W. Va. Code R. § 56-1-6

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

Section 56-1-6 - Rules Applicable to Proceedings for Modification, Extension, Termination or Review of Orders And Notices

6.1. Scope.

6.1.1. The rules in this section govern and are applicable to review proceedings initiated pursuant to W. Va. Code §22A-1-17, by operators or representatives of miners in any mine affected by orders and notices of violation issued pursuant to the provisions of W. Va. Code § 22A-1-14 and -15. In addition to the rules contained in this section, the general rules of practice before the OMHST contained in Section 3 and the rules relating to hearings held by the OMHST contained in Section 5 are also applicable to such proceedings.

6.2. By whom modification, extension, termination or review proceedings may be initiated.

6.2.1. The following persons may initiate proceedings for modification, termination or review of notices of violation or orders:

6.2.1.a. an operator issued an order pursuant to the provisions of W. Va. Code §22A-1-15;

6.2.1.b. any representative of miners in any mine affected by such a withdrawal order or by any modification or termination of such order;

6.2.1.c. an operator issued a notice of violation pursuant to W. Va. Code §22A-1-15(b), if he/she believes that the time fixed in such notice for the abatement of the violation is unreasonable;

6.2.1.d. any representative of miners in any mine affected by such a notice of violation, if he/she believes that the time fixed in such notice for abatement of the violations is unreasonable;

6.2.1.e. any operator affected by an order issued under W. Va. Code §22A-1-14; or

6.2.1.f. any representative or miners in a mine affected by an order issued under W. Va. Code §22A-1-14.

6.2.2. For purposes of Section 6 of this rule, the mine "affected" by any order or notice shall be deemed to be the mine at which the violation in question allegedly occurred or at which the imminent danger giving rise to the withdrawal order was allegedly found to exist.

6.3. Initiation of proceedings.

6.3.1. Proceedings for the review of an order issued pursuant to the provisions of W. Va. §§22A-1-14 and-15, a modification or termination thereof, a notice of violation issued pursuant to the provisions of W. Va. Code §22A-1-15, or a modification or termination thereof, shall be initiated by those parties entitled to seek review as designated in Section 6.2. of this rule, by filing an application for review.

6.3.2. An application for review shall be filed with the Director within thirty (30) days of receipt by the applicant of the order or notice of violation sought be reviewed or within thirty (30) days of receipt of any modification or termination of a notice of violation or an order where review of such modification or termination of a notice of violation or an order where review of such modification or termination is sought. A copy of the application for review shall be served upon all other parties by the party making application for review.

6.3.3. An operator's failure to file an application for review of an order or notice of violation shall not preclude the operator from challenging the fact of violation or raising any other pertinent matter in a proceeding under Sections 4.8. through 4.12. of this rule.

6.4. Answer.

6.4.1. Any party, other than the OMHST, desiring to participate in the proceeding in opposition to the application for review shall file an answer within fifteen (15) days of service of such application for review.

6.5. Contents of application and answer.

6.5.1. An application for review and an answer shall comply with applicable general requirements and shall contain:

6.5.1.a. A short and plain statement of (i) such party's position with respect to each issue of law or fact which the party contends is pertinent to the legality or correctness of the order or notice; and (ii) the relief requested by such party;

6.5.1.b. A statement of whether the party submitting the document requests a public hearing or waives it as provided in Section 5.7. of this rule. Where an answer does not include an unequivocal waiver, a party shall be deemed to have requested a hearing and initial decision.

6.5.2. A copy of the order or notice sought to be reviewed shall be attached to each application for review.

6.6. Proceedings after application; decision and order.

6.6.1. Upon receipt of an application for review, the Director shall cause an investigation of the matter to be made as he or she deems appropriate and shall appoint a Presiding Officer for all proceedings relating to such application.

6.6.2. In the event the applicant has requested a hearing in the application for review, the Presiding Officer shall give notice of and conduct such hearing in accordance with the provisions of Section 5 of this rule. In the event the applicant has waived a hearing in accordance with the provisions of Section 5.7. of this rule, the Presiding Officer shall promptly consider the pleadings and all documents submitted therewith by the parties.

6.6.3. Within sixty (60) days after conclusion of the hearing or after consideration of the pleadings and documents filed therewith in the event a hearing is waived, the Presiding Officer shall issue a written decision and order incorporating therein findings of fact and conclusions of law, vacating, affirming, modifying, extending, or terminating the notice of violation, the order or the modification or termination of such notice or order.

6.6.4. In proceedings where the Presiding Officer is not the Director, the record in the case and the decision and order of the Presiding Officer shall be forwarded to the Director for his/her review. The Director shall approve, alter and approve, or reject the decision and order of the Presiding Officer. In the event the Director rejects the decision and order of the Presiding Officer, the Director shall forthwith prepare a decision and order to replace the decision and order rejected.

6.6.5. 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 each order so served shall become effective upon service.

6.7. Temporary relief; when appropriate.

6.7.1. As part of an initial application for review, or at any time during which an application for review is pending, an applicant may file a written request for temporary relief from any modification or termination of any order, or from any order issued under W. Va. Code §22A-1-15.

6.7.2. If the application for temporary relief is incorporated in the application for review, the applicant shall incorporate in such application a detailed statement giving reasons why temporary relief is appropriate under the circumstances.

6.7.3. If the application for temporary relief is made at any time after the application for review has been filed, the application for temporary relief shall be in the form provided for in Section 3.3. of this rule and shall specify the status of the review proceeding and the reasons why the application for temporary relief is being made. When an application for temporary relief is made after an application for review has been filed, a copy thereof shall be served upon all parties to the proceeding.

6.7.4. The Presiding Officer may, upon consideration of the request for temporary relief, grant such relief as he/she deems appropriate: Provided, That no temporary relief shall be granted unless:

6.7.4.a. a hearing has been held in which all parties were given an opportunity to be heard;

6.7.4.b. the applicant shows that there is substantial likelihood that the final decision and order will be favorable to the applicant; and

6.7.4.c such relief will not adversely affect the health and safety of miners in the coal mine.

6.7.5. Under no circumstances shall temporary relief be granted in the case of a notice issued under W. Va. Code§22A-1-15(b).

6.7.6. Any temporary relief granted by a Presiding Officer who is not the Director shall be subject to review by the Director.

6.8. Expedition of proceedings.

6.8.1. As part of an initial application for review, or at any time after the filing of an application for review, any party may move the Presiding Officer to expedite the hearing and decision of the case. Such motion shall be in writing and accompanied by supporting documents that establish the party's claim of exigent circumstances warranting expedition.

6.8.2. A copy of all such motions for expedition shall be served upon all other parties by the applicant.

6.8.3. The Presiding Officer shall promptly review the motion and may advance the matter on his/her calendar or expedite the proceedings as he/she deems appropriate.

6.8.4. Where expedited proceedings are requested under this section, periods of time for filing applications, answers or responses, or for holding hearings, as provided elsewhere in this rule, may be waived by agreement of the parties or altered by order of the Presiding Officer.

6.8.5. Any motions granted in this section by a Presiding Officer who is not the Director shall be subject to review by the Director.

W. Va. Code R. § 56-1-6