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west virginia department of environmental protection
west virginia department of environmental protection
west virginia department of environmental protection

Appeal Process

​Procedural Steps in Filing an Appeal

The following information is provided to assist you through the appeal process:

The person appealing an action of the Secretary/Director or the director’s designee shall be known as the appellant, and the director or the director’s designee shall be known as the appellee.

The notice of appeal shall be on a form that can be obtained by:

  • Downloading it as a PDF
  • Contacting the Clerk of the Board:
    601 57th Street, SE
    Charleston, WV 25304

  • Calling (304) 926-0445 x41128

Completed forms should be returned to the Clerk within seven (7) days of receipt of the form. All subsequent submissions shall be captioned in the same manner as the notice of appeal.

An appeal filed with the Board by a person subject to an order, permit or official action shall be perfected by filing a notice of appeal with the Board within thirty (30) days after the date upon which such order, permit or official action was received by such person as demonstrated by the date of receipt of registered or certified mail or of personal service. For parties entitled to appeal other than the person subject to such order, permit or official action, an appeal shall be perfected by filing a notice of appeal with the Board within thirty (30) days after the date upon which service was complete. For purposes of this subsection, service is complete upon tendering a copy to the designated agent or to the individual who, based upon reasonable inquiry, appears to be in charge of the facility or activity involved, or to the permittee; or by tendering a copy by registered or certified mail, return receipt requested to the last known address of the person on record with the agency. Service is not incomplete by refusal to accept. Notice of Appeal must be filed in a form prescribed by the rule of the board for such purpose. Persons entitled to appeal may also file a notice of appeal related to the failure or refusal of the appropriate chief or the secretary to act within a specified time on an application for a permit; such notice of appeal shall be filed within a reasonable time (22B-1-7).

The appellant shall attach the written notification of the action appealed from to the notice of appeal.

When an appeal of a permit is filed by a party who is not the holder of the permit, the issuance of which, or the terms and conditions of which are being appealed, the third party appellant shall serve upon the holder of the permit a copy of the notice of appeal at the same time that such notice of appeal is filed with the Board. The holder of the permit shall be considered a party in interest in the appeal proceedings and shall have the right to intervene in the appeal.

  • Where to File: All pleadings or documents are required to be filed with the board shall be filed with the Board’s clerk.
    601 57th Street, S.E
    Charleston, West Virginia 25304

  • Method of Filing: Filing may be accomplished by filing the original and seven (7) copies of any pleading or document by personal delivery, express mail or by first class United States mail, postage prepaid.

  • When Filing Effective: Filing is effective upon personal delivery, upon delivery of express mail, or upon deposit in the United States mail as ascertained by postmark.

  • When Receipt Effective: For the purpose of calculation of time to respond, receipt is effective upon personal delivery, upon delivery by express mail, and will be deemed to be effective three (3) days from the date of the postmark if received by first class United States mail, postage prepaid.

  • Service upon Other Parties: Copies of all documents filed with the board under these rules shall be served contemporaneously upon all other parties to the appeal. Whenever a party is represented by an attorney who has signed any document filed on behalf of the party or otherwise entered an appearance on behalf of the party, service thereafter shall be made upon the attorney.

  • Proof of Service: Unless otherwise provided for by these rules, all documents required to be served shall be accompanied by proof of service in the form of a certificate of service, which shall include a statement of how service was accomplished.

Any natural person who is an appellant or intervenor may represent themselves or be represented by an attorney duly licensed or authorized to practice law in the State of West Virginia. Any corporation which is an appellant or intervenor must be represented by an attorney duly licensed or authorized to practice law in the State of West Virginia. Any person representing another party before the Board must be an attorney duly licensed or authorized to practice law in the State of West Virginia. West Virginia Code §22B-1-7(f).

A party who chooses to appear before the Surface Mine Board without an attorney should be aware of the Procedural Rules of the Board. These Rules are published in Title 49, Series 1 of the Code of State Regulations. Copies are available from the Board’s Clerk, Jackie Shultz, at (304) 926-0445 x41128 or Jackie.D.Shultz@wv.gov.

Unrepresented parties are requested to pay particular attention to Sections 9.8 and 9.9 of the Board’s Procedural Rules. Please be prepared to present your testimony and exhibits at the scheduled hearing. If you have any questions about the hearing procedures, please contact the Board’s Clerk.

In cases where there are several unrepresented parties on the same side, the Board requests that one of the parties be selected as a spokesperson. The use of a spokesperson makes it easier for the Board to conduct the hearing. However, all the parties retain the right to speak and participate fully in the hearing.

  • Execution and Entry of Orders: All orders properly acted upon shall be executed by the presiding member of the board, the board’s legal counsel or the board’s duly authorized hearing examiner. All orders properly acted upon and so executed shall be entered into the official record by the clerk of the board.

  • Authority to Rule on Motions: The board may, in its administrative discretion, and in the interests of fairness and justice, rule on motions which tend to regulate the course of hearing, simplify the issues, and dispose of procedural requests or similar matters. The board may appoint its legal counsel or hearing examiner to dispose of stay requests, procedural motions, discovery motions, or any other request which tends to regulate the course of the hearing.

  • Content: Following the notice of appeal, any application to the board shall be by motion, which must be accompanied by a proposed order. Such motions may include, but are not limited to, requests to intervene, requests for continuance, requests for a stay, questions regarding jurisdiction, sufficiency of service of process, failure to state a aclaim upon which relief can be granted, request for a more definite statement, summary judgment, change of hearing location, dismissal of action or of particular issues in the appeal and amendment of a notice of appeal.

  • Form: Unless made during the hearing, all motions shall be in writing, stating with particularity the grounds thereof and stating the relief or order sought. The motion may be accompanied by a memorandum or other supporting documents. The proponent shall serve the motion on the board and all other parties to the appeal as required by these rules of procedure. Unless the board determines otherwise, a party shall have ten (10) days from receipt of the motion to respond to the same.

  • Stay Requests: The filing of the notice of appeal does not stay or suspend the effectiveness of the action appealed from. The appellant may request a stay of the action appealed from by written motion contemporaneous with the filing of the notice of appeal. The motion for stay shall include a copy of the action appealed from and any other documents supporting the request. The motion for stay shall be served on the board and all parties in accordance with these rules.

Site Visits

The Board may visit the site of the activity or proposed activity which is the subject of the hearing and take such additional evidence as it considers necessary: Provided, that all parties and intervenors are given notice of the visit and are given an opportunity to accompany the board.

Intervention

With the consent of the board and upon such terms and conditions as the board may prescribe, any person affected by the matter pending before the board may by petition intervene as a party appellant or appellee. In any appeal brought by a third party, the permittee or regulated entity shall be granted intervenor status as a matter of right where issuance of a permit or permit status is the subject of the appeal. The board shall hear the appeal de novo, and evidence may be offered on behalf of the appellant, appellee and by any intervenors.

​Parties to a hearing may petition the Board to obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending hearing, subject to the procedural rules of the board and the limitations contained herein.

The following limited discovery may be commenced and obtained by any party to the hearing without leave of the Board:

  1. Requests for disclosure of the identity of each person expected to be called as a witness at the hearing and, at a minimum, a statement setting forth with specificity the facts alleged, the anticipated testimony and the identity of any documents relied upon in support of the anticipated testimony of each witness and whether that witness will be called as an expert; and

  2. Requests to identify with reasonable particularity the issues which are the subject of the hearing.

  3. Any party may object to a request or manner of discovery authorized by this section provided the objection sets forth with particularity the grounds for the objection. A party may move the Board to rule on the propriety of the discovery or objection and request the Board to enter an order as the Board deems appropriate.

  4. Any party may seek, by motion, a protective order from the discovery sought by another party and, if required, the Board may protect a party from unwarranted discovery. Upon motion of a party or upon a Board’s own motion, the Board may enter such protective order limiting discovery, which order shall not be inconsistent with the standards for protective orders set forth in the West Virginia Rules of Civil Procedure.

  5. Upon motion of a party or upon a Board’s own motion, the Board may authorize or order any additional discovery as may be appropriate or necessary to identify or refine the issues which are the subject of the hearing. Upon agreement of the parties, or upon order of the Board, the Board may authorize or order the taking of the deposition of any witness with information or knowledge relevant to the subject matter of the hearing which deposition may be noticed by subpoena or subpoena duces tecum.

  6. Upon motion of a party or upon a Board’s own motion, a board may hold a prehearing conference, as soon as practicable after the commencement of an appeal, which conference shall be for purposes of promoting a fair, efficient and expeditious hearing process. Following the conference, the Board may enter an order or take such other action as may be appropriate with respect to discovery issues.

  7. For purposes of this section, in all cases where the board is authorized or empowered to issue orders, a member of the Board, with the concurrence of a majority of the Board, may act on behalf of the Board, the Board may act itself or through its clerk or hearing examiner, as such person is authorized to do so by the Board.

  8. Every request for discovery or response or objection thereto made by a party shall be signed in the same manner as is provided for in Rule 26 of the West Virginia Rules of Civil Procedure.

​Continuance of Hearings

After a hearing date has been set, a continuance will not be granted by the Board except upon a showing of good cause. A party who desires a continuance shall, immediately upon receipt of a notice of hearing, or as soon thereafter as practicable, file a written motion with the Board stating in detail the reasons why a continuance is necessary. The motion shall be filed at least five (5) days prior to the date of hearing. The Board may at any time order a continuance upon its own motion.

Place of Hearing

Unless the Board determines otherwise, evidentiary hearings shall be held in the Board’s offices located at 601 57th Street, S.E., Charleston, West Virginia 25304.

Conduct of Hearing

All appeal hearings shall be open to the public, and shall be conducted in accordance with West Virginia Code §29A-5 et seq. All parties to a hearing, their legal counsel, and spectators, shall conduct themselves in a respectful manner. Public displays of any kind at hearings shall not be permitted. The Board may, at its discretion, recess or continue any hearing in which the parties, legal counsel, witnesses or spectators conduct themselves in a disrespectful, disorderly or contemptuous manner which interferes with or prevents the proper conduct of such hearing.

Stipulations

Written stipulations by the parties to questions of fact may be filed with the Board before the hearing of an appeal or may be read into the record at the time the hearing is held.

Testimony at Hearing

Testimony in any hearing before the Board will be made on the record, and shall be given under oath.

Presentation

The Board shall hear the appeal de novo. Each party will be given an opportunity to make an opening statement. The appellant shall open the hearing and present testimony and offer exhibits that support the notice of appeal. The appellant’s witnesses shall be subject to cross-examination by any other party to the appeal or by the Board. At the conclusion of the appellant’s case, the appellee may then present testimony and offer exhibits. After initial presentations have been made, both the appellant and the appellee may present rebuttal evidence on the issues in the case, providing that such evidence is not cumulative, repetitive or immaterial to the case. After the conclusion of the presentation of evidence, the parties will be given the opportunity to present closing arguments.

Exhibits

Any item, including photographs, to be presented as an exhibit shall be separately numbered and in a sufficient number of legible, complete copies to provide one (1) copy to each party as well as one (1) copy to the Board and one (1) for the record. All copies shall be distributed upon or prior to request for admission. It is recommended that large maps used for visual presentation be reduced to approximately one-half (½) scale and similarly colored or coded for distribution in lieu of the larger map which shall be for the record. If any map or other document is marked upon or otherwise changed during presentation and testimony, the party submitting the evidence shall correspondingly mark or change each other copy within twenty-four (24) hours of the presentation.

Briefs

In addition to the presentation of oral argument, the Board may require the parties to file written briefs. The Board may require the filing of briefs before or after the taking of evidence. The parties shall file the original and seven (7) copies of the brief with the secretary of the Board, and shall serve a copy of the same on all other parties as required by these procedural rules. The original copy of the brief shall be accompanied by a copy of each decision, treatise, or periodical cited. Leave to file briefs amicus curiae may also be granted by the Board.

Proposed Findings of Fact and Conclusions of Law

In accordance with West Virginia Code §29A-5 et seq., prior to the entry of any final order or final decision, any party may propose findings of fact and conclusions of law for the Board’s consideration. All such findings of fact and conclusions of law shall be separated as such and shall be set out by numbered paragraph. Unless otherwise ordered by the Board, all such proposed findings and fact and conclusions of law shall be filed within fifteen (15) days fo the conclusion of the evidentiary hearing.

Service and Publication of Final Orders

A copy of the final order or decision, together with the Board’s findings of fact and conclusion of law, shall be served upon each party and his or her attorney of record, if any, in person or by registered or certified mail. Each final order or decision issued by the Board shall be filed with the secretary of state for publication in the state register in accordance with West Virginia Code §29A-2-9.

​Rules of Evidence

The rules of evidence as applied in civil cases in the circuit courts of West Virginia will govern evidentiary hearings before the Board in accordance with West Virginia Code §29A-5-2.

Rules of Procedure

While the differences in the functions of the courts and administrative boards preclude the "wholesale transportation" of the Rules of Civil Procedure into the hearings before the Board, some rules must be utilized to manage board hearings. Thus, as a matter of policy and to assure fairness, the appropriate Rules of Civil Procedure will guide the appeals process before the Board.

Ex Parte Contacts

An ex parte contact is an oral or written communication with the Board or its staff regarding the merits of an appeal or motion which is not on the record in the proceeding and which is made without notice to and in the absence of the other party or parties. Such ex parte contacts are prohibited and any such communication will not be considered in the determination of an appeal.


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