Current through Register Vol. XLI, No. 25, June 21, 2024
Section 37-1-3 - Rules Applicable to Proceedings Initiated to Withdraw Certification3.1. Scope. -- The rules in this section govern and are applicable to proceedings initiated pursuant to W. Va. Code '22-5-1 by a mine inspector, Commissioner or the Director to charge a mine foreman, assistant mine foreman, fire boss or any other certified person with neglect or failure to perform any duty mandated pursuant to W. Va. Code ''22a-1a-1 or 22a-1a-2. In addition to the rules contained in this section, the general rules of practice before the Board contained in Section 1 of these rules and the rules relating to hearings held by the Board contained in Section 2 of these rules are also applicable to such proceedings.3.2. By whom and against whom a charge may be initiated. -- A mine inspector or the Director and the Commissioner may charge a mine foreman, assistant mine foreman, fire boss or any other certified person with neglect or failure to perform any duty mandated pursuant to ''22a-1-1 or 22a-1-2.3.3. Initiation of proceedings. -- The charge is initiated by filing it with the Director or with the Board. If a charge is filed with the Director, the Director, within ten (10) days, shall forward notice of the charge with a copy of the charge to the Board.3.4. Notice of charge and time to answer. -- The Board upon receipt of a charge shall immediately give notice of the charge accompanied by the charge, to the charged party, the Director and the Commissioner if he is not the charging party, and the representative of the miner or miners at the mine where the violation is alleged to have occurred, giving ten (10) days from the date of the notice in which to answer.3.5. Contents of charge. (a) A charge shall comply with applicable general requirements and shall contain:(1) The name of the person charged;(2) The duty or duties the person charged is alleged to have violated;(3) The approximate date and place so far as is known of the violation of duty; and(4) The capacity of the person making the charge.(b) A charge shall be verified upon oath or affirmation on the basis of information and belief or personal knowledge by the charging party.3.6. Contents of answer. -- An answer shall comply with applicable general requirements and shall contain any documents and materials which could aid the Board in its determination of the possible substance of the charge.3.7. Who may file an answer. -- Any party may file an answer. The failure of a party to file an answer in the prescribed time shall not operate to bar that party's further participation in the proceeding.3.8. Investigation of charge. (a) If the Board is unable to determine the substance of the charge, it may request the Director to investigate the charge.(b) Upon request by the Board, the Director shall investigate the charge and report the results of the investigation to the Board within ten (10) days of his receipt of the charge.3.9. Probable cause determination.(a) Within twenty (20) days after receipt of the charge the Board shall evaluate the charge and determine whether or not a violation of duty has been stated.(b) In making a probable cause determination, the Board shall evaluate all documents and materials of record, including the charge and any answer filed, in order to determine as nearly as possible the substance of the charge.3.10. Notice of probable cause determination, and hearing or denial of hearing.(a) If the Board determines that probable cause exists to support the allegation that the person charged has violated his duty, the Board by the end of the twenty (20) day period shall set a date for hearing which date shall be within eighty (80) days of the filing of the charge.(b) If probable cause is determined, notice of the hearing, a copy of the charge and the probable cause determination shall be mailed by certified mail, return receipt requested to: (3) The Director and the Commissioner, if he is not the charging party;(4) The representative of the miner or miners at the mine where the violation is alleged to have occurred; and(5) To any interested person of record.(c) If the Board determines that no probable cause exists, notice of denial of the hearing, a copy of the charge and the reasons for the failure to state a charge shall be mailed by certified mail, return receipt requested:(3) The Director and the Commissioner, if he is not the charging party;(4) The representative of the miner or miners at the mine where the violation is alleged to have occurred; and(5) To any interested person of record.3.11. Board findings.(a) At the conclusion of the hearing the Board shall proceed to determine the case upon consideration of all the evidence offered and shall render a decision in writing containing its findings and conclusions of law.(b) If the Board finds by a preponderance of the evidence that the certificate or certificates of the charged person should be suspended or revoked pursuant to W. Va. Code '22a-5-1, it shall enter an order to that effect. No renewal of the certificate shall be granted except as provided in W. Va. Code '22a-5-1.3.12. Judicial review. -- Any party adversely affected by a final order or decision issued by the Board under these rules pursuant to W. Va. Code '22a-5-1, shall be entitled to judicial review thereof pursuant to W. Va. Code '29a-5-4.