PROPOSED RULES
HEARINGS BOARD
Original Notice.
Exempt from preproposal statement of inquiry under RCW 34.05.310(4).
Title of Rule: Amendments to WAC 371-08-485 Standard and scope of review and burden of proof at hearing.
Purpose: The purpose of this rule is to clarify that the scope of review by the Pollution Control Hearings Board is de novo and the standard of review is a preponderance of the evidence unless otherwise required by law.
Statutory Authority for Adoption: RCW 43.21B.170.
Statute Being Implemented: Chapter 43.21B RCW.
Summary: The proposed amendment clarifies that the scope of review by the Pollution Control Hearings Board is de novo and the standard of review is a preponderance of the evidence unless otherwise required by law.
Reasons Supporting Proposal: The current rule has improperly labeled a de novo review as a standard of review. This had led to some confusion and needs to be clarified. In addition, it would be helpful to litigants to understand what standard of review is applicable under the law.
Name of Agency Personnel Responsible for Drafting: Deborah L. Mull, Environmental Hearings Office, (360) 459-6327; Implementation and Enforcement: Robert V. Jensen, Environmental Hearings Office, (360) 459-6327.
Name of Proponent: Pollution Control Hearings Board, governmental.
Rule is not necessitated by federal law, federal or state court decision.
Explanation of Rule, its Purpose, and Anticipated Effects: The proposed amendment clarifies that the scope of review by the Pollution Control Hearings Board is de novo and the standard of review is a preponderance of the evidence unless otherwise required by law. The purpose of the amendment is to provide guidance to persons who litigate before the Pollution Control Hearings Board. It is anticipated that the guidance will help the hearing process be more efficient for the board members and the litigants.
Proposal Changes the Following Existing Rules: The proposed amendment to WAC 371-08-485 clarifies that the scope of review by the Pollution Control Hearings Board is de novo and the standard of review is a preponderance of the evidence unless otherwise required by law.
No small business economic impact statement has been prepared under chapter 19.85 RCW. The preparation of a small economic impact statement is not required for adoption of rules described in RCW 34.05.310(4). The proposed amendment is a rule described in RCW 34.05.310(4). Specifically, the proposed amendment is a rule that adopts, amends, repeals "a procedure, practice, or requirement relating to agency hearings." RCW 34.05.301 [34.05.310] (4)(g)(i).
RCW 34.05.328 does not apply to this rule adoption. The Pollution Control Hearings Board is not an agency specifically listed in RCW 34.05.328.
Hearing Location: Environmental Hearings Office, 4224 6th Avenue S.E., Lacey, WA, on November 30, 2001, at 10:00 a.m.
Assistance for Persons with Disabilities: Contact Deborah L. Mull by November 16, 2001.
Submit Written Comments to: Deborah L. Mull, Environmental Hearings Office, P.O. Box 40903, Lacey, WA 98504-0903, fax (360) 438-7699, by December 21, 2001.
Date of Intended Adoption: January 14, 2002.
September 24, 2001
Deborah L. Mull
Administrative Appeals Judge
(2) The standard of review shall be preponderance of the evidence unless otherwise required by law.
(2) The issuing agency shall have the initial burden of proof in cases involving penalties or regulatory orders. In other cases, the appealing party shall have the initial burden of proof.
[Statutory Authority: RCW 43.21B.170. 96-15-003, § 371-08-485, filed 7/3/96, effective 8/3/96.]
Reviser's note: The typographical errors in the above section occurred in the copy filed by the agency and appear in the Register pursuant to the requirements of RCW 34.08.040.
Reviser's note: RCW 34.05.395 requires the use of underlining and deletion marks to indicate amendments to existing rules. The rule published above varies from its predecessor in certain respects not indicated by the use of these markings.