Current through Register Vol. XLII, No. 1, January 3, 2025
Section 50-1-5 - Hearings5.1. Scope. Unless otherwise specified in these rules, the rules in this part shall govern and apply to hearings conducted by the Board pursuant to the authority provided in Article 7, Chapter 22 of the Code or rules and regulations promulgated pursuant thereto.
5.2. Quorum; Presiding Officer. No hearings shall be held by the Board unless at least two (2) members of the board are present. The Chairman shall preside over every hearing unless he is absent, in which case, the two (2) members present shall decide who shall preside over the hearing.
5.3. Powers of Presiding Officers. (a) The Chairman or other presiding officer in his absence, subject to the rules set forth in this section, may: (1) Administer oaths and affirmations;(2) Issue subpoenas in accordance with the provisions of '29A-5-1;(3) Rule upon offers of proof and receive relevant evidence;(4) Permit evidentiary depositions to be taken and read as in civil actions in the circuit courts of this State;(5) Permit discovery depositions with the agreement of the Board;(6) Regulate the course of a hearing;(7) Dispose of procedural requests or similar matters;(8) Hold conferences for the settlement or simplification of the issues with the consent of the parties; and(9) Take any other action in connection with such hearing authorized by law.5.4. Notice of Hearing. Unless otherwise specified in these rules, no hearing shall be conducted under these rules or otherwise unless the parties to the proceedings shall have received at least ten (10) days' written notice of a meeting of the Board at which a hearing may be held.
5.5. Representation at Hearings. At hearings held pursuant to these rules, any party may represent himself or be represented by an attorney at law admitted to practice before the courts of any state or the District of Columbia. In addition, any party which is also an operator may be represented by a full-time employee.
5.6. Conduct of Hearing.(a) Conduct of attorneys before the Board shall be the same as required of attorneys before the Circuit Courts of the State of West Virginia. Any person testifying in response to a subpoena or subpoena duces tecum issued by the Chairman and any person testifying in support of an application or in opposition thereto shall be required to do so under oath or affirmation administered by the Chairman or other presiding officer. Witnesses shall be examined with courtesy and respect, and their good faith shall be presumed.(b) Smoking shall not be permitted in the hearing room during session or during recess.(c) Electronic recording of any hearing is prohibited except as may be required by the Board for preserving a record thereof for the use of the Board in connection with the matter being heard. The taking of photographs in or broadcasting of proceedings from any hearing room or so close thereto as to disturb the hearing is prohibited.(d) A transcript of testimony shall be taken and preserved as part of the permanent record. Parties may examine the official transcript or purchase copies thereof from the court reporter or Board.5.7. Applicability of Administrative Procedures Act. All of the pertinent provisions of Article 5, Chapter 29A of the Code shall apply to and govern hearings conducted under these rules with like effect as if the provisions of said Article 5 were set forth in extenso of this section. If any provision of these rules of practice and procedure is inconsistent with any pertinent provision of said Article 5, the provision of said Article 5 shall control.
5.8. Burden of Proof. (a) In proceedings concerning the location of shallow wells, the party objecting to the proposed drilling location shall have the burden of proving its case by a preponderance of the evidence, except that the gas operator shall have the burden of proving its case by a preponderance of the evidence if (1) the Department has objected to the proposed drilling location, or (2) the well is proposed to be drilled to a depth of three thousand (3,000) feet or more and the drilling location is less than two thousand (2,000) feet from the nearest existing well as defined in Code '22-7-8(b).(b) In proceedings to establish drilling units, the party initiating the proceeding shall have the burden of proving its case by preponderance of the evidence.5.9. Proposed Findings, Conclusions, and Orders. The Chairman, or other presiding officer in the Chairman's absence, may request the submission by parties of proposed findings of fact, conclusions of law and orders, together with a supporting brief. Such proposals and briefs shall be served upon all parties, and shall contain adequate references to the record and authorities relied upon.
5.10. Hearings to be Public. All hearings to be conducted under these rules shall be open to the public. Notice to the public shall be as follows:
(1) The Board shall file with the Secretary of State's office a Notice containing the time, date and place of all regularly scheduled meetings of the Board.(2) The Board shall file with the Secretary of State's office a Notice or Notices containing the time, date and place of all hearings to be heard by the Board pursuant to Code '22-4B-7. Said Notice shall be filed with the Secretary of State at least ten (10) days before the date set for the hearing.(3) The Board shall file with the Secretary of State's office a Notice containing the time, date, place and purpose of all special meetings to be held by the Board. Said Notice must be filed with that office at least twenty-four (24) hours in advance.(4) Copies of all Notices required to be filed by this Regulation with the Secretary of State's office shall also be delivered to the Capitol News Media :Office W-123, State Capitol Building.(5) None of the provisions of this Regulation shall apply to Board actions taken in the event of an emergency requiring immediate official action.5.11. Written Orders. (a) As soon as practicable after conclusion of a hearing, the members of the Board shall meet to consider the evidence and issue an order which shall be in writing and shall include a statement of: (1) Findings and conclusions and the reasons therefor on the material issues of fact and law; and(2) The appropriate ruling or order in compliance with the provisions of Code '22-7-7 or Code '22-7-10.(b) The original of all written orders issued by the Board shall be filed with the Department within twenty (20) days after the hearing which is the subject of such order. The record of the proceeding shall be simultaneously filed with the Department, and a copy of the order shall be served, by certified mail, upon all parties at the time the order is filed. Unless the order otherwise provides, the order shall become effective upon filing unless a party makes application for rehearing or modification in accordance with section 5.12. of these rules.5.12. Reopening; Rehearing; Modification. (a) Applications for reopening a proceeding after hearing and before written order shall be made by petition filed prior to service of an order. Such petition shall state specifically the grounds relied upon and, if it be for the purpose of introducing additional evidence, shall also state the nature and purpose of the evidence to be introduced.(b) Applications for rehearing or reargument after issuance of a written order shall be made by petition filed within thirty (30) days after service of such order. Such petition shall state specifically the grounds relied upon and, if any written order is sought to be vacated, reversed or modified by reason of (1) matters arising since the issuance of such order, (2) consequences which would result from compliance with the Board's order or (3) facts not in the possession of the petitioner prior to issuance of such order, such reasons shall also be stated.(c) Applications for modification of written orders, which seek only a change in the date such order shall take effect, shall be made by petition filed within thirty (30) days after service of the written order, except that, in the event of unforeseen emergencies satisfactorily shown by the petitioner, such relief may be sought informally by telegram or otherwise, upon notice to all parties or attorneys who appeared in the proceeding.(d) A copy of each petition filed under this section shall be served on all other parties to the original proceeding and such petition shall be accompanied by a certificate showing service upon such parties. Within fifteen (15) days after such service, an adverse party may file and serve a reply to the petition.(e) Upon the filing of the reply or upon the failure of an adverse party to reply within fifteen (15) days after service of a copy of the petition on such party, the Board shall consider the petition, the replies thereto, and the record of the proceeding, and, if it determines a hearing upon the petition to be necessary, shall, after ten (10) days' notice to all parties in the manner provided in Code '22-7-6, hold such hearing in accordance with the provisions of Section 5 of these rules. As soon as practicable after consideration of the petition, the replies thereto and the record of the proceeding, the Board shall issue an order either granting in part or denying the relief requested in the petition.(f) The filing of a petition seeking (i) rehearing or reargument after issuance of a written order or (ii) modification of a written order pursuant to subsections (b) and (c) of this section, shall not stay the time for appeal of such written order to the circuit court unless the Board orders rehearing or reargument or modifies the written order, in which case, the time for appeal pursuant to Code '22-7-13 shall begin to run anew after the Board's final action.5.13. Appeal. If an appeal is filed pursuant to Code '22-7-13, the Director shall be responsible for certifying and forwarding the entire record of the proceedings to the circuit court.