Section 775.11. Administrative review

Part 775. Administrative and Judicial Review of Decisions

(a) General. Within 30 days after an applicant or permittee is notified of the decision of the division concerning an application for approval of exploration required under Part 772, a permit for surface coal mining and reclamation operations, a permit revision, a permit renewal, or a transfer, assignment, or sale of permit rights, the applicant, permittee, or any person with an interest which is or may be adversely affected by the decision may request, in writing, a formal public hearing to contest such action with the Director of the Division of Mined Land Reclamation, Drawer 900, Big Stone Gap, VA 24219.

(b) Administrative hearings.

(1) The division shall conduct the formal hearing within 30 days from the receipt of the request. The hearing shall be conducted in accordance with § 2.2-4020 of the Virginia Administrative Process Act. No person who presided at an informal conference under 4VAC25-130-773.13 (c) shall either preside at the hearing or participate in the formal hearing decision and any subsequent appeal.

(2) The division may, under such conditions as it prescribes, grant such temporary relief as it deems appropriate, pending final determination of the proceeding, if—

(i) All parties to the proceeding have been notified and given an opportunity to be heard on a request for temporary relief;

(ii) The person requesting that relief shows that there is a substantial likelihood that he will prevail on the merits of the final determination of the proceeding;

(iii) The relief sought will not adversely affect the public health or safety, or cause significant, imminent environmental harm to land, air, or water resources; and

(iv) The relief sought is not the issuance of a permit where a permit has been denied, in whole or in part, by the division except that continuation under an existing permit may be allowed where the operation has a valid permit issued under § 45.1-238 of the Act.

(3) The hearing shall be conducted under the following conditions:

(i) The hearing officer may administer oaths and affirmations, subpoena witnesses and written or printed materials, compel attendance of witnesses or production of those materials, compel allowable discovery, and take evidence, including, but not limited to, site inspections of the land to be affected and other surface coal mining and reclamation operations carried on by the applicant in the general vicinity of the proposed operations.

(ii) A verbatim record of each public hearing required by this section shall be made, and a transcript made available on the motion of any party or by order of the hearing officer.

(iii) Ex parte contacts between representatives of the parties appearing before the hearing officer and the hearing officer shall be prohibited, unless prior approval is given by the noncontacting party.

(4) Within 30 days after the close of the record, the director shall issue and furnish the applicant and each person who participated in the hearing, a copy of the hearing officer's decision and written findings of fact, and conclusions of law. The decision shall also set forth the right of appeal process.

(5) The burden of proof at such hearings shall be on the party seeking to reverse the decision of the division.

(c) Within 14 days after the issuance of the hearing officer's decision under subdivision (b) (4) of this section, the applicant, permittee or any other person with an interest which is or may be adversely affected and who appeared and participated in the hearing, may appeal to the director or his designee for review of the record and reconsideration of the hearing officer's decision. The director or his designee may also, on his own motion, with notice to the parties, within the same time period, review the record and reconsider the hearing officer's decision. No further evidence will be allowed in connection with such review and reconsideration but the director or his designee may hear further argument, and may also, after considering the record, remand any case for further hearing if he considers such action necessary to develop the facts. Within 30 days of the appeal or motion for review and reconsideration, the director or his designee shall complete his review of the hearing officer's decision and issue a final decision thereon.

(d) All requests for hearing or appeals for review and reconsideration made under this section shall be filed with the Director, Division of Mined Land Reclamation, Department of Mines, Minerals and Energy, Post Office Drawer 900, Big Stone Gap, Virginia 24219.

Historical Notes

Derived from VR480-03-19 § 775.11, eff. December 15, 1981; amended, eff. June 28, 1982; October 28, 1982; December 14, 1982; October 11, 1983; December 27, 1983; May 8, 1984; June 22, 1984; August 2, 1984; October 16, 1985; January 7, 1987; July 22, 1987; November 25, 1987; October 12, 1988; December 26, 1990; July 1, 1991; July 17, 1991; November 20, 1991; July 7, 1992; May 5, 1993; October 19, 1994; Volume 23, Issue 13, eff. April 4, 2007.

Statutory Authority

§§ 45.1-161.3 and 45.1-230 of the Code of Virginia.