Current through Register Vol. XLI, No. 25, June 21, 2024
1.1. Scope. (a) The procedures and rules of practice set forth herein shall govern and apply to proceedings before the Board of Appeals generally or Hearings Examiners appointed as authorized by law, including proceedings for the withdrawal of certification pursuant to W. Va. Code '29-1a-22a.(b) In any proceeding initiated prior to the effective date of these rules, the provisions hereof shall govern and apply to all activities in such proceedings conducted after the effective date of these rules. Except when ordered by the Board, no reissuance of any pleadings, documents or requests shall be required in such a proceeding.(c) These rules shall be liberally construed to secure the just, prompt and inexpensive conduct and determination of all proceedings before the Board consistent with adequate consideration of the issues involved.(d) On any procedural question not regulated by these rules, the pertinent provisions of the Administrative Procedure Act shall apply. On any matter not regulated by these rules and for which there is no pertinent provision in the Administrative Procedure Act, the provisions of the West Virginia Rules of Civil Procedure or the rules of evidence and privilege applicable in the courts of general jurisdiction of this State, as appropriate, shall apply.1.2. Authority. -- W. Va. Code ''22-1 and 29A-3.1.3. Filing Date. -- April 12, 1982.1.4. Effective Date. -- May 13, 1982.1.5. Definitions. (a) All terms used in these rules, not defined herein, shall have the meanings set forth in W. Va. Code '22a-1a-1.(b) "Board of Appeals" means the Board created pursuant to W. Va. Code '22-5-1.(c) "Code," when following a reference to a specific section, article and chapter, means the West Virginia Code of 1931, as amended.(d) "Hearing Examiner" means any person authorized by the Board of Appeals pursuant to W. Va. Code '22-1a-29 or any other provision of the Code to conduct hearings required or authorized under the laws of this state to be conducted by the Board of Appeals.(e) "Representative of Miners" means a person or organization designated by a group of miners to act as their representative before the Board of Appeals.(f) "Preliminary Motion" means a motion made pursuant to Section 1.11 of these rules prior to the conclusion of evidentiary hearings.(g) "Applicant" means a person filing a petition pursuant to W. Va. Code '22a-1a-20(b).(h) "Charging Party" means a person filing a charge of breach of duty under W. Va. Code '22a-1a-29.(i) "Charged Party" means a certified person charged with a breach of duty pursuant to W. Va. Code '22a-1a-29.(j) "Charge" means a petition, complaint or any written document which plainly states a neglect or failure to perform any duty mandated by W. Va. Code ''22a-1a-1 et seq or 22a-2-1 et seq., and complies with the requirements of '20a-1a-29(a).(k) "Any Interested Person of Record" means any person in attendance at any hearing who has: (1) An interest in the outcome of the proceeding before the Board or Hearing Examiner, and (2) information or evidence which can be presented that could assist the Board or Hearing Examiner in performing its fact finding function, or if no hearing is held any person who meets the requirements of (1) and (2), and who may submit documents or materials to the Board for its consideration in the matter before it, or a person of record with the Board who meets above.(l) "Chairman" means that person selected by the members of the Board of Appeals according to requirements of W. Va. Code '22-5-1.1.6. Parties. (a) In a proceeding for withdrawal of certification under W. Va. Code '22a-1a-29, the parties shall be: (3) The Commissioner of the Department of Energy; and(4) Any interested person of record allowed to intervene under Section 1.7 of these rules or any other person so allowed to intervene.1.7. Intervention. (a) Any person claiming a right of participation in a proceeding on the basis that the person has an interest in the outcome of the proceeding or any person otherwise seeking to intervene in a proceeding may become a party to a proceeding upon the Board's granting of such person's petition to intervene.(b) A petition seeking intervention must be written, setting forth the interest of the petitioner in the proceedings, containing a showing that petitioner's participation will assist in the determination of the issues in question, and such petition must be served, contemporaneously with the filing, on the Commissioner who shall serve such petition on all other parties to the proceeding.(c) Any party may file objections to a petition for intervention within fifteen (15) days after service of the petition on the party.(d) A petition for leave to intervene may be filed at any stage of a proceeding before the commencement of a hearing. After the commencement of a hearing, a petition for leave to intervene may be filed only with the waiver by all parties or upon a showing by the petitioner of good cause for the delay in seeking intervention.(e) The Board may grant or deny petitions for intervention or may permit intervention limited to a particular state of the proceeding.1.8. Form of documents.(a) Caption. -- The documents filed in any proceeding conducted under these rules shall be captioned in the name of the person or persons charged with a violation or seeking relief from the Board and may contain or include other information appropriate for the identification of the proceedings, including any docket number assigned to the case.(b) Title. -- After the caption, each such document shall contain a title which shall be descriptive of the document and which shall identify the party by whom the document is submitted.(c) Signature. -- The original of each document filed, shall be signed at the end by the party submitting the document, or, if the party is represented by an attorney, by such attorney. The address and telephone number of the party or the attorney shall appear beneath the signature.1.9. Filing and service of pleadings and other documents. (a) Where to file. -- All pleadings, forms and documents in a proceeding described in these rules shall be filed with the Chairman, Board of Appeals, 1615 Washington Street, East, Charleston, West Virginia 25311.(b) Number of copies. -- Except as otherwise provided in these rules or by the Chairman, a party shall furnish an original and three (3) copies of all pleadings and other documents required or permitted to be filed with the Board.(c) How to file. -- All filing may be accomplished by personal delivery or first class mail.(d) When filing effected. -- In the case of mailing by first class mail, filing is effective upon mailing. In the case of personal delivery, filing is effective upon delivery.(e) Copies to be served. -- Copies of all pleadings and other documents filed in any proceeding described in these rules and copies of all notices pertinent to such proceedings shall be served upon all other parties to the proceedings as described in Section 1.6 of these rules and companion sections.(f) Method of service. -- Documents by which any proceeding is initiated shall be served on each individual party personally or by registered or certified mail, return receipt requested. All subsequent documents may be served personally or by first class mail. Service by mail is complete upon mailing.(g) Once the Board of Appeals has agreed to hear the petition or claim, all pleadings and other documents filed in any proceeding described in these rules shall contain a written certification of the date and manner of service. Such certification shall be in the form of an affidavit of the person making the service or of the written representation of the person's attorney. No pleading or document shall be considered filed for any purpose in the absence of such written certification.(h) Service of attorney. -- Whenever a party is represented by an attorney who has signed any document filed on behalf of such party or otherwise entered an appearance on behalf of such party service thereafter may be made upon the attorney without additionally serving the individual party or parties. In any event once an attorney is of record in a proceeding under the rules, service shall be made on the attorney before service is complete.1.10. Amendments. (a) The strict formal requirements in pleadings are not required to be observed in documents, answers or any other papers filed with the Board; and amendments or supplemental statements may be made and filed at any time prior to a scheduled hearing as long as the documents are filed and served as called for under these rules at least ten (10) days prior to the scheduled hearing date. If a party desires to file amended or supplemental statements less than ten (10) days before the scheduled hearing of the matter, the party or his representative shall make a written request to the Chairman of the Board to file those amendments along with the amendments. Said request will set forth with particularity the reason for the need to file such documents at the late date. The Chairman of the Board will then allow or disallow the filing based solely in his discretion as justice might require.(b) A further and better statement of any cause or ground of complaint or defense, a further and better particulars of any matter stated, in any document, may in any case be ordered at the discretion of the Chairman or Hearing Examiner.1.11. Motions. (a) Unless made during a hearing, all motions shall be in writing, contain a short and plain statement of the grounds on which it is based, and set forth the relief sought. Motions may be accompanied by appropriate supporting material or discussion of the reasons for granting the motion.(b) A statement in opposition to a motion may be filed by any party within ten (10) days after the date of the service.(c) Any motion, including motions made during the hearing and except for motions related to jurisdiction or directed verdict or for a motion for reconsideration of the final decision of the Board, made less than ten (10) days before the commencement of an evidentiary hearing shall contain a showing of good cause for the motion not having been filed prior to the ten (10) day period.(d) Unless ordered by the Board, oral argument on motions will not be heard.1.12. Consolidation of proceedings. -- The Chairman of the Board may at any time order a proceeding described in these rules consolidated with any other such proceeding then pending before the Board, if such a consolidation is, in the opinion of the Board, a more efficient and expeditious manner of taking evidence, as long as all parties to the proceeding are afforded due process of law and a fair opportunity to present and make a record of evidence.1.13. Hearings. -- All hearings shall be conducted by the Board itself, with the Chairman having the primary responsibility for conducting the hearing, or by a Hearing Examiner, pursuant to the direction of the Board, in those cases as authorized by the Code and consistent with the requirements of these rules. All hearings shall be conducted in a fair and impartial manner, be conducted in accordance with the provisions of Part 2 of these rules, and be open to the public.1.14. Public access to board records. (a) Subject to reasonable regulation by the Board, all Board records relating to reviewing charges to withdraw certification, and review of alleged discharges, discrimination or failure to compensate shall be open for public inspection.(b) The Board shall make available for public inspection, all final orders, decisions and opinions in the adjudication of cases under the provisions of these rules.1.15. Time. (a) In computing any period of time prescribed or allowed by these rules, the day of the act, event or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday, a Sunday or a legal holiday when the offices of the government of this State are closed, in which event the period runs until the end of the next day which is not a Saturday, a Sunday or a legal holiday when the offices of the government of this State are closed.(b) When by these rules or by a notice given thereunder, an act is required or allowed to be done at or within a specified time, the Board may extend such time for good cause shown. If the motion for extension is made after the expiration of the prescribed time or any earlier granted extension, the extension shall be granted only upon the further showing that the failure to act was the result of excusable neglect.(c) Whenever any party has the right or is required to do some act or undertake some proceedings within a prescribed period after service of a notice or other document upon him and the notice or document is served upon the party by mail, three (3) days shall be added to the prescribed period.1.16. Action by the Board. -- A vacancy in the Board shall not impair the right of the remaining two (2) members to exercise all of the powers of the Board. Two (2) members of the Board, at all times, shall constitute a quorum of the Board. Only those members of the Board attending a hearing held in a proceeding shall participate in the decision in a proceeding arising out of such hearing. In any matter where only two (2) members of the Board attend the hearing held therein, action by the Board to grant the relief requested by the person initiating the proceeding shall require the concurrence of both of these members of the Board.1.17. Discovery. (a) Discovery shall be completed within thirty (30) days after commencement of a proceeding. For good cause shown, the Board may permit the time for discovery to be extended.(b) Parties may obtain discovery of any relevant matter, not privileged, that is admissible evidence or appears reasonably calculated to lead to the discovery of admissible evidence.(c) Upon application by a party or by the person from whom discovery is sought or upon its own motion, the Board may, for good cause shown, make any order limiting discovery to prevent undue delay or to protect a party or person from annoyance, oppression or undue burden or expense.(d) Upon application to the Board, any party may take the testimony of any person, including a party, by deposition upon oral examination or written interrogatories. The time, place and manner of taking depositions shall be governed by the order of the Board.(e) Upon receiving approval by the Board, any party may serve written interrogatories or requests for admission upon another party. A party served with written interrogatories or a request for admission shall answer such interrogatories or requests within fifteen (15) days of service unless the proponent of the interrogatories or request agrees to a longer time, or unless the Board by order specifies a different time or excuses the party from answering on good cause shown. Interrogatories shall be answered under oath. For good cause shown, the Board may order a party to produce and permit inspection, copying or photographing of designated documents or objects.1.18. Ex parte communications.(a) No individual, partnership, corporation, association or other entity outside of this Board, its staff or its agents shall make or knowingly cause to be made any prohibited ex parte communication to the Board, its staff or its agents as to the merits of any proceeding before the Board which has not been concluded.(b) No member of the Board, its staff or its agents shall request any prohibited ex parte communications or make or knowingly cause to be made any prohibited ex parte communications to any individual, partnership, corporation, association or other entity outside of this Board, its staff or its agents as to the merits of any proceeding before the Board which has not been concluded.(c) "Ex Parte Communication" means an oral or written communication not on the public record with respect to which reasonable prior notice is not given to all parties as provided for in this rule.(d) The ex parte communications prohibited by this rule include: (1) Such communications, when written, if copies thereof are not contemporaneously served by the communicator on all parties to the proceedings; and(2) Such communications, when oral, unless advance notice thereof is given by the communicator to all parties to the proceeding and adequate opportunity afforded to them to be present.(e) The ex parte communications prohibited by this rule shall not include:(1) oral or written requests for information solely with respect to the status of a proceeding; and(2) oral or written communications which all the parties to the proceeding agree, or which the Board formally rules, may be made on an ex parte basis.(f) All ex parte communications made in violation of this rule shall be placed on the public record of the proceeding to which it relates.(g) In the event an ex parte communication in violation of this rule occurs, the Board may make such orders or take such action as to the interests of justice require. Upon notice and hearing, the Board may determine that the interests of justice require that the claim or interest in the proceeding involving a party who knowingly makes a prohibited ex parte communication or knowingly causes a prohibited ex parte communication to be made be dismissed, denied or otherwise disregarded on account of such violation. Upon notice and hearing, the Board may censure, suspend, otherwise discipline or revoke the privilege of practice before the Board of any person who knowingly makes or causes the making of a prohibited ex parte communication.1.19. Hearing examiners. (a) In matters where authorized by the Code, the Board may appoint a Hearing Examiner. Anyone appointed to act as a Hearing Examiner must not have had any connection at any time with the coal industry or an organization representing miners, unless all parties to the proceeding consent to such a person's appointment. A reference to a hearing examiner shall be the exception and not the rule.(b) The order of reference to the Hearing Examiner may specify or limit his powers and may direct him to report only upon particular issues or to do or perform particular acts or to receive and report evidence only and may fix the time and place for beginning and closing the hearings and for the filing of the Hearing Examiner's report. Subject to the specifications and limitations stated in the order, the Hearing Examiner has and shall exercise the power to regulate all proceedings in every hearing before him and to do all acts and take all measures necessary or proper for the efficient performance of his duties under the order. He may require the production before him of evidence upon all matters embraced in the reference through subpoenas issued by the Board. He may rule upon the admissibility of evidence unless otherwise directed by the order of reference and has the authority to put witnesses on oath and may himself examine them and may call the parties to the action and examine them upon oath. The Hearing Examiner shall make a record of the evidence offered and excluded in the same manner and subject to the same limitations as provided for hearings before the Board.(c) When a reference is made, the clerk of the Board shall forthwith furnish the hearing examiner with a copy of the order of reference. It is the duty of the hearing examiner to proceed with all reasonable diligence. Either party, on notice to the parties and hearing examiner, may apply to the Board for an order requiring the hearing examiner to speed the proceedings and to make his report. If a party fails to appear at the time and place appointed, the hearing examiner may proceed ex parte or, in his discretion, adjourn the proceedings to a future day, giving notice to the absent party of the adjournment.(d) The parties may procure the attendance of witnesses before the hearing examiner by the issuance and service of subpoenas through the Board. If without adequate excuse a witness fails to appear or give evidence, he may be punished as for a contempt and be subjected to the consequences, penalties and remedies as if the witness failed to appear or give evidence before the Board.(e) The Hearing Examiner shall prepare a report upon the matters submitted to him by the order of reference and shall set forth his findings of fact and conclusions of law in the report. He shall file the report with the Board and shall file with it a transcript of the proceedings and of the evidence and the original exhibits. The Board shall forthwith mail to all parties notice of the filing.(f) The Board shall accept the Hearing Examiner's findings of fact unless clearly erroneous. Within ten (10) days after being served with notice of the filing of the report, any party may file with the Board and serve written objections thereto upon the other parties. Application to the Board for action upon the report and upon objections thereto shall be by motion and upon notice to the other parties. The Board, after hearing, may adopt the report or may modify it or may reject it in whole or in part or may receive further evidence or may recommit it with instructions.(g) Before filing his report, a Hearing Examiner may submit a draft thereof to counsel for all parties for the purpose of receiving their suggestions.