What does this pre-hearing order really mean?
It describes the purpose of and rules regarding the hearing. It lays out the requirements of the Department and appellant. It also states that the hearing will be conducted in accordance with §§ 32.1-166.1 through 166.10 of the Code of Virginia (“Code”) and Article 3 of the Administrative Process Act, Code §§ 2.2-4018 through 4023.
Do I need an attorney?
An appellant is not required to hire an attorney to appear before the Board. Also, a witness may not act as counsel or present the case to the Board.
Who may present my case?
Only the appellant or legal counsel is allowed to present the case.
Do I need witnesses?
In preparation for each case, an appellant has the choice of calling witnesses. They may request that a Department employee be present by written notice to the Board’s secretary.
If I ask a witness to be there and they agree, do I really need to subpoena them?
Yes. Pursuant to the instructions in pre-hearing order, the Board’s secretary will process the subpoena.
Who are the board members?
They are basically citizens appointed by the Governor with general or specialized knowledge of onsite sewage systems. The current Board is comprised of onsite sewage system professionals, a Department Environmental Health Supervisor, an installer and maintenance provider, a retired geology professor, a Professional Engineer, and a realtor.
Can I use the same exhibits the health department sent me, or do I need my own?
At the start of the hearing, you will be asked to confirm whether you will be relying upon exhibits. You are not required to enter exhibits into the record and you may refer to the Department exhibits during the hearing.
What happens at the hearing?
This is a formal hearing but it has an atmosphere of informality. There is a court reporter and presiding official, the Board chairman. The burden of proof resides with the appellant and there are opening and closing statements. If witnesses are called, each side may cross-examine and the Board will ask questions. After both parties have represented their case, the Board goes into a closed session to render a decision. The Board then reconvenes the hearing and announces their decision. Generally, each hearing takes a minimum of two hours to complete.
Do you think I have a chance of winning, or am I just wasting my time?
Every citizen who has been denied a sewage permit or an award from the Indemnification Fund, has the right to a hearing. The Board makes every effort to make the hearing fair, impartial, and in compliance with the rules set forth in the Code of Virginia and Administrative Process Act.
What is a statement of the factual and legal basis?
This document describes the facts regarding the case and how the appropriate laws, statutes, and regulations apply. It usually offers for the record a written conclusion and argument.
If I lose my case, may I appeal the decision?
Yes. One has 30 days from the date of the Board’s written decision, not the hearing date, to appeal to the appropriate circuit court. Proceedings of the Review Board and appeals of its decisions shall be governed by the provisions of Chapter 40 (§ 2.2-4000 et seq.) of Title 2.2.
How do I change a scheduled hearing date?
An appellant or their legal counsel needs to make a written request to the Board’s Secretary.
How may I obtain a copy of the transcript?
Transcription services usually attach copyright protection on the document so copies must obtained by directly contacting the court reporting company that provided the hearing. The Board’s secretary can provide the contact information for the court reporting company.