West Virginia Code of State Rules › Agency 56 - Miners' Health, Safety And Training › Title 56 - LEGISLATIVE RULE OFFICE OF MINERS' HEALTH, SAFETY AND TRAINING › Series 56-03 - Safety Of Those Employed In And Around Surface Mines In WV › Section 56-3-16 - Judicial Review

Current through Register Vol. XLI, No. 28, July 12, 2024
16.1. Venue,
				Petition for Appeal and Relief.
16.1.1. Any
				order or decision issued by the director under this rule except an order or
				decision under W. Va. Code 22A-1-15 shall be subject to judicial review by the
				circuit court of the county in which the mine affected is located upon the
				filing in such court or with the judge thereof in vacation of a petition by any
				person aggrieved by the order or decision praying that the order or decision be
				modified or set aside in whole or in part, except that the court shall not
				consider such petition unless such person has exhausted the administrative
				remedies available under this rule and files within thirty (30) days from the
				date of such order or decision.
16.1.2. The party making such appeal shall
				forthwith send a copy of such petition for appeal, by registered mail, to the
				other party. Upon receipt of such petition for appeal, the director shall
				promptly certify and file in such court a complete transcript of the record
				upon which the order or decision complained of was issued. The court shall hear
				such petition on the record made before the director. The findings of the
				director, if supported by substantial evidence on the record considered as a
				whole, shall be conclusive. The court may affirm, vacate, or modify any order
				or decision or may remand the proceedings to the director for such further
				action as it may direct.
16.1.3. In
				the case of a proceeding to review any order or decision issued by the director
				under this rule, except an order or decision pertaining to an order issued
				under W. Va. Code §
										22A-1-15(a) or an order or decision pertaining to a
				notice issued under W. Va. Code §
										22A-1-15(b), the court may, under such
				conditions as it may prescribe, grant such temporary relief as it deems
				appropriate pending final determination of the proceeding if:
16.1.3.a. All parties to the proceeding have
				been notified and given an opportunity to be heard on a request for temporary
				relief;
16.1.3.b. The person
				requesting such relief shows that there is a substantial likelihood that he/she
				will prevail on the merits of the final determination of the proceeding;
				and
16.1.3.c. Such relief will not
				adversely affect the health and safety of miners in the coal mine.
16.1.4. The judgment of the court
				shall be subject to review only by the supreme court of appeals of West
				Virginia upon a writ of certiorari filed in such court within sixty (60) days
				from the entry of the order and decision of the circuit court upon such appeal
				from the director.
16.1.5. The
				commencement of a proceeding under this section shall not, unless specifically
				ordered by the court, operate as a stay of the order or decision of the
				director.
16.1.6. Subject to the
				direction and control of the attorney general, attorneys appointed for the
				director may appear for and represent the director in any proceeding instituted
				under this section.