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 Environmental 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
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 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
West Virginia 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.