W. Va. Code R. § 33-22-5 - Hearings and Appeals

5.1. Right to Informal Hearing. The violator shall have twenty (20) 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 a hearing is requested, 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 civil administrative penalty assessment to the Secretary. If no hearing is requested within the specified time period, the notice of civil administrative penalty shall become a final order after the expiration of the twenty-day period and the civil administrative penalty shall become due and payable.

5.2. Notice and Scheduling of Informal Hearing. If the violator requests an informal hearing within the twenty-day period, the assessment officer shall schedule such a hearing in accordance with the following procedures:

5.2.a. The time and place the informal hearing is to be held is to be communicated to any inspector or other authorized representative of the Secretary who filed a notice of violation bringing about the informal hearing and to the violator.

5.2.b. Such communication shall be provided at least fifteen (15) calendar days prior to the time of the hearing.

5.2.c. The assessment officer may continue the informal hearing only for good cause shown.

5.3. Informal Hearing Procedures. An informal hearing, as provided by these regulations, is intended to be an informal discussion of the facts which gave rise to the issuance of a notice of violation and shall be conducted in the following manner:

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

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

5.3.c. At formal review proceedings which may ensue, 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.

5.3.d. During the course of the informal hearing, a violator may make a request to have its ability to pay a civil administrative penalty evaluated. Such a request will only be evaluated if the violator provides all required information and it is received by the Assessment Officer within ten (10) calendar days of the informal hearing date. Incomplete information or information received more than ten (10) days after the informal hearing date will not be evaluated. Should completed information be received in a timely fashion, it will be evaluated in accordance with United States Environmental Protection Agency (USEPA) guidance.

5.4. Written Decision. Within thirty (30) calendar days following the informal hearing, the Secretary shall issue and furnish to the violator a written decision affirming, decreasing, or dismissing the initial civil administrative penalty assessment and giving the reasons therefor.

5.5. Request for Formal Hearing. Within thirty (30) calendar days after notification of the Secretary's decision, the violator may request a formal hearing before the Environmental Quality Board in accordance with the provisions of the Acts. If no hearing is requested, the Secretary's decision shall become a final order after the expiration of the thirty-day period and the civil administrative penalty shall become due and payable.

Notes

W. Va. Code R. § 33-22-5