Historical Note: Chapter
11-201, Administrative Rules, is based substantially on the Rules of Practice
and Procedure of the Environmental Quality Commission. [Eff 6/2/75; R
12/6/85]
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.
[Eff 12/6/85] (Auth: HRS §§91-2, 343-6) (Imp:
HRS §§91-2, 343-6)
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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:
- Proceedings involving the adoption, amendment, or repeal of any
rule of the council;
- Proceedings involving declaratoryrulings; and
- 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 whose determination is subject to an
appeal filed with the council.
[Eff 12/6/85] (Auth: HRS §343-6) (Imp: HRS §343-6)
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- The office of the environmental 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.
- 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.
- 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 council 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:
- Be sent to all requesting to be on the mailing list for this purpose
and other interested parties;
- Be posted in the office of the environmental council; and
- Be distributed to the news media, if possible.
- 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 council except those actions that the
council 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 council members, in which case the concurrence of a
majority of all the council members so designated shall be necessary
to make an action valid.
- 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.
- All decisions, orders, and other actions of the council shall be authenticated
or signed by the council 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 council actions may
be issued under the signature of the chairperson of the council or the
chairperson's delegate.
- 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 office.
[Eff 12/6/85] (Auth: HRS §§91-2, 343-6) (Imp: HRS §§91-2,
92-4, 92-5, 92-7, 92-9, 343-3, 343-6)
- 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.
- The council by written resolution adopted by a majority of the members
to which it is entitled, may appoint a hearing officer or officers,
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 council 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.
- 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 12/6/85] (Auth: HRS §§91-2, 343-6) (Imp: HRS §§91-2,
343-6)
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- 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.
- 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.
- Public records printed or reproduced by the council shall be given
to any person requesting them and paying the reasonable cost thereof.
- Requests for public information, for permission to inspect official
records, or for copies of public records shall be handled
expeditiously.
[Eff 12/6/85] (Auth: HRS §§91-2, 343-6) (Imp: HRS §§91-2, 343-6,
92-50)
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- 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.
- 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.
- 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).
- 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 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.
- Bar to appearance.
- 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;
- 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
(1);
- 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 shall 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;
- This subsection shall not apply to any individual or agency whose
association with the council has been terminated for a period of
one year.
[Eff 12/6/85] (Auth: HRS §§91-2, 343-6) (Imp: HRS §§84-18, 343-6)
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.
[Eff 12/6/85] (Auth: HRS §§91-2, 343-6) (Imp: HRS
§§91-2, 343-6)
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.
[Eff 12/6/85] (Auth: HRS §§91-2, 343-6) (Imp: HRS §§91-2, 343-6)
- 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 council. The date on which
the papers are received shall be regarded as the date of filing.
- 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.
- 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.
- Unless otherwise specifically provided by a particular rule or order
of the council, an original and fifteen copies of all papers shall be
filed.
- 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 12/6/85] (Auth: HRS
§§91-2, 343-6) (Imp: HRS §§91-2, 343-6)
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.
[Eff 12/6/85] (Auth: HRS §§91-2, 343-6) (Imp: HRS §§91-2, 343-6)
All documents filed with or presented to the council
shall be retained in the files of the council. The council may permit
the withdrawal of original documents upon submission of properly authenticated
copies to replace the documents.
[Eff 12/6/85] (Auth: HRS §§91-2, 343-6) (Imp: HRS §§91-2, 343-6)
- 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.
- 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.
- The final order, and any other paper required to be served by the
council upon a party, shall be served upon the party and a copy shall
be furnished to counsel of record.
- Service of papers shall be made personally or, unless otherwise provided
by law, by first-class mail.
- Service upon parties, other than the council, shall be regarded as
complete by mail upon deposit in the United States mail, properly stamped
and properly addressed to the parties involved.
[Eff 12/6/85] (Auth: HRS §§91-2, 343-6) (Imp: HRS §§91-2,
343-6)
All final orders, opinions, or rulings entered by
the council 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.
[Eff 12/6/85] (Auth: HRS §§91-2, 343-6) (Imp: HRS §§91-2, 343-6)
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 12/6/85] (Auth: HRS §§91-2, 343-6) (Imp: HRS §§91-2, 343-6)
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 applicable statutory time limits.
[Eff 12/6/85] (Auth: HRS §§91-2, 343-6) (Imp: HRS §§91-2, 343-6)
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- The council, at any time on its own motion, may initiate proceedings
for the adoption, amendment, or repeal of any rule of the council. Procedures
to be followed in rulemaking proceedings shall be set forth in this
chapter and applicable law.
- Any interested person or agency may petition the council for the adoption,
amendment, or repeal of any rule of the council. Petitions for rulemaking
filed with the council shall become matters of public record.
- Petitions for rulemaking shall conform to section 11-201-9 and shall
contain:
- The name, address, and telephone number of each petitioner;
- The signature of each petitioner;
- A draft or the substance of the proposed adoption or amendment
or a designation of the provisions the repeal of which is desired;
- A statement of the petitioner's interest in the subject matter;
and
- A statement of the reasons in support of the proposed adoption,
amendment, or repeal.
- 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.
- 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 therefore. 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.
- 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 12/6/85] (Auth: HRS §§91-2, 91-6, 343-6) (Imp: HRS §§91-2, 91-6,
343-6)
- 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 published at least twenty
days prior to the date set for public hearing.
- A notice of the proposed adoption, amendment, or repeal of a rule
shall include:
- A statement of the date, time, and place where the public hearing
will be held;
- Reference to the authority under which the adoption, amendment,
or repeal of a rule is proposed; and
- A statement of the substance of the proposed rulemaking.
[Eff 12/6/85] Auth: HRS §§91-2, 343-6) (Imp: HRS §§91-2, 91-3, 92-41,
343-6)
- 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 council. 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.
- 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.
- 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.
- 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 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.
- 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.
- 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.
[Eff 12/6/85] (Auth: HRS §§91-2, 343-6) (Imp: HRS §§91-2, 91-3, 343-6)
The council shall consider all relevant comments
and materials of record before taking final action in a rulemaking proceeding.
Final action should be taken within twenty working days after:
- The final public hearing; or
- The expiration of any extension period for submission of written comments
or recommendations.
[Eff 12/6/85] (Auth: HRS §§91-2, 343-6) (Imp: HRS §§91-2, 91-3, 343-6)
The council may adopt emergency rules pursuant to
section 91-3, Hawaii Revised Statutes.
[Eff 12/6/85] (Auth: HRS §§91-2, 343-6) (Imp: HRS §§91-2, 91-3, 343-6)
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- 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:
- The name, address, and telephone number of each petitioner;
- The signature of each petitioner;
- A designation of the specific provision, rule, or order in question,
together with a statement of the controversy or uncertainty involved;
- A statement of the petitioner's interest in the subject matter,
including the reasons for submission of the petition;
- A statement of the petitioner's position or contention; and
- A memorandum of authorities, containing a full discussion of
reasons and legal authorities, in support of the position or contention.
- 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.
- The council, without notice or hearing, may dismiss a petition for
declaratory ruling that fails in material respect to comply with the
requirements of this section.
[Eff 12/6/85] (Auth: HRS §§91-2, 91-8, 343-6) (Imp: HRS §§91-2,
91-8, 343-6)
The council, 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:
- 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;
- The petitioner's interest is not of the type that would give the petitioner
standing to maintain an action if judicial relief is sought;
- 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
- The matter is not within the jurisdiction of the council.
[Eff 12/6/85] (Auth: HRS §§91-2, 91-8, 343-6) (Imp: HRS §§91-2, 91-8,
343-6)
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.
[Eff 12/6/85] (Auth: HRS §§91-2, 91-8, 343-6) (Imp: HRS §§91-2, 91-8,
343-6)
An order disposing of a petition shall apply only
to the factual situation described in the petition or set forth in the
order.
[Eff 12/6/85] (Auth: HRS §§91-2, 91-8, 343-6) (Imp: HRS §§91-2, 91-8,
343-6)
Notwithstanding this chapter, the council, 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 12/6/85] (Auth: HRS §§91-2, 91-8, 343-6) (Imp: HRS §§91-2, 91-8,
343-6)
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- 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.
- 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.
- The appeal shall conform to the requirements of section 11-201-9.
The appeal shall contain:
- A list of the persons who are proposing the action;
- A copy of the environmental impact statement submitted by the
appellant to the agency and a copy of the subsequent revised statement,
if any;
- 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;
- A copy of the findings and reasons submitted by the agency to
the appellant in support of its determination of non-acceptance;
and
- A concise memorandum setting forth the facts and law in support
of the appeal. [Eff 12/6/85 ] (Auth: HRS §§91-2, 343-6) (Imp: HRS
§§343-5, 343-6)
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 12/6/85] (Auth: HRS §§91-2, 343-6) (Imp: HRS §§343-5, 343-6)
- 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.
- Appeals shall be heard before the council or a hearing officer duly
appointed by the council. 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.
- When a proceeding is conducted before the council itself, the proceeding
shall be presided over by the chairperson of the council or, in the
chairperson's absence, by another member designated by the council.
- The presiding officer at a proceeding shall have authority to:
- Control the course of the hearing;
- Hold conferences open to the public on which they have had notice,
for the settlement or simplification of issues;
- Administer oaths and affirmations;
- Grant application for and issue subpoenas;
- Take or cause deposition to be taken;
- Rule upon offers of proof and receive relevant evidence;
- Limit lines of questioning or testimony that are irrelevant,
immaterial, or repetitious;
- Rule upon all objections, procedural requests, and motions that
do not involve final determination of proceedings;
- Dispose of any other matter that normally and properly arises
in the course of the proceeding; and
- 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.
- 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.
- No hearing officer or council member shall be assigned to serve in
any proceeding who:
- Has any pecuniary interest in any matter or business involved
in the proceeding;
- Is related within the first degree by blood or marriage to any
party to the proceeding; or
- Has participated in an investigation preceding the institution
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 343-5(c), Hawaii Revised Statutes, this
shall not disqualify that council member.
- 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.
- Hearings shall be open to the public.
- The record of the hearing shall be compiled in conformance with section
91-9(e), Hawaii Revised Statutes. The council shall make provisions
for 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 12/6/85] (Auth: HRS §§91-2, 343-6) (Imp: HRS §§91-9, 91-9.5, 343-5,
343-6)
- 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 council 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.
- 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.
- Witnesses shall be placed under oath or affirmation prior to testifying.
[Eff 12/6/85] (Auth: HRS §§91-2, 343-6) (Imp: §§91-9, 343-5, 343-6)
- At the commencement of the hearing, the presiding officer or hearing
officer shall read the notice of 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.
- 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.
- 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.
- At the hearing, the presiding officer or hearing officer may require
the production of further evidence upon any issue.
- 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.
- The council or hearing officer shall permit parties to file proposed
findings and conclusions, together with the reasons therefor at the
close of the hearings or within the time as is extended at the discretion
of the council or hearing officer. The proposal shall be in writing
and shall contain references to the record and to the authorities relied
upon. Copies thereof shall be furnished to all parties.
- 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.
[Eff 12/6/85] (Auth: HRS §§91-2, 343-6) (Imp: HRS §§91-10, 91-11,
91-12, 343-5, 343-6)
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