Current through Register Vol. XLI, No. 24, June 14, 2024
1.1. Scope, Construction, and Applicability. a. The procedures and rules of practice set forth herein shall govern and apply to proceedings before Presiding Officers, the Commissioner of the Department of Energy or the Department generally including proceedings to assess monetary civil penalties pursuant to Section 19, Article 1A, Chapter 22A of the Code, proceedings to review orders and notices pursuant to Section 16, Article 1A, Chapter 22A of the Code and proceedings initiated upon a petition for declaratory ruling pursuant to Section 1, Article 4, Chapter 29A of the Code.b. In any proceedings 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 Presiding Officer, no reissuance of any pleading, 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 Department of Energy consistent with adequate consideration of the issues involved.d. On any procedural question not regulated by the 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 § 22A-3-3-1, § 29A-1-4, §29 A1.3. Filing Date. - December 30,19821.4. Effective Date. - January 30,19831.5. Definitions. As used in these rules;a. All terms used in these rules, not defined herein, shall have the meanings set forth in Section 1, Article 1A, Chapter 22A of the Code.b. Assessment officer: The term "Assessment Officer" shall mean any person or persons designated and appointed by the Commissioner to carry out the duties of the Assessment Officer outlined in Part 2 of these rules.c. Assessment review officer: The term "Assessment Review Officer" shall mean any person or persons designated and appointed by the Commissioner to carry out the duties of the Assessment Review Officer outlined in Part 2 of these rules.d. Code: The term "Code" when following a reference to a specific section, article, and chapter, shall mean the West Virginia Code of 1931, as amended.e. Declaratory ruling: The term "Declaratory Ruling" means a decision and order issued by the Commissioner of the Department of Energy as a ruling pursuant to Section 1, Article 4, Chapter 29A of the Code.f. Mine: The term "Mine" shall mean any mine as defined in Section 1, Article 1A, Chapter 22A of the Code, and any surface mine as that term is defined in Section 3, Article 3, Chapter 22A of the Code,g. Notice of violation: The term "Notice of Violation" shall mean a notice issued pursuant to the provisions of Section 13, Article 1A, Chapter 22A of the Code.h. Notice of assessment: The term "Notice of Assessment" shall mean a notice issued for the assessment of a civil penaly pursuant to the provisions of Section 19, Article 1A, Chapter 22A of the Code, and described in Section 2.4, Part 2 of these rules.i. Presiding officer: The term "Presiding Officer" shall mean the Commissioner or any person authorized fay the Commissioner to conduct hearings required or authorized under the coal mine health and safety laws of this State.j. Representative of miners: The term "Representative of Miners" shall mean a person or organization designated by a group of miners to act as their representative before the Department.k. Withdrawal order: The term "Withdrawal Order" means an order issued pursuant to Section 13, Article 1A, Chapter 22A of the Code.1.6. Parties. a. In proceedings to assess monetary civil penalties against any operator of a coal mine under Section 19(a), Article 1A, Chapter 22A of the Code; and when the amount of the assessment only is in dispute, the parties shall be;1. the operator against whom a penalty is proposed, and2. the Department of Energy.b. In proceedings to assess monetary civil penalties against any miner under Section 19(a), Article 1A, Chapter 22A of the Code, the parties shall be: 1. the miner charged with a violation and against whom a penalty is proposed, and,2. the Department of Energy.c. In proceedings to assess monetary civil penalties against any operator of a coal mine under Section 19(b), Article 1A, Chapter 22A of the Code; and where the. amount of the assessment only is in dispute, the parties shall be: 1. the operator against whom a penalty is proposed, and2. the Department of Energy.d. In proceedings to assess monetary civil penalties under Section 19(c), Article 1A, Chapter 22A of the Code, the parties shall be: 1. the corporate operator, director, officer, agent or other person or persons charged with a violation and against whom a penalty is proposed, and,2. the Department of Energy.e. In proceedings to review an order or notice under Section 15, Article 1 A, Chapter 22A of the Code or in a proceeding to assess monetary civil penalties against any operator of a coal mine .under Section 19(a), (b), and (c). Article 1A, Chapter 22A of the Code, where the operator is disputing the notice or order alleging a violation, the parties shall be: 1. the representatives of the miners at the mine affected by the notice of order, and2. the operator of the affected mine, and3. the Department of Energy.f. In proceedings Initiated by a petition for declaratory ruling pursuant to Section 1, Article 4, Chapter 29A of the Code, the parties shall be: 1. the person requesting a declaratory ruling;2. the Department of Energy, and3. 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 proceedings or any person otherwise seeking to intervene in a proceeding may become a party to a proceeding upon the Presiding Officer'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 maybe 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 Presiding Officer may grant or deny petitions for intervention or may permit intervention limited to a particular stat 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 Department and may contain or include other information appropriate for the identification of the proceeding, 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 or documents In a proceeding described in these rules shall be filed with the Commissioner, Department of Energy, 1615 Washington Street, B., Charleston, West Virginia 25311.b. Number of copies. Except as otherwise provided in these rules, a party shall furnish an origin and two (2) copies of all pleadings and other documents required or permitted to be filed.c. How to file. All filing may be accomplished by personal delivery or first class mail.d. When filing effective. 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 proceeding.f. Method of service. Documents by which any proceeding is initiated shall be served on each other party personally or by registered or certified mail, return receipt requested. All subsequent documents may be served personally or by first classmail. Service by mail is complete upon mailing.g. 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 shall be made upon the attorney. h. Proof of service. Any person initiating a proceeding under these rules shall file proof of service in the form of (i) a certificate of service, or (ii) a return receipt where service is by certified mail, or (iii) an acknowledgement by the party served or (iv) a verified return where service is made personally. The certificate of service shall Include a statement of how and when service was accomplished.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 Department 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 Presiding Officer 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 Presiding Officer will then allow or disallow the filing based solely on his discretion as justice might require.b. A further and better statement of any cause or ground of complaint or defense, or a further and better statement of particulars of any matter stated, in any document, may in any case be ordered at the discretion of the Presiding Officer.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 service.c. Any motion, including motions made during the hearing and except for motions relating to Jurisdiction or directed verdict or for a motion for reconsideration of the final decision of the Commissioner, 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 Presiding Officer, oral argument on motions will not be heard.1.12. Consolidation of proceedings. The Presiding Officer may at any time order a proceeding described in these rules consolidated with any other such proceeding then pending before the Department, if such a consolidation is, in the opinion of the Presiding Officer, a more efficient and expeditious manner of taking evidence, as long as all parties to the proceeding are afforded due process of law and fair opportunity to present and make a record of evidence.1.13. Hearings. All hearings shall be conducted by a Presiding Officer in accordance with the provisions of Section 3 of these rules, and all shall be open to the public. 1.14. Public access to departmental records. a. Subject to reasonable regulation by the Commissioner, all departmental records relating to the assessment of monetary civil penalties or review proceedings under the coal mine health and safety laws of this State shall be open for public inspection.b. The Commissioner shall, from time to time, publish a list of final orders entered by the Department. Such list shall include the person against whom a violation was charged and the amount of the penalty paid or assessed or the relief sought and granted, as appropriate.c. The Commissioner shall make available to public inspection, all final orders, decisions and opinions in the adjudication of cases under the provisions of these rules.d. Notwithstanding the above provisions, upon the motion of any party to a proceeding, the Commissioner may take appropriate action to protect as confidential, trade secrets or sensitive information about individuals. However, under no circumstances shall this section be deemed to protect as confidential, proposed orders of assessments, final orders and decisions, or the dates on which meetings and conferences were held and the procedures by which cases were disposed of.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 be gins 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 Presiding Officer may extend such time for good cause at the expiration of the prescribed time or at the expiration of any earlier granted extension, upon the showing that the failure to act was good cause.c. Whenever any party has the right or is quired 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. Discovery. a. Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in a pending proceeding. The party requesting discovery shall have the burden of showing the necessity and relevancy of any materials, answers or testimony desired. All requests for public records directed to the Department of Energy shall be in accordance with the provisions of Chapter 29B, Article 1, Section 1 et seq. of the Code of West Virginia, 1931, as amended.b. Discovery shall be completed within sixty (60) days after commencement of a proceeding, For good cause shown, the Presiding Officer may permit the time for discovery to be extended.c. 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.d. Upon application by a party or by the person from whom discovery is sought or upon its own motion, the Presiding Officer 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.e. Any party may take the testimony of any person, including a party, by deposition upon oral examination or written interrogatories. If the parties are unable to agree thereto, the time, place, and manner of taking depositions shall be governed by the order of the Presiding Officer.f. Any party may service 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 request within fifteen (15) days of service unless the proponent of the interrogatories or request agrees to a longer time, or unless the Presiding Officer by order specifies a different time or excuses the party from answering in good cause shown. Interrogatories shall be answered under oath. For good cause shown, the Presiding Officer may order a party to produce and permit inspection, copying, or photographing of designated documents or objects.1.17. Ex parte communications. a. There shall be no ex parte communication with respect to the merits of any case not concluded, between the Presiding Officer and any of the parties or intervenors, representatives, or other interested. persons.b. In the event an ex parte communication in violation of this section occurs, the Commissioner or the Presiding Officer may make such orders or take such action as fairness requires. Upon notice and hearing, the Commissioner or the Presiding Officer may take disciplinary action against any person who knowingly and willfully makes or causes to be made a prohibited ex parte communication.c. All ex parte communications in violation of this section shall be placed on the public record of the proceedings.d. Any inquiries concerning filing requirements, the status of cases before the Presiding Officer, or docket information shall be directed to the Hearings Clerk at West Virginia Department of Energy, 1615 Washington Street, E,, Charleston, West Virginia 25311. Telephone (304) 348. 3500.