ENGROSSED

Senate Bill No. 735

(By Senators Wooton, Hunter, Minard and Ross)

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[Originating in the Committee on the Judiciary;


reported February 27, 2002.]

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A BILL to amend and reenact section seven, article one, chapter twenty-two-b of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to appeals to the environmental quality boards generally; and providing that unjust hardship does not qualify for a temporary stay of an order issued under article three, chapter twenty-two of this code.

Be it enacted by the Legislature of West Virginia:
That section seven, article one, chapter twenty-two-b of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted to read as follows:
ARTICLE 1. GENERAL POLICY AND PURPOSE.
§22B-1-7. Appeals to boards.

(a) The provisions of this section are applicable to all appeals to the boards, with the modifications or exceptions set forth in this section.
(b) Any person authorized by statute to seek review of an order, permit or official action of the chief of air quality, the chief of water resources, the chief of waste management, the chief of mining and reclamation, the chief of oil and gas, or the director secretary may appeal to the air quality board, the environmental quality board or the surface mine board, as appropriate, in accordance with this section. The person so appealing shall be known as the appellant and the appropriate chief or the director secretary shall be known as the appellee.
(c) An appeal filed with a 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 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 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 director secretary to act within a specified time on an application for a permit; such notice of appeal shall be filed within a reasonable time.
(d) The filing of the notice of appeal does not stay or suspend the effectiveness or execution of the order, permit or official action appealed from, except that the filing of a notice of appeal regarding a notice of intent to suspend, modify or revoke and reissue a permit, issued pursuant to the provisions of section five, article five, chapter twenty-two of this code, does stay the notice of intent from the date of issuance pending a final decision of the board. If it appears to the appropriate chief, the director secretary or the board that an unjust hardship to the appellant will result from the execution or implementation of a chief's or director's secretary's order, permit or official action pending determination of the appeal, the appropriate chief, the director secretary or the board, as the case may be, may grant a stay or suspension of such order, permit or official action and fix its terms: Provided, That unjust hardship shall not be grounds for granting a stay or suspension of such order, permit or official action for an order issued pursuant to article three, chapter twenty-two of this code. A decision shall be made on any request for a stay within five days of the date of receipt of the request for stay. The notice of appeal shall set forth the terms and conditions of the order, permit or official action complained of and the grounds upon which the appeal is based. A copy of the notice of appeal shall be filed by the board with the appropriate chief or director secretary within seven days after the notice of appeal is filed with the board.
(e) Within fourteen days after receipt of a copy of the notice of appeal, the appropriate chief or the director secretary as the case may be, shall prepare and certify to the board a complete record of the proceedings out of which the appeal arises including all documents and correspondence in the applicable files relating to the matter in question. 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. 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. The appeal hearing shall be held at such location as may be approved by the board including Kanawha County, the county wherein the source, activity or facility involved is located or such other location as may be agreed to among the parties.
(f) Any such hearing shall be held within thirty days after the date upon which the board received the timely notice of appeal, unless there is a postponement or continuance. The board may postpone or continue any hearing upon its own motion, or upon application of the appellant, the appellee or any intervenors for good cause shown. The chief or the director secretary, as appropriate, may be represented by counsel. If so represented they shall be represented by the attorney general or with the prior written approval of the attorney general may employ counsel who shall be a special assistant attorney general. At any such hearing the appellant and any intervenor may represent themselves or be represented by an attorney-at-law admitted to practice before the supreme court of appeals.
(g) After such hearing and consideration of all the testimony, evidence and record in the case:
(1) The environmental quality board or the air quality board, as the case may be, shall make and enter a written order affirming, modifying or vacating the order, permit or official action of the chief or director secretary, or shall make and enter such order as the chief or director secretary should have entered, or shall make and enter an order approving or modifying the terms and conditions of any permit issued; and
(2) The surface mine board shall make and enter a written order affirming the decision appealed from if the board finds that the decision was lawful and reasonable, or if the board finds that the decision was not supported by substantial evidence in the record considered as a whole, it shall make and enter a written order reversing or modifying the decision of the director secretary.
(h) In appeals of an order, permit or official action taken pursuant to articles three, six, eleven, twelve, thirteen, fifteen, chapter twenty-two of this code, the environmental quality board established in article three of this chapter, shall take into consideration, in determining its course of action in accordance with subsection (g) of this section, not only the factors which the appropriate chief or the director secretary was authorized to consider in issuing an order, in granting or denying a permit, in fixing the terms and conditions of any permit, or in taking other official action, but also the economic feasibility of treating or controlling, or both, the discharge of solid waste, sewage, industrial wastes or other wastes involved.
(i) An order of a board shall be accompanied by findings of fact and conclusions of law as specified in section three, article five, chapter twenty-nine-a of this code, and a copy of such order and accompanying findings and conclusions shall be served upon the appellant, and any intervenors, and their attorneys of record, if any, and upon the appellee in person or by registered or certified mail.
(j) The board shall also cause a notice to be served with the copy of such order, which notice shall advise the appellant, the appellee and any intervenors of their right to judicial review, in accordance with the provisions of this chapter. The order of the board shall be final unless vacated or modified upon judicial review thereof in accordance with the provisions of this chapter.