Section 130. Public hearing on draft certification of site approval

A. The board shall conduct a public hearing on the draft certification not less than 15 nor more than 30 days after the first publication of notice. The hearing shall be conducted in the host community.

B. Notice of the hearing shall be made at the applicant's expense and shall:

1. Provide for public participation by sending a copy of the notice by certified, return receipt mail to the following:

a. The governing body of the host community;

b. The governing body of the affected communities;

c. Legislators elected from the areas in which the host community is located and the affected communities are located;

d. The regional planning district commissions of the host community and affected communities;

e. Persons owning property adjoining the site of the proposed facility.

f. The applicant.

g. Any person who has been designated a party pursuant to 9VAC20-40-130 D.

2. In addition to the requirements imposed by paragraph 1, in accordance with § 10.1-1447 of the Code of Virginia, the notice shall be disseminated:

a. By publication once each week for two successive weeks in a newspaper of general circulation within the area to be affected by the subject of the notice;

b. By broadcast over one or more radio stations within the area to be affected by the subject of the notice;

c. By mail, electronic or postal delivery, to each person who has asked to receive notice; and

d. By such additional means as the board deems appropriate.

Every notice shall provide a description of the subject for which notice is made and shall include the name and telephone number of a person from whom additional information may be obtained.

3. Provide that the contents of such notice include:

a. A brief description of the terms and conditions of the draft certification;

b. Information describing the date, time, place and purpose of the hearing;

c. The location where the draft certification may be reviewed;

d. The name, address and telephone number of an official designated by the board to receive written comments of the draft certification;

e. A brief description of the rules and procedures to be followed at the hearing and the time for receiving comments; and

f. Any such information as the board deems appropriate.

C. Designation and powers of hearing officer.

1. The public hearing held pursuant to these procedures will be conducted by a hearing officer designated by the board.

2. The hearing officer shall conduct the hearing in an orderly and expeditious manner, and shall hold all powers necessary to those ends, including, but not limited to, the power to do the following:

a. Prescribe the methods and procedures to be used in the development of evidentiary facts and the presentation of evidence by the parties, including the issuance of prehearing orders setting forth the issues for hearing and establishing deadlines for the filing of written testimony and exhibits;

b. Impose reasonable limitations on the time permitted for oral testimony;

c. Consolidate the presentation of factual data, arguments and proof to avoid repetitive presentation of them;

d. Administer oaths and affirmations;

e. Receive probative evidence, rule upon offers of proof and, upon his own motion or the objection of any party, exclude irrelevant, immaterial, insubstantial or repetitive proofs, rebuttal or cross-examination;

f. Examine witnesses;

g. Hold prehearing conferences for the settlement determination, simplification or stipulation of issues and facts by consent;

h. Rule on procedural matters; and

i. Issue subpoenas and subpoenas duces tecum in accordance with § 2.2-4022 of the Code of Virginia.

3. Rulings of the hearing officer on the admissibility of evidence or testimony, on the propriety or conduct of cross-examination, and on any and all procedural matters shall appear in the hearing record and shall control further proceedings in the hearing. Parties shall be presumed to have taken objection to any adverse ruling, and no objection shall be considered waived by further participation on the hearing.

D. Parties; rights of parties; petition to become a party.

1. The following persons are entitled to become parties to the public hearing conducted pursuant to this section:

a. The applicant;

b. The host community, acting through its governing body; and

c. Any person owning land adjoining the site of the proposed facility.

2. In addition to the above named parties, any person whose significant interest will be adversely affected by the decision of the board may file a petition to become a party to the hearing. The following procedures apply to such petitions:

a. The petition to become a party must be received by the board at least 10 days prior to the scheduled hearing date.

b. The petition shall contain the following:

(1) The names and addresses of the petitioner, the petitioner's counsel (if any) and all persons for whom the petitioner is acting as a representative;

(2) A statement setting forth the interest of the petitioner in the matter;

(3) A statement by the petitioner that, should his petition be granted, the petitioner will be available, without cost to any other party, to appear at the hearing; and

(4) A statement by the petitioner explaining how his interests would not be adequately represented by existing parties to the hearing.

c. The director shall acknowledge the receipt of all petitions to become a party.

d. The director shall consider all petitions filed in accordance herewith, and shall grant those petitions that both:

(1) Raise one or more genuine substantial issues in the petition which, if resolved adversely to the petitioner, would result in an injury to a significant interest of the petitioner; and

(2) Adequately describe how the petitioner's interest is not represented by an existing party to the hearing.

e. The director shall notify the petitioner, and all other parties, of his decision to grant or deny petition to become a party by mail, electronic or postal delivery, at least five days prior to the scheduled hearing date. The decision of the director in no way limits the rights of judicial review granted under § 10.1-1433 et seq. of the Code of Virginia.

3. The rights of the parties to the hearing shall be limited to those enumerated in this chapter and the Act.

E. Evidence at the hearing.

1. Parties to the hearing may present direct and rebuttal evidence in written and oral form, as the hearing officer may direct.

2. The hearing officer shall admit all relevant, competent and material evidence offered by the parties but shall exclude evidence which he determines to be repetitive, irrelevant, immaterial or otherwise inadmissible.

3. Whenever any evidence or testimony is excluded by the hearing officer as inadmissible, so much of the excluded material as is in written form shall remain in the record as an offer of proof, and shall be marked "excluded" by the hearing officer. Where oral testimony is excluded, the party seeking to introduce it may make an offer of proof in the form of a brief descriptive statement for the record.

4. Any other interested person may be given an opportunity to testify during the hearing. The hearing officer shall allow such testimony to be heard as is not irrelevant, immaterial, insubstantial or repetitive. Any interested person who so testifies shall be sworn and subject to cross-examination as prescribed in this section.

F. Hearing record.

1. The hearing officer shall assemble a hearing record after the close of the hearing.

The hearing record shall consist of:

a. A transcript of the hearing, and any exhibits admitted in evidence;

b. A copy of the final impact statement;

c. A copy of the application for certification of site approval;

d. Reports of any consultants hired by the board that have been made available to the parties prior to the hearing;

e. A copy of the draft certification of site approval; and

f. A summary of the record, if the hearing officer so desires.

2. Within 15 days after the close of the hearing, the hearing officer shall deliver a copy of the hearing record to each member of the board.

Historical Notes

Derived from VR672-01-4 § 3.4, eff. April 30, 1986; amended, Volume 21, Issue 20, eff. July 13, 2005; Volume 29, Issue 21, eff. July 17, 2013.

Statutory Authority

§§ 10.1-1434 and 10.1-1436 of the Code of Virginia.