Current through Register Vol. XLI, No. 21, May 23, 2024
Section 56-1-5 - Hearings5.1. Scope. 5.1.1. Unless otherwise specified in this or other rules and regulations, the rules in this section shall govern and apply to hearings conducted by the Director, other Presiding Officer or by the OMHST pursuant to the authority provided in the laws of this State or rules and regulations promulgated pursuant thereto.5.2. Conduct of hearings. 5.2.1. A Presiding Officer shall conduct every hearing.5.3. Powers of presiding officers. 5.3.1. The Presiding Officer in connection with conducting a hearing and subject to the rules set forth in this section, may: 5.3.1.a. Administer oaths and affirmations;5.3.1.b. Issue subpoenas in accordance with the provisions of W. Va. Code § 29A-5-l;5.3.1.c. Rule upon offers of proof and receive relevant evidence;5.3.1.d. Permit evidentiary depositions to be taken and read as in civil actions in the circuit courts of this State;5.3.1.e. Permit discovery depositions;5.3.1.f. Regulate the course of the hearings;5.3.1.g. Dispose of procedural requests or similar matters;5.3.1.h. Hold conferences for the settlement or simplification of the issues with the consent of the parties; and 5.3.1.i. Take any other action in connection with such hearing authorized by law.5.3.2. In any case where the Presiding Officer is not the Director, such Presiding Officer may, on his/her own motion, and shall, at the request of any party, certify any interlocutory ruling to the Director where he/she determines (1) that such ruling involves a controlling question of law, and (2) that an immediate decision on the question by the Director may materially advance the ultimate disposition of the matter before him/her.5.3.3. In no case shall a Presiding Officer other than the Director enter a final order or decision.5.4. Notice of hearing: contents of notice. 5.4.1. Unless otherwise specified in this rule, no hearing shall be conducted under this rule or otherwise unless the parties to the proceeding shall have received at least ten (10) days written notice.5.4.2. Each written notice of the hearing shall contain the date, time, and place of the hearing and a short and plain statement of the matters which are to be the subject of or asserted at the hearing. Such notice shall be given in accordance with the provisions of W. Va. Code §29A-7-2.5.5. Date, time, and place of hearing. 5.5.1. The date, time, and place of each hearing shall be determined by the Presiding Officer on the basis of convenience to parties and witnesses. Any request for postponement or relocation of a hearing shall be filed and served on all parties no later than five (5) days prior to the originally scheduled date. Such request may be granted upon showing of good cause.5.6. Representation at hearings. 5.6.1. At hearings held pursuant to this rule, any party may represent himself/herself 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 who is also an operator may be represented by a full-time employee, and any miner may be represented by the representative of miners.5.7. Waiver of evidentiary presentation. 5.7.1. Any party who desires to submit written pleadings, comments or information in lieu of an evidentiary hearing may submit such documents for the Presiding Officer's consideration in the matter in the event hearing is waived as provided in Subsection 5.7.2. of this section.5.7.2. Parties entitled to an evidentiary hearing may waive such right in writing, but unless all entitled parties file timely waivers, a hearing will be conducted. Such waivers must be unequivocal and request the Presiding Officer to decide the matter at issue on the pleadings and written record of the case, including any stipulations the parties might enter or any documents filed in accordance with Subsection 5.7.1. of this section.5.7.3. When a hearing is waived under the provisions of this section, the written record in the case shall be submitted to the Presiding Officer for decision.5.8. Burden of proof. 5.8.1. In proceedings under the coal mine health and safety laws of this State, the party initiating the proceeding shall have the burden of proving his/her case by a preponderance of the evidence provided that (a) in a penalty proceeding, the OMHST shall have the burden of proving its case by a preponderance of the evidence, and (b) whenever the violation of any provisions of the state coal mine health and safety laws is an issue, the OMHST shall have the burden of proving the violation by a preponderance of the evidence.5.9. Proposed findings, conclusions and orders.5.9.1. The Presiding Officer 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 reference to the record and authorities relied upon.5.10. Hearings to be public. 5.10.1. All hearings conducted under these rules shall be open to the public.5.11. Decisions and orders. 5.11.1. Within sixty (60) days after conclusion of the hearing or after submission of the case and consideration of the record as a whole in the event a hearing is waived, the Presiding Officer shall render a decision and order which shall be in writing and shall include a statement of (a) findings and conclusions and the reasons or basis therefore on the material issues of fact and law, and (b) the appropriate ruling or order granting in part, or denying the relief sought.5.11.2. In proceedings where the Presiding Officer is not the Director, the Presiding Officer shall issue and serve a copy of the recommended decision upon all parties by certified mail, return receipt requested. The record in the case and the original recommended decision shall be forwarded to the Director. Within fifteen (15) days of the service of the recommended decision a party adversely affected or aggrieved by such decision may file with the Director, and serve upon all parties, a petition for rehearing pursuant to Subsection 5.12.2. of this rule setting out with particularity the grounds for requesting such rehearing. The Director shall approve, alter, remand or reject the recommended decision and order of the Presiding Officer, and the Director shall, in accordance with the provisions of Section 5.12.2. of this rule, prepare a final decision and order to replace the recommended decision and order rejected.5.11.3. A copy of all decisions and orders prepared or approved by the Director shall be served, by certified mail, return receipt requested, upon all parties and, unless the decision and/or order provides otherwise, the decision and order so served shall become effective immediately following service.5.12. Re-opening; re-hearing; modification. 5.12.1. Applications for re-opening a proceeding after hearing or submission and before decision shall be made by petition filed prior to service of a final decision. 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 adduced.5.12.2. Applications for re-hearing or re-argument after decision shall be made by petition filed within fifteen (15) days after service of the recommended or final decision. Such petition shall state specifically the grounds relied upon and, if any decision and order is sought to be vacated, reversed or modified by reason of (1) matters arising since the decision; (2) consequences which would result from compliance with the decision and order; or (3) facts not in the possession of petitioner prior to decision, such reason(s) shall also be stated.5.12.3. Applications for modification of decisions and orders of the OMHST, which seek only a change in the date of such decisions and orders shall take effect, shall be made by petition filed within fifteen (15) days after service of the final decision, except that, in the event of an unforeseen emergency 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.5.12.4. A copy of each petition filed under this section shall be served on all other parties to the original proceeding and each petition shall be accompanied by a certificate showing service upon such parties. Within ten (10) days after such service, an adverse party may file and serve a reply to the petition.5.12.5. Upon the filing of a reply or upon the failure of an adverse party to reply within ten (10) days after service of a copy of the petition on such party, the Director shall consider the petition, the replies thereto, and the record of the proceeding, and, if he or she determines a hearing upon the petition to be necessary, shall, after ten (10) days' notice, send to all parties notice to hold such hearing in accordance with the provisions of Section 5 of this rule. Within thirty (30) days after consideration of the petition, the replies thereto and the record of the proceeding, the Director shall issue an order either granting in part or denying the relief requested in the petition.