(1) What do these rules do? The department's practices and procedures rules, set out in this chapter, govern the method, time and place for challenging department actions and the procedures for conducting an adjudicative proceeding of that challenge.

(2) Do these rules govern my issue? Generally, these rules apply if you are challenging a department determination regarding:

(a) Derelict vessels (chapter 79.100 RCW);

(b) Forest practices notices to comply (chapter 76.09 RCW);

(c) Oil and gas drilling (chapter 78.52 RCW);

(d) Surface mining (chapter 78.44 RCW);

(e) Other department determinations that are not proprietary and do not fall within the exclusive jurisdiction of separate quasi-judicial boards, such as the forest practices appeals board.

(3) How are these rules organized? This chapter contains provisions for all reviews (adjudicative proceedings) heard by the department or the office of administrative hearings on the department's behalf. WAC 332-08-101 through 332-08-610 contain specific procedures for adjudicative proceedings and are divided by subject matter. Subject-specific sections apply to the following topics:

(a) Derelict vessels—Part II;

(b) Forest practices notices to comply—Part III;

(c) Oil and gas drilling—Part IV;

(d) Surface mining—Part V; and

(e) Other department determinations that are not proprietary and fall within the direct review authority of the department—Part VI.

(4) When reviewing these rules, one should review the general provisions under Part I and the specific rules contained in Parts II through VI that relate to the applicable subject matter.

Is review under the Administrative Procedure Act available for proprietary decisions? No. This section, concerning administrative review, is not available for proprietary decisions. Under RCW 34.05.010(3), sales, leases, contracts, or other proprietary decisions in the management of public lands or real property interests are not agency actions and are not subject to adjudicative proceedings under the Administrative Procedure Act (APA). Accordingly, the department will not commence APA-based adjudicative proceedings for proprietary decisions, including, but not limited to, actions taken under the terms of geoduck harvesting agreements, aquatic lands leases, easements, rights of way, revocation to install residential dock and residential mooring buoys, purchases or leases of public lands or any valuable materials thereon, permits to use state-owned land and resources, timber sale contracts, mineral prospecting leases, mining contracts, or other proprietary agreements to which the department is a party. Nonjudicial review of these actions may be available or required under the terms of the specific agreement or related laws.

What happens if I don't file a timely challenge of a department action? You may be precluded from filing any challenge if you do not timely file your challenge with the department under these rules.

(1) "Adjudicative proceeding" means a proceeding before an agency in which an opportunity for hearing before that agency is required by statute or constitutional right before or after the entry of an order by the agency. This definition includes an agency's or quasi-judicial board's consideration of a challenge through a brief adjudicative proceeding, formal adjudicative proceeding, petition for administrative review of an initial order, or a request for reconsideration.

(2) "BAP" means "brief adjudicative proceeding" as described in RCW 34.05.482 through 34.05.494.

(3) "Department" means the department of natural resources.

(4) "Filing a document that is required to be filed with an agency" means delivery of the document to a place designated by the agency by rule for receipt of official documents, or in the absence of such designation, at the office of the agency head. A document is not delivered until it is received by the intended recipient.

(5) "Formal adjudicative proceeding" refers to the adjudicative process described in RCW 34.05.413 through 34.05.476.

(6) "Service" means posting in the United States mail, properly addressed, postage prepaid, or personal service. Service by mail is complete upon deposit in the United States mail.

(7) For adjudicative hearings before the department, including hearings conducted by the office of administrative hearings, words used in this chapter have the meaning stated in RCW 34.05.010.

(8) For adjudicative hearings before the pollution control hearings board, terms used in this chapter relating to practice and procedure have the meaning stated in the pollution control hearings board's practices and procedures rules, chapter 371-08 WAC, except that "department" means the department of natural resources.

(1) Formal adjudicative proceedings: The department incorporates by reference the model rules of procedure, as now or as hereinafter amended, for the department's adjudicative proceedings conducted under RCW 34.05.413 through 34.05.479. The model rules of procedure are those that are adopted by the chief administrative law judge pursuant to RCW 34.05.250. The procedures are contained in chapter 10-08 WAC.

(a) Other rules adopted in this chapter supplement the model rules of procedure.

(b) The rules of this chapter supersede the procedures of chapter 10-08 WAC where there is a conflict.

(2) Brief adjudicative proceedings. The department does not incorporate by reference the model rules of procedure for BAPs, which are conducted under less formal requirements provided in RCW 34.05.482 through 34.05.494.

May the department settle a dispute without an adjudicative proceeding? The department may informally settle disputes. To explore the possibility of settlement, you should consider discussing settlement options with the department. Generally, settlement negotiations will not be admissible as evidence to show wrongdoing pursuant to Evidence Rule 408. Settlement negotiations do not alter the timelines associated with adjudicative proceeding or judicial appeals.

What is the standard of proof? Unless the rules or law requires otherwise, the standard of proof in an adjudicative proceeding is a preponderance of the evidence. Preponderance of the evidence means the evidence as a whole makes a fact more probable than not.

What does a presiding officer consider? The presiding officer will conduct a de novo review of the department's action(s) in reaching its initial order. New facts and law may be presented to the presiding officer to support or contest a department action in the course of an adjudicative proceeding, except to the extent that new facts or argument are limited by other laws and rules.

What limits apply to discovery in adjudicative proceedings being conducted by the department? Discovery in any adjudicative proceeding must comply with Civil Rule (CR) 26 through CR 36 unless otherwise agreed by the parties or ordered by the presiding officer.

How may exhibits be presented? Any party intending to offer documentary evidence during the hearing must prepare a minimum of two copies of each document to be offered, and must give one complete copy to each of the other parties of record no later than the date set for the hearing. The presiding officer may in her/his discretion order different requirements so long as consistent with the parties' rights. The presiding officer may exclude from evidence documents that fail to conform to his/her order or this rule unless the offering party shows good cause for the failure.

May the parties access the data underlying expert or opinion testimony? The presiding officer or other appropriate officer, in her/his discretion but consistent with the rights of the parties, may cause the parties to make available for inspection in advance of the hearing, and for purposes of cross-examination at the hearing, the data underlying expert or opinion testimony including testimony based on economic and statistical data. Wherever practicable, she/he will restrict to a minimum the placing of such data in the record.

When is this chapter applicable to department actions relating to the Derelict and Abandoned Vessel Act? This chapter applies when the owner or lien holder of an abandoned or derelict vessel files a challenge to a decision or action of the department acting as an authorized public entity with the pollution control hearings board under the Derelict and Abandoned Vessel Act as provided in RCW 79.100.120.

When must I file my appeal? The owner or lien holder of an abandoned or derelict vessel may file a notice of appeal regarding a decision or action of the department under chapter 79.100 RCW with the pollution control hearings board. A written request for a hearing related to the decision or action must be filed with the pollution control hearings board and served on the department in accordance with RCW 43.21B.230 (2) and (3) within thirty days of the date the department acquires custody of the vessel under RCW 79.100.040, or if the vessel is redeemed before the department acquires custody, no later than thirty days after the date of redemption.

Where must I file my appeal? The owner or lien holder of an abandoned or derelict vessel must file any notice of appeal concerning a decision to take temporary possession or custody of a vessel or the amount owed to the department under chapter 79.100 RCW with the pollution control hearings board and must serve a copy of the appeal on the department at the following addresses:

Pollution Control Hearings Board

Physical Address:

1111 Israel Road S.W., Suite 301

Tumwater, WA 98501

Mailing Address:

MS 40903

Olympia, WA 98504-0903

Department of Natural Resources

Aquatic Resources Division

Derelict Vessel Removal Program

Physical Address:

1111 Washington St. S.E.

Olympia, WA 98501

Mailing Address:

MS 47027

Olympia, WA 98504-7027

When is this chapter applicable to the department's derelict vessel removal actions? As directed by RCW 79.100.150, a seller/transferor of a qualifying vessel must provide vessel inspection disclosure documentation specified in WAC 332-30-123 to the department before transferring ownership of a vessel that is:

(1) More than sixty-five feet in length and more than forty years old; and

(2) Either:

(a) Is registered or required to be registered under chapter 88.02 RCW; or

(b) Is listed or required to be registered under chapter 94.40 RCW.

After July 1, 2014, this chapter applies when the department seeks financial reimbursement from any person or entity the department determines has incurred secondary liability under RCW 79.100.150 for all reasonable and auditable costs associated with the removal and disposal of derelict or abandoned vessels. The department may pursue secondary liability if the prior owner(s) did not provide the department copies of a vessel inspection disclosure report, as specified in WAC 332-30-123, before transferring ownership of the vessel.

(1) What are the minimum criteria for a vessel inspection to determine a vessel is seaworthy? For the purpose of this rule, the term "seaworthy" means the vessel and its equipment are physically fit and in full working order; able to encounter and withstand the ordinary perils of the sea during its contemplated use; and suitable for its intended purpose. Current U.S. Coast Guard certificates of inspection are acceptable forms of vessel condition determination. Other vessel inspection disclosure reports must document the condition, valuation, and suitability of the vessel for service. The vessel inspection disclosure report may be prepared for either the owner, lien holder, buyer/transferee, vessel broker, or associated financial and insurance provider(s) for the vessel. Vessel inspections must be prepared by a professional marine surveyor who is a third party to the transaction. The vessel inspection must be completed within thirty days prior to the seller/transferor transferring ownership of the vessel. Before transferring ownership of the vessel, the seller/transferor must provide the department a hard copy of the vessel inspection disclosure report and department-issued Acknowledgement Form with original, notarized signatures of the seller/transferor and the buyer/transferee acknowledging receipt of the vessel inspection disclosure report.

(2) The vessel inspection disclosure report must include the following information, at a minimum if applicable to the vessel:

(a) Cover page describing:

(i) Report title identifying type of survey;

(ii) Date report issued;

(iii) Contact information for surveyor;

(iv) Current photograph of vessel, date and location; and

(v) Official vessel number.

(b) Vessel description:

(i) General description;

(ii) Vessel name;

(iii) Current legal owner;

(iv) Intended use of vessel;

(v) Design; and

(vi) Type of construction.

(c) Vessel particulars:

(i) Builder;

(ii) Displacement;

(iii) Length;

(iv) Breadth;

(v) Draught; and

(vi) Fuel system.

(d) Surveyor's notes and condition rating;

(e) Systems evaluation:

(i) Type of propulsion;

(ii) Auxiliary engines; and

(iii) Electrical systems.

(f) Conditions:

(i) Overall appearance; and

(ii) Hull and superstructure condition.

(g) Surveyor recommendations;

(h) Appraisal of market value;

(i) Replacement value;

(j) Physical suitability of the vessel and its equipment for its intended use; and

(k) Determine whether the cost of repairs required to return the vessel and its equipment to physical suitability for its intended use is likely to exceed the market value of the vessel.

(1) Where must I file my vessel inspection documentation? The seller/transferor must file a hard copy vessel inspection disclosure report and supporting documentation at the following address:

Department of Natural Resources

Aquatic Resources Division

Derelict Vessel Removal Program

MS 47027

Olympia, WA 98504-7027

(2) What is the department's procedure for confirming receipt of vessel inspection disclosure documentation? The department will accept hard copies of a vessel inspection disclosure report and completed Acknowledgement Form from sellers/transferors.

(a) The department will transmit a hard copy or electronic notice of receipt to the seller/transferor within ten business days of receiving the vessel inspection disclosure documentation.

(b) Such department-issued notice of receipt does not constitute concurrence that the vessel inspection disclosure documentation meets the minimum criteria for a vessel inspection disclosure report, specified in WAC 332-30-123 or that the documentation was received prior to ownership transfer of the vessel.

(c) The department will maintain records of vessel inspection disclosure documentation for future determination of potential secondary liability.

(3) What is the department's procedure for determining and asserting secondary liability?

(a) The department will notify a prior owner of a vessel, determined to be derelict or abandoned, that they have secondary liability when cost recovery is sought, if:

(i) An authorized public entity has taken, or is in the process of taking, custody of the derelict or abandoned vessel;

(ii) The current owner cannot be identified or is financially insolvent;

(iii) The department does not have vessel inspection disclosure documentation on record for the derelict or abandoned vessel; and

(iv) The vessel was transferred after July 1, 2014.

(b) The department may provide such notice of secondary liability concurrently with a vessel custody action or after an authorized public entity has obtained custody of the vessel.

When is this chapter applicable to the department's forest practices actions? This chapter applies to challenges of notices to comply that the department issues under chapter 76.09 RCW (Forest Practices Act) and chapter 222-46 WAC. These challenges are initially reviewed through brief adjudicative proceedings (BAPs). Other department actions regarding forest practices, including appeals from department BAP actions on notices to comply, are generally subject to review by the pollution control hearings board under chapter 371-08 WAC.

What statutes apply to brief adjudicative proceedings (BAPs) for notices to comply? RCW 34.05.482 through 34.05.494 apply to BAPs reviewing forest practices notices to comply.

(1) An application for a BAP must be written, and must specify the factual basis for appeal and the issue to be adjudicated in the proceeding.

(2) A copy of the department's written action that is the subject of the appeal must be attached to the application for an adjudicative proceeding.

(3) An application for a BAP concerning a forest practices notice to comply must be filed within fifteen days after the date of service of the notice to comply. The application must be filed with the resource protection and services assistant region manager (RP&S Asst. Reg. Mgr) at the following addresses:

Who is the decision maker for a BAP? The presiding officer shall be a department region manager or resource protection and services assistant region manager unless otherwise designated by the commissioner of public lands.

(1) The department shall schedule a hearing for a date not more than twenty days after receiving an application for a BAP on a forest practices notice to comply.

(2) The applicant may waive the requirement that a hearing be held within twenty days.

(3) Subject to the approval of the presiding officer, a continuance of any hearing date may be made by agreement of the parties. The presiding officer will provide written documentation to all parties of their decision related to request for continuances.

Who has the burden of proof? Unless otherwise ordered by the presiding officer or required by law, the department shall have the burden of proof to support its issuance of a forest practices notice to comply.

When will a BAP decision be made? Within ten days of completing the BAP hearing on a forest practices notice to comply, the department shall issue a final order either withdrawing its notice to comply or clearly setting forth the specific course of action to be followed by the recipient of the notice to comply.

(1) How do I administratively appeal a BAP decision? The operator, forest land owner, or timber owner subject to a final order of the department on a forest practices notice to comply may, within thirty days from the date of receipt of such final order, appeal to the pollution control hearings board.

(2) Who reviews the BAP decision? The pollution control hearings board will conduct the review. The provisions of chapter 371-08 WAC govern such appeals.

Who replaced the oil and gas conservation committee? The department of natural resources has replaced the Washington oil and gas conservation committee in administering chapter 78.52 RCW and the oil and gas rules. Appeals of department determinations regarding chapter 78.52 RCW and the implementing rules will be governed by the department's practices and procedures rules in Part IV of this chapter and the Administrative Procedure Act, chapter 34.05 RCW.

When is this chapter applicable to department actions relating to the Oil and Gas Conservation Act (chapter 78.52 RCW)? This chapter applies when a challenge is filed against a department action under the Oil and Gas Conservation Act.

What must my appeal contain? An application for an adjudicative proceeding before the department under RCW 34.05.413 through 34.05.494 must:

(1) Be in writing;

(2) Be signed by the applicant or the applicant's representative;

(3) Specify the factual basis for appeal and the issue(s) to be adjudicated in the proceeding; and

(4) Include a copy of the department's written determination that is the subject of the appeal.

When must my appeal be filed? An appeal of a department suspension must be filed within fifteen days. Appeals of any other determination regarding oil and gas issues, chapter 78.52 RCW, must be filed within thirty days of the department's determination.

(1) Where must my appeal be filed? Applications for adjudicative proceedings regarding department determinations under the Oil and Gas Conservation Act, chapter 78.52 RCW must be filed with:

Oil and Gas Supervisor

Division of Geology and Earth Resources

Department of Natural Resources

P.O. Box 47007

Olympia, WA 98504-7007

(2) Who considers my appeal? Adjudicative proceedings governed by this section will be initially decided through the office of administrative hearings unless the commissioner of public lands decides that he/she will enter a decision.

Who has the burden of proof? Unless otherwise ordered by the presiding officer or required by law, the burden of proof in adjudicative proceedings relating to department determinations under the Oil and Gas Conservation Act, chapter 78.52 RCW, shall be:

(1) On a person challenging the department's decision approving or disapproving an application for an oil and gas permit or permit renewal under chapter 78.52 RCW;

(2) On a person seeking the imposition of any other order of the department; and

(3) On the department to support an enforcement action, such as a suspension, civil penalty, or cancellation of the permit.

May the parties move for summary judgment on some or all issues? Yes. A request to resolve an issue (claim) may be brought as a motion for summary judgment so long as the motion complies with the timing requirements of any prehearing order. A motion for summary judgment may be granted and an order issued if the written record shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.

(1) How may I obtain review of an initial order?

(a) Initial orders in all adjudicative proceedings relating to department actions under the Oil and Gas Conservation Act, chapter 78.52 RCW, shall become final without further action by the department unless, within twenty-one days of the date of service of the initial order, a petition for administrative review is filed at the following address:

Executive Director - Policy and Administration

Department of Natural Resources

P.O. Box 47001

Olympia, WA 98504-7001

(b) A copy of the petition for administrative review must be served on all parties or their authorized representatives at the time the petition is filed.

(2) Who is the reviewing officer? By adopting this rule, the commissioner of public lands appoints the executive director - policy and administration or delegated alternate as reviewing officer of petitions for administrative review of initial orders. The commissioner may appoint an alternate reviewing officer or retain the reviewing officer role for any case.

(3) What must my petition for administrative review of an initial order include? The petition for administrative review shall clearly identify the parts of the initial order with which the party disagrees and shall refer to the evidence of record which is relied upon to support the party's position.

(4) How does a party reply to the petition for administrative review?

(a) Any party may file a reply to a petition for administrative review. The reply shall be filed with the office where the petition for administrative review was filed on or before the tenth business day after the date the petition for administrative review was served on the party.

(b) If a reply is filed, a copy must be served on all parties or their representatives at the time the reply is filed.

(5) May I provide written and oral argument?

(a) The parties may provide written argument in support of a petition for administrative review or a reply to a petition for administrative review.

(b) Upon receipt of a petition for administrative review and any reply thereto, the reviewing officer shall hold a scheduling conference to establish a deadline for written argument. Unless the reviewing officer determines a different schedule is appropriate, the following schedule will apply:

(i) Written argument in support of a petition for administrative review must be filed at the address designated for the petition for administrative review within ten days of the scheduling conference. A copy of the written argument in support of the petition must be served on all parties or their representatives at the time the written argument is filed.

(ii) Written argument in support of the reply must be filed at the address designated for the petition for administrative review within ten days of service of the written argument in support of the petition. A copy of written argument in support of the reply must be served on all parties or their representatives at the time the written argument is filed.

(c) Oral argument is generally not available and is a matter of the reviewing officer's discretion.

(6) May the parties offer new evidence on review? The parties must limit their arguments to the evidence in the record, except to the extent that supplementation of the evidence would be appropriate under the standards of RCW 34.05.562 for judicial reviews. Whether to allow the supplementation of the record is within the discretion of the reviewing officer.

(1) Within ten days of the service of a final order, any party may file a petition for reconsideration, stating the specific grounds upon which relief is requested. The petition for reconsideration must be received by the officer who issued the order within ten days of his or her mailing. Any petition for reconsideration must also be postmarked as being mailed to the other parties within this ten-day period.

(2) A petition for reconsideration does not stay the effectiveness of the reviewing officer's final order.

(3) If a petition for reconsideration is timely filed, and the petitioner has complied with the procedural rules for reconsideration, the time for filing a petition for judicial review does not commence until the agency disposes of the petition for reconsideration. The agency is deemed to have denied the petition for reconsideration if, within twenty days from the date the petition is filed, the agency does not either:

(a) Dispose of the petition; or

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

(4) Unless the petition for reconsideration is deemed denied under subsection (3) of this section, the petition shall be disposed of by the same person or persons who entered the order, if reasonably available. The disposition shall be in the form of a written order denying the petition, granting the petition and dissolving or modifying the final order, or granting the petition and setting the matter for further hearing.

(5) The filing of a petition for reconsideration is not a prerequisite for seeking judicial review. An order denying reconsideration, or a notice provided for in subsection (3)(b) of this section, is not subject to judicial review.

When is this chapter applicable to department determinations relating to the Surface Mining Act, chapter 78.44 RCW? This chapter applies when a challenge is filed with the pollution control hearings board against a department determination made under the Surface Mining Act, chapter 78.44 RCW.

When must my appeal be filed? A notice of appeal regarding a department under chapter 78.44 RCW may be filed with the pollution control hearings board within thirty days from the date of receipt of the decision being appealed.

Where must my appeal be filed? Applications for adjudicative proceedings relating to surface mining must be filed with the pollution control hearings board and served on the department at the following addresses: