us-hi-regs-official-b539876f1a776b3844959892edb3ea74d5662858e9813d319f8604db855fbd8d•11-201
11-201
us-hi-regs-official-b539876f1a776b3844959892edb3ea74d5662858e9813d319f8604db855fbd8d11-201Regulation
TITLE 11 DEPARTMENT OF HEALTH CHAPTER 201 ENVIRONMENTAL COUNCIL RULES OF PRACTICE AND PROCEDURE Subchapter 1 Purpose §11-201-1 Purpose Subchapter 2 Definitions §11-201-2 Definitions Subchapter 3 Environmental Council Environmental council §11-201-3 §11-201-4 Delegation of administrative duties Subchapter 4 Public Records §11-201-5 Public records Subchapter 5 Proceedings before Hearing Officer Council or §11-201-6 §11-201-7 §11-201-8 §11-201-9 §11-201-10 §11-201-11 §11-201-12 §11-201-13 §11-201-14 §11-201-15 Proceedings before council or hearing officer Disqualification of council member or hearing officer Consolidations Filing of documents Amendment of documents and dismissal Retention of documents Service of process Council decision Computation of time Continuance or extensions of time Subchapter 6 Rulemaking §11-201-16 §11-201-17 Initiation of rulemaking proceedings Notice of public hearing 7
§11-201-1 §11-201-18 §11-201-19 §11-201-20 Conduct of hearing Council action Emergency rulemaking Subchapter 7 Declaratory Rulings §11-201-21 §11-201-22 §11-201-23 §11-201-24 §11-201-25 Petitions for declaratory rulings Refusal to issue a declaratory order Request for hearing Applicability of order Declaratory ruling on council's own motion Subchapter 8 Appeals §11-201-26 §11-201-27 §11-201-28 §11-201-29 §11-201-30 Filing of appeal Filing of response to appeal Appeal hearings; generally Appeal hearings; witnesses Appeal hearings; procedures Historical Note: Chapter 11-201, Administrative Rules, is based substantially on the Rules of Practice and Procedure of the Environmental Quality Commission. [Ef f. 6/2/75; R DEC O6 J SUBCHAPTER 1 PURPOSE §11-201-1 Purpose. This chapter governs procedures before the environmental council of the State of Hawaii under chapter 343, Hawaii Revised Statutes, and other-related acts as may now or hereafter be administered by the council. They shall be construed to effectuate the purposes of chapter 343, Hawaii Revised Statutes, and to secure the just and speedy determination of every proceeding. [Ef f. DEC O o 1985 J (Auth: HRS §§91-2, 343-6) (Imp: HRS §§91-2, 343-6) 201-2
SUBCHAPTER 2 DEFINITIONS 11-201-2 §11-201-2 Definitions. As used in this chapter, unless the context otherwise specifically requires: "Appellant" means an applicant who appeals the non-acceptance by an agency of that person's environmental impact statement. "Council" means the environmental council of the State of Hawaii. Its membership shall be as provided in section 341-3, Hawaii Revised Statutes. "Director" means the director of environmental quality control. "Office" means the office of environmental quality control. "Party" means each person or agency specifically affected by a proceeding other than as a member of the general public. The attorney general or the attorney general's representative shall be designated as "counsel for the council" and shall be party to all proceedings governed by this chapter. "Petitioner" means the person or agency on whose behalf a petition is made to the council for a declaratory ruling or for the adoption, amendment, or repeal of any rule of the council. "Proceeding" means the council's elucidation and consideration of the relevant facts and applicable laws and its action thereupon with respect to a particular subject within its jurisdiction, initiated by a filing or submittal by petition, appeals, and applications by an interested person or agency or by a council notice or order, and shall include, but not be limited to: (1) Proceedings involving the adoption, amendment, or repeal of any rule of the council; (2) Proceedings involving declaratory rulings; and (3) Appeals instituted at the request of an applicant, involving the non-acceptance of the applicant's environmental impact statement by the agency responsible for accepting that statement. "Respondent" means an agency that did not accept an applicant's environmental impact statement and 201-3 7 9
§11-201-2 from whose determination an appeal is counci 1. [Ef f. DEC O6 1985 ] §343-6) (Imp: HRS §343-6) SUBCHAPTER 3 ENVIRONMENTAL COUNCIL filed with the (Auth: HRS §11-201-3 Environmental council. (a) The office of the council shall be located at such place and address as the council shall from time to time designate. All communications to the council shall be addressed to the environmental council, unless otherwise specifically directed. (b) The office of the council shall be open from 7:45 a.m. to 4:30 p.m., Monday through Friday, unless otherwise provided by statute or executive order. (c) The council may meet and exercise its powers in any part of the State of Hawaii. All meetings of the council shall be open to the public, except that the council may meet in executive meetings, from which the public may be excluded, by a recorded vote of not less than two-thirds of the members present. An executive meeting shall be authorized only when, in accordance with law, it is deemed necessary for the protection of the character or reputation of any person or the protection of secret processes or methods of manufacture of any person or when the attorney general determines it is necessary for the preparation of the prosecution or defense of any action or proceeding. No order, ruling, appointment, contract, or decision shall be finally acted upon at an executive meeting. Meetings shall be held at times as the council deems advisable. Meetings may be scheduled by consensus of the counci 1 during the course of a meeting or during intervening days, at the call of the council chairperson or the director upon notifying the council chairperson. The public, petitioners, appellants, and respondents shall receive reasonable notice of all meetings. Notice of meetings of the council shall: (1) Be sent to all requesting to be on the mailing list for this purpose and other interested parties; (2) Be posted in the office of the environmental council; and 201-4
§11-201-3
(3) Be distributed to the news media, if
possible.
{d) A majority of all members to which the
council is entitled shall constitute a quorum to
transact business, and the concurrence of a majority
of all the members to which the council is entitled
shall be necessary to make valid any action of the
counci 1 except those actions that the counci 1
authorizes, by concurrence of a majority of all
members to which it is entitled, to be performed in
its behalf by a limited number of duly designated
counci 1 members, in which case the concurrence of a
majority of all the council members so designated
shall be necessary to make an action valid.
(e) The council shall maintain minutes of its
meetings, setting forth an accurate record of votes
and actions taken at the meetings. Unless otherwise
required by the governor, the minutes need not
include a verbatim record of discussions at
meetings. The minutes of the council shall be deemed
public records, provided that the minutes of any
executive meeting from which the public has been
excluded may remain confidential, as long as their
publication would defeat the lawful purpose as stated
in subsection (c), but no longer.
{f) All decisions, orders, and other actions of
the council shall be authenticated or signed by the
counci 1 members acting in the proceeding or by the
chairperson upon delegation by the council members
acting in the proceeding. Official copies of
decisions, orders, and other counci 1 actions may be
issued under the signature of the chairperson of the
council or the chairperson's delegate.
(g) All documents required to be filed with the
council shall be filed in the office of the council
at Honolulu, Hawaii, within time limits as prescribed
by law, rules, or by order of the council. Requests
for public information, copies of official documents,
or opportunity to inspect public records may be made
in writing to the council office or in person at the
off ice. [Ef f. DEC O6 1985 ] {Auth: HRS §§91-2,
343-6) {Imp: HRS §§91-2, 92-4, 92-5, 92-7, 92-9,
343-3, 343-6)
201-5
7 9§11-201-4 §11-201-4 Delegation of administrative duties. (a) The council may delegate to any individual the power or authority vested in the council as it deems reasonable and proper for the effective administration of chapter 343, Hawaii Revised Statutes, except the power to adopt, amend, or repeal rules. (b} The council by written resolution adopted by a majority of the members to which it is entitled, may appoint a hearing officer or off ice rs, who may, but need not be, members of the council, or a disinterested attorney at law or other person or a combination of any of them to hold a hearing as provided in this chapter and take testimony upon the matters involved in the hearing and transmit to the counci 1 a record of the hearing, including a recording or transcript and a summary of the evidence taken at the hearing. After review of the testimony and evidence, a majority of the members to which the council is entitled shall render a decision on the matter. (c) Any hearing officer may be paid a reasonable compensation as shall be determined by the council, provided that no member of the council shall be eligible to receive any compensation. [Eff. DECO 6 1985 J (Auth: HRS §§91-2, 343-6} (Imp: HRS §§91-2, 343-6} SUBCHAPTER 4 PUBLIC RECORDS §11-201-5 Public records. (a) The term "public records" as used in this chapter is defined as in section 92-50, Hawaii Revised Statutes, and shall include all maps, rules, environmental impact statements and related documents, written statements of policy or interpretation formulated, adopted, or used by the council, all final opinions and orders, the minutes of meeting of the council, and any other material on file in the office of the council, which shall include all statements and other documents prepared under the provisions of chapter 343, Hawaii Revised Statutes, except materials and minutes submitted and reported in executive meetings of the council. 201-6
§11-201-6 (b) All public records shall be available for inspection in the office of the council at Honolulu, Hawaii, during established office hours unless public inspection of those records is in violation of any state or federal law. (c) Public records printed or reproduced by the council shall be given to any person requesting them and paying the reasonable cost thereof. (d) Requests for public information, for permission to inspect official records, or for copies of public records shall be handled expeditiously. [Eff. C O 6 1985 ] (Auth: HRS §§91-2, 343-6) (Imp: HRS §§91-2, 343-6, 92-50) SUBCHAPTER 5 PROCEEDINGS BEFORE COUNCIL OR HEARING OFFICER § 11-201-6 Proceedings before counci 1 or hearing officer. (a) The council on its own motion, or upon the petition of any interested person or any agency of the federal, state, or county government, may hold such proceedings as it may deem necessary from time to time in the performance of its duties, or the formulation of its rules. Procedures to be followed by the council, unless specifically prescribed in this chapter or by chapter 91, Hawaii Revised Statutes, shall be as in the opinion of the council will best serve the purposes of the proceeding. (b) An individual may appear in the individual's own behalf or as an authorized representative of a partnership, corporation, trust or association, and an officer or employee of an agency of the state or a political subdivision of the state may represent the agency in any proceeding before the council. (c) A person or agency may be represented by or with any person, counsel, or consultant in any proceeding under this chapter, except as provided in subsection (e). (d) When an individual acting in a representative capacity appears in person or signs a paper in practice before the council, that individual's personal appearance or signature shall constitute a representation to the council that under this chapter and the applicable statute, that individual is authorized and qualified to represent the particular person on whose behalf the individual 201-7 7 9
§11-201-6 acts. The council at any time may require any person transacting business with the council in a representative capacity to show in writing that person's authority and a qualification to act in that capacity. (e) Bar to appearance. (1) No individual, whether associated with the council as a member, officer, employee, or counsel shall be permitted to appear before the council on behalf of or to represent in any manner any party in connection with any proceeding or matter that the individual has handled or passed upon while associated in any capacity with the council after June 2, 1975; (2) Any person or agency appearing before the council in any proceeding or matter shall not in relation thereto knowingly accept assistance from and compensate any individual who would be precluded by paragraph (l); (3) No individual who has been associated with the council as a member, officer, employee, or counsel thereof, shall be permitted to appear before the council in behalf of, or to represent in any manner, any person or agency in connection with any proceeding or matter that was pending before the council at the time of the individual's association with the council unless that individual shal 1 first have obtained the written consent of the council upon a verified showing that the individual did not give personal consideration to the matter or proceeding as to which consent is sought or gain particular knowledge of the facts thereof during that individual's association with the council; (4) This subsection shall not apply to any individual or agency whose association with the council has been terminated for a period of one year. [Ef f. 0 6 1985 ] (Auth: HRS §§91-2, 343-6) (Imp: HRS §§84-18, 343-6) 201-8
§11-201-9 §11-201-7 Disqualification of council member or hearing officer. Any party to a hearing, up to five days before the proceeding, may file an affidavit that one or more of the council members or a hearing officer has a personal bias or prejudice. The council member against whom the affidavit is so filed may answer the affidavit or may file a disqualifying certificate with the council. If the council member or hearing officer chooses to answer the affidavit, the remaining council members shall decide by a majority of all the members to which the council is entitled whether that council member or hearing officer shall be disqualified from the proceeding. Every affidavit shall state the facts and reasons for the belief that bias or prejudice exists and shall be filed at least five days before the hearing, or good cause shall be shown for the failure to file it within the time. Any council member or hearing officer may request disqualification by filing with the chairperson a certificate that deems that person unable for any reason to preside with impartiality in the pending hearing. [Ef f. C OB 1985 ] (Auth: HRS §§91-2, 343-6) (Imp: HRS §§91-2, 343-6) §11-201-8 Consolidations. The council, upon its own initiative or upon motion, may consolidate for hearing or for other purposes or may contemporaneously consider two or more proceedings that involve substantially the same parties, or issues that are the same or closely related, if it finds that the consolidation or contemporaneous hearing will be conducive to the proper dispatch of its business and to the ends of justice and will not unduly delay the proceedings. [Ef f. DEC O6 1985 ] (Auth: HRS §§91-2, 343-6) (Imp: HRS §§91-2, 343-6) §11-201-9 Filing of documents. (a) All requests, appeals, pleadings, submittals, petitions, reports, maps, exceptions, briefs, memoranda, and other papers required to be filed with the council in any proceeding shall be filed at the office of the council at Honolulu, Hawaii, within the time limits prescribed by law, this chapter, or by order of the counci 1. The date on which the papers are received shall be regarded as the date of filing. 201-9 7 9
§11-201-9 (b) All requests and appeals filed with the council shall be written in black ink, typewritten, mimeographed, or printed; shall be plainly legible; and shall be on strong, durable paper not larger than 8-1/2" X 14" in size, except that maps, charts, tables, and other like documents may be larger, folded to the size of the papers to which they are attached. (c) All documents shall be signed in indelible ink by the party signing or by a duly authorized agent or attorney. The signature of the person signing the document constitutes a certification that the person has read the document; that to the best of that person's knowledge, information, and belief, every statement contained therein is true and no such statement is misleading; and that it is not interposed for delay. (d) Unless otherwise specifically provided by a particular rule or order of the council, an original and fifteen copies of all papers shall be filed. (e) All documents filed by any person or agency in any proceeding shall state on the first page thereof the name, mailing address, and business telephone number, if any, of the individual or individuals who may be served with any documents filed in the proceeding. [Eff. DEC O6 1985 J (Auth: HRS §§91-2, 343-6) (Imp: HRS §§91-2, 343-6) §11-201-10 Amendment of documents and dismissal. If any document filed in a proceeding is not in substantial conformity with the applicable rules of the council as to contents thereof, or is otherwise insufficient, the council, on its own motion or on motion of any party, may strike the document or require its amendment. If amended, the document shall be effective as of the date of the receipt of the amendment. [Ef f. DEC O 6 1985 ] (Auth: HRS §§91-2, 343-6) (Imp: HRS §§91-2, 343-6) §11-201-11 Retention of documents. All documents filed with or presented to the council shall be retained in the files of the council. The counci 1 may permit the withdrawal of original 201-10 7 9
documents upon submission of replace copies [Eff. (Imp: to 0 6 1985 HRS §§91-2, ] (Auth: 343-6) §11-201-13 properly authenticated the documents. HRS §§91-2, 343-6) §11-201-12 Service of process. (a) The council shall cause to be served all orders, notices, and other papers issued by it, together with any other papers that it is required by law to serve. All other papers shall be served by the parties filing them. (b) All papers served by either the council or any party shall be served upon all parties or their counsel. Any counsel entering an appearance subsequent to the proceeding shall notify all other counsel then of record and all parties not represented by counsel of the fact. (c) The final order, and any other paper required to be served by the counci 1 upon a party, shall be served upon the party and a copy shall be furnished to counsel of record. (d) Service of papers shall be made personally or, unless otherwise provided by law, by first-class mail. (e) Service upon parties, other than the council, shall be regarded as complete by mail upon deposit in the United States mai 1, properly stamped and properly addressed to the parties involved. [Ef f. 0 6 1985 ] (Auth: HRS §§91-2, 343-6) (Imp: HRS §§91-2, 343-6) §11-201-13 Council decision. All final orders, opinions, or rulings entered by the counci 1 in the proceeding and rules adopted by the council shall be served upon the parties participating in the proceeding by regular mail or personal delivery by the council and shall be released for general publication. Copies of the published material shall be available for public inspection in the office of the council or may be obtained upon request and upon payment of reasonable charges. [Ef f. DEC O6 ] (Auth: HRS §§91-2, 343-6) (Imp: HRS §§91-2, 343-6) 201-11
§11-201-14 §11-201-14 Computation of time. In computing any period of time prescribed or allowed by this chapter, order of the council, or by any applicable statute, the day of the act, event, or default after which the designated period of time is to run, shall not be included. The last day of the period so computed shall be included unless it is a Sunday or legal holiday in the State of Hawaii. (Eff. DECO 6 1985 J (Auth: HRS §§91-2, 343-6) (Imp: HRS §§91-2, 343-6) §11-201-15 Continuance or extensions of time. Whenever a person or agency has a right or is required to take action within a period prescribed or allowed by this chapter, the council, upon motion and the concurrence of a majority of all the members to which the council is entitled, may permit the act to be done after expiration of the specified period if the delinquency is clearly shown to have been the result of excusable neglect and the council will still have enough time to comply with a2plicable statutory time limits. [Ef f. DEC O6 1985 J (Auth: HRS §§91-2, 343-6) (Imp: HRS §§91-2, 343-6) §11-201-16 proceedings. ( a) SUBCHAPTER 6 RULEMAKING Initiation of rulemaking The council, at any time on its initiate proceedings for the or repeal of any rule of the to be followed in rulemaking set forth in this chapter and own motion, may adoption, amendment, council. Procedures proceedings sha 11 be applicable law. (b) Any interested person or agency may petition the council for the adoption, amendment, or repeal of any rule of the counci 1. Petitions for rulemaking filed with the council shall become matters of public record. (c) section (1) (2) Petitions for rulemaking shall 11-201-9 and shall contain: The name, address, and telephone each petitioner; The signature of each petitioner; 201-12 conform to number of 7 9,
§11-201-17 of the proposed designation of of which is (3) A draft or the substance adoption or amendment or a the provisions the repeal desired; ( 4) A statement of the petitioner's interest in the subject matter; and (5) A statement of the reasons in support of the proposed adoption, amendment, or repeal. (d) The council, within thirty days after the filing of a petition for rulemaking, shall either deny the petition or initiate public rulemaking proceedings in accordance with chapter 91, Hawaii Revised Statutes. (e) Any petition that fails in any material respect to comply with the requirements of this section or that fails to disclose sufficient reasons to justify the institution of public rulemaking proceedings shall not be considered by the council. The council shall notify the petitioner in writing of the denial, stating the reasons therefor. Denial of a petition shall not operate to prevent the council from acting, on its own motion, on any matter disclosed in the petition. The petitioner may seek a review of the denial through the circuit court pursuant to chapter 91, Hawaii Revised Statutes. (f) If the council determines that the petition is in order and that it discloses sufficient reasons in support of the proposed rulemaking to justify the institution of rulemaking proceedings, the procedures to be followed shall be as set forth in sections 11-201-17 to 11-201-19 and applicable law. [Eff: CO 6 1985 ] (Auth: HRS §§91-2, 91-6, 343-6) (Imp: HRS §§91-2, 91-6, 343-6) §11-201-17 Notice of public hearing. ( a) When, pursuant to a petition therefor or upon its own motion, the council proposes to adopt, amend, or repeal a rule, a notice of proposed rulemaking shall be published at least once in a newspaper of general circulation in the State and at least once in a newspaper which is printed and issued at least twice a week in the county affected by the proposed action. The notice shall also be mailed to all persons or agencies who have made timely written requests for advance notice of the council's rulemaking proceedings. All notices shall be 201-13
§11-201-17 published at least twenty days prior to the date set for public hearing. (b) A notice of the proposed adoption, amendment, or repeal of a rule shall include: (1) A statement of the date, time, and place where the public hearing will be held; ( 2) Reference to the authority under which the adoption, amendment, or repeal of a rule is proposed; and (3) A statement of the rulemaking. [Ef f. HRS §§91-2, 343-6) 92-41, 343-6) substance of the proposed DEC O6 1985 ] Auth: (Imp: HRS §§91-2, 91-3, §11-201-18 Conduct of hearing. ( a) The public hearing for the adoption, amendment, or repeal of rules shall be heard before the council and presided over by the chairperson of the council, or, in the chairperson's absence by another member designated by the counci 1. The hearing shall be conducted in a manner as to afford to interested persons and agencies a reasonable opportunity to offer testimony with respect to the matters specified in the notice of hearing and so as to obtain a clear and orderly record. The presiding officer shall have authority to administer oaths or affirmations and to take all other actions necessary to the orderly conduct of the hearing. (b) Each hearing shall be held at the time and place set in the notice of hearing but at the time and place may be continued by the presiding officer from day to day or adjourned to a later date or to a different place without notice other than the announcement thereof at the hearing. (c) At the commencement of the hearing, the presiding officer shall read the notice of hearing and shall then outline briefly the procedure to be followed. Testimony shall then be received with respect to the matters specified in the notice of hearing in the order as the presiding officer shall prescribe. (d) Each witness, before proceeding to testify, shall state the witness' name, address, and whom the witness represents at the hearing, and shall give the information respecting the appearance of the witness as the presiding officer may request. The presiding officer shall confine the testimony to the matters 201-14 7 9
§11-201-20 for which the hearing has been called but shall not apply the technical rules of evidence. Every witness shall be subject to questioning by the members of the council or by any other representative of the council. Cross-examination by persons or agencies shall be permitted only at the discretion of the presiding officer. (e) All interested persons or agencies shall be afforded an opportunity to submit data, views, or arguments orally or in writing that are relevant to the matters specified in the notice of hearing. The period for filing written comments or recommendations may be extended beyond the hearing date by the presiding officer for good cause. An original and fifteen copies of written comments, recommendations, or replies shall be submitted. (f) Unless otherwise specifically ordered by the council, testimony given at the public hearing shall not be reported verbatim. All supporting written statements, maps, charts, tabulations, or similar data offered in evidence at the hearing, and which are deemed by the presiding officer to be authentic and relevant, shall be received in evidence and made a part of the record. Unless the presiding officer finds that the furnishing of copies is impracticable, sixteen copies of the exhibits shall be submitted. [Ef f. DEC O6 1985 ] (Auth: HRS §§91-2, 343-6) (Imp: HRS §§91-2, 91-3, 343-6) §11-201-19 Council action. The consider all relevant comments and record before taking final action in proceeding. Final action should be twenty working days after: (1) The final public hearing; or council shall materials of a rulemaking taken within (2) The expiration of any extension period for or submission of written comments recommendations. [Eff. 0 6 (Auth: HRS §§91-2, 343-6) (Imp: §§91-2, 91-3, 343-6) ] HRS §11-201-20 =E=m=e~r~q~e=n=C-Y._~ru=l~e=m=a=k=i~n___,_q. The council may adopt emergency rules pursuant to section 91-3, Hawaii Revised Statutes. [Eff. DEC O6 ] (Auth: HRS §§91-2, 343-6) (Imp: HRS §§91-2, 91-3, 343-6) 201-15 7 9
§11-201-21 SUBCHAPTER 7 DECLARATORY RULINGS §11-201-21 Petitions for declaratory rulings. ( a) On petition of an interested person or agency, the council may issue a declaratory order as to the applicability of any statutory provision or any rule or order of the council and may also make determinations under chapter 343, Hawaii Revised Statutes. The petition shall conform to the requirements of section 11-201-9 and shall contain: (1) The name, address, and telephone number of each petitioner; (2) The signature of each petitioner; (3) A designation of the specific provision, rule, or order in question, together with a statement of the controversy or uncertainty involved; ( 4) A statement of the petitioner's interest in the subject matter, including the reasons for submission of the petition; ( 5) A statement of the petitioner's position or contention; and (6) A memorandum of authorities, containing a full discussion of reasons and legal authorities, in support of the position or contention. (b) The council shall inform the public regarding petitions for declaratory rulings in the office's periodic bulletin. Within thirty days after the submission of a petition for declaratory ruling, the council shall either deny the petition in writing, stating the reasons for the denial, or issue a declaratory order on the matters contained in the petition, or set the matter for hearing, as provided in section 11-201-23, provided that if the matter is set for hearing, the council shall render its findings and decision within fifteen days after the close of the hearing. Any determination by the council regarding the petition for declaratory ruling shall be published in the office's periodic bulletin. ( c) The counci 1, without notice or hearing, may dismiss a petition for declaratory ruling that fails in material respect to comply with the requirements 201-16
of this section. HRS §§91-2, 91-8, 343-6) [Eff. 343-6) C O6 1985 (Imp: HRS §11-201-23 ] §§91-2, (Auth: 91-8, §11-201-22 Refusal to issue a declaratory order. The counci 1, for good cause, may refuse to issue a declaratory order with specific reasons for the determination. Without limiting the generality of the foregoing, the council may so refuse where: (1) The question is speculative or purely hypothetical and does not involve existing facts, or facts that can be expected to exist in the near future; (2) The petitioner's interest is not of the type that would give the petitioner standing to maintain an action if judicial relief is sought; ( 3) The issuance of the declaratory order may affect the interests of the council in a litigation that is pending or may reasonably be expected to arise; and (4) The matter is not within the jurisdiction of the council. [Eff. 0 6 1985 ] (Auth: HRS §§91-2, 91-8, 343-6) (Imp: HRS §§91-2, 91-8, 343-6) §11-201-23 Request for hearing. Although in the usual course of disposition of a petition for a declaratory ruling no formal hearing shall be granted to the petitioner or to a party in interest, the council may order the proceeding set down for hearing. Any petitioner or party in interest who desires a hearing on a petition for a declaratory ruling shall set forth in detail in the request the reasons, together with supporting affidavits or other written evidence and briefs or memoranda of legal authorities, why the matters alleged in the petition will not permit the fair and expeditious disposition of the petition. To the extent that the request for a hearing is dependent upon factual assertion, the request shall be accompanied by affidavits establishing these facts. In the event a hearing is ordered by the council, chapter 91, Hawaii Revised Statutes~ shall govern the proceedings. [Ef f. uEC O8 1985 ] (Auth: HRS §§91-2, 91-8, 343-6) (Imp: HRS §§91-2, 91-8, 343-6) 201-17 7 9
§11-201-24 §11-201-24 Applicability of order. An order disposing of a petition shall apply only to the factual situation described in t.tie petition or set forth in the order. [Ef f. DEC Ob 1985 ] (Auth: HRS §§91-2, 91-8, 343-6) (Imp: HRS §§91-2, 91-8, 343-6) §11-201-25 Declaratory ruling on council's own motion. Notwithstanding this chapter, the counci 1, on its own motion or upon request but without notice or hearing, may issue a declaratory order to terminate a controversy or to remove uncertainty. [Eff. DECO 6 1985 ] (Auth: HRS §§91-2, 91-8, 343-6) (Imp: HRS §§91-2, 91-8, 343-6) SUBCHAPTER 8 APPEALS §11-201-26 Filing of appeal. (a) An appellant, within sixty calendar days after non-acceptance of the environmental impact statement by an agency, may file an appeal with the council against the agency, charging that the agency has improperly determined that the statement is not acceptable. A copy of the appeal with accompanying documents shall also be sent to the respondent. (b) A document filed by an appellant initiating an appeal to the council shall be accompanied by a nonrefundable fee of $50 to partially cover publication and administrative costs. (c) The appeal shall conform to the requirements of section 11-201-9. The appeal shall contain: ( 1) A list of the persons who are proposing the action; (2) A copy of the environmental impact statement submitted by the appellant to the agency and a copy of the subsequent revised statement, if any; (3) A copy of the comments and other communications received during the review of the statement that are pertinent to the issues involved in the complaint; (4) A copy of the findings and reasons submitted by the agency to the appellant in support of its determination of non-acceptance; and 201-18
§11-201-28 (5) A concise memorandum setting forth the facts and law in support of the appeal. [Ef f. C O 6 1985 ] (Auth: HRS §§91-2, 343-6) (Imp: HRS §§343-5, 343-6) §11-201-27 Filing of response to appeal. At least five working days before the date set for hearing on an appeal, the respondent shall file with the council a concise memorandum setting forth the facts and law in support of its determination to not accept the appellant's environmental impact statement. [Eff. DEC O 6 1985 ] (Auth: HRS §§91-2, 343-6) (Imp: HRS §§343-5, 343-6) §11-201-28 Appeal hearings; generally. ( a) An appeal shall be conducted as a contested case under chapter 91, Hawaii Revised Statutes. The council, upon receipt of an appeal, shall order the matter set for hearing. A notice of hearing shall be served at least fifteen days before the hearing upon the appellant and the respondent agency. (b) Appeals shall be heard before the council or a hearing officer duly appointed by the counci 1. A hearing officer shall be appointed at least fifteen days prior to the hearing and notice shall be given to all parties at that time. (c) When a proceeding is conducted before the council itself, the proceeding shall be presided over by the chairperson of the counci 1 or, in the chairperson's absence, by another member designated by the council. (d) The presiding officer at a proceeding shall have authority to: (1) Control the course of the hearing; (2) Hold conferences open to the public on which they have had notice, for the settlement or simplification of issues; (3) Administer oaths and affirmations; (4) Grant application for and issue subpoenas; (5) Take or cause deposition to be taken; (6) Rule upon offers of proof and receive relevant evidence; (7) Limit lines of questioning or testimony that are irrelevant, immaterial, or repetitious; 201-19 7 9
§11-201-28 (8) Rule upon all objections, procedural requests, and motions that do not involve final determination of proceedings; (9) Dispose of any other matter that normally and properly arises in the course of the proceeding; and (10) Take all other actions authorized by chapter 343, Hawaii Revised Statutes, rules, or by any other statute, that are deemed necessary to the orderly and just conduct of the hearing. (e) The hearing officer shall have the powers as are accorded to the presiding officer in the hearing of an appeal as provided in subsection (d). In the event that the hearing officer is absent or unable to act, the powers and duties to be performed under this chapter in connection with the proceeding, without abatement of the proceeding unless otherwise ordered by the council, may be assigned to another hearing officer duly appointed by the chairperson. (f) No hearing officer or council member shall be assigned to serve in any proceeding who: ( 1) Has any pecuniary interest in any matter or business involved in the proceeding; (2) Is related within the first degree by blood or marriage to any party to the proceeding; or (3) Has participated in an investigation preceding the ins ti tut ion of the proceeding or in a determination that it should be instituted or in the development of the evidence to be introduced therein. However, if a council member has participated in making a recommendation to an agency under section 343-S(c), Hawaii Revised Statutes, this shall not disqualify that council member. (g) Each hearing shall be held on the island where the dispute has arisen. Hearings shall be held, on the first day, at the time and place set forth in the notice of hearing, but may at that time and place be continued from day to day or adjourned to a later day or to a different place without notice other than the announcement thereof by the presiding officer or hearing officer at the hearing. (h) Hearings shall be open to the public. (i) The record of the hearing shall be compiled in conformance with section 91-9(e), Hawaii Revised Statutes. The council shall make provisions for 201-20
§11-201-30 stenographic record of the testimony, but it shall not be necessary to transcribe the record unless requested for purposes of rehearing or court review. Any person desiring a copy of the record of a hearing or any part thereof shall be entitled to the same upon written application to the council and upon payment of reasonable costs thereof. [Eff. DEC O6 1985 J (Auth: HRS §§91-2, 343-6) (Imp: HRS §§91-9, 91-9.5, 343-5, 343-6) §11-201-29 Appeal hearings; witnesses. ( a) Subpoenas requiring the attendance of witnesses or the production of documentary evidence from any place within the State of Hawaii at any designated place of hearing may be issued by the presiding officer or any designated member of the council or by the hearing officer. Application for subpoenas shall be made in writing to the council or hearing officer. The application shall specify the particular documents or data desired and shall show their relevancy to the issues involved. Application shall be made at least three days prior to the hearing. If application is made at a later time, the counci 1 may, in its discretion, issue subpoenas or continue the hearing or any part thereof. Enforcement of obedience to subpoenas issued by the presiding officer or any designated member of the council or by the hearing officer and served pursuant to this chapter shall be effected by written application of any member of the council to any circuit judge. (b) Witnesses summoned shall be paid the same fees and mileage as are paid witnesses in circuit courts of the State of Hawaii and those fees and mileage shall be paid by the party at whose instance the witnesses appear. Fees for the depositions shall be paid by the party at whose request the depositions are taken. (c) Witnesses shall be placed under oath or affirmati~n P,riot to testifying. [Eff. Dt.C O 6 198::i J (Auth: HRS §§91-2, 343-6) (Imp: §§91-9, 343-5, 343-6) §11-201-30 Appeal hearings; procedures. ( a) At the commencement of the hearing, the presiding officer or hearing officer shall read the notice of 201-21 7 9
§11-201-30 hearing and shall then outline briefly the procedure to be followed. This procedure, unless specifically prescribed in this chapter or by chapter 91, Hawaii Revised Statutes, shall be such as in the opinion of the presiding officer or hearing officer shall best serve the purposes of the hearing without prejudice to any party. (b) All parties shall be given reasonable opportunity to offer testimony with respect to the matters relevant to the proceeding. Witnesses, before proceeding to testify, shall state their name, address, whom they represent at the hearing, and shall give the information respecting their appearance relevant to the proceeding as the presiding officer or hearing officer may request. The presiding officer or hearing officer shall confine the testimony to the matters for which the hearing has been called but need not apply the technical rules of evidence except as required by law. Each witness shall be subject to questioning by members of the council and by any representative of the council. Each witness shall also be subject to cross-examination by the adverse party. Each party shall have the right to submit rebuttal evidence and rebuttal arguments. (c) The council or hearing officer shall take notice of judicially recognizable facts and may take notice of generally recognizable technical or scientific facts within the council's or hearing officer's specialized knowledge when parties are given notice either before or during the hearing of the material so • noticed and are afforded the opportunity to contest the facts so noticed. (d) At the hearing, the presiding officer or hearing officer may require the production of further evidence upon any issue. (e) After all the evidence has been presented, the council or hearing officer shall give the parties opportunity to summarize. Within a reasonable time after the final arguments have been completed and all requested memoranda submitted, the council or hearing officer shall bring the matter to a close. ( f) The counci 1 or hearing officer sha 11 permit parties to file proposed findings and conclusions, together with the reasons the ref or at the close of the hearings or within the time as is extended at the discretion of the counci 1 or hearing officer. The proposal shall be in writing and shall contain 201-22 7 9
§11-201-30 references to relied upon. all parties. the record and to the authorities Copies thereof shall be furnished to (g) The council, as soon as practicable and unless otherwise stipulated by the parties, not later than thirty days after receipt of the appeal, shall notify the appellant of the decision and order. This decision and order shall include separate findings of facts and conclusions of law if the decision is adverse to the appellant. The council shall incorporate in the decision a ruling upon each proposed finding so presented. Parties to the proceeding shall be notified by delivering or mailing a certified copy of the decision and order and any accompanying findings and conclusions to each party or to the party's attorney of record. [Ef f. DEC O6 1985 ] (Auth: HRS §§91-2, 343-6) (Imp: §§91-10, 91-11, 91-12, 343-5, 343-6) 201-23 7 9
Notice of Change 01/10/96 The list of sections implemented by §11-201-5, Hawaii Administrative Rules, is changed to read as follows: (Imp: HRS §§91-2, 343-6)
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