West Virginia Code of State Rules › Agency 52 - Air Quality Board › Title 52 - PROCEDURAL RULE WEST VIRGINIA AIR QUALITY BOARD › Series 52-01 - Procedural Rules Governing Appeals Before The Air Quality Board › Section 52-1-6 - Evidentiary Hearings

Current through Register Vol. XLI, No. 28, July 12, 2024
6.1. Notice of
				Evidentiary Hearing. The board shall give each party to any evidentiary hearing
				at least ten (10) days' written notice of such hearing which shall be served by
				registered or certified mail or by any proper law-enforcement officer.
6.2. Continuance of Hearings. After a hearing
				date has been set, a continuance will not be granted by the board except upon a
				showing of good cause. A party who desires a continuance shall, immediately upon
				receipt of a notice of hearing, or as soon thereafter as practicable, file a
				written motion with the board stating in detail the reasons why such a
				continuance is necessary. Such motion shall be filed at least five (5) days prior
				to the date of hearing. The board may at any time order a continuance upon its
				own motion.
6.3. Quorum. Any
				evidentiary hearing shall be conducted by a quorum of the board, but the parties
				may by stipulation agree to take evidence before any one or more members of the
				board or before a hearing examiner employed by the board.
6.4. Place of Hearing. Unless the board
				determines otherwise, evidentiary hearings shall be held in the board's offices
				located at 601 57th Street, S.E., Charleston, West
				Virginia.
6.5. Conduct of Hearings.
				All appeal hearings shall be open to the public, and shall be conducted in
				accordance with W. Va. Code §
									29A-5-1 et seq. All parties to a hearing, their
				legal counsel, and spectators, shall conduct themselves in a respectful manner.
				Public displays of any kind at hearings shall not be permitted. The board may, at
				its discretion, recess or continue any hearing in which the parties, legal
				counsel, witnesses or spectators conduct themselves in a disrespectful,
				disorderly or contemptuous manner which interferes with or prevents the proper
				conduct of such hearing.
6.6.
				Stipulations. Written stipulations by the parties to questions of fact may be
				filed with the board before the hearing of an appeal or may be read into the
				record at the time the hearing is held.
6.7. Testimony at Hearing. Testimony in any
				hearing before the board will be made on the record, and shall be given under
				oath.
6.8. Presentation. The board
				shall hear the appeal de novo. The appellant shall open the hearing and present
				testimony and offer exhibits that support the notice of appeal. The appellant's
				witnesses shall be subject to cross-examination by any other party to the appeal
				or by the board. At the conclusion of the appellant's case, the appellee may then
				present testimony and offer exhibits. After initial presentations have been made,
				both the appellant and the appellee may present rebuttal evidence on the issues
				in the case, providing that such evidence is not cumulative, repetitive or
				immaterial to the case.
6.9. Briefs.
				In addition to the presentation of oral argument, the board may require the
				parties to file written briefs. The board may require the filing of briefs before
				or after the taking of evidence. The parties shall file the original and eight
				(8) duplicate sets of the brief with the clerk of the boards, and shall serve a
				copy of the same on all other parties as required by these procedural rules. The
				original copy of the brief shall be accompanied by one copy of all citations to
				case law, treatises, or periodicals. Leave to file briefs amicus curiae may also
				be granted by the board.
6.10.
				Proposed Findings of Fact and Conclusions of Law. In accordance with W. Va. Code
				§
									29A-5-1 et seq. of the West Virginia Code, prior to the entry of any final
				order or final decision, any party may propose findings of fact and conclusions
				of law for the board's consideration. All such findings of fact and conclusions
				of law shall be separated as such and shall be set out by numbered paragraph.
				Unless otherwise ordered by the board, all such proposed findings of fact and
				conclusions of law shall be filed within 30 days of the conclusion of the
				evidentiary hearing.
6.11. Service
				and Publication of Final Orders. A copy of a final order or final decision, and
				findings of fact and conclusions of law of the board shall be served upon each
				party and his or her attorney of record, if any, in person or by registered or
				certified mail. Further, each final order or final decision issued by the board
				shall be filed with the secretary of state for publication in the state register
				in accordance with W. Va. Code §
									29A-2-9.
6.12. Rules of Evidence. The rules of evidence
				as applied in civil cases in the circuit courts of West Virginia will govern
				evidentiary hearings before the board in accordance with W. Va. Code
				§
									29A-5-2.
6.13. Rules of
				Procedure. While the differences in the functions of courts and administrative
				boards preclude the "wholesale transportation" of the Rules of Civil Procedure
				into the hearings before the board, some such rules must be utilized to manage
				board hearings. Thus, as a matter of policy and to assure fairness, the
				appropriate Rules of Civil Procedure will guide the appeals process before the
				board.