W. Va. Code R. § 48-17-8
Rules and Regulations Governing Procedures and Practice Before the Department of Mines
ABSTRACT OF PROMULGATION HISTORY AND SUMMARY OF COMMENTS
The procedural rules of the Department of Mines have been under discussion and review since at least early 1977. Several proposals have been submitted for public comment and comments have been received and incorporated into various drafts by the Office of the Attorney General and the Department's Hearing Examiner. The final regulations, filed this day, reflect the culmination of these efforts and provide a written framework for all contested cases before the Department of Mines.
On August 31, 1982, the Director filed a notice of proposed rulemaking with the State Register asking for written comments on the proposed procedural rules on or before October 1, 1982. These comments were received and constitute the remainder of this description.
Part 1
This part is a general statement of the scope of the regulations and includes definitions, designations of parties to various proceedings and sets forth general provisions relating to contested cases before the Department.
One comment received suggested that the definition of "Presiding Officer" in Section 1.05 (i) be amended to require such person to be admitted to practice as an attorney at law. The Department rejected this requirement to allow the Director the discretion to appoint non-lawyers to conduct hearings. Presently, the Hearings Examiner is a licenced attorney and all proceedings are conducted by him.
Section 1.06 (a) in line three, the word "where" is changed to "when".
Section 1.06 (e) was suggested to be amended to provide that the miners at a mine could elect not to be parties to review and assessment proceedings. This comment is rejected as unnecessary because miners or their representatives may elect not to be parties merely by their failure to respond to the notices required to be issued under Code 22-1-14 and Code 22-1-17.
Section 1.10 (b) was amended to read as follows:
"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."
Section 1.15 (b) has been amended to allow the Presiding Officer to grant extensions of time limits for good cause shown, not merely excusable neglect.
Section 1.16 (a) relating to Discovery has been amended to allow discovery to be completed within 60 days after commencement of a proceeding. Additionally Section 1.16 (e) is amended to allow the Presiding Officer to issue an order regarding depositions if the parties cannot agree to an acceptable schedule.
One commentator pointed out that the proposed rules did not contain provisions prohibiting exparte communications between persons outside the Department and the Department's Staff on the one hand and the Department and the Staff on the other. An exparte contact has been defined by Professor Neely in his recent treatise as an oral or written communication with the presiding officer, in a contested case which is not on the record in the proceeding and for which there is no prior notice to some or all of the parties. See Neely, Administrative Law in West Virginia, § 5.43. The State Administrative Procedures Act, Chapter 29A, contains no express provision on the propriety of exparte, however a prohibition of such contracts is said to be implicit in the requirement of exclusivity of the record. Additionally, the provisions of Code 29A-5-2 (b) state that "no other factual infoirmation or evidence shall be considered in the determination of the case." other than that contained in the record. Much of this concern is based upon principles of procedural due process.
The remedies for exparte communication in West Virginia administrative proceedings have usually required the communication to be placed on record and allow the record to be reopened for further evidence. Neely id at p.p. 381, 382. The final rules include provisions relating to exparte contacts which are patterned after the Federal Mine Safety and Health Review Commission Rules of Procedure, 29 C.F.R, § 2700.82, and are designated as Section 1.17. If future operation of this rule is found to be inadequate to protect the exclusivity of the record and due process, a more detailed provision may be adopted, by amendment.
Part 2
This part relates to the procedures involving the assessment of civil penalties. Certain grammatical changes were made in Section 2.04 in order to clarify the language. Specifically, the word "a" was added before the word "coal" in line one of Section 2.04 (a) and the order of the last two senteces of Section 2.04 (c) were reversed.
Section 2.07 was changed to insert the terms "party or parties" for the phrase "the operator, miner, person or persons." Additionally, the title of the section was changed to simply "Conference" rather than "Request for Conference." Section 2.07 (c) was changed to provide for the vacating of notices or orders where the assessment review officer finds that no violation exists.
Section 2.08 was changed to insert the term "Notice of Assessment Proceeding" in place of the phrase "notice of hearing to assess civil penalty." These same changes are made throughout Sections 2.09, 2.10, 2.11 and 2.12.
Part 3
This part relates to the general conduct of hearings before the Presiding Officer.
Section 3.03 (a) (5) was changed to delete the consent to the Director where discovery depositions are permitted by the Presiding Officer.
Section 3.05 provides a procedure whereby a party may request a postponement or relocation of a hearing. The Presiding Officer may grant this request if good cause is shown. This decision is left to the discretion of the Presiding Officer in line with the language of Code 29A-5-1 (e) where it provides that "[e]xcept where otherwise provided by statute, the hearing in any contested case shall be held in the county selected by the agency."
One of the comments received stated an objection as to the control which the Director has over the decision making process. The Code provides in, 22-1-16 and 22-1-20, that the Director gives the opportunity for hearings and renders a decision. Code 22-1-4 (3) authorizes the Director to employ such persons as are necessary to fully and effectively carry out the provisions of the law. The present Hearing Examiner's position is funded through a grant under Section 502 of the Federal Mine Safety and Health Act of 1977. The present system of administrative review under the West Virginia Coal Mine Safety Laws was patterned after the Federal Coal Mine Health and Safety Act of 1969 where all decisions were rendered by the Secretary of the Interior.
In order to meet some of the objections as to bias and impartiality in decision-making, Section 3,11 (b) and Section 3.12 have been amended to establish a procedure where a recommended decision is rendered by the Presiding Officer. The recommended decision of the Presiding Officer will be served upon all parties at the time of submission to the Director. Any party may request rehearing by the Director of the Presiding Officer's decision within 15 days of its service. Such request shall be pursuant to the rehearing provisions of Section 3.12. The Director may hold a hearing for purposes presenting argument on the review after notice to all parties. The Director may reverse the decision of the Presiding Officer and issue a final decision in the matter, remand the matter to the Presiding Officer for further taking of evidence or affirm and adopt the decision of the Presiding Officer as the Director's final order.
Part 4
This part relates to proceedings arising under Code 22-1-16 involving review of notices of violation. The only changes made to the proposed regulation in response to comments are grammatical changes with the exception of the addition of the words "a notice of violation or" in the fourth line of Section 4.03 (b) to clarify the right to request review of the termination or modification of a notice of violation.
Part 5
This part establishes a procedure whereby the provisions of Code 29A-4-1 may be utilzed by the public.
That Code provision states:
"On petition of any interested person, an agency may issue a declaratory ruling with respect to the applicability to any person, property or state of facts of any rule or statute enforceable by it. A declaratory ruling, if issued after argument and stated, to be binding, is binding between the agency and the petitioner on the state of facts alleged, unless it is altered or set aside by a court, but it shall not be binding on any other person. Such ruling is subject to review before the court, it it shall not be binding on any other person. Such ruling is subject to review before the court and in the manner hereinafter provided for the review of orders or decisions in contested cases. Each agency may prescribe by rule the form for such petitions and the procedure for their submission, consideration and disposition."
Comments received relating to this part objected to the use of interpretations by Department of Mines personnel. Inasmuch as an interpretation of the applicability of a particular statute to a state of facts is the purpose of a declaratory ruling, this part has not been substantially changed in response to the comment. Any question relating to the method of enforcement of the Mine Safety Laws could be subject to a declaratory ruling.
A review of Professor Neely's treatise on administrative law relating to declaratory rulings by agencies points out the fact that an agency has no obligation to issue a declaratory ruling unless it is inclined to do so. He also states that judicial review of an agency's actions is inevitable if a disenchanted person wishes to seek such review, citing Walls v. Miller, 251 S.E.2d 491(W.Va. 1978). See, Neely, supra §4.27 at p.p. 164 -168.
Section 5.06 (a) has been changed to reflect more clearly the discretionary nature of the issuance of declaratory rulings while keeping in mind the readily available remedy of extraordinary writs.
Conclusion
These rules are filed as finally adopted procedural rules of the Department of Mines, The text has been reviewed and comments made by persons within the industry and the United Mine Workers along with private attorneys representing various clients with an interest in activities of the Department. These rules have been drafted with the intent to follow past practice before the Department's Hearing Examiner and to provide guidance to the public.
As suggested by one commentator, these rules will be closely evaluated on an ongoing basis to determine their impact, particularly within the first year of their operation. Any further suggestions, comments or proposed amendments to these rules will be appreciated on an informal basis.
W. Va. Code R. § 48-17-8