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Nevada State Capitol -- Carson City The State Environmental Commission hears appeals of final decisions rendered by the Nevada Division of Environmental Protection (NDEP). Appeals may be filed on final agency decisions such as compliance orders, fines, issuance of permits etc. Appeals to the Commission must be submitted on SEC Form 3 and received timely, within 10 days after the date of a final decision (as per NRS 445B.340, NRS 445A.605, NAC 459.9995, NAC 445B.890, NAC 444.980 and NAC 519A.415). Please note that appeals not received timely will not be considered by the Commission.

There is however an exception to the 10 day filing requirement and that exception is contained in NRS 445A.690. Under this law (which is specific to Water Controls), "Any compliance order is final and is not subject to review unless the person against whom the order is issued, within 30 days after the date on which the order is served, requests by written petition a hearing before the Commission."

Appeal Panel: A three person panel of the SEC typically hears an appeal. An attempt will be made to hold appeal hearings within 20 days of receipt of the petition for appeal barring any extenuating circumstances. Appeal hearings are "noticed" to the parties of the appeal only. While SEC appeals are open public meetings, because they are "contested cases" they are not subject to Nevada's Open Meeting Law and thus "a public comment period" is not required at the hearing. The public, however, can attend an appeal hearing.

In a contested case, all parties must be afforded an opportunity for hearing after reasonable notice. The notice typically includes the time, place and nature of the hearing; a statement of the legal authority and jurisdiction under which the appeal will be held; a reference to the particular sections of the statutes and regulations involved; and a short and plain statement of the matters being contested.

While parties to the appeal are entitled to be represented by counsel, legal representation is optional. "Appellants" who bring appeals before the Commission can, and often do, represent themselves. The Division of Environmental Protection is represented by the Nevada Attorney General's office in all appeals before the Commission.

Under the SEC's Rules of Practice, a party other than the appellant (i.e., the individual making the appeal), can be admitted to a hearing as an intervener. An intervener has the same status, rights and privileges in the appeal process afforded to other parties. Typically an intervener can be an individual, organization, or business with a vested interest in the decision being appealed. Specific rules allowing interveners into the appeal process are defined in the SEC's Rules of Practice.

Since appeal hearings are contested cases, hearings are conducted much like a court case. The proceedings are officially recorded and parties present a case in chief, which might include opening statements, testimony (given under oath), cross examination, introduction of evidence (in the form of exhibits), etc. Of note, in order to focus the issues being contested and prior to an appeal hearing, the Commission may by motion, or by motion of another party, order briefs. Briefs are typically ordered with an accompanying briefing schedule that specifies the timing of response briefs by other parties as may be required.

When the parties have finished their respective cases and the appeal hearing is concluded, the members of the appeal panel openly discuss the case and then rule by motion to either uphold, modify or dismiss the action being contested. The Commission may also take the case under submission and subsequently notify the parties 30 days after the hearing of its findings and recommendations. The final recommendation of the Commission is issued in writing and based on substantial evidence with a statement of findings of fact and matters of law. The final decision is issued as an order of the Commission.

Once again, appeals are contested cases, governed by Nevada Revised Statute 233B; example of recent appeals are referenced on the SEC home page under "Recent Appeal hearings."

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   John B. Walker