W. Va. Code R. § 47-30B-6

Current through Register Vol. XLI, No. 24, June 14, 2024

Section 47-30B-6 - Hearings and Appeals

6.1. Right to an Informal Hearing. - The responsible party has 30 calendar days from receipt of the notice of civil administrative penalty within which to request, in writing, an informal hearing before the assessment officer. If the responsible party requests an informal hearing, the assessment officer will hold the hearing to deduce the actual facts and circumstances regarding the violation and, based thereon, will make a final recommendation of a civil administrative assessment to the Secretary. If the responsible party does not request an informal hearing, the notice of civil administrative penalty becomes a final order after the expiration of the 30-day period, and the civil administrative penalty becomes due and payable.

6.2. Notice and Scheduling of Informal Hearing. - If the responsible party requests an informal hearing within the 30-day period, the assessment officer shall schedule the informal hearing and provide written notice of its time, place, and location, at least 15 calendar days in advance, to the responsible party and the inspector or other authorized representative of the Secretary who filed a notice of violation resulting in the proposed consent order. The assessment officer may continue the informal hearing upon request of either party and for good cause shown.

6.3. Informal Hearing Procedures. - An informal hearing, as provided by this rule, is intended to be an informal discussion of the facts that gave rise to the issuance of a notice of violation and shall be conducted in the following manner:

6.3.a. The West Virginia Rules of Civil Procedure and the West Virginia Rules of Evidence shall not apply.

6.3.b. A record of the informal hearing is not required, but may be made by any party to the hearing at that party's expense. Any other party to the hearing may obtain copies of the record at the expense of the party requesting a copy.

6.3.c. At any formal review proceedings that may ensue (i.e. appeal to the Environmental Quality Board or the Kanawha County Circuit Court), no evidence as to any statement made by one party at the informal hearing may be introduced as evidence by another party, nor may any statement be used to impeach a witness, unless the statement is or was available as competent evidence independent of its introduction during the informal hearing.

6.3.d. During the course of the informal hearing, a responsible party may request that the assessment officer evaluate its ability to pay a civil administrative penalty. The assessment officer can only evaluate the request if the responsible party provides all required financial information within ten calendar days of the date of the informal hearing. The assessment officer shall not consider incomplete information or information received more than ten days after the date of the informal hearing. If the assessment officer receives complete information in a timely manner, he or she shall evaluate it in accordance with United States Environmental Protection Agency guidance.

6.4. Written Decision. - Within 30 calendar days following the informal hearing, the Secretary shall issue and furnish to the responsible party a written decision affirming, modifying or dismissing the proposed consent order or initial civil administrative penalty assessment and giving the reasons for the decision.

6.5. Request for Formal Hearing. - Within 30 calendar days after issuance of the Secretary's written decision, the responsible party may appeal to the Environmental Quality Board in accordance with the provisions of the Act. If the responsible party does not appeal to the Environmental Quality Board within 30 calendar days, the proposed consent order shall become a final order, and the civil administrative penalty shall become due and payable.

6.6. At the request of the responsible party and for good cause shown, the assessment officer may establish a schedule for payment of the civil administrative penalty based on all relevant factors.

W. Va. Code R. § 47-30B-6