Current through Register Vol. XLI, No. 37, September 13, 2024
Section 36-8-8 - Decision By The Director Or The Deputy Director As To Whether Or Not The Miner Acted With Good Faith And With Good Cause8.1. When the operator believes the miner involved in the dispute acted in bad faith and without good cause, the operator may make application to the Director charging the miner with having acted in bad faith and without good cause and requesting a determination of such charge: Provided, That such charge is made within five (5) days of the alleged dispute.8.2. The operator's application charging the miner shall be mailed by certified mail to the Director, the charged miner, and the safety representative, if any.8.3. Upon receiving a charge from an operator, the Director shall promptly cause such investigation as he deems appropriate and schedule a hearing within twenty (20) days after receiving the charge, allowing the operator and the miner an opportunity to be heard. 8.3.1. Notice of hearing; Contents of notice. 8.3.1.a. Unless waived by the operator and the miner involved in the dispute, no hearing shall be conducted under Section 8 of this Series unless the miner and operator shall have received at least ten (10) days' written notice.8.3.1.b. Each written notice of the hearing shall contain the date, time and place of the hearing and a short and plain statement of matters which are to be the subject of or asserted at the hearing. Such notice shall be given by certified mail. 8.3.2. Date, time and place of hearing. The date, time and place of the hearing shall be determined by the Director.8.3.3. Representation at hearings. The miner involved in the dispute may represent himself, be represented by a safety representative or be represented by an attorney duly authorized to practice law in West Virginia. The operator may be represented by a full-time employee or an attorney duly authorized to practice law in West Virginia.8.3.4. Applicability of Administrative Procedures Act. All of the pertinent provisions of W. Va. Code §§ 29A-5-1et seq., shall apply to and govern hearings conducted under Section 8 of this Series with like effect as if the provisions of W. Va. Code §§ 29A-5-1et seq., were set forth herein. If any provision of these rules of practice and procedure contained in Section 8 of this Series are inconsistent with any pertinent provisions of W. Va. Code §§ 29A-5-1et seq., the provisions of W. Va. Code §§ 29A-5-1et seq.,shall control.8.3.5. Waiver of evidentiary presentation. 8.3.5.a. Any party who desires to submit written pleadings, comments or information in lieu of an evidentiary hearing may submit such documents prior to the hearing date, for the Director's or Deputy Director's, as the case may be, consideration in the matter in the event hearing is waived as provided in subsection (e) (2) of this Section.8.3.5.b. Parties entitled to an evidentiary hearing may waive such right in writing, but unless all entitled parties file timely waivers, a hearing will be conducted. Such waivers must be unequivocal and request the Director or Deputy Director, as the case may be, to decide the matter at issue on the materials submitted in subsection (e) (1) of this Section and any stipulations the parties might enter into. 8.3.5.c. When a hearing is waived under the provisions of this subsection, the written record in the case shall be submitted to the Director or Deputy Director, as the case may be, for decision.8.3.6. Burden of proof. In proceedings under this Series, the operator making application to the Director under subsection 8.1. of this Series shall have the burden of proving his case by a preponderance of the evidence.8.3.7. Proposed findings, conclusions and orders. The Director or Deputy Director, as the case may be, may request the submission by parties of the proposed findings of fact, conclusions of law and orders, together with a supporting brief: Provided, That such documents shall be submitted within twenty (20) days after their request. Such proposals and briefs shall be served upon all parties, and shall contain adequate references to the record and authorities relied upon.8.3.8. Hearings to be public. All hearings conducted under Section 8 of this Series shall be open to the public.8.3.9. Decisions and orders. 8.3.9.a. Within twenty (20) days after conclusion of the hearing and submission of the all documents or after submission of the case and consideration of the record as a whole in the event a hearing is waived, the Director or Deputy Director, as the case may be, shall render a decision and order which shall be in writing and shall include a statement of (a) findings and conclusions, and the reasons or basis therefore on the material issues of fact and law and (b) the appropriate ruling or order granting, granting in part or denying the relief sought.8.3.9.b. A copy of all decisions and orders shall be served, by certified mail, upon all parties and, unless the decision and/or order provides, the decision and order so served shall become effective immediately following service.