Page images
PDF
EPUB

§ 4.1161 Who may file.

A permittee issued a notice or order by the Secretary pursuant to the provisions of section 521(a)(2) or section 521(a)(3) of the Act or any person having an interest which is or may be adversely affected by a notice or order subject to review under $ 4.1160 may file an application for review with the Hearings Division, OHA, 4015 Wilson Boulevard, Arlington, Va. 22203.

answer within 20 days of service of a copy of such application

(1) OSM;
(2) The permittee; or

(3) Any other person granted leave to intervene pursuant to $ 4.1110.

& 4.1162 Time for filing.

Any person filing an application for review under $ 4.1160 et seq. shall file that application within 30 days of the receipt of a notice or order or within 30 days of receipt of notice of modification, vacation, or termination of such a notice or order. Any person not served with a copy of the document shall file the application for review within 40 days of the date of issuance of the document.

8 4.1166 Contents of answer.

An answer to an application for review shall incorporate

(a) A statement specifically admitting or denying the alleged facts stated by the applicant;

(b) A statement of any other relevant facts;

(c) A statement whether an evidentiary hearing is requested or waived; and

(d) Any other relevant information. § 4.1167 Notice of hearing.

Pursuant to section 525(a)(2) of the act, the applicant and other interested persons shall be given written notice of the time and place of the hearing at least 5 working days prior thereto. 8 4.1168 Amendments to pleadings.

(a) An application for review may be amended once as a matter of right prior to the filing of an answer and thereafter by leave of the administrative law judge upon proper motion.

(b) Upon receipt of an initial or amended application for review or subsequent to granting leave to amend, the administrative law judge shall issue an order setting a time for filing, an amended answer if the judge determines that such an answer is appropriate.

§ 4.1163 Effect of failure to file.

Failure to file an application for review of a notice of violation or order of cessation shall not preclude challenging the fact of violation during a civil penalty proceeding.

§ 4.1164 Contents of application.

Any person filing an application for review shall incorporate in that application regarding each claim for relief

(a) A statement of facts entitling that person to administrative relief;

(b) A request for specific relief;

(c) A copy of any notice or order sought to be reviewed;

(d) A statement as to whether the person requests or waives the opportunity for an evidentiary hearing; and

(e) Any other relevant information.

§ 4.1169 Failure to state a claim.

Upon proper motion or after the is. suance of an order to show cause by the administrative law judge, an administrative law judge may dismiss at any time an application for review which fails to state a claim upon which administrative relief may be granted.

§ 4.1165 Answer.

(a) Where an application for review is filed by a permittee, OSM as well as any other person granted leave to intervene pursuant to $ 4.1110 shall file an answer within 20 days of service of a copy of such application.

(b) Where an application for review is filed by a person other than a permittee, the following shall file an

$4.1170 Related notices or orders.

(a) An applicant for review shall file a copy of any subsequent notice or order which modifies, vacates, or terminates the notice or order sought to be reviewed within 10 days of receipt.

(b) An applicant for review of a notice shall file a copy of an order of cessation for failure timely to abate the violation which is the subject of the notice under review within 10 days of receipt of such order.

(c) If an applicant for review desires to challenge any subsequent notice or order, the applicant must file a separate application for review.

(d) Applications for review of related notices or orders are subject to consolidation.

§ 4.1171 Burden of proof in review of sec

tion 521 notices or orders. (a) In review of section 521 notices of violation or orders of cessation or the modification, vacation, or termination thereof, including expedited review under $ 4.1180, OSM shall have the burden of going forward to establish a prima facie case as to the validity of the notice, order, or modification, vacation, or termination thereof.

(b) The ultimate burden of persuasion shall rest with the applicant for review.

521(a)(2) or section 521(a)(3) of the act; or

(2) Any person having an interest which is or may be adversely affected by the issuance of an order of cessation under section 521(a)(2) or section 521(a)(3) of the act.

(b) A permittee or any person having an interest which is or may be adversely affected by a section 521(a)(2) or section 521(a)(3) order of cessation waives his right to expedited review upon being granted temporary relief pursuant to section 525(c) or section 526(c) of the act. $4.1182 Where to file.

The application shall be filed in the Hearings Division, 4015 Wilson Boulevard, OHA, Arlington, Va. 22203. 8 4.1183 Time for filing.

(a) Any person intending to file an application for expedited review under section 525(b) of the act shall notify the field solicitor, Department of the Interior, for the region in which the mine site is located, within 15 days of receipt of the order. Any person not served with a copy of the order shall file notice of intention to file an application for review within 20 days of the date of issuance of the order.

(b) Any person filing an application for review under § 4.1184 shall file the application within 30 days of receipt of the order. Any person not served with a copy of the order shall file an application for review within 40 days of the date of issuance of the order.

EXPEDITED REVIEW OF SECTION

521(a)(2) OR 521(a)(3) ORDERS OF

CESSATION $ 4.1180 Purpose.

The purpose of $ $ 4.1180-87 is to govern applications filed under section 525(b) of the act for expedited review of orders of cessation for which temporary relief has not been granted under section 525(c) or section 526(c) of the act. If a person is qualified to receive a 30-day decision under these regulations, he may waive that right and file an application under $ 4.1164, and the procedures in § 4.1160 et seq. shall apply. If there is a waiver as set forth in $ 4.1186, the final administrative decision shall be issued within 120 days of the filing of the application. § 4.1181 Who may file.

(a) An application for review of an order of cessation may be filed under this section, whenever temporary relief has not been granted under section 525(c) or section 526(c) of the act, by

(1) A permittee who has been issued an order of cessation under section

§ 4.1184 Contents of application.

(a) Any person filing an application for expedited review under section 525(b) of the act shall incorporate in that application regarding each claim for relief

(1) A statement of facts entitling that person to administrative relief;

(2) A request for specific relief;

(3) A specific statement which delineates each issue to be addressed by the applicant during the expedited proceeding;

(4) A copy of the order sought to be reviewed;

(5) A list identifying each of applicant's witnesses by name, address, and

place of employment, including expert (a) The applicant shall serve all witnesses and the area of expertise to known parties with a copy of the apwhich they will address themselves at plication simultaneously with the the hearing, and a detailed summary filing of the application with OHA. If of their testimony;

service is accomplished by mail, the (6) Copies of all exhibits and other applicant shall inform all known pardocumentary evidence that the appli- ties by telephone at the time of mailcant intends to introduce as evidence ing that an application is being filed at the hearing and descriptions of all and shall inform the administrative physical exhibits and evidence which law judge by telephone that such is not capable of being copied or at notice has been given. However, no ex tached; and

parte communication as to the merits (7) Any other relevant information. of the proceeding may be conducted

(b) If any applicant fails to comply with the administrative law judge. with all the requirements of (b) Any party desiring to file a re8 4.1184(a), the administrative law sponse to the application for review judge may find that the applicant has shall file a written response within 5 waived the 30-day decision require working days of service of the applica. ment or the administrative law judge tion. shall order that the application be per (c) If the applicant has requested a fected and the application shall not be hearing, the administrative law judge considered filed for purposes of the 30- shall act immediately upon receipt of day decision until perfected. Failure to the application to notify the parties of timely comply with the administrative the time and place of the hearing at law judge's order shall constitute a least 5 working days prior to the hearwaiver of the 30-day decision.

ing date.

(d) The administrative law judge § 4.1185 Computation of time for decision.

may require the parties to submit proIn computing the 30-day time period posed findings of fact and conclusions for administrative decision, intermedi- of law at the hearing which may be ate Saturdays, Sundays, Federal legal orally supplemented on the record at holidays, and other nonbusiness days the hearing or, where proposed findshall be excluded in the computation. ings of fact and conclusions of law

have not been submitted at the hear8 4.1186 Waiver of the 30-day decision re ing, they may be orally presented for quirement.

the record at the hearing. (a) Any person qualified to receive a (e) The administrative law judge 30-day decision may waive that right shall make an initial decision. He shall

(1) By filing an application pursuant either rule from the bench on the apto $ 4.1160-71;

plication, orally stating the reasons (2) By failing to comply with all the for his decision or he shall issue a requirements of $ 4.1184(a); or

written decision. If the administrative (3) In accordance with § 4.1187(j). law judge makes an oral ruling, his ap(b) Any person qualified to receive a proval of the record of the hearing 30-day decision shall waive that shall constitute his written decision. right

The decision of the administrative law (1) By obtaining temporary relief judge must be issued within 15 days of pursuant to section 525(c) or section the filing of the perfected application 526(c) of the act;

under $ 4.1184. (2) By failing to perfect an appli- (f) If any party desires to appeal to caion pursuant to § 4.1184(b); or

the Board, such party shall(3) In accordance with § 4.1187(i).

(1) If the administrative law judge

makes an oral ruling, make an oral § 4.1187 Procedure if 30-day decision re

statement, within a time period as diquirement is not waived.

rected by the administrative law If the applicant does not waive the judge, that the decision is being ap30-day decision requirement of section pealed and request that the adminis525(b) of the act, the following special trative law judge certify the record to rules shall apply

the Board; or

(2) If the administrative law judge any additional prejudice which may issues a written decision after the result to such party. The administraclose of the hearing, file a notice of tive law judge may rule that the runappeal with the administrative law ning of the 30-day time for decision is judge and with the Board within 2 stayed for the period of any additional working days of receipt of the admin time allowed pursuant to this subsecistrative law judge's decision.

tion or may determine that the appli(g) If the decision of the administra- cant has waived his right to the 30-day tive law judge is appealed, the Board decision. shall act immediately to issue an expedited briefing schedule, and the Board PROCEEDINGS FOR SUSPENSION OR REVOshall act expeditiously to review the CATION OF PERMITS UNDER SECTION record and issue its decision. The deci. 521(a)(4) OF THE ACT sion of the Board must be issued within 30 days of the date the perfect

§ 4.1190 Initiation of proceedings. ed application is filed with OHA pur (a) A proceeding on a show cause suant to § 4.1184.

order issued by the Director of OSM (h) If all parties waive the opportu pursuant to section 521(a)(4) of the nity for a hearing and the administra- Act shall be initiated by the Director tive law judge determines that a hear- of OSM filing a copy of such an order ing is not necessary, but the applicant with the Hearings Division, OHA, 4015 does not waive the 30-day decision re- Wilson Boulevard, Arlington, Va. quirement, the administrative law 22203, at the same time the order is judge shall issue an initial decision on issued to the permittee. the application within 15 days of re (b) A show cause order filed with ceipt of the application. The decision OHA shall set forthshall contain findings of fact and an

(1) A list of the unwarranted or willorder disposing of the application. The ful violations which contribute to a decision shall be served upon all the pattern of violations; parties and the parties shall have 2

(2) A copy of each order or notice working days from receipt of such de

which contains one or more of the viocision within which to appeal to the

lations listed as contributing to a patBoard. The Board shall issue its deci- tern of violations; sion within 30 days of the date the

(3) The basis for determining the experfected application is filed with

istence of a pattern or violations; and

ista OHA pursuant to § 4.1184.

(4) Recommendations whether the (i) If at any time after the initiation

permit should be suspended or reof this expedited procedure, the appli

voked, including the length and terms cant requests a delay or acts in a

of a suspension. manner so as to frustrate the expeditious nature of this proceeding or fails to comply with any requirement of § 4.1187(a), such action shall constitute

The permittee shall have 30 days a waiver of the 30-day requirement of

from receipt of the order within which section 525(b) of the act.

to file an answer with the Hearings Di(i) If the applicant seeks to offer vision, OHA, Arlington, Va. witnesses, exhibits, or testimony at

$ 4.1192 Contents of answer. the hearing in addition to those identified, submitted, described, or summa- The permittee's answer to a show rized in the application for expedited cause order shall contain a statement review perfected in accordance with setting forththe requirements of § 4.1184, upon ob- (a) The reasons in detail why a patjection by an opposing party to such tern of violations, as described in 30 offer, the administrative law judge CFR 722.16, does not exist or has not may allow such objecting party addi- existed, including all reasons for contional time in order to prepare for testingcross-examination of unidentified wit- (1) The fact of any of the violations nesses or to identify and prepare re- alleged by OSM as constituting a patbuttal evidence or otherwise uncover tern of violations;

Answer.

[ocr errors]

(d) At any stage of a suspension or revocation proceeding being conducted by an administrative law judge, the parties may enter into a settlement, subject to the approval of the administrative law judge.

(2) The willfulness of such viola. tions; or

(3) Whether such violations were caused by the unwarranted failure of the permittee;

(b) All mitigating factors the permittee believes exist in determining the terms of the revocation or the length and terms of the suspension;

(c) Any other alleged relevant facts; and

(d) Whether a hearing on the show cause order is desired. 8 4.1193 Burden of proof in suspension or

revocation proceedings. In proceedings to suspend or revoke a permit, OSM shall have the burden of going forward to establish a prima facie case for suspension or revocation of the permit. The ultimate burden of persuasion that the permit should not be suspended or revoked shall rest with the permittee. 84.1194 Determination by the administra.

tive law judge. (a) Upon a determination by the administrative law judge that a pattern of violations exists or has existed, pursuant to 30 CFR 722.16 (c)(2) or (c)(3), the administrative law judge shall order the permit either suspended or revoked. In making such a determination, the administrative law judge need not find that all the violations listed in the show cause order OCcurred, but only that sufficient violations occurred to establish a pattern.

(b) If the permit is suspended. the minimum suspension period shall be 3 working days unless the administrative law judge finds that imposition of the minimum suspension period would result in manifest injustice and would not further the purposes of the act. Also, the administrative law judge may impose preconditions to be satisfied prior to the suspension being lifted.

(c) The decision of the administrative law judge shall be issued within 20 days following the date the hearing record is closed by the administrative law judge or within 20 days of receipt of the answer, if no hearing is request. ed by any party and the administrative law judge determines that no hearing is necessary.

4.1195 Summary disposition.

(a) In a proceeding under this section where the permittee fails to appear at a hearing, the permittee shall be deemed to have waived his right to a hearing and the administrative law judge may assume for purposes of the proceeding that,

(1) Each violation listed in the order occurred;

(2) Such violations were caused by the permittee's unwarranted failure or were willfully caused; and

(3) A pattern of violations exists.

(b) In order to issue an initial decision concerning suspension or revocation of the permit when the permittee fails to appear at the hearing, the administrative law judge shall either conduct an ex parte hearing or require OSM to furnish proposed findings of fact and conclusions of law. § 4.1196 Appeals.

Any party desiring to appeal the decision of the administrative law judge shall have 5 days from receipt of the administrative law judge's decision within which to file a notice of appeal with the Board. The Board shall act immediately to issue an expedited briefing schedule. The decision of the Board shall be issued within 60 days of the date the hearing record is closed by the administrative law judge or, if no hearing is held, within 60 days of the date the answer is filed.

APPLICATIONS FOR REVIEW OF ALLEGED DISCRIMINATORY ACTS UNDER SECTION 703 OF THE ACT

$ 4.1200 Filing of the application for

review with the Office of Hearings and

Appeals. (a) Pursuant to 30 CFR 830.13. within 7 days of receipt of an application for review of alleged discriminatory acts, OSM shall file a copy of the application in the Hearings Division, OHA, 4015 Wilson Boulevard, Arling

« PreviousContinue »