Some Notices of Violation Are Not Appealable, Says EQB

This may not be of interest to anyone other than lawyers, but the West Virginia Environmental Quality Board has ruled that certain notices of violation are not appealable orders. Go-Mart took a protective appeal of a NOV issued by the DEP Division of Water and Waste Management, concerned that failure to challenge the NOV would prevent it from being able to defend itself in any later proceeding based on that NOV.

The Board concluded that the NOV did not contain the word "order", had no findings of fact, and did not have a time limit for the company to complete remedial action. As such, it was not an appealable action, and companies do not have to appeal every NOV issued in order to preserve defenses. Not earthshaking, but helpful to those of us who practice in the area, and are always worried about the possibility of having waived appeal rights.

The order can be found here.