West Virginia Code of State Rules › Agency 46 - Coal Mine Health And Safety › Title 46 - PROCEDURAL RULE ENVIRONMENTAL QUALITY BOARD › Series 46-04 - Procedural Rules Governing Appeals Before The Environmental Quality Board › Section 46-4-6 - 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 article 5 of chapter 29A of the West Virginia Code. 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 six (6) 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 article 5, chapter 29A 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 section 9, article 2, chapter 29A of the West
				Virginia Code.
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 section two, article five, chapter 29A of the Code of West
				Virginia.
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.