                                 CODE OF VIRGINIA

ADDITIONAL POWERS OF BOARDS AND THE DEPARTMENT; MEDIATION; ALTERNATIVE DISPUTE
RESOLUTION (§ 10.1-1186.3)

A. The State Air Pollution Control Board, the State Water Control Board, and the
Virginia Waste Management Board, in their discretion, or the Director, in his
discretion, may employ mediation as defined in § 8.01-581.21, or a dispute
resolution proceeding as defined in § 8.01-576.4, in appropriate cases to
resolve underlying issues, reach a consensus, or compromise on contested issues.
An &#8220;appropriate case&#8221; means any process related to the development
of a regulation by the Board or the issuance of a permit by the Department in
which it is apparent that there are significant issues of disagreement among
interested persons and for which the Board or the Department finds that the use
of a mediation or dispute resolution proceeding is in the public interest. The
Boards or the Department shall consider not using a mediation or dispute
resolution proceeding if:

   1. A definitive or authoritative resolution of the matter is required for
   precedential value, and such a proceeding is not likely to be accepted
   generally as an authoritative precedent;

   2. The matter involves or may bear upon significant questions of state policy
   that require additional procedures before a final resolution may be made, and
   such a proceeding would not likely serve to develop a recommended policy for
   the Department;

   3. Maintaining established policies is of special importance, so that
   variations among individual decisions are not increased and such a proceeding
   would not likely reach consistent results among individual decisions;

   4. The matter significantly affects persons or organizations who are not
   parties to the proceeding;

   5. A full public record of the proceeding is important, and a mediation or
   dispute resolution proceeding cannot provide such a record; and

   6. The Board or the Department must maintain continuing jurisdiction over the
   matter with the authority to alter the disposition of the matter in light of
   changed circumstances, and a mediation or dispute resolution proceeding would
   interfere with the Department or the Board&#8217;s fulfilling that
   requirement.
   				Mediation and alternative dispute resolution as authorized by this section
   are voluntary procedures which supplement rather than limit other dispute
   resolution techniques available to the Boards or the Department. Mediation or
   a dispute resolution proceeding may be employed in the issuance of a permit
   only with the consent and participation of the permit applicant and shall be
   terminated at the request of the permit applicant.

B. The decision to employ mediation or a dispute resolution proceeding is in a
Board&#8217;s or the Department&#8217;s sole discretion and is not subject to
judicial review.

C. The outcome of any mediation or dispute resolution proceeding shall not be
binding upon a Board or the Department, but may be considered by the Department
in issuing a permit or by a Board in promulgating a regulation.

D. Each Board and the Department shall adopt rules and regulations, in
accordance with the Administrative Process Act, for the implementation of this
section. Such rules and regulations shall include (i) standards and procedures
for the conduct of mediation and dispute resolution, including an opportunity
for interested persons identified by the Department to participate in the
proceeding; (ii) the appointment and function of a neutral, as defined in &#xA7;
8.01-576.4, to encourage and assist parties to voluntarily compromise or settle
contested issues; and (iii) procedures to protect the confidentiality of papers,
work product or other materials.

E. The provisions of &#xA7; 8.01-576.10 concerning the confidentiality of a
mediation or dispute resolution proceeding shall govern all such proceedings
held pursuant to this section except where the Department or a Board uses or
relies on information obtained in the course of such proceeding in issuing a
permit or promulgating a regulation, respectively.
			Nothing in this section shall create or alter any right, action or cause of
action, or be interpreted or applied in a manner inconsistent with the
Administrative Process Act (&#xA7; 2.2-4000 et seq.), with applicable federal
law or with any applicable requirement for the Commonwealth to obtain or
maintain federal delegation or approval of any regulatory program.

HISTORY: 1997, cc. 645, 667; 2022, c. 356.