AGREED ORDER:
It is possible that your appeal can be
resolved through an Agreed Order. Settlement negotiations
can be conducted between the parties of the appeal without
the participation of the Air Quality Board. If an agreement
is reached, the parties file a proposed agreed order with
the Board for review and approval. If the issues of the
appeal are resolved and the Board approves the agreed order,
your appeal will be removed from the hearing docket and no
further action will be taken by the Board.
HEARING:
If your appeal is not resolved through an agreed order it
will proceed to an evidentiary hearing. Once an evidentiary hearing date
is set, the Board will not grant an extension or a continuance unless there
is a showing of good cause. In order to request a continuance, the party
must file a written motion with the Board detailing why a continuance of the
hearing is necessary. This motion must be filed at least five (5) days prior
to the date of the hearing but should be filed as soon as a need for a continuance
arises. The Board may at any time order a continuance upon its own motion.
Hearings are usually held in the Conference Room 1041 at 601 57th
Street, SE, Charleston, West Virginia, before a quorum of the Board members and
are open to the public. During the hearing, the Board follows the rules of evidence
as applied in the civil courts of West Virginia. Also see specific rules of evidence
at W.Va. Code §29A-5-2 which apply to these types of hearings.
The Appellant has the Burden of Proof and must introduce evidence that
establishes or supports the existence of a fact in issue. An allegation is not evidence
but rather something that must be proven by the introduction of competent admissible
evidence. In order to prevail, the appellant has the burden to raise an issue with
sufficient evidence to support a finding that the Appellee’s decision was incorrect -
that it violated a statute or regulation or otherwise should have acted other than it did.
Then, the Appellee must produce evidence demonstrating its reasoning in making its decision.
Testimony in any hearing before the Board is given on the record and under oath.
The appellant appears before the Board to present witness testimony and any exhibits which are
relevant to the appeal. Please bring ample copies of documents so that you can provide them
to the Board members and opposing counsel. The Board will need to keep any exhibit, including
photograph, map, or other evidence that you offer during the hearing. All witnesses are subject
to cross-examination by any party to the appeal or by the Board members. Once you have presented
your case, the Appellee may then present testimony and offer exhibits. At the conclusion of this
portion of the hearing, parties may offer rebuttal evidence on the issues of the case. A transcript
of the entire hearing is available for review at Board’s office or a copy may be obtained for a
fee from the court reporter or the Board.
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