The notice must include the time, place, and the issues involved.

(5) The commission may upon a finding of good cause extend the times specified in subsections (3) and (4) of this section ((for entry of an order or for holding a hearing)).

(6) If a hearing is held or statements of fact are submitted, as provided in subsection (4) of this section, the commission shall within a reasonable time:

(a) Enter a declaratory order; or

(b) Notify the petitioner that no declaratory order is to be entered and state the reasons for the action.

The commission ((shall)) will serve its order upon all persons ((to whom notice is)) who are required ((by)) to receive notice under subsection (4) of this section.

[Statutory Authority: RCW 80.01.040, 80.04.160, 81.04.160 and chapter 34.05 RCW.  91-22-034 (Order R-351, Docket No. A-910835), § 480-09-230, filed 10/30/91, effective 11/30/91.  Statutory Authority: RCW 80.01.040.  89-21-036 (Order R-310, Docket No. U-89-2966-R), § 480-09-230, filed 10/12/89, effective 11/12/89.]

(1) A compliance filing is a tariff filing that is made to comply with an order authorizing or requiring a specific subsequent later filing.  A compliance order is an order approving, suspending, or rejecting a compliance filing.

(a) ((A)) The person making a compliance filing ((and any)) must also file accompanying work papers ((shall be served)) and must serve a copy of the filing and the work papers on the attorney of each party to the proceeding in which the compliance filing was authorized or required.  Service ((shall)) must be made in a manner to be received by the parties no later than the date filed with the commission unless such service on a party is infeasible because of its size or the timing of the filing, in which case delivery on the day following filing is permissible.

(b) A compliance filing ((shall)) must be strictly limited in scope to the subjects and the tariffs that are necessary to comply with, or that are authorized by, the order leading to the filing.

(c) A cover letter accompanying each compliance filing ((shall)) must identify the order with which the filing is intended to comply.

(2) If the order authorizing or requiring a filing does not state the number of business days required for commission examination of the proposed compliance tariff between its filing and its stated effective date, the filing is subject to all pertinent requirements for tariff filings of the industry and ((shall)) must be made with the required statutory notice period unless the order provides otherwise.  ((Such a filing shall be docketed)) The commission will docket such a filing under its own docket number and ((shall)) will not ((be considered)) consider it a continuation of the prior proceeding.

(3) A compliance filing made on less than statutory notice, whether or not a shortened period is authorized or directed in the order leading to the filing, does not become effective automatically on its stated effective date, but requires a commission order of approval.  In the absence of an order of approval, the tariff filing does not become effective on the stated effective date, but remains pending until the commission has completed its review.  On completing that review, the commission ((shall)) must immediately enter an order under subsection (4) of this section.  A compliance filing made on statutory notice is subject to all statutory and regulatory provisions regarding suspension.

(4) If the commission believes that a compliance filing varies from the requirements or conditions of the order authorizing or requiring it, either by falling short of or by exceeding the authorization, conditions, or requirements of the order, the commission will not approve the tariff unless it has preapproved the variance.

(a) The commission may enter an order in the proceeding in which the filing was authorized or required, to (i) suspend a noncomplying filing or any portion that apparently fails to comply, and assign a docket number for processing, or (ii) reject the noncomplying filing, or any portion that apparently fails to comply, without prejudice to the company's refiling a new or original tariff provision under otherwise pertinent law and regulation.  The commission may attach such conditions on compliance refiling as it believes appropriate.

(b) The commission may suspend any filing under its own docket number by otherwise pertinent process.

(c) The commission may delegate to the secretary the authority to enter a compliance order in specific proceedings by written authorization; by oral authority later reduced to writing; or by action in an open public meeting.

(d) Failure to identify noncompliance with the relevant commission order before approval does not preclude the commission from taking later steps as authorized by law to secure compliance.

[Statutory Authority: RCW 80.01.040.  96-02-083 (Order R-436, Docket No. A-950243), § 480-09-340, filed 1/3/96, effective 2/3/96; 89-21-036 (Order R-310, Docket No. U-89-2966-R), § 480-09-340, filed 10/12/89, effective 11/12/89.]

(1) Filing.  Objections to closures of highway-railroad grade crossings under RCW 81.53.060 ((shall)) must be filed in writing within twenty days of publication of notice of the proposed closure, setting forth the full names and mailing addresses of persons objecting to the closure, the particular crossing which is the subject of the objection, the commission cause number, if known, and a statement of the objection.  Communications which do not meet these requirements, other than the requirement of stating the commission cause number, will not be treated as objections for the purpose of requiring a hearing upon the proposed closure to be held as provided by RCW 81.53.060.

(2) Party status - appearances - service of final order.  ((No)) A person who fails to enter an appearance as prescribed by WAC 480-09-720, will not be entitled to party status to a proceeding under RCW 81.53.060 after the close of the period for the taking of appearances if a hearing is held, even though ((such)) the person may have filed an objection to a proposed crossing closure under the provisions of subsection (1) of this section, ((and no such person will)) the person will not be entitled to service of the final order of the commission in the matter unless party status is reestablished through intervention under the provisions of WAC 480-09-430, although ((such)) the commission may send the person ((may be sent)) a courtesy copy of the ((proposed)) initial or final order.

(3) Interested persons who lack party status, ((as defined herein, shall)) will be provided an opportunity to be heard and offer evidence as required by RCW 81.53.060.  They may not call witnesses, cross-examine witnesses or otherwise participate as a party.  Interested persons who lack party status lack standing to file petitions for administrative review of initial orders or to file petitions for reconsideration of final orders.

[Statutory Authority: RCW 80.01.040.  96-02-083 (Order R-436, Docket No. A-950243), § 480-09-390, filed 1/3/96, effective 2/3/96.]

(1) Persons involved in an actual case or controversy within the jurisdiction of the commission to resolve may apply to the commission for an adjudicative proceeding to secure an order resolving disputed matters ((at issue)).  Each application should specify every issue to be adjudicated in the proceeding.

(2) The following, when properly and timely filed, are applications for adjudicative proceedings except:

(a) When specified to the contrary in statute or rule;

(b) When the document is presented during an existing adjudication; or

(c) When the subject is not required to be resolved in an adjudication as defined in chapter 34.05 RCW: Petitions, when the action sought requires adjudication, formal complaints, protests, and requests for review of the denial of unprotested authority, when properly and timely filed, constitute applications for adjudicative proceedings except when specified to the contrary in statute or rule, when the document is presented during an existing adjudication, or when the subject is not required to be resolved in an adjudication as defined in chapter 34.05 RCW.

(3) The commission may, in its discretion, treat unprotested applications for authority as applications for adjudicative proceedings and set them for hearing.

(4) Within thirty days after ((receipt of)) receiving an application for an adjudicative proceeding, the commission ((shall)) will notify the applicant of any obvious errors or omissions, request any additional information it requires and is permitted by law to require regarding the application for adjudicative proceeding, and notify the applicant of the name, mailing address, and telephone number of a person on the commission staff that may be contacted regarding the application.

(5) Within ninety days after receipt of the application or receipt of the response to a timely request made under subsection (2) of this section, the commission shall:

(a) Approve or deny the petition or protest on the basis of brief or emergency adjudicative proceedings;

(b) Commence an adjudicative proceeding by serving the parties with a notice of hearing pursuant to RCW 34.05.434 and WAC 480-09-700; or

(c) Decide not to conduct an adjudicative proceeding and furnish the applicant with a copy of its decision in writing, with a brief statement of its reasons for doing so and of any administrative review available.

[Statutory Authority: RCW 80.01.040.  92-18-081 (Order R-376, Docket No. 920379), § 480-09-400, filed 9/1/92, effective 10/2/92; 89-21-036 (Order R-310, Docket No. U-89-2966-R), § 480-09-400, filed 10/12/89, effective 11/12/89.]

(1) General.  "Person" when used in this chapter means ((any)) an individual((,)); corporation((,)); partnership((,)); association, or ((any)) body politic((,)); agency((,)); or municipal corporation.  A "party" is ((any)) a person ((which)) that has complied with all requirements for establishing and maintaining party status in any proceeding before the commission.

(2) Classification of parties.  Parties to proceedings before the commission ((shall)) will be ((styled)) called applicants, complainants, petitioners, respondents, intervenors, or protestants, according to the nature of the proceeding and the relationship of the parties ((thereto)).  ((When an appearance has been entered for)) The commission ((and/or for)) staff and the public counsel division of the attorney general's office((, they shall respectively be considered parties to the proceeding for all purposes)) become parties to an adjudicative proceeding for all purposes upon entering an appearance.

(3) Applicants.

(a) Persons applying for any right or authority ((which)) that the commission has jurisdiction to grant ((shall be styled)) are "applicants."

(b) Applicants for adjudicative proceedings under chapter 34.05 RCW ((shall)) will be ((styled)) described according to their roles as defined in this section.

(4) Complainants.  Persons who ((complain to)) file a formal complaint with the commission ((of any act or omission by any other person shall be styled)) are "complainants." ((In any proceeding which)) When the commission brings an adjudication on its own motion, ((it shall be styled)) the commission is the "complainant."

(5) Petitioners.  Persons petitioning for relief ((shall be styled)) are "petitioners." Persons filing a motion for relief are "movants" or "moving parties."

(6) Respondents.  Persons against whom any complaint, petition, or motion is filed ((shall be styled)) are "respondents."

(7) Intervenors.  Persons permitted to intervene ((pursuant to this chapter shall be styled)) are "intervenors."

(8) Protestants.  Persons opposing applications who have complied with the requirements for the filing of protests ((shall be styled)) are "protestants."

[Statutory Authority: RCW 80.01.040.  89-21-036 (Order R-310, Docket No. U-89-2966-R), § 480-09-410, filed 10/12/89, effective 11/12/89.]

Pleadings.  Pleadings ((before the commission)) include formal complaints, petitions, answers, replies, applications for authority, protests, and written motions.

(1) Legibility; size; length; service.  All pleadings ((shall)) and briefs must be legible and, unless the commission authorizes a different size ((is required by the nature of the pleading)), must be submitted on 8-1/2 x 11 inch paper.  ((Pleadings shall not)) Parties may not submit pleadings or briefs that exceed sixty pages without prior permission from the commission.  ((Unless otherwise required for a specific pleading,)) Each party must serve a copy ((shall be served)) of each of its pleadings upon each party to the proceeding.

(2) Errors in pleadings.  ((When it finds a pleading to be defective or insufficient,)) The commission may return ((the)) a pleading to the party filing it for correction when the commission finds the pleading to be defective or insufficient.  ((Typographical errors or errors in captions or spelling of names of parties may be corrected by)) The commission may correct typographical errors, errors in captions, or errors in spelling of names of parties.

(3) Form.  Every pleading ((before the commission shall generally)) must conform with the following form.

At the top of the first page ((shall)) must appear the phrase, "Before the Washington Utilities and Transportation Commission." On the left side of the page, next below, the caption of the proceeding ((shall)) must be set out or, if no caption exists, the following: "In the Matter of the (Complaint, Petition, Motion, ((Answer,)) etc.) of (name of the pleading party) for (identify relief sought)." On the right side of the page, opposite the ((foregoing)) caption ((shall)) must appear the words (Petition, Motion, Reply, etc., of (([))(role of party: e.g., petitioner, respondent, protestant, etc., and name of the party if more than one party has the same role in the proceeding((])))).

The body of the pleading ((shall)) must be set out in numbered paragraphs.  The first paragraph ((shall)) must state the name and address of the pleading party.  The second paragraph ((shall)) must state all rules or statutes that may be brought into issue by the pleading.  Succeeding paragraphs ((shall)) must set out the statement of facts relied upon in form similar to ((that applicable to)) complaints in civil actions before the superior courts of this state.  The concluding paragraphs ((shall)) must contain the prayer of the pleading party.

(4) Number of copies; size.  Unless, in a particular case, the commission specifies a different number of copies, the pleading or briefing party must file with the commission an original and ((three)) the number of legible copies of each pleading ((in transportation matters except transportation rate cases, and nineteen copies in all other matters including transportation rate cases, shall be filed with the commission)) that is required in WAC 480-09-120 (1)(b).  Copies ((shall)) must be on three-hole punched white paper, 8-1/2" x 11" in size. Notices of "confidentiality agreements" are distributed within the commission via e-mail, so only an original needs to be filed. If a pleading is received by the commission via telefacsimile, the commission will make the required number of copies unless other arrangements are made, and will charge the costs of the copies to the party as specified in WAC 480-09-120. After filing by telefacsimile, the party must file only the original of the pleading with the commission and need not file additional copies.

(5) Complaints.

(a) Defined.  Formal complaints are ((those)) complaints that are filed in accordance with RCW 80.04.110 and 81.04.110, complaints filed ((pursuant to)) under RCW 80.54.030, or complaints in proceedings designated by the commission as formal proceedings.

(b) Contents.  Formal complaints must be in writing setting forth clearly and concisely the ground ((of)) for the complaint and the relief requested.  The complaint must state facts constituting the basis of the complaint, including relevant dates, ((should be stated,)) together with citations ((of the)) to relevant statutes or commission rules ((of the commission involved)).  The name and address of the person complained against must be stated in full.  The name and address of the complainant and the name and address of complainant's attorney, if any, must appear upon the complaint.

In ((a)) proceedings under RCW 80.04.110 or 81.04.110, the provisions of the respective statutes ((shall)) also apply.

(6) Protests.  A person whose interests would be adversely affected by the granting of an application ((or by a rate change)) may file a protest.  Protests to applications must conform to the requirements of any special rules ((relative)) that apply to the type of the application being protested.  A protestant must serve a copy of the protest upon the applicant ((or person requesting a rate change.  Protestants are not entitled, as a matter of right, to a hearing upon the matter being protested, but a protest may contain a request for a hearing.  The commission may, whether or not a protest contains such a request, set the matter in question for hearing)).

(7) Petitions.

(a) Defined.  All pleadings seeking relief (other than complaints or answers) ((shall be styled)) are "petitions."

(b) Petitions - contents.  A petition ((shall)) must set forth all facts upon which the request for relief is based, with the dates of all relevant occurrences and a citation of the statutes((, rules,)) and regulations ((of the commission)) upon which the petition is based.

(8) Motions.  

Motions ((shall)) must be filed separately from any other ((filing and will not be considered if merely stated within the text of correspondence or a different)) pleading. The commission will not consider motions that are merely stated within the text of correspondence or in the body of another pleading.  The commission may refer to the rules in the superior court of Washington as guidelines for handling ((of)) motions.

(9) Responsive pleadings.

(a) Answer.  Except as otherwise provided in WAC 480-09-425 and 480-09-810(4), any party who desires to respond to a complaint, motion, or petition shall file with the commission and serve upon all other parties an answer.  ((If an answer is not filed, the complaint or petition shall be deemed to be denied by the respondent.))  Answers ((shall)) must fully and completely disclose the nature of the defense and ((shall)) must admit or deny specifically, and in detail, all material allegations of the complaint or petition.  ((Matters alleged by way of affirmative defense shall be)) A respondent must separately ((stated)) state and ((numbered)) number affirmative defenses.

(b) Reply.  The response to an answer is ((styled)) a reply.  Unless otherwise specified, replies may not be filed without authorization by the commission upon a showing of cause.

[Statutory Authority: RCW 80.01.040.  93-24-103 (Order R-400, Docket No. A-930517), § 480-09-420, filed 12/1/93, effective 1/1/94; 92-18-081 (Order R-376, Docket No. 920379), § 480-09-420, filed 9/1/92, effective 10/2/92; 89-21-036 (Order R-310, Docket No. U-89-2966-R), § 480-09-420, filed 10/12/89, effective 11/12/89.]

(1) Verification.  All pleadings, except motions and complaints brought upon the commission's own motion, ((shall)) must be dated and signed by at least one attorney or representative of record in his or her individual name, stating his or her address((,)); or by the party, if the party is not represented.

Pleadings of a party who is not represented by an attorney ((shall)) must contain a statement that the pleading is true and correct to the best of the signer's belief.

(2) Time for motions.  Unless good cause is shown for a delay, a party opposing a pleading must file any motion directed to ((a)) the pleading ((must be filed)) no later than the time the responsive pleading is due.  If no responsive pleading is provided for, the motion must be filed within ten days after service of the pleading.  Filing a motion to dismiss a pleading, or seeking a similar remedy, does not ((stay)) extend the time for answering the pleading.  Other motions ((shall)) must be filed within the times specified in WAC 480-09-420 or 480-09-736.

(3) Answers; time for answer; reply.

(a) An answer is not mandatory. A party answering a pleading must ((be filed)) file the answer within twenty days after the service of the pleading ((against)) to which it is directed.  ((The filing of an answer is not mandatory.))  During a hearing, the time for answers to interlocutory pleadings is governed by WAC 480-09-736 and the discretion of the presiding officer.

(b) A party may request permission to reply to an answer. The request must be filed within ten days after service of the answer to which it is directed. During a hearing, the presiding officer may shorten the time for requesting leave to reply or may rule from the bench on such requests. A party requesting leave to reply may attach a proposed reply to the request. Requests should address whether the answer raises new material requiring response, or other reason why a reply is necessary.  A request to file a reply is deemed denied unless specifically granted by the commission.  If the commission allows a reply, ((it)) the commission will set the time for filing the reply.

(c) ((Whenever)) The commission may alter the time allowed for any answer or reply if it believes that the public interest so requires((, it may alter the time allowed for any answer)).

(4) Liberal construction.  ((All)) The commission will construe pleadings ((shall be)) liberally ((construed)) with a view to effect justice among the parties.  The commission will, at every stage of any proceeding, disregard errors or defects in the pleadings or proceeding ((which)) that do not affect the substantial rights of the parties.

(5) Amendments.  The commission may allow amendments to the pleadings or other relevant documents at any time upon such terms as may be lawful and just.

[Statutory Authority: RCW 80.01.040.  93-24-103 (Order R-400, Docket No. A-930517), § 480-09-425, filed 12/1/93, effective 1/1/94; 92-18-081 (Order R-376, Docket No. 920379), § 480-09-425, filed 9/1/92, effective 10/2/92.  Statutory Authority: RCW 80.01.040, 80.04.160, 81.04.160 and chapter 34.05 RCW.  91-22-034 (Order R-351, Docket No. A-910835), § 480-09-425, filed 10/30/91, effective 11/30/91.  Statutory Authority: RCW 80.01.040. 89-21-036 (Order R-310, Docket No. U-89-2966-R), § 480-09-425, filed 10/12/89, effective 11/12/89.]

(1) Motion to dismiss.  A party may move to dismiss an opposing party's pleading, including the documents initiating the case, if the pleading fails to state a claim on which the commission may grant relief.  In ((considering)) ruling upon a motion made under this subsection, the commission will consider the standards applicable to a motion made under CR 12 (b)(6), 12(c), or 50, as applicable, of the civil rules for superior court.

(2) Motion for summary determination.  A party may move for summary determination if the pleadings filed in the proceeding, together with any properly admissible evidentiary support, show that there is no genuine issue as to any material fact and the moving party is entitled to summary determination in its favor.  In considering a motion made under this subsection, the commission will consider the standards applicable to a motion made under CR 56 of the civil rules for superior court.

(3) Presentation of a motion for summary disposition ((shall)) will not automatically stay any scheduled procedures.  ((Without leave)) Except with permission from the commission, motions for summary disposition ((shall not)) must be presented ((later)) more than thirty days prior to the next applicable hearing session.  Responses ((shall)) must comply with WAC 480-09-425 and 480-09-736.  The commission may order a continuance of any procedure and may order oral or written response on a schedule consistent with any established hearing schedule in the proceeding.

[Statutory Authority: RCW 80.01.040.  96-02-083 (Order R-436, Docket No. A-950243), § 480-09-426, filed 1/3/96, effective 2/3/96.]

(1) General intervention.  

(a) Who may petition; when petitions must be filed. Any person, other than the original parties to any proceeding before the commission, who desires to appear and participate, and who does not desire to broaden the issues of the proceeding, may((:

(a))) petition in writing for leave to intervene at least five days prior to((, or at)) the time((,)) it is initially called for hearing or prehearing conference, whichever occurs first; or (((b))) petition orally for leave to intervene at the time of the initial hearing or prehearing conference, whichever occurs first.  No such petition shall be filed or made after the proceeding is underway, except for good cause shown.  

(b) Contents of petition. The petition to intervene must disclose the name and address of the ((person intervening)) petitioner; the name and address of ((his or her)) petitioner's attorney, if any; ((his or her)) petitioner's interest in the proceeding; and ((his or her)) petitioner's position in regard to the matter in controversy. Petitions for intervention must be filed with the commission and served on the original parties to the proceeding. In utility rate cases, the original parties are the company seeking a rate change, commission staff, and public counsel.

A form petition for intervention is available on request from the secretary of the commission.  The commission encourages use of the form ((is encouraged)) to ensure ((receipt of)) that the petitioner provides adequate information.

(2) Special intervention--broadening the issues.

(a) Who may petition; when petitions must be filed.  Any person other than the original parties ((of record)) to any proceeding before the commission, who desires to appear and participate in the proceeding and who desires to broaden the issues in the proceeding, may petition for ((leave to intervene)) special intervention in the proceeding.  The petition must be in writing ((and)), filed with the commission, and ((copies)) served upon the parties of record to the proceeding, at least ten days prior to the date of the prehearing conference or((, if there is no conference, at least ten days prior to the date of the)) initial hearing session, whichever occurs first.  The commission may, for good cause ((shown)), shorten the ten-day filing period.  When there is no prejudice to other parties, the commission may ((grant)) consider an oral petition ((without the ten-day requirement)) that is filed less than ten days in advance.

(b) Contents of petition.  The petition must disclose the name and address of the ((party intervening)) petitioner; the name and address of ((his or her)) the petitioner's attorney, if any; ((his or her)) the petitioner's interest in the proceeding; and ((his or her)) the petitioner's position in regard to the matter in controversy.  The petitioner must attach to the petition an affidavit or declaration setting forth clearly and concisely the facts supporting the relief sought ((shall be attached to the petition)).

(3) Disposition of petitions to intervene.  The commission may consider petitions to intervene ((may be considered)) at hearings ((and)) or prehearing conferences, ((or may be set for prior hearing.  An)) or, if persons entitled to respond to the petition have done so, before or after a hearing or prehearing conference. The commission will allow parties the opportunity ((shall be afforded the parties)) to be heard upon the petition.  ((Intervention may be granted in the absence of appearance by petitioner.  A late-filed petition to intervene may be ruled upon without a hearing if all parties have been granted an opportunity to respond.))  If the petition discloses a substantial interest in the subject matter of the hearing, or if the participation of the petitioner is in the public interest, the commission may grant the petition orally, at the hearing or prehearing conference, or in writing.  Limitations may be imposed upon interventions in accordance with RCW 34.05.443(2).  If the commission grants intervention, the petitioner ((then)) becomes a party to the proceeding ((and becomes known)) as, an "intervenor." ((Whenever it appears,)) If the commission determines, during ((the course of)) a proceeding, that an intervenor has no substantial interest in the proceeding, ((and)) or that the public interest will not be served by the intervention ((therein)), the commission may dismiss the intervenor from the proceeding((: Provided, however, That a party whose intervention has been allowed shall not be dismissed)). The commission may dismiss an intervenor from a proceeding ((except upon)) only after notice and a reasonable opportunity to be heard.  ((A)) The commission may review the decision by an administrative law judge regarding a petition to intervene ((is subject to commission review)) or dismissal of an intervenor pursuant to WAC 480-09-760.

(((4) Limitation of intervention under certain circumstances.  Notwithstanding the provisions of subsections (1) and (2) of this section, if the commission determines that the orderly and prompt conduct of any proceeding so requires, the making or filing of petitions for leave to intervene may be limited to the time of a prehearing conference, for general intervention, or ten days prior to such prehearing conference, for special intervention, where the commission has given not less than twenty days' written notice of the prehearing conference to all parties and caused the same to be published in a newspaper or newspapers of general circulation in the area affected by the proceeding.))

[Statutory Authority: RCW 80.01.040.  89-21-036 (Order R-310, Docket No. U-89-2966-R), § 480-09-430, filed 10/12/89, effective 11/12/89.]

(1) General.  ((Postponements, continuances and extensions of time, called "continuances" in this section, may be requested by any party, upon notice to all other parties, and may be granted upon a showing of good and sufficient cause.  Continuances may be directed by the commission or the presiding officer without the request of any party when doing so is in the public interest or furthers administrative needs of the commission.  The date which is sought to be continued is called the "deadline" in this section.)) In this section, continuances include postponements and extensions of time. With notice to all other parties, any party may request a continuance. The commission may grant a continuance if the requesting party demonstrates good cause for the continuance. The commission or the presiding officer may direct a continuance without the request of any party when doing so is in the public interest or furthers administrative needs of the commission. In this section, "deadline" means any date that is sought to be continued.

(2) Procedure.  Subject to subsection (3) of this section, requests for continuances may be made orally on the record during a hearing.  Whenever possible, requests ((shall)) should be made by letter.  ((Requests may be decided orally in hearing, or by letter, by)) The presiding officer or the commission may rule upon requests orally at a prehearing conference or hearing session, or by letter or order.  Requests may be granted; granted, with modification or upon condition; or denied.

(3) Timing.  Oral requests must be made at least five days ((prior to)) before the deadline sought to be continued.  Written requests must be filed with the commission, and served upon other parties so as to be received, no less than five days prior to the deadline which is sought to be continued.  Responses must be filed no less than four days after service of the request, or two days prior to the deadline which is sought to be continued; whichever is earlier.  Response ((shall)) must be made orally when a related hearing is held prior to the stated response deadline.  ((Requests which are made prior to the deadline, but which are not made within the time specified in this subsection, must specify the nature of the circumstances which prevented making a timely request.)) The commission may consider requests for continuance that are made after the deadline stated in this rule if the requester demonstrates good cause that prevented a timely request.

(4) Content.  A request for continuance must contain the following information:

(a) The name of the requesting party and its role in the proceeding (e.g., applicant, respondent, intervenor, etc.);

(b) Whether the requestor or any other party has previously requested a continuance in the proceeding and whether any continuance has been granted;

(c) Whether the requestor has discussed the request with other parties and whether, upon discussion, all other parties agree;

(d) The proposed new deadline, and whether the new deadline poses scheduling problems for any party;

(e) The reason for the request and for requesting the proposed new deadline;

(f) What efforts have been made to avoid a continuance and to minimize the length of the delay sought;

(g) If the continuance is to allow time to acquire a transcript, the date the transcript was ordered, when delivery is expected, and the length of the transcript or the length of the hearing;

(h) If the request relates to an application for transportation operating authority, whether the applicant is presently providing all or part of the requested service, and whether an application for temporary authority has been filed and the status of the application; and

(i) Any other factor which may bear upon whether ((allowing)) the continuance is consistent with the public interest.

(5) Date certain--Dismissal.  ((Continuances should be granted)) The commission will grant continuances to a specified date ((certain)).  A party seeking an indefinite continuance must demonstrate why a specific date ((certain)) is not feasible.  Each ninety days after the initial request for an indefinite continuance is granted, the party making the request must (a) file a statement with the commission describing the status of the proceeding and why it is still infeasible to establish a specific date ((certain)), or must (b) request a specific date ((certain)).  Failure to file the statement required in this subsection is grounds for dismissal without further notice.  The commission may at any time rescind ((the)) an indefinite continuance and set the proceeding for hearing.

(6) Agreed requests.  An "agreed request" is a request for a continuance ((as to which)) that all parties agree ((is an "agreed request.")) to. Agreed requests for continuances other than hearings may be made orally ((until)) before the deadline, ((provided)) if a confirming letter is served and sent for filing on the same day.  A first agreed request, timely made, will be granted unless it is inconsistent with the public interest or commission administrative needs.

[Statutory Authority: RCW 80.01.040 and 34.05.220.  91-06-010 (Order R-336, Docket No. A-900700), § 480-09-440, filed 2/22/91, effective 3/25/91.  Statutory Authority: RCW 80.01.040.  89-21-036 (Order R-310, Docket No. U-89-2966-R), § 480-09-440, filed 10/12/89, effective 11/12/89.]

(1) General.  ((When issues are joined)) In any ((formal)) proceeding the commission may, by written notice or by oral notice on the record of the hearing, request or direct all ((interested persons)) parties and persons requesting party status to attend a prehearing or other conference for the purpose of determining the feasibility of settlement, or of formulating the issues in the proceeding and determining other matters to aid in its disposition.  The notice of the conference ((shall)) must provide reasonable notice of the time and place established for the conference and the matters to be addressed.  The notice may provide that failure to attend may result in the dismissal of a party, the finding of a party in default, or the refusal to consider a later petition for intervention except upon a showing of good cause for the failure to attend.  ((A party's failure to attend the conference,)) In the absence of a showing of good cause ((for that failure)), a party's failure to attend the conference will constitute the party's waiver of all objections to any order or ruling arising out of the conference or any agreement reached at conference.  A commissioner((,)) or an administrative law judge((, or an employee of the commission designated by the commission,)) shall preside at ((such)) each conference, to consider:

(a) Simplification of the issues;

(b) The necessity or desirability of amendments to the pleadings;

(c) The possibility of obtaining admissions of fact and of documents which will avoid unnecessary proof;

(d) Limitations on the number and consolidation of the examination of witnesses;

(e) The procedure at the hearing;

(f) The need for and timing of distribution of written testimony and exhibits to the parties prior to the hearing; and

(g) ((Such)) Any other matters ((as)) that may aid in the disposition of the proceeding, ((or)) whether by commission decision or by settlement ((thereof)).

The disposition of petitions for leave to intervene in the proceeding filed pursuant to WAC 480-09-430 may be ruled upon at a prehearing conference.

(2) A statement describing the action taken at the conference and the agreements made by the parties concerning all of the matters considered ((shall)) may be made orally on the record or ((in writing, and)) by a conference order served upon the parties((,)) for approval.  If no objection to the oral statement is made on the record, or no objection to the written statement is filed within ten days after the date the statement is served, it shall be deemed to be approved, subject to commission review.  The result of the prehearing conference will control the subsequent course of the proceeding unless rejected by the commission or modified to prevent manifest injustice.

(3) Recessing hearing for conference.  In any proceeding the presiding officer may((, in his or her discretion,)) call the parties together for a conference prior to the taking of testimony, or may recess the hearing for ((such)) a conference, ((with a view to carrying)) to carry out the purpose of this section.  The presiding officer shall state on the record the results of ((such)) a conference.

(4) Discovery conference.  In addition to the mechanisms set out in WAC 480-09-480 for obtaining information, the commission may request or direct the parties to an adjudication in which the discovery rule has been invoked to attend a conference along with designated witnesses for the purpose of discussing with each other questions about the party's position or evidence and the availability of supporting information.  Subject to making satisfactory arrangements for dealing with documents, attendance by telephone shall be permitted in the absence of a demonstration that telephonic attendance will substantially reduce the effectiveness of the conference.  The purposes of a discovery conference are to allow witnesses and advisers to talk directly and informally ((and)), to reduce or avoid the need for written data requests and time for their preparation, to allow discussions of potential stipulations regarding individual facts and settlement of individual issues to occur in an informal setting, to discuss the availability of supporting information, and to enhance the parties' ability to acquire or expand their knowledge about the case of one or more designated other parties.  The conference will not be reported.  Statements made by participants at a discovery conference are not admissible for evidentiary purposes.  Parties shall determine a process to confirm among themselves the results of the discussions.  The commission may designate ((a person, who shall not be associated with any party, with commission advisory staff as to that proceeding, or with commission advocacy staff, to facilitate a discovery conference,)) an administrative law judge to preside at a discovery conference. On its own motion or on the request of ((any)) a party, the commission may designate a person, who is not associated with any party, with commission advisory staff as to that proceeding, or with commission advocacy staff, to facilitate a discovery conference.

(5) Order conference.  On the commission's own motion or at the request of ((any)) a party, the commission may schedule an order conference at which parties may ask clarification of the meaning of a final order entered or to be entered by the commission or discuss disagreements about the commission order.  The commissioners may attend the conference personally or may designate one or more staff persons to attend on their behalf.  The purposes of the conference are to allow parties to ask clarification of the meaning of an order so that compliance may be enhanced ((and)), so any compliance filing may be accurately prepared and presented, and to discover technical changes that may be required to correct the application of principle to data or to correct patent error without the need for parties to request reconsideration and without delaying post-order compliance.  ((Such a)) An order conference will not stay the effect of the order, the time for compliance, the time for securing post-order review, or the time for judicial review, unless the conference results in a supplemental commission order which then becomes a final order subject to review.  ((Such a)) An order conference does not constitute a formal interpretation of the order.  The order itself will remain the sole expression of the commission's opinion unless supplemented through an additional order.  The presiding officer will determine whether an order conference will ((not)) be reported.  The conference is not a forum for discussing or challenging the evidentiary or policy decisions expressed in the order.  Those remedies may be pursued through a petition for reconsideration or other means under pertinent rule or statute.

[Statutory Authority: RCW 80.01.040.  96-02-083 (Order R-436, Docket No. A-950243), § 480-09-460, filed 1/3/96, effective 2/3/96; 92-18-081 (Order R-376, Docket No. 920379), § 480-09-460, filed 9/1/92, effective 10/2/92; 89-21-036 (Order R-310, Docket No. U-89-2966-R), § 480-09-460, filed 10/12/89, effective 11/12/89.]

The commission supports parties' efforts to resolve disputes without the need for litigation when doing so is lawful and consistent with the public interest.  Alternate dispute resolution (ADR) includes any mechanism to resolve disagreement without hearings or litigation.

(1) The commission will not delegate to parties the power to make final decisions, but will retain the authority to approve any proposed settlement or agreement.

(2) Parties to a dispute or disagreement on a matter that is under the commission's jurisdiction may agree to negotiate with any other parties at any time without commission oversight.  The commission may direct parties to meet or consult under WAC 480-09-466(1) and may establish a collaborative process under WAC 480-09-467.  The commission encourages parties to use and experiment with other forms of ADR subject to the commission's approval.

(3) The ((decision to engage in negotiation or collaboration is the voluntary decision of each participant)) commission may direct parties to a proceeding to enter negotiations aimed at resolving issues in the proceeding.

(4) In any negotiation, the following apply unless all participants agree otherwise:

(a) The parties ((are encouraged)), as their first joint act ((to)) will consider the ((elements of the)) commission's guidelines for negotiations, set out in a policy statement adopted pursuant to RCW 34.05.230, and determine the ground rules governing the negotiation;

(b) No statement, admission, or offer of settlement shall be admissible in evidence in any formal hearing before the commission without the consent of the participants or unless necessary to address the process of the negotiations;

(c) Parties may agree that information be treated as confidential to the extent provided in a commission protective order ((patterned after the order entered in the matter of Electric Lightwave, Inc., Docket No. UT-901029)); and

(d) Participants should advise each other, any mediator or facilitator, and the commission, if the negotiation is sanctioned by the commission, if the negotiation is without substantial prospects of resolving the issue or issues under negotiation.

[Statutory Authority: RCW 80.01.040.  96-02-083 (Order R-436, Docket No. A-950243), § 480-09-465, filed 1/3/96, effective 2/3/96; 89-21-036 (Order R-310, Docket No. U-89-2966-R), § 480-09-465, filed 10/12/89, effective 11/12/89.]

The commission favors the voluntary settlement of disputes within its jurisdiction. It will approve settlements when doing so is lawful and when the result is appropriate and consistent with the public interest in light of all the information available to the commission.

(1) In ((furtherance)) support of a voluntary settlement of any dispute within the commission's jurisdiction, the commission may((, in its discretion,)) invite or direct the parties to confer among themselves or with a designated person.  Settlement conferences shall be informal and without prejudice to the rights of the parties.  Any resulting settlement or stipulation shall be stated on the record of the conference or submitted to the commission in writing and is subject to approval by the commission.

(2) Settlements.  A settlement is an agreement among ((the)) two or more parties to a proceeding to resolve one or more issues ((is a settlement)).

(a) ((Any proposed settlement may be accepted by)) The commission may exercise discretion whether to accept a proposed settlement for its review ((in the commission's discretion)).  If the commission accepts a settlement for review in an adjudication, the commission will schedule a time at a hearing session for parties to present the settlement and for the commissioners to inquire ((into)) about it, unless the commission believes such a session to be unnecessary for it to exercise informed judgment upon the proposal.

(b) Partial settlement.  An agreement of all parties on some issues may be presented as a partial settlement for commission review, and remaining matters may be litigated.

(c) Multiparty settlement.  An agreement of some, but not all, parties on one or more issues may be offered as their position in the proceeding, with the evidentiary proof that they believe appropriate to support it, for commission review.  Nonsettling parties may offer evidence and argument in opposition.

(d) Parties shall advise the commission when they have reached a partial or multiparty settlement and may suggest preferred procedural alternatives for review of the settlement.  The commission will determine the appropriate procedure.

[Statutory Authority: RCW 80.01.040.  96-02-083 (Order R-436, Docket No. A-950243), § 480-09-466, filed 1/3/96, effective 2/3/96.]

(1) A collaborative is a negotiation sanctioned by the commission in which interested persons work with each other and representatives of commission staff to achieve consensus on one or more issues assigned to or identified by the collaborative participants.  Membership in the collaborative ((shall)) must reflect the interests reasonably expected to be substantially affected by the result of the collaborative.

(2) ((In)) When beginning a collaborative, participants ((shall)) must address procedural guidelines for negotiations that the commission has set out in a policy statement.  Communication between the commission and the collaborative participants may be made through the commission secretary.  Changes in the orientation or membership of the collaborative, the issues it will address, or similar matters, may be made with commission knowledge and consent by letter from the secretary or by other means with the agreement of collaborative participants and the commission.

[Statutory Authority: RCW 80.01.040.  96-02-083 (Order R-436, Docket No. A-950243), § 480-09-467, filed 1/3/96, effective 2/3/96.]

A stipulation is an agreement among parties as to one or more operative facts in a proceeding.  ((Stipulations)) The commission encourages parties to enter stipulations of fact ((are encouraged)).  The parties to any proceeding or investigation before the commission may((, by stipulation in writing filed with the commission or entered orally into the record,)) agree upon the facts or any portion ((thereof)) of the facts involved in the controversy.  The parties to a stipulation may file it in writing or enter it orally into the record. This stipulation, if accepted by the commission, shall be binding upon the parties ((thereto and may be used by the commission)). The parties may present the stipulation as evidence at the hearing.  The commission may reject the stipulation or require proof of the stipulated facts, despite the parties' agreement to the stipulation.

[Statutory Authority: RCW 80.01.040.  96-02-083 (Order R-436, Docket No. A-950243), § 480-09-470, filed 1/3/96, effective 2/3/96; 89-21-036 (Order R-310, Docket No. U-89-2966-R), § 480-09-470, filed 10/12/89, effective 11/12/89.]

General.  ((Subpoenas may be issued by)) A commissioner, an administrative law judge, or the attorney of any party to the proceeding may issue a subpoena.  Witnesses are required to comply with subpoenas in the manner prescribed in Title 80 or 81 RCW and chapter 34.05 RCW.  Witnesses shall be paid ((in the same manner)) as provided in RCW 34.05.446(7).  Each subpoena ((shall)) must bear the name of the party requesting or issuing the subpoena and the party responsible for paying ((the)) witness fees.

[Statutory Authority: RCW 80.01.040.  89-21-036 (Order R-310, Docket No. U-89-2966-R), § 480-09-475, filed 10/12/89, effective 11/12/89.]

(1) ((Pursuant to RCW 34.05.482,)) The commission may use brief adjudicative proceedings ((where not violative of)) under RCW 34.05.482 when doing so does not violate the law ((and where)), when protection of the public interest does not require the commission to give notice and an opportunity to participate to persons other than the parties and when the commission believes that the brief adjudication is consistent with the public interest.  Those circumstances ((may)) include, but are not limited to:

(a) Review of denials or partial denials of applications that are not protested;

(b) Contested applications for temporary authority;

(c) Proceedings ((which)) that could lead to suspension, cancellation, or revision of authority for failure to maintain tariffs, pay fees, or file required documents;

(d) Formal complaints in which notice and an opportunity to participate in the proceeding need not be given to persons other than the parties; and

(e) ((In addition, the commission may hear any other adjudicative matter in a brief adjudication upon the request or consent of all parties to the proceeding, when notice and an opportunity to participate need not be given to persons other than the parties and when the commission believes that the brief adjudication is consistent with the public interest.)) Petitions for mitigation of penalty assessments, including any challenge to the validity of a penalty assessment or the existence of an underlying violation.

In exercising its discretion to conduct a brief adjudication, the commission will consider the benefits for the parties and the commission to be gained from a brief adjudication, the nature of issues involved and whether the commission ((desires)) may desire to consider further or in depth an issue that is raised, the likelihood that review in a brief adjudication will provide a more sound decision than considering the issues without the brief adjudication, and whether alternative means of resolving the issues are sufficient and appropriate to satisfy the parties' and the commission's interests.

(2) ((Application may be made)) Any person may apply for a brief adjudicative proceeding by filing a letter of request stating reasons why a brief adjudication should be used and a certificate of service upon all other identified or necessary parties with the secretary of the commission.  If ((it)) the commission grants the request, ((the commission shall)) it will designate ((a review judge, a hearing examiner, the director of its transportation division,)) an administrative law judge or the director ((of its utilities division)) or deputy director of regulatory services as a presiding officer ((in specified brief adjudicative proceedings)).  The commission may set a matter for brief adjudication on its own motion when doing so will not prejudice the rights of any party.  Each applicant for a brief adjudicative proceeding shall submit a written explanation of its view of the matter along with its application.  Parties may file written submissions as provided in the commission's notice that it will conduct the brief adjudicative proceeding.  ((In the discretion of)) The commission or the presiding officer((, oral comments offered by parties)) may ((be considered)) decide whether to consider oral comments from the parties.

(a) ((If)) A party to a brief adjudicative proceeding who desires an opportunity to make an oral statement((, the)) may request ((should be made)) oral statements in the application or in the response to the application if the commission has not provided for oral statements. (((b) A request to make an oral statement may be granted)) If the presiding officer believes ((such a)) an oral statement would ((benefit him or her)) be beneficial in reaching a decision, the presiding officer may grant a request to make an oral statement or may ask the parties to make oral statements.

(b) The commission shall serve upon the parties a notice of the time and place for the brief adjudicative proceeding and the name and telephone number of the scheduled presiding officer at least seven days before the proceeding.

(3) If the party is present at the time any unfavorable action is taken, the presiding officer shall make a brief statement of the reasons for the decision.  The action on the application ((shall)) must be expressed in a brief written statement, which shall be served upon all parties within ten days after the date of the brief adjudication.

(4) The brief written statement is an initial order.  If no party seeks review of the initial order, it ((shall)) will become the final order only ((on adoption)) if it is adopted by the commission by means of a commission order.

(5) Service of the initial order ((shall)) must be made pursuant to WAC 480-09-120.

(6) ((The commission shall conduct a review of an initial order resulting from a brief adjudicative proceeding upon the written or oral request of a)) If a party ((if the commission receives the request)) requests review of the initial order, in writing or orally, within twenty-one days after service of the initial order, the commission will review it.  If no request is timely filed, the commission may adopt, modify, or reject the initial order.

(7) The commission encourages written requests for review so parties have the greatest opportunity to state reasons for their views. A written request for review of an initial order ((shall)) should contain an explanation of the party's view of the matter, with a statement of reasons why the initial order is incorrect, and a certificate of service.  Responses to a request for review of an initial order ((shall)) must be filed with the commission and served upon the other parties within ten days after service of the request for review.

(8) The order on review must be in writing, must include a brief statement of the reasons for the decision, and must be entered within twenty days after the deadline for requesting review or of the request for review, whichever is later.  The order ((shall)) must include a description of any further available administrative review or, if none is available, a notice that judicial review may be available.

(9) ((A request for administrative review is deemed to have been denied if the agency does not make a disposition of the matter within thirty days after the request is filed.

(10))) The record in a brief adjudicative proceeding shall consist of any documents regarding the matter that were considered or prepared by the presiding officer for the brief adjudicative proceeding or by the reviewing officer for any review.

[Statutory Authority: RCW 80.01.040.  93-24-103 (Order R-400, Docket No. A-930517), § 480-09-500, filed 12/1/93, effective 1/1/94; 92-18-081 (Order R-376, Docket No. 920379), § 480-09-500, filed 9/1/92, effective 10/2/92.  Statutory Authority: RCW 80.01.040 and 34.05.220.  91-06-010 (Order R-336, Docket No. A-900700), § 480-09-500, filed 2/22/91, effective 3/25/91.  Statutory Authority: RCW 80.01.040.  89-21-036 (Order R-310, Docket No. U-89-2966-R), § 480-09-500, filed 10/12/89, effective 11/12/89.]

(1) ((Pursuant to RCW 34.05.479,)) The commission ((shall)) may use emergency adjudicative proceedings pursuant to RCW 34.05.479 to suspend or cancel authority, to require that a dangerous condition be terminated or corrected, or to require immediate action in any situation((s)) involving an immediate danger to the public health, safety, or welfare requiring immediate action by the commission.  Such situations ((shall)) include, but are not limited to:

(a) Failure to possess insurance;

(b) Inadequate service by a gas, water, or electric company when the inadequacy involves an immediate danger to the public health, safety, or welfare; and

(c) Violations of law, rule, or order related to public safety, when the violation involves an immediate danger to the public health, safety, or welfare.

(2) The ((matter shall be heard and the order shall be entered by the)) commission shall hear the matter and enter an order.  If a majority of the commissioners is not available, a commissioner shall hear the matter.  If no commissioner is available, a commission ((review)) administrative law judge shall hear the matter((s)).

(3) The commission's decision shall be based upon the written submissions of the parties and upon oral comments by the parties if the presiding officer has allowed oral comments.  The order ((shall)) must include a brief statement of findings of fact, conclusions of law, and justification for the determination of an immediate danger to the public health, safety, or welfare.  The order ((shall be)) is effective when entered.  ((Service of)) The commission must serve the order ((shall be made)) pursuant to WAC 480-09-120.

[Statutory Authority: RCW 80.01.040 and 34.05.220.  91-06-010 (Order R-336, Docket No. A-900700), § 480-09-510, filed 2/22/91, effective 3/25/91.  Statutory Authority: RCW 80.01.040.  89-21-036 (Order R-310, Docket No. U-89-2966-R), § 480-09-510, filed 10/12/89, effective 11/12/89.]

(1) Upon application by any person or upon its own motion, the commission shall consider whether ((the conversion of)) to convert a proceeding pursuant to RCW 34.05.070 ((should be made)).

(2) ((Commencement)) The start of the new proceeding ((shall be determined to be)) is the time ((of commencement of)) the original proceeding began, provided that all statutory and regulatory requirements for the new proceeding ((shall be)) are met.

[Statutory Authority: RCW 80.01.040.  89-21-036 (Order R-310, Docket No. U-89-2966-R), § 480-09-600, filed 10/12/89, effective 11/12/89.]

((Two or more proceedings in which the facts or principles of law are related)) The commission may ((be consolidated for hearing or disposition in the)) in its discretion ((of the commission)), consolidate two or more proceedings in which the facts or principles of law are related.

(1) Parties must address a motion for consolidation or for the severance of consolidated matters ((shall be addressed)) to the commission.  The commission may rule on the motion or may refer the motion to ((the office of administrative hearings)) an administrative law judge for resolution.

(2) The commission may on its own motion consolidate matters for hearing, or sever consolidated matters, when it believes that the action is appropriate.

[Statutory Authority: RCW 80.01.040 and 34.05.220.  91-06-010 (Order R-336, Docket No. A-900700), § 480-09-610, filed 2/22/91, effective 3/25/91.  Statutory Authority: RCW 80.01.040.  89-21-036 (Order R-310, Docket No. U-89-2966-R), § 480-09-610, filed 10/12/89, effective 11/12/89.]

((General.)) (1) Federal.  In any proceeding in which the commission participates jointly with ((the Interstate Commerce Commission or other)) a federal ((regulatory)) agency, the rules of practice and procedure of the federal agency shall govern.

(2) State. In any proceeding in which the commission participates jointly with the administrative body of another state or states, the rules of the state in which the hearing is held shall govern the proceeding, unless otherwise agreed upon by the participating agencies((: Provided, That any)).

(3) Who may appear. Any person entitled to appear in a representative capacity before any of the agencies involved in a joint hearing may appear in the joint hearing.

[Statutory Authority: RCW 80.01.040.  89-21-036 (Order R-310, Docket No. U-89-2966-R), § 480-09-620, filed 10/12/89, effective 11/12/89.]

(1) Notice.

(a) Initial hearing notice.  The time and place of ((hearings)) the first hearing session or prehearing conference in any adjudication will be set by the commission ((and)) in a notice ((thereof)) served upon all parties at least twenty days in advance of the ((initial)) hearing ((date, unless the)) or conference. The commission ((finds)) may establish a shorter notice if it believes that good cause exists ((for the hearing to be held upon shorter notice)).  An effort will be made to set all hearings sufficiently in advance so that all parties will have a reasonable time to prepare their cases, and so that need for continuances will be minimized.

(b) Continued hearing sessions.  When a hearing is not concluded in one day, the time and place of continued hearing sessions may ((also)) be set:

(i) Upon the record without further written notice to the parties; ((or))

(ii) By letter or formal notice of hearing from the secretary of the commission; or

(iii) By letter from the presiding officer.

((In such instances,)) The commission need not give twenty days' prior notice ((is not required)) of continued hearing sessions.

(2) The initial notice of hearing shall state that, if a limited English-speaking or hearing-impaired party needs an interpreter, a qualified interpreter will be appointed at no cost to the party or witness.  The notice shall include a form for a party to indicate whether he or she needs an interpreter and to identify the primary language or hearing impaired status of the party.

(3) Failure to appear - default - dismissal.

(a) At the time and place set for hearing, if a party fails to appear, the commission may dismiss the party or find the party in default. The presiding officer may recess the hearing for a brief period to enable the party to attend the hearing((, but if at the time set for the resumption of the hearing)). If the party is not present or represented when the hearing resumes, the commission may dismiss the party or find the party in default.

(b) ((Default shall be implemented)) When the commission finds a party in default, it will implement the default by a default order or by a default provision in the order disposing of the issues in the proceeding, pursuant to RCW 34.05.440.  Default may be appropriate in instances where the party is the initiator of the proceeding, such as an applicant, a petitioner, or a complainant.

(c) ((Dismissal shall be implemented)) When the commission dismisses a party from a proceeding it will do so by an order of dismissal or by a dismissal provision in the order disposing of the issues in the proceeding.  ((Dismissal may be contested by the filing of a)) A person who is dismissed may contest a dismissal order by seeking interlocutory review. If interlocutory review is denied, or if the dismissal is a provision of an initial or final order, the person who is dismissed may petition for reopening until the close of the time for filing a petition for administrative review of an initial order or, if no initial order is entered, until the close of the period for filing a petition for reconsideration.  ((The person who is dismissed may support the petition for reopening by showing good cause for failure to appear, for failure to seek a continuance, and for failure to earlier seek an excuse for failure to appear.))

(4) Sanctions for failure to appear.  Except when a hearing is otherwise required by law, an applicant for operating authority or for transfer or acquisition of control of operating authority, or a protestant to such an application((, or an applicant for a rate change under WAC 480-12-295 shall)) must appear at any scheduled adjudicative hearing ((pursuant to this chapter)) session unless:

(a) The application or protest is withdrawn at least five days prior to the date set; or

(b) Appearance is otherwise excused by the commission or presiding officer in writing.

Failure to comply with this subsection may result in assessment of civil penalties.

[Statutory Authority: RCW 80.01.040.  92-18-081 (Order R-376, Docket No. 920379), § 480-09-700, filed 9/1/92, effective 10/2/92; 89-21-036 (Order R-310, Docket No. U-89-2966-R), § 480-09-700, filed 10/12/89, effective 11/12/89.]

When the commission has knowledge that a limited-English-speaking person is a party in an adjudicative proceeding, all notices concerning the hearing, including notices of hearing, continuances, and dismissals, ((shall)) must either be in the primary language of the party or ((shall)) must include a notice in the primary language of the party that describes the significance of the notice and how the party may receive assistance in understanding and responding to the notice.

[Statutory Authority: RCW 80.01.040.  89-21-036 (Order R-310, Docket No. U-89-2966-R), § 480-09-705, filed 10/12/89, effective 11/12/89.]

(1) ((General.  In all proceedings in which pleadings are filed and a hearing is held involving the taking of testimony on a record subject to review by the courts, the following persons may appear in a representative capacity:)) Minimum qualifications. No person may appear before the commission as a representative of a party to an adjudicative proceeding without meeting one of the following qualifications:

(a) ((Attorneys at law duly qualified and entitled to practice before the supreme court of the state of Washington;)) Membership in good standing in the Washington State Bar Association;

(b) ((Attorneys at law duly qualified and entitled)) Admission to practice, in good standing before the highest court of any other state;

(c) ((Persons not attorneys at law who have been duly authorized to practice before the Interstate Commerce Commission;

(d))) Upon permission of the presiding officer ((at such hearing)), an officer or employee of a party or person seeking party status;

(((e))) (d) Legal interns admitted to limited practice under Rule 9 of the Washington state Supreme Court's Admission to Practice Rules.  ((However,)) No legal intern may appear without the presence of a supervising lawyer unless ((the legal intern has attended at least ten commission hearing sessions with the presence of a supervising lawyer)) the presiding officer approves the intern's appearance in advance.

The presiding officer may expel a person who does not have the requisite degree of legal training, experience, or skill to appear in a representative capacity.

(2) Notices of appearance and withdrawal ((of attorneys)).  Attorneys or other authorized representatives appearing on behalf of a party or withdrawing from a proceeding ((shall)) must immediately ((so)) notify the commission and all parties to the proceeding.

(3) Unethical conduct.  ((All)) Persons appearing in proceedings before the commission in a representative capacity ((shall)) must conform to the standards of ethical conduct required of attorneys before the courts of Washington.  If any representative fails to conform to ((these)) those standards, the commission may expel the person from the proceeding and decline to permit the person to appear before it in a representative capacity in any future proceeding ((before the commission)).

(4) Former employees.  Former employees of the commission((, office of administrative hearings, and office of the attorney general)) are subject to the provisions of chapter 42.18 RCW.

[Statutory Authority: RCW 80.01.040.  89-21-036 (Order R-310, Docket No. U-89-2966-R), § 480-09-710, filed 10/12/89, effective 11/12/89.]

(1) General.  ((Parties shall enter their appearances at the beginning of the hearing or prehearing conference by giving)) All persons who will be representing a party in a formal proceeding must give their names and addresses in writing to the court reporter ((who will include the same in the record of the hearing or prehearing conference)) immediately before the first hearing session in which they appear.  The presiding officer conducting the hearing or prehearing conference ((may, in addition,)) will require appearances to be stated orally at the initial hearing session, and may also ask for oral appearances at subsequent sessions in the same proceeding, so that all persons attending the hearing will know the identity and interest of all parties present ((will be known to those in attendance.  Appearance may be made on behalf of any party by his or her attorney or other authorized representative, as defined in WAC 480-09-710(1))).

(2) The commission will not grant party status ((may not be accorded)) to a person who fails to appear at the earliest prehearing conference, if one is held, or hearing session, if there is no prehearing conference, without a showing of good cause for failing to timely appear.

[Statutory Authority: RCW 80.01.040.  93-24-103 (Order R-400, Docket No. A-930517), § 480-09-720, filed 12/1/93, effective 1/1/94; 89-21-036 (Order R-310, Docket No. U-89-2966-R), § 480-09-720, filed 10/12/89, effective 11/12/89.]

(1) No smoking.  Smoking ((shall not be permitted)) is prohibited at hearings of the commission.

(2) Testimony under oath.  ((Before a)) The presiding officer shall administer an oath or affirmation to each witness who is heard in an adjudicative proceeding before the witness takes the stand ((in an adjudicative proceeding held under chapter 34.05 RCW, an)). The oath or affirmation shall be administered as follows: The ((person who swears or affirms holds up)) prospective witness shall stand and raise his or her hand, while the ((person administering the oath or affirmation thus addresses him or her)) presiding officer asks the following, or its equivalent: "Do you solemnly swear or affirm that the evidence you shall give in the matter now pending before the commission shall be the truth, the whole truth and nothing but the truth, so help you God?"

(3) When members of the public testify about their sentiments on a proposal that is the subject of an agency adjudication, the commission may provide a form of oath for witnesses on sign-up sheets in lieu of an oral oath.

[Statutory Authority: RCW 80.01.040.  89-21-036 (Order R-310, Docket No. U-89-2966-R), § 480-09-730, filed 10/12/89, effective 11/12/89.]

(1) General.  Evidence will ordinarily be received in the following order:

(a) ((Upon investigation on motion of the commission:

(i) Commission's staff;

(ii) Respondent; and

(iii) Rebuttal by commission's staff.)) The party having the burden of proof;

(b) ((In investigation and suspension proceedings:

(i) Respondent;

(ii) Commission's staff;

(iii) Protestants against suspended schedules; and

(iv) Rebuttal by respondent.)) Commission staff, if it supports the party having the burden of proof;

(c) ((Upon applications and petitions:

(i) Applicants or petitioners;

(ii) Protestants;

(iii) Commission's staff; and

(iv) Rebuttal by applicant or petitioner.)) Parties supporting the party having the burden of proof;

(d) ((Upon formal complaints:

(i) Complainant;

(ii) Respondent;

(iii) Commission's staff; and

(iv) Rebuttal by complainant.)) Commission staff, if it opposes the party having the burden of proof;

(e) ((Upon order to show cause:

(i) Commission's staff;

(ii) Respondent; and

(iii) Rebuttal by commission's staff.)) Other parties opposing the party having the burden of proof;

(f) ((In docket hearings: At the discretion of presiding officer.)) The commission staff, if it does not oppose the party having the burden of proof;

(g) Rebuttal by the party having the burden of proof;

(h) Response by other parties to any new material received on rebuttal;

(i) Response by the party having burden of proof to any new material received from others.

(2) Modification of procedure.  The ((order of presentation prescribed above for hearings shall be followed, except when the)) presiding officer ((directs otherwise)) may direct a modified order of proceeding.  When hearing several proceedings ((upon)) on a consolidated record, or when parties do not oppose or support all of another party's positions, the presiding officer ((shall)) will designate ((who shall open and close.  Intervenors shall follow the party in whose behalf the intervention is made.  If the intervention is not in support of any original party, the presiding officer shall designate at what stage the intervenor shall be heard.  When two causes are set for hearing at the same time and place, the cause having the lowest number shall be heard first, if all parties are ready: Provided, That the presiding officer may direct a different order to suit the convenience of the parties)) the order of presentations, considering the parties' preferences.

[Statutory Authority: RCW 80.01.040.  92-18-081 (Order R-376, Docket No. 920379), § 480-09-735, filed 9/1/92, effective 10/2/92; 89-21-036 (Order R-310, Docket No. U-89-2966-R), § 480-09-735, filed 10/12/89, effective 11/12/89.]

These guidelines are of a general nature and are provided to assist the presiding officer in regulating the course of the proceeding.  The presiding officer may when appropriate suspend or modify the guidelines or use measures not specified in this rule.

(1) Starting times will be strictly observed.  The proceeding may go forward in the absence of counsel, parties, or witnesses who are late.

(2) Motions related to evidence or to the procedural course of the hearing, but not involving dismissal of a party or a part of the proceeding, will be stated and argued at the start of the day, unless they arise from matters emerging during the hearing that are not reasonably foreseeable.  The presiding officer ((should)) must be notified no later than the start of the hearing session of any motion that counsel anticipates may be presented during the hearing, such as one that may require foundation regarding the admissibility of evidence.  The presiding officer shall set a time prior to the start of the presentation of evidence for marking, distribution, and argument regarding exhibits to be offered during the day and for arguing other matters.

(3) All counsel are expected to address comments, objections, and statements to the presiding officer rather than to other counsel. Questions will be addressed to the witnesses rather than to counsel.

(4) ((There will be no)) Counsel who request off-the-record discussions ((at the request of counsel unless counsel asks)) must ask leave to go off the record and state((s)) the purpose for the request.

(5) Extended colloquies regarding procedural issues ((may)) should be conducted off the record.  Each attorney will ((be given)) have the opportunity to state for the record a summary of his or her view on behalf of his or her client when the record resumes.

(6) Predistribution of evidence. The commission may require that parties distribute their proposed evidence to other parties before the start of the hearing.

(a) Number of copies. When predistribution of evidence is required, each party shall file twenty copies of its evidence with the commission((.  For predistributed evidence only, parties need not also serve copies on)) unless the commission specifies a different number. Because a smaller number may satisfy commission needs in some proceedings, and because electronic copies may substitute for paper copies, parties should inquire at a prehearing conference or directly of the presiding officer about the number of required copies. Because the required number of filed copies includes copies for the commission staff, the accounting adviser, and the administrative law judge, ((or the assistant attorney general)) parties need not provide additional copies for those persons.  ((Each party is responsible for having two revised, corrected copies of its exhibits ready for marking and inclusion in the official case file at the hearing itself.  One set of copies should also be brought to the hearing for the court reporter.  To advise the parties of corrections, an errata sheet may be used to indicate the corrections to copies that have been predistributed.))

(b) Changes or corrections. Each party must advise other parties of substantive corrections to evidence that has been prefiled as soon as the need for change is discovered. Parties should prepare an errata sheet or a revised exhibit for submission at the hearing to reflect changes from prefiled testimony.  Counsel should not ask ((the)) a witness on the stand to correct obvious typographical errors in the prefiled testimony or to make more than three substantive changes--if more than three corrections are required, ((but should)) the party must submit an errata sheet or revised documents.  ((The original and required number of copies of the errata sheet or corrected text shall be submitted at the hearing.  Substantive revisions shall be disclosed to other parties as soon as need for the revision is discovered.))

(c) Distribution at hearing. When a party offers new exhibits, revised exhibits, or errata sheets at a hearing, the party must provide sufficient copies for all parties and for the commission's distribution requirements.  Corrections and revisions should be made upon or attached to all documents distributed at the hearing before the copies are distributed.   Subsection (10) of this section governs other aspects of revising and offering predistributed testimony and exhibits. Each party should bring two complete sets of current exhibits to the hearing, one for the court reporter and one for the official record.

(7) Prefiled testimony may be accompanied by exhibits.  Parties should not preassign numbers to their own prefiled testimony and exhibits.  Instead the following system should be used, including the witness's initials, and marked serially.  For John Q. Witness's prefiled testimony and accompanying exhibits:

Ex . . . . (JQW-T)Ex . . . . (JQW-2)

Ex . . . . (JQW-1)Ex . . . . (JQW-3)

Counsel unfamiliar with this method of identification should ((contact)) ask the presiding officer for further guidance.  The ((official)) presiding officer will assign exhibit numbers for the case ((will be assigned by the administrative law judge)) at the hearing session.

(8) Each witness should present a short summary of his or her remarks on the opening page or two of prepared testimony.  Counsel will be expected to ask as a foundation question the subjects that will be covered by the witness.  This foundation question should request, and the witness' response should include only a statement of the subjects to be covered by the witness, e.g., rate of return, and not a summary of the witness's positions on those subjects.  

(9) All prepared testimony, exhibits, and pleadings ((shall)) must be 8-1/2 by 11 inches in size, reduced to that size, or folded to that size if reduction would be illegible, and punched for insertion into three-ring binders.  Line numbers ((shall)) must be set out on all prepared testimony to facilitate transcript or exhibit references.  Large documents may be used at the hearing for illustrative purposes so long as a reduction is provided for inclusion in the record.

(10) ((Any)) Revisions to exhibits. Parties submitting revisions to predistributed or previously admitted testimony or exhibits ((shall be)) must prominently ((labeled)) label them "REVISED" ((and bear)), stating the date of the revision.  The revised portions ((shall)) must be highlighted, in legislative style or other manner clearly indicating the change for comparison with the original submissions.  This practice should be followed even ((as to)) with minor changes that involve only one page of an exhibit.  Counsel should identify partial revisions by page and date, or identify the revision of the exhibit, at the time an exhibit is presented for identification, sponsored, or offered into evidence, as appropriate.  Subsection (6) of this section governs other aspects of revising and presenting predistributed exhibits.

(11) ((Cross-examination will be limited)) The presiding officer will limit cross-examination to two rounds ((except upon a showing)) unless counsel demonstrates that good cause exists for asking additional questions.  ((Witnesses)) Counsel should not ((be asked)) ask witnesses to perform calculations or extract detailed data while the witness is on the stand.  Counsel should provide such questions ((should be provided)) to the witness in advance ((or asked)), should ask the witness to provide the answer to the record later in the hearing session, or should provide an answer and ask the witness to accept it "subject to check." When a witness ((answers)) accepts information "subject to check," the witness must perform the "check" as soon as possible.  A response given "subject to check" will be ((deemed)) considered accurate unless ((disputed by)) the witness disputes it in writing, stating reasons. Counsel for the party sponsoring the witness must provide the witness' statement and serve a copy on each party prior to the closing of the record or within ten days ((of)) after distribution of the transcript ((or prior to the closing of the record,)) whichever occurs first.

(12) At the beginning of a hearing session for the purpose of taking testimony from members of the public, public counsel may inform the public of the major contested issues.

(13) Parties must address all case-related correspondence ((should be addressed)) to the secretary of the commission, under commission rules.  The parties are cautioned that correspondence that is addressed directly to an individual may not be logged in, may not be inserted in the case file, and may not constitute a part of the official record for appeal or for other purposes.

(14) Parties must file petitions or motions seeking the dismissal of any party or any portion of a proceeding, or any other pleading that in the moving party's judgment ((require)) requires the submission of a written motion, petition, brief or statement of authorities, ((shall be filed with the commission)) and ((served)) serve them on other parties no later than one week prior to the first scheduled hearing session after grounds for the petition or motion become apparent((, unless)); the commission ((finds that)) may approve later filing ((is reasonable under the circumstances)) upon a showing of good cause.  ((Answers shall be filed with the commission)) A party answering such a pleading shall file the answer and ((served)) serve it on other parties at least three days prior to the hearing.  The commission may allow oral argument ((may be allowed on the record)) in the commission's discretion.  (((This guideline does not require personal service.  Petitions or motions, if mailed, should be served)) Parties must serve pleadings so as to effect actual receipt within the required time.(()))

(15) When a party requests that the commission ((is requested to)) take some action prior to the next hearing session, the petitioner or movant shall ((effect service upon)) serve all other parties.  Responses are due ((in the office of the secretary of the commission)) no later than the close of the fifth business day following service, except as provided in WAC 480-09-425(3).

(16) The presiding officer shall confer with the parties at the conclusion of the hearing about post-hearing process.  The presiding officer ((will)) shall determine whether oral argument, briefs, or both will be required, taking into consideration the parties' preferences.  If briefs are required, the presiding officer shall determine a format to be used by all parties.  ((Briefs shall not exceed sixty pages, including appendices and attachments but excluding the cover and index pages, without permission from the presiding officer.  Longer or shorter limits may be established by the presiding officer when good cause is shown.  Number and complexity of the issues shall be considered in varying the allowed length of briefs.))  Briefs ((shall)) must comply with WAC 480-09-770.

(17) Each party will bear its own costs for transcripts or tape recordings, including charges for expedited service when ((requested)) a party requests it.

(18) For planning purposes, counsel should be prepared to provide time estimates for cross-examination of witnesses.

(19) ((Documents provided by or on behalf of members of the public at a public hearing will ordinarily be placed with the hearing file or may be offered)) When a witness presenting testimony as a member of the public presents a document in conjunction with his testimony, the commission may receive the document as an illustrative exhibit.  ((Letters)) The commission may receive as illustrative of the opinions of correspondents any letters that have been received by the secretary of the commission and by public counsel from members of the public ((may be offered into evidence as illustrative of the opinions of the correspondents)) regarding a proceeding.  Documents ((which)) presented by a public witness that are exceptional in their detail or their probative nature may be ((offered)) received into evidence separately, provided that a sponsoring witness is available for cross-examination.  Only exhibits and testimony ((offered and)) received in evidence are part of the record and subject to consideration by the commission in its decision.

(20) The presiding officer need not specifically ask each representative whether that party objects to an offer of evidence or other motion or proposed action.  Instead, the presiding officer may ask generally whether there are objections, and persons having objections shall state them.  Failure to respond or object means that the party does not object, and shall constitute a waiver of the right to object.

[Statutory Authority: RCW 80.01.040.  93-24-103 (Order R-400, Docket No. A-930517), § 480-09-736, filed 12/1/93, effective 1/1/94.  Statutory Authority: RCW 80.01.040 and chapter 80.36 RCW.  92-01-135 (Order R-362, Docket No. A-911231), § 480-09-736, filed 12/19/91, effective 1/19/92.  Statutory Authority: RCW 80.01.040 and 34.05.220.  91-06-010 (Order R-336, Docket No. A-900700), § 480-09-736, filed 2/22/91, effective 3/25/91.  Statutory Authority: RCW 80.01.040.  89-21-036 (Order R-310, Docket No. U-89-2966-R), § 480-09-736, filed 10/12/89, effective 11/12/89.]

The presiding officer may receive evidence as provided by RCW 34.05.452.  WAC 480-09-745 and 480-09-750 provide guidelines for receipt and handling of evidence in commission proceedings ((before the commission)).

[Statutory Authority: RCW 80.01.040.  89-21-036 (Order R-310, Docket No. U-89-2966-R), § 480-09-740, filed 10/12/89, effective 11/12/89.]

(1) Designation of part of document as evidence.  ((When a relevant and material matter offered in evidence by any party is contained in a book, paper, or document which also contains other matter not material or relevant, the party offering the evidence)) A party who offers evidence that consists of a portion of a document, must ((also)) designate the portion ((which)) that is offered.  If irrelevant matter would unnecessarily encumber the record, ((such book, paper, or)) the document will not be received in evidence, but ((may be marked for identification, and, if properly authenticated,)) the relevant or material matter may be read into the record, or((, if)) the presiding officer ((so directs,)) may receive a ((true)) copy ((may be received)) of the excerpt as an exhibit.  If only a portion is offered or received, other parties shall be afforded an opportunity to examine the ((book, paper or)) document, and to offer other portions in evidence ((in like manner)).

(2) Official records.  An official ((rule, report, order, record or other)) document, prepared and issued by any governmental authority((, when admissible for any purpose,)) may be evidenced by a certified copy.  When ((such)) official records, otherwise admissible, are contained in official publications or publications by nationally recognized reporting services which are in general circulation and readily accessible to all parties, they may be introduced by reference((:)), provided, ((however, That proper and definite reference to)) that the party offering the document clearly identifies the record ((in question is made by the party offering the same)).  The party offering the evidence may be required to provide a copy to the record and to all parties.

(3) Commission's files.

(a) ((Papers and)) The presiding officer may receive documents on file with the commission((, if otherwise admissible, and whether or not the commission has authority to take official notice of them under WAC 480-09-750(2), may be introduced)) by reference to number, date, or by any other method of identification satisfactory to the presiding officer.  If only a portion of ((such)) a ((paper or)) document is offered in evidence, the part offered ((shall)) must be clearly designated.  The presiding officer may require the party offering the evidence ((may be required)) to provide a copy to the record and to ((all parties)) each party.

(b) Intra-office commission memoranda and reports, to the extent permitted by RCW 42.17.310, are not public records subject to inspection((, nor shall such documents be introduced)) and the commission may not receive them into evidence without a waiver of the protections of the law.

(4) Records in other proceedings.  ((In case any portion of the record in any other proceeding is admissible for any purpose and is offered in evidence, a true copy of such portion shall be presented for the record in the form of an exhibit unless:

(a) The party offering the same agrees to supply such copies later at his or her own expense, if and when required by the commission; and

(b) The portion is specified with particularity in such manner as to be readily identified; and

(c) The parties represented at the hearing stipulate upon the record that such portion may be incorporated by reference, and that any portion offered by any other party may be incorporated by like reference; and

(d) The presiding officer directs such incorporation.)) A portion of the record of any other commission proceeding, in the discretion of the presiding officer, may be received as an exhibit in the form of a copy; by citation to the transcript or exhibit number; or by incorporation into the transcript of the current proceeding.

(5) Objections.  Any evidence offered((, whether in the form of exhibit, introduced by reference or offered in the form of testimony,)) shall be subject to appropriate and timely objection.

(6) Copies of exhibits ((to opposing counsel)).  ((When)) A party offering documentary exhibits ((are offered in evidence, copies)) must ((be furnished)) furnish copies to opposing counsel, the presiding officers and the reporter, unless the presiding officer otherwise directs.  ((Whenever practicable,)) The presiding officer may require the distribution of exhibits, including exhibits that may be introduced on cross-examination, before the hearing. The parties should exchange copies of exhibits before((, or at the commencement of,)) the hearing starts.

[Statutory Authority: RCW 80.01.040.  89-21-036 (Order R-310, Docket No. U-89-2966-R), § 480-09-745, filed 10/12/89, effective 11/12/89.]

(1) General.  Subject to the other provisions of this section, all relevant evidence is admissible ((which)) that, in the opinion of the presiding officer, is the best evidence reasonably obtainable, having due regard to its necessity, availability, and trustworthiness.  In ruling upon the admissibility of evidence, the presiding officer shall give consideration to, but shall not be bound to follow, the rules of evidence governing general civil proceedings, in matters not involving trial by jury, in the courts of the state of Washington.

((The presiding officer may, in his or her discretion, either with or without objection, exclude inadmissible evidence or order cumulative evidence discontinued.))  Irrelevant, duplicative, and inadmissible evidence burdens the commission and all parties.  To minimize that burden, the presiding officer shall to the extent possible exclude evidence that is irrelevant, repetitive, or inadmissible, whether or not ((an objection is posed)) a party objects to the evidence.  Parties objecting to the introduction of evidence ((shall)) must state the grounds ((of such)) for the objection at the time ((such)) the evidence is offered.  The presiding officer may permit the party offering rejected evidence ((may be permitted)) to describe briefly for the record its nature and purpose as an offer of proof.

(2) Official notice.

(a) The commission may take official notice ((may be taken)) of:

(i) Any judicially cognizable fact.  Examples of ((judicially cognizable)) such facts include, but are not limited to:

(A) Rules, regulations, administrative rulings and orders, exclusive of findings of fact, of the commission and other governmental agencies;

(B) Contents of certificates, permits, and licenses issued by the commission; and

(C) Tariffs, classifications, and schedules regularly established by or filed with the commission as required or authorized by law.

(ii) Technical or scientific facts within the commission's specialized knowledge; and

(iii) Codes or standards that have been adopted by an agency of the United States, or this state or of another state, or by a nationally recognized organization or association.

(b) In addition, the commission may, in its discretion((, upon the request of all parties to a proceeding,)) upon notice to all parties, inspect physical conditions that are at issue and take official notice of the results of its ((own)) inspection ((of the physical conditions at issue)).

(c) Parties shall be notified ((either)) before or during the hearing, or by reference in preliminary reports or otherwise, of ((the)) material ((so)) officially noticed and ((the)) its sources ((thereof, including any staff memoranda and data)), and ((they shall be afforded)) the presiding officer must afford parties an opportunity to contest ((the)) facts and material so noticed.  ((A)) The presiding officer may require the party proposing ((that)) official notice ((be taken may be required)) to provide copies of officially noted matter to the record and to all other parties.

(3) Resolutions.  ((Properly)) The presiding officer may receive in evidence authenticated resolutions of the governing bodies of ((cities, towns, counties, and other)) municipal corporations and of chambers of commerce, boards of trade, commercial, mercantile, agricultural, or manufacturing societies and other civic organizations ((may be received in evidence)).  ((Recitals)) Any recital of facts contained in ((resolutions shall)) a resolution may not be ((deemed)) considered as proof of those facts.

[Statutory Authority: RCW 80.01.040.  96-02-083 (Order R-436, Docket No. A-950243), § 480-09-750, filed 1/3/96, effective 2/3/96; 89-21-036 (Order R-310, Docket No. U-89-2966-R), § 480-09-750, filed 10/12/89, effective 11/12/89.]

((Upon the request of a party or on its own motion,)) The commission may direct or allow two or more witnesses to take the stand simultaneously when doing so allows a benefit such as the integrated response to a line of questions, minimizing referral of questions from one witness to another, or comparing witnesses' positions.  ((Individual)) The presiding officer shall also allow cross-examination ((shall also be allowed)) of each witness upon matters within the ((witnesses')) witness's direct evidence ((that are not related to the topic or topics addressed by witnesses in a panel)).

[Statutory Authority: RCW 80.01.040.  96-02-083 (Order R-436, Docket No. A-950243), § 480-09-751, filed 1/3/96, effective 2/3/96.]

The commission has discretion to accept or decline review of interim or interlocutory orders in an adjudication.

(1) ((Except where otherwise provided,)) The commission may review such orders when it finds that:

(a) A party's participation is terminated by the ruling and the party's inability to participate thereafter could cause it substantial and irreparable harm; ((or))

(b) A review is necessary to prevent substantial prejudice to a party that would not be remediable by post-hearing reviewing; or

(c) A review could save the commission and the parties substantial effort or expense, or some other factor is present that outweighs the costs in time and delay of exercising review.

(2) Any aggrieved party may petition for review of an interlocutory order.  Petitions for interlocutory review must be filed with the commission and served on other parties within ten days after entry of the order or issuance of the ruling for which review is requested, stating clearly why the ((order)) ruling is in error and citing reasons in support of the petition.  Answers must be filed within ten days after the petition is filed.  The commission may alter these filing deadlines when doing so is consistent with the public interest.

[Statutory Authority: RCW 80.01.040.  93-24-101 (Order R-399, Docket No. A-930792), § 480-09-760, filed 12/1/93, effective 1/1/94; 89-21-036 (Order R-310, Docket No. U-89-2966-R), § 480-09-760, filed 10/12/89, effective 11/12/89.]

The commission may require the parties to an adjudication to present their arguments and authority orally at the close of the hearing, by written brief, or both.  The argument should set out the leading facts and conclusions ((which)) that the evidence tends to prove, point out the particular evidence relied upon to support the conclusions urged, and cite legal authority.  Briefs may be printed, or typewritten (size 8-1/2 inches by 11 inches on three-hole punched paper).  All copies ((shall)) must be clearly legible.  Briefs ((may)) must not exceed sixty pages ((without prior authorization from the commission)) without permission from the presiding officer for good cause shown. The presiding officer will consider the number and complexity of the issues in varying the allowed length of briefs. Briefs must be presented in 12 point Times New Roman or Arial typeface or equivalent, with margins at least one inch from each edge of the page. Footnotes must be presented in the same font, no smaller than 10 point type.  Unless the commission specifies a different number ((is specified by the commission,)) of copies, parties offering briefs must file an original and ((three legible copies of each brief in transportation matters and)) nineteen copies ((in all other matters including transportation rate cases shall be filed)) with the secretary of the commission and must serve one copy ((shall be served)) on each party ((before)) not later than the ((due)) date set for filing.  ((Proof)) Parties must furnish proof of service ((shall be furnished)) to the commission as provided in WAC 480-09-120(2).

[Statutory Authority: RCW 80.01.040.  93-24-103 (Order R-400, Docket No. A-930517), § 480-09-770, filed 12/1/93, effective 1/1/94; 89-21-036 (Order R-310, Docket No. U-89-2966-R), § 480-09-770, filed 10/12/89, effective 11/12/89.]

(1) General.  Whenever the presiding officer enters an order ((in accordance with the provisions of)) under RCW 34.05.461, he or she must serve a copy of the order upon each party of record and upon the party's attorney, or other authorized representative ((shall be served with a copy of the order)) pursuant to ((the provisions of)) WAC 480-09-120(2).

(2) Petitions for administrative review - time for filing - who may file - required copies.

(a) Any party to an adjudicative proceeding may ((within twenty days after entry of the initial order)) file a petition for administrative review within twenty days after entry of the initial order.

(b) Unless the commission authorizes a different number ((is directed by the commission,)) a petitioner for administrative review must file an original and ((three copies of petitions for administrative review of an initial order in transportation matters other than transportation rate cases and)) nineteen copies ((in all other matters including transportation rate cases must be filed)) of the petition with the secretary of the commission and must serve one copy ((served)) upon each other party to the adjudication.  The petitioner must provide proof of service ((must be made)) in accordance with WAC 480-09-120(2).

(3) ((Petitions for administrative review)) Contents - length(( - contents)).  Petitions must clearly identify the nature of ((the)) each challenge to the initial order, the evidence, law, rule or other authority that the petitioner relied upon to support the challenge, and the ((nature of the)) remedy ((urged by the petition)) that the petitioner seeks.  Petitions for review of initial orders ((shall)) must be specific ((and separate contentions must be separately stated and numbered.  Petitions for review of findings of)). The petitioner must separately state and number every contention. A petition that challenges a finding of fact must ((be supported by a reference)) provide citations to the pertinent page or part of the record or ((by a statement of)) must otherwise state the evidence relied upon to support the petition, and should ((be accompanied by)) include a recommended finding of fact.  ((Petitions for review of)) A petition that challenges conclusions of law ((should be supported by reference to)) must cite the appropriate statute, rule, or case involved and should ((be accompanied by)) include a recommended conclusion of law.  ((When)) A petition that challenges the summary or discussion portion of an initial order((, the petition shall)) must include a statement showing the legal or factual justification for the challenge, together with a statement of how the ((alleged)) asserted defect ((in the summary)) affects the findings of fact, the conclusions of law, ((or)) and the ultimate decision.  Petitions for administrative review shall not exceed sixty pages, without prior permission from the commission.

(4) Answers.

(a) ((Answers to)) Any party to the adjudication may answer a petition for administrative review ((may be filed by any party)).

(b) Unless the commission authorizes filing a different number ((is required)) an answering party must file with the secretary of the commission, the original plus ((the number of)) nineteen copies ((required in subsection (2)(b) of this section, must be filed with the secretary of the commission,)) and must serve a copy ((served upon)) on each other party to the proceeding within ten days after the service of the petition.  The commission may designate a different time for filing answers to petitions.

(c) A party who did not file a petition for administrative review of an initial order may challenge the order or portions thereof in its answer to the petition of another party.

(5) Oral argument.  The commission may, in its discretion, hear oral argument upon a petition for review at a time and place to be designated by it upon notice to all parties to the proceeding.  A party who desires to present oral argument may move for argument, stating why the oral argument will assist the commission in making its decision and why written presentations will be insufficient.

(6) Final order.  After reviewing the initial order and any petitions for review, answers, replies, briefs, and oral arguments, and the record or such portions thereof as may be cited by the parties, the commission may by final order adopt, modify, or reject an initial order.  The statutory time for judicial review proceedings shall not commence until the date of the commission's final order or, if a petition for reconsideration has been filed, the date the petition is ((deemed)) considered denied or is otherwise disposed of.

[Statutory Authority: RCW 80.01.040.  93-24-103 (Order R-400, Docket No. A-930517), § 480-09-780, filed 12/1/93, effective 1/1/94; 92-18-081 (Order R-376, Docket No. 920379), § 480-09-780, filed 9/1/92, effective 10/2/92; 89-21-036 (Order R-310, Docket No. U-89-2966-R), § 480-09-780, filed 10/12/89, effective 11/12/89.]

((A)) Any party to an adjudication may ((file with the commission a)) petition for stay of the effectiveness of a final order within ten days after its service unless otherwise provided by statute or stated in the final order.  The commission may stay the effect of a final order on its own motion.

[Statutory Authority: RCW 80.01.040.  92-18-081 (Order R-376, Docket No. 920379), § 480-09-800, filed 9/1/92, effective 10/2/92; 89-21-036 (Order R-310, Docket No. U-89-2966-R), § 480-09-800, filed 10/12/89, effective 11/12/89.]

(1) General.  Any party to an adjudicative proceeding may ((file a)) petition for reconsideration of ((a)) the final order ((of the commission)) within ten days after ((the date)) the order is served.

(2) Number of copies - filing - service.  Unless the commission has authorized filing a different number ((has been ordered by the commission,)) of copies, the person filing a petition for reconsideration must file an original and ((three copies of the petition in transportation matters other than transportation rate cases, and)) nineteen copies ((in all other matters including transportation rate cases, shall be filed)) with the commission and must serve a copy of the petition ((shall be served by petitioner)) upon each party of record.

(3) Contents.  The petition ((shall state with particularity)) must clearly identify each portion ((or portions)) of the challenged order ((contended to be)) that the petitioner contends is erroneous or incomplete, ((and shall)) must cite those portions of the record and ((the laws or rules)) each law or rule of the commission ((relied)) that the petitioner relies upon to support the petition, ((together with)) and must present brief argument in support of the petition.

(4) Answers.  No party ((shall)) may file an answer unless requested by the commission((: Provided, That)). If the commission ((determines)) after examining the petition believes that reconsideration involving a possible change in a significant term of the order may be appropriate, ((involving more than the correction of obvious error and involving a possible change in a significant term of the order,)) it shall request answers from the other affected parties. The commission may grant without seeking answers a petition for reconsideration that asks the correction of obvious or ministerial errors.

(5) ((Except upon specific direction of the commission, no)) Oral argument. Oral argument ((shall)) will not be ((permitted)) heard on petitions for reconsideration except on request of the commission.

(6) Disposition.  The petition is deemed denied if, within twenty days from the date the petition is filed, the commission does not either:

(a) ((Dispose of)) Enter an order resolving the petition; or

(b) Serve the parties with a written notice specifying the date by which it will act on the petition.

(7) Action. If the commission grants the petition ((is granted)), the commission may modify its prior order or take such other action as it ((may deem appropriate)) believes to be proper.  ((No petition for reconsideration of an order on reconsideration will be accepted by the commission.  No petition for reconsideration may stay the effectiveness of an order.))

(8) Stay. Filing a petition for reconsideration does not stay the effectiveness of an order.

(9) Reconsideration of reconsideration. No party may petition for reconsideration of an order on reconsideration.

[Statutory Authority: RCW 80.01.040.  93-24-103 (Order R-400, Docket No. A-930517), § 480-09-810, filed 12/1/93, effective 1/1/94; 92-18-081 (Order R-376, Docket No. 920379), § 480-09-810, filed 9/1/92, effective 10/2/92; 89-21-036 (Order R-310, Docket No. U-89-2966-R), § 480-09-810, filed 10/12/89, effective 11/12/89.]

((Pursuant to RCW 80.04.210 and 81.04.210,)) (1) Amendment or rescission. The commission may on its own motion amend or rescind any order ((or rule)) which it has ((made,)) entered((, issued or promulgated, upon)) under RCW 80.04.210 or 81.04.210, after notice to the public service company or companies affected, and after allowing an opportunity for hearing as in the case of complaints.

(2) Correction. The commission on its own motion or on the request of any party may correct obvious or ministerial errors by letter from the secretary or by subsequent order. The time for any available posthearing review shall begin with the service of the correction, as to the matter corrected.

[Statutory Authority: RCW 80.01.040.  89-21-036 (Order R-310, Docket No. U-89-2966-R), § 480-09-815, filed 10/12/89, effective 11/12/89.]

(1) Rehearing.  ((A petition for rehearing may be filed with the commission by)) Any person affected by ((any)) a final order of the commission((, pursuant to)) may file a petition for rehearing under RCW 80.04.200 ((and)) or 81.04.200.  ((The commission will grant the petition:

(a) If there are changed circumstances injurious to the petitioner since the entry of the final order which were not considered by the commission; or

(b) To correct defects in the order; or

(c) For any good and sufficient cause which, for any reason, was not considered and determined in the original order.

The commission may, in its discretion, permit the filing of a petition for rehearing at any time after the conclusion of the proceeding.))

(2) Reopening.  Any party to an adjudication may file a petition for reopening ((may be filed)) with the commission ((by any party to a proceeding)) at any time after the close of the record and before entry of the final order.

(a) In uncontested proceedings, ((a petition may be granted)) the commission may grant reopening to correct failure to allow receipt of written evidence when otherwise permissible.

(b) In contested proceedings, the commission may grant a petition ((may be granted)) to permit receipt of evidence which is essential to a decision and which was unavailable and not reasonably discoverable with due diligence at the time of the hearing ((with due diligence,)) or for any other good and sufficient cause.

[Statutory Authority: RCW 80.01.040, 80.04.160, 81.04.160 and chapter 34.05 RCW.  91-22-034 (Order R-351, Docket No. A-910835), § 480-09-820, filed 10/30/91, effective 11/30/91.  Statutory Authority: RCW 80.01.040.  89-21-036 (Order R-310, Docket No. U-89-2966-R), § 480-09-820, filed 10/12/89, effective 11/12/89.]

     The following section of the Washington Administrative Code is repealed:

WAC 480-09-830

Compliance with orders.

© Washington State Code Reviser's Office