41.11.160 Appeals and hearings.
(1) This section establishes deadlines and timelines for appeals arising from:
(a) Solid waste permit decisions; and
(b) Alleged solid waste code violations not associated with a permitted facility.
(2) This section establishes two types of hearings for appeals of decisions arising from subsection (1) of this section:
(a) Open record hearings before the Hearing Officer; and
(b) Closed record hearings before the County Board of Health.
(3) With respect to appeals of solid waste permit decisions any solid waste permit applicant or owner of property on or for which a solid waste permit has been submitted or issued, or other person who is aggrieved by a permit issuance, permit denial, permit suspension, or action by the Health Officer, shall be authorized to appeal the matter and have a hearing before a Hearing Officer authorized by the Board to conduct such hearings.
(4) With respect to appeals arising from alleged solid waste code violations not associated with a permitted facility the owner or occupant of property on or for which a solid waste violation has been submitted or issued, or a person whose property is adjacent, i.e., abutting, to property subject to the alleged solid waste violation, or other person aggrieved by a notice and order to correct a violation is authorized to request, in writing, a hearing before the Hearing Officer.
(5) With respect to the types of appeals established by subsection (1) of this section any appeal to the Hearing Officer shall not be valid (timely) unless it is filed with the applicable fee amount with Health and Human Services no later than the close of business on the fourteenth day after the date of the decision or action being appealed. For purposes of counting 14 days, the day of the date of the decision does not count. If the last day for filing such an appeal falls on a weekend or federal holiday, the deadline shall be considered the close of business on the next business day. Untimely appeals will not be heard by the Hearing Officer and the fee will be returned to the appellant.
(6) With respect to the types of appeals established by subsection (1) of this section any appeal to the Board of Health shall not be valid (timely) unless it is filed with the applicable fee amount with the Clerk to the Board of Health no later than the close of business on the thirtieth day after the date of the decision or action being appealed. For purposes of counting 30 days, the day of the date of the decision does not count. If the last day for filing such an appeal falls on a weekend or federal holiday, the deadline shall be considered the close of business on the next business day. Untimely appeals will not be heard by the Board of Health and the fee will be returned to the appellant.
(7) With respect to any appeal made to either the Hearing Officer or the Board of Health the appellant shall submit specific statements in writing listing the reasons why the appellant assigns error(s) to the decision of the Health Officer.
(8) The date for the hearing before the Hearing Officer shall be a date mutually agreed to by the Hearing Officer, the appellant and HHS and should be a date within 30 days of the date when HHS received the appeal and the applicable fee. The parties and the Hearing Officer may agree to set the date for the open record hearing at a date more than 30 days after the date HHS received the appeal and the fee.
(9) The hearing before the Hearing Officer will be an open record hearing and the procedure to be followed during such a hearing will substantially conform to the procedure listed here, subject to changes the Hearing Officer may make at their discretion. In no event shall the open record hearing not be open to the public.
(a) Hearings shall be open to the public and presided over by the Hearing Officer. Such hearings shall be recorded. Hearings shall be opened with a recording of the time, date and place of the hearing, and a statement of the cause for the hearing. The Hearing Officer shall then swear in all potential witnesses. The case shall be presented in the order directed by the Hearing Officer. The appellant may present rebuttal. The Hearing Officer may question either party. The Hearing Officer may allow for a closing statement or summation.
(b) General rights of all parties include:
(i) To be represented by an attorney;
(ii) To present witnesses;
(iii) To cross-examine witnesses;
(iv) To object to evidence for specific grounds. In the conduct of the proceeding, the Hearing Officer may consider any evidence, including hearsay evidence that a reasonably prudent person would rely upon in the conduct of his or her affairs. Evidence is not admissible if it is excludable on constitutional or statutory grounds or on the basis of evidentiary privilege recognized in the courts of this State. The Hearing Officer shall decide rulings on the admissibility of evidence, and the Washington rules of evidence shall serve as guidelines for those rulings.
(c) Record. Inasmuch as any appeal to the Board of Health from a Hearing Officer decision is a review on the record, the Hearing Officer shall ensure that the record generated contains testimonial and documentary evidence supporting the Hearing Officer’s issuance of the hearing decision, thereby creating the record for the closed record hearing that may occur before the Board of Health.
(d) The Hearing Officer may continue the hearing to another date to allow for additional submission of information or to allow for additional consideration. Prior to closing of the hearing, the Hearing Officer shall issue its oral ruling, unless the Hearing Officer determines that the matter should be taken under advisement. Written findings of fact, conclusions of law and orders shall be served on the appellant within 14 days of the oral ruling. If the matter is taken under advisement, written findings, conclusions and orders shall be mailed to the appellant within 21 days of the close of the hearing.
(e) The appellant shall bear the burden of proof and may challenge the permit decision based on the preponderance of the evidence.
(10) The Hearing Officer will issue a decision affirming, reversing, or modifying the Health Officer decision which has been appealed. The Hearing Officer may require additional actions as part of the decision. The Hearing Examiner may also issue a decision that simultaneously includes more than one of their three options, meaning they may, for example, affirm in part and reverse in part.
(11) The date for the hearing before the Board of Health shall be a date mutually agreed to by the Board of Health (through the Clerk to the Board) and the parties and should be a date within 30 days of the date when the Clerk to the Board of Health received the appeal and the applicable fee. The parties may agree to set the date for the closed record hearing at a date more than 30 days after the date when the Clerk to the Board of Health received the appeal and the fee.
(12) Board of Health closed record hearings shall be open to the public and presided over by the chair of the Board of Health. Such hearings shall be recorded. Board of Health hearings shall be opened with a recording of the time, date and place of the hearing, and a statement of the cause for the hearing. This hearing shall be limited to argument of the parties and no additional evidence shall be taken unless, in the judgment of the chair, such evidence could not have reasonably been obtained through the exercise of due diligence in time for the hearing before the Hearing Officer. Argument shall be limited to the record generated before the Hearing Officer unless the chair admits additional evidence hereunder.
(13) Except for conditions causing risks to human health or safety or conditions that are the subject of an emergency order from the local Health Officer, appeals to the Hearing Officer shall act as a stay of the Health Officer’s decision or order. Such a stay will remain in effect if the decision of the Hearing Officer is appealed to the Board of Health.
(14) With respect to appeals to the Board of Health regarding appeals listed in subsection (1)(a) of this section any person affected by the solid waste permit decision under appeal may make a written request for a stay of the decision to the Hearing Officer within five business days of the Hearing Officer’s decision. The Hearing Officer will grant or deny the request within five business days.
(15) Any decision of the Board of Health regarding the appeal of a decision by the Hearing Officer or the Health Officer relative to a solid waste permit decision shall be final and may be appealed to the Pollution Control Hearings Board in a manner consistent with RCW 70A.205.210.
(16) Any decision of the Board of Health regarding Health Officer actions not related to permitted solid waste facilities shall be final and may only be appealed by an action filed in Superior Court. Any action to review the Board’s decision must be filed within 30 days of the date of the decision.