¶36 (concurring) — I concur with the majority’s decision in each of the three consolidated appeals. I write separately because I do not join in one of the majority’s rulings in the first appeal, which challenges the validity of the notice of violation and abatement (NOVA). The majority holds that Chem-Safe Environmental Inc. (CSE) was not exempt from the moderate risk waste (MRW) facility permit required by Kittitas County despite holding a permit from the Washington State Department of Ecology and United States Environmental Protection Agency to handle dangerous waste (DW), a level of waste more risky than MRW. I find the law ambiguous on whether one holding a permit to handle DW must also obtain a permit to handle MRW. Therefore, I would avoid the issue and resolve *290the first of the three appeals on the sole basis of invited error.
¶37 Kittitas County contends that CSE failed to raise the issue of an exemption before the hearing examiner and thus waived the issue on appeal. As mentioned in passing by the majority, this court will not review an issue that was not raised before an administrative body unless (1) the appellant did not know and had no duty to discover facts giving rise to the issue, (2) the appellant did not have an opportunity to raise the issue before the agency, or (3) the issue arose from a change in controlling law or a change in agency action and the interests of justice require its resolution. RCW 34.05.554(l)(d); Kitsap All. of Prop. Owners v. Cent. Puget Sound Growth Mgmt. Hr’gs Bd., 160 Wn. App. 250, 271-72, 255 P.3d 696 (2011). None of these exceptions apply.
¶38 CSE contends it forwarded its exemption argument before the hearing examiner, and it cites to clerk’s papers at 468 for this contention. During the administrative hearing on that page of the transcript, CSE represented to the hearing examiner that the Department of Ecology originally told CSE that it needed the county permit but the county disagreed. Later, according to the representation, Kittitas County changed its mind and told CSE that it needed a permit. CSE argued to the hearing examiner that the county should be estopped from demanding a county permit to handle MRW Nevertheless, CSE did not argue that it was exempt because it also handled DW.
¶39 In oral argument before this court, CSE also contended that its various briefs submitted to the hearing examiner forwarded the exemption argument. CSE has failed to cite to any portion of the briefs that presented this argument, however. In its opening brief, filed March 23, 2011, CSE maintained that the lack of a permit was not a public nuisance; any public nuisance did not justify the issuance of a NOVA; it timely submitted a completed application for a county permit; the county agent, James *291Rivard, consented to CSE operating without a permit; and CSE will eventually procure a permit. Bd. Record (BR), Index No. 56. In its supplemental brief, filed April 14, 2011, CSE argued that Kittitas County erred in identifying the substance in a drum. BR, Index No. 60. CSE did not assert an exemption in either brief.
¶40 CSE’s response brief, filed April 21, 2011, repeated earlier arguments and added that some of its problems arise from handling DW, not MRW. CSE did not assert that, since it had a permit to handle DW, it did not need a permit to handle MRW. More importantly, CSE wrote, “The issue is not whether County Health can require an MRW permit but whether it can retroactively revoke the right it has granted to [petitioner to operate without one and to fine petitioner based thereon.” BR, Index No. 63, at 9.
¶41 In its brief in support of a motion for reconsideration, filed May 26, 2011, CSE argued estoppel, it was a small generator, and invasive testing was not needed at the site. CSE further wrote, “Appellant does not urge that it is not required to obtain an MWF permit. It applied for such a permit and there is a modified MWF permit application pending.” BR, Index No. 71, at 4. Thus, in two briefs, CSE told the hearing examiner it needed a county MRW permit. CSE asserted no exemption from the permit requirement.
¶42 CSE contends it may raise the exemption for the first time on appeal under RAP 2.5(a)(3). This rule’s subsection permits the raising of a new issue on appeal if the issue involves a manifest constitutional error. I question whether any error is constitutional in nature or manifest in character. I need not address this question, however. CSE affirmatively told the hearing examiner that it needed a permit and was engaged in the process of procuring the permit.
¶43 If the hearing examiner committed any error, CSE encouraged the error. Under the doctrine of invited error, a party may not materially contribute to an erroneous appli*292cation of law during a hearing and then complain of it on appeal. In re Dependency of K.R., 128 Wn.2d 129, 147, 904 P.2d 1132 (1995). The doctrine of invited error prohibits a party from setting up an error at trial and then complaining of it on appeal. State v. Wakefield, 130 Wn.2d 464, 475, 925 P.2d 183 (1996); State v. Pam, 101 Wn.2d 507, 511, 680 P.2d 762 (1984), overruled on other grounds by State v. Olson, 126 Wn.2d 315, 893 P.2d 629 (1995).
Reconsideration denied June 4, 2015.Review denied at 184 Wn.2d 1014 (2015).