§ 10.1-1186.3. Additional powers of Boards; mediation; alternative disputeresolution.
A. The State Air Pollution Control Board, the State Water Control Board andthe Virginia Waste Management Board, in their discretion, may employmediation as defined in § 8.01-581.21, or a dispute resolution proceeding asdefined in § 8.01-576.4, in appropriate cases to resolve underlying issues,reach a consensus or compromise on contested issues. An "appropriate case"means any process related to the development of a regulation or the issuanceof a permit in which it is apparent that there are significant issues ofdisagreement among interested persons and for which the Board finds that theuse of a mediation or dispute resolution proceeding is in the publicinterest. The Boards shall consider not using a mediation or disputeresolution proceeding if:
1. A definitive or authoritative resolution of the matter is required forprecedential value, and such a proceeding is not likely to be acceptedgenerally as an authoritative precedent;
2. The matter involves or may bear upon significant questions of state policythat require additional procedures before a final resolution may be made, andsuch a proceeding would not likely serve to develop a recommended policy forthe Board;
3. Maintaining established policies is of special importance, so thatvariations among individual decisions are not increased and such a proceedingwould not likely reach consistent results among individual decisions;
4. The matter significantly affects persons or organizations who are notparties to the proceeding;
5. A full public record of the proceeding is important, and a mediation ordispute resolution proceeding cannot provide such a record; and
6. The Board must maintain continuing jurisdiction over the matter with theauthority to alter the disposition of the matter in light of changedcircumstances, and a mediation or dispute resolution proceeding wouldinterfere with the Board's fulfilling that requirement.
Mediation and alternative dispute resolution as authorized by this sectionare voluntary procedures which supplement rather than limit other disputeresolution techniques available to the Boards. Mediation or a disputeresolution proceeding may be employed in the issuance of a permit only withthe consent and participation of the permit applicant and shall be terminatedat the request of the permit applicant.
B. The decision to employ mediation or a dispute resolution proceeding is ina Board's sole discretion and is not subject to judicial review.
C. The outcome of any mediation or dispute resolution proceeding shall not bebinding upon a Board, but may be considered by a Board in issuing a permit orpromulgating a regulation.
D. Each Board shall adopt rules and regulations, in accordance with theAdministrative Process Act, for the implementation of this section. Suchrules and regulations shall include: (i) standards and procedures for theconduct of mediation and dispute resolution, including an opportunity forinterested persons identified by the Board to participate in the proceeding;(ii) the appointment and function of a neutral, as defined in § 8.01-576.4,to encourage and assist parties to voluntarily compromise or settle contestedissues; and (iii) procedures to protect the confidentiality of papers, workproduct or other materials.
E. The provisions of § 8.01-576.10 concerning the confidentiality of amediation or dispute resolution proceeding shall govern all such proceedingsheld pursuant to this section except where a Board uses or relies oninformation obtained in the course of such proceeding in issuing a permit orpromulgating a regulation.
Nothing in this section shall create or alter any right, action or cause ofaction, or be interpreted or applied in a manner inconsistent with theAdministrative Process Act (§ 2.2-4000 et seq.), with applicable federal lawor with any applicable requirement for the Commonwealth to obtain or maintainfederal delegation or approval of any regulatory program.
§ 10.1-1186.3. Additional powers of Boards; mediation; alternative disputeresolution.
A. The State Air Pollution Control Board, the State Water Control Board andthe Virginia Waste Management Board, in their discretion, may employmediation as defined in § 8.01-581.21, or a dispute resolution proceeding asdefined in § 8.01-576.4, in appropriate cases to resolve underlying issues,reach a consensus or compromise on contested issues. An "appropriate case"means any process related to the development of a regulation or the issuanceof a permit in which it is apparent that there are significant issues ofdisagreement among interested persons and for which the Board finds that theuse of a mediation or dispute resolution proceeding is in the publicinterest. The Boards shall consider not using a mediation or disputeresolution proceeding if:
1. A definitive or authoritative resolution of the matter is required forprecedential value, and such a proceeding is not likely to be acceptedgenerally as an authoritative precedent;
2. The matter involves or may bear upon significant questions of state policythat require additional procedures before a final resolution may be made, andsuch a proceeding would not likely serve to develop a recommended policy forthe Board;
3. Maintaining established policies is of special importance, so thatvariations among individual decisions are not increased and such a proceedingwould not likely reach consistent results among individual decisions;
4. The matter significantly affects persons or organizations who are notparties to the proceeding;
5. A full public record of the proceeding is important, and a mediation ordispute resolution proceeding cannot provide such a record; and
6. The Board must maintain continuing jurisdiction over the matter with theauthority to alter the disposition of the matter in light of changedcircumstances, and a mediation or dispute resolution proceeding wouldinterfere with the Board's fulfilling that requirement.
Mediation and alternative dispute resolution as authorized by this sectionare voluntary procedures which supplement rather than limit other disputeresolution techniques available to the Boards. Mediation or a disputeresolution proceeding may be employed in the issuance of a permit only withthe consent and participation of the permit applicant and shall be terminatedat the request of the permit applicant.
B. The decision to employ mediation or a dispute resolution proceeding is ina Board's sole discretion and is not subject to judicial review.
C. The outcome of any mediation or dispute resolution proceeding shall not bebinding upon a Board, but may be considered by a Board in issuing a permit orpromulgating a regulation.
D. Each Board shall adopt rules and regulations, in accordance with theAdministrative Process Act, for the implementation of this section. Suchrules and regulations shall include: (i) standards and procedures for theconduct of mediation and dispute resolution, including an opportunity forinterested persons identified by the Board to participate in the proceeding;(ii) the appointment and function of a neutral, as defined in § 8.01-576.4,to encourage and assist parties to voluntarily compromise or settle contestedissues; and (iii) procedures to protect the confidentiality of papers, workproduct or other materials.
E. The provisions of § 8.01-576.10 concerning the confidentiality of amediation or dispute resolution proceeding shall govern all such proceedingsheld pursuant to this section except where a Board uses or relies oninformation obtained in the course of such proceeding in issuing a permit orpromulgating a regulation.
Nothing in this section shall create or alter any right, action or cause ofaction, or be interpreted or applied in a manner inconsistent with theAdministrative Process Act (§ 2.2-4000 et seq.), with applicable federal lawor with any applicable requirement for the Commonwealth to obtain or maintainfederal delegation or approval of any regulatory program.
§ 10.1-1186.3. Additional powers of Boards; mediation; alternative disputeresolution.
A. The State Air Pollution Control Board, the State Water Control Board andthe Virginia Waste Management Board, in their discretion, may employmediation as defined in § 8.01-581.21, or a dispute resolution proceeding asdefined in § 8.01-576.4, in appropriate cases to resolve underlying issues,reach a consensus or compromise on contested issues. An "appropriate case"means any process related to the development of a regulation or the issuanceof a permit in which it is apparent that there are significant issues ofdisagreement among interested persons and for which the Board finds that theuse of a mediation or dispute resolution proceeding is in the publicinterest. The Boards shall consider not using a mediation or disputeresolution proceeding if:
1. A definitive or authoritative resolution of the matter is required forprecedential value, and such a proceeding is not likely to be acceptedgenerally as an authoritative precedent;
2. The matter involves or may bear upon significant questions of state policythat require additional procedures before a final resolution may be made, andsuch a proceeding would not likely serve to develop a recommended policy forthe Board;
3. Maintaining established policies is of special importance, so thatvariations among individual decisions are not increased and such a proceedingwould not likely reach consistent results among individual decisions;
4. The matter significantly affects persons or organizations who are notparties to the proceeding;
5. A full public record of the proceeding is important, and a mediation ordispute resolution proceeding cannot provide such a record; and
6. The Board must maintain continuing jurisdiction over the matter with theauthority to alter the disposition of the matter in light of changedcircumstances, and a mediation or dispute resolution proceeding wouldinterfere with the Board's fulfilling that requirement.
Mediation and alternative dispute resolution as authorized by this sectionare voluntary procedures which supplement rather than limit other disputeresolution techniques available to the Boards. Mediation or a disputeresolution proceeding may be employed in the issuance of a permit only withthe consent and participation of the permit applicant and shall be terminatedat the request of the permit applicant.
B. The decision to employ mediation or a dispute resolution proceeding is ina Board's sole discretion and is not subject to judicial review.
C. The outcome of any mediation or dispute resolution proceeding shall not bebinding upon a Board, but may be considered by a Board in issuing a permit orpromulgating a regulation.
D. Each Board shall adopt rules and regulations, in accordance with theAdministrative Process Act, for the implementation of this section. Suchrules and regulations shall include: (i) standards and procedures for theconduct of mediation and dispute resolution, including an opportunity forinterested persons identified by the Board to participate in the proceeding;(ii) the appointment and function of a neutral, as defined in § 8.01-576.4,to encourage and assist parties to voluntarily compromise or settle contestedissues; and (iii) procedures to protect the confidentiality of papers, workproduct or other materials.
E. The provisions of § 8.01-576.10 concerning the confidentiality of amediation or dispute resolution proceeding shall govern all such proceedingsheld pursuant to this section except where a Board uses or relies oninformation obtained in the course of such proceeding in issuing a permit orpromulgating a regulation.
Nothing in this section shall create or alter any right, action or cause ofaction, or be interpreted or applied in a manner inconsistent with theAdministrative Process Act (§ 2.2-4000 et seq.), with applicable federal lawor with any applicable requirement for the Commonwealth to obtain or maintainfederal delegation or approval of any regulatory program.
