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RULE §12.681Informal Public Hearing

(a) Except as provided in subsections (b) and (c) of this section, a notice of violation or cessation order which requires cessation of mining, expressly or by necessary implication, shall expire within 30 days after it is served unless an informal public hearing has been held within that time. The hearing shall be held at or reasonably close to the mine site so that it may be viewed during the hearing, or at any other location acceptable to the Commission and the person to whom the notice or order was issued. The field office of the Division nearest to the mine site shall be deemed to be reasonably close to the mine site unless a closer location is requested and agreed to by the Commission. Expiration of a notice or order shall not affect the Commission's right to assess civil penalties with respect to the period during which the notice or order was in effect for the violations mentioned in the notice or order under §§12.686 - 12.694 of this title (relating to Civil Penalties). No hearing will be required where the condition, practice, or violation in question has been abated or the hearing has been waived. For purposes of this section only, mining includes:

  (1) extracting coal from the earth or coal waste piles and transporting it within or from the area; and

  (2) the processing, cleaning, concentrating, preparing, or loading of the coal where such operations occur at a place other than at a mine site.

(b) A notice of violation or cessation order shall not expire as provided in subsection (a) of this section, if the informal public hearing has been waived, or if, with the consent of the person to whom the notice or order was issued, the informal public hearing is held later than 30 days after the notice or order was served. For purposes of this subsection:

  (1) The informal public hearing will be deemed waived if the person to whom the notice or order was issued:

    (A) is informed, by written notice served in a manner provided in paragraph (2) of this subsection, that he or she will be deemed to have waived an informal public hearing unless he or she requests one within 30 days after service of the notice; and

    (B) fails to request an informal public hearing within that time.

  (2) The written notice referred to in paragraph (1)(A) of this subsection shall be delivered to such person by an authorized representative or sent by certified mail to such person no later than five days after the notice or order is served on such person.

  (3) The person to whom the notice or order was issued shall be deemed to have consented to an extension of the time for holding the informal public hearing if his or her request is received on or after the 21st day after service of the notice or order. The extension of time shall be equal to the number of days elapsed after the 21st day.

(c) The Commission shall give as much advance notice as is practicable of the time, place, and subject matter of the informal public hearing to:

  (1) the person to whom the notice or order was issued; and

  (2) any person who filed a report which led to that notice or order.

(d) The Commission shall also post notice of the hearing at the field office closest to the mine site, and publish it, where practicable, in a newspaper of general circulation in the area of the mine.

(e) The informal public hearing shall be conducted by a representative of the Commission, who may accept oral or written arguments and any other relevant information from any person attending.

(f) Within five days after the close of the informal public hearing, the Commission shall affirm, modify, or vacate the notice or order in writing. The decision shall be sent to:

  (1) the person to whom the notice or order was issued; and

  (2) any person who filed a report which led to the notice or order.

(g) The granting or waiver of the above informal public hearing shall not affect the right of any person to formal review under §134.175 and §134.176 of the Act and §§2001.141 - 2001.147 of the APA (relating to Contested Cases: Final Decisions and Orders; Motions for Rehearing). At such review proceedings, no evidence as to statements made or evidence produced at the informal public hearing pursuant to this section shall be introduced as evidence to impeach a witness.

(h) The person conducting the informal hearing for the Commission shall determine whether or not the mine site should be viewed during the hearing. In making this determination, the only consideration shall be whether viewing the mine site will assist the person conducting the hearing in reviewing the appropriateness of the enforcement action or of the required remedial action.

Source Note: The provisions of this §12.681 adopted to be effective April 7, 1997, 22 TexReg 3093; amended to be effective November 12, 2007, 32 TexReg 8124

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