[Federal Register Volume 59, Number 208 (Friday, October 28, 1994)]
[Unknown Section]
[Page ]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-26553]
[Federal Register: October 28, 1994]
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DEPARTMENT OF THE INTERIOR
Office of Hearings and Appeals
43 CFR Part 4
RIN 1094-AA42
Department Hearings and Appeals Procedures; Special Rules
Applicable to Surface Coal Mining Hearings and Appeals
AGENCY: Office of Hearings and Appeals, Interior.
ACTION: Final rule.
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SUMMARY: The final rulemaking amends regulations of the Office of
Hearings and Appeals (OHA) applicable to surface coal mining hearings
and appeals by adding procedural rules for administrative review of a
decision by the Office of Surface Mining Reclamation and Enforcement
(OSM) to suspend or rescind permits that should not have been issued,
and a decision by OSM in response to (a) a challenge, by an applicant
or other person shown in the Applicant Violator System, to a finding
that he or she is in an ownership or control link to any person or (b)
a challenge, by an applicant or other person shown in the Applicant
Violator System in an ownership or control link to any person cited in
a federal violation notice, to the status of the violation in the
notice. The final rulemaking provides for a hearing before an
administrative law judge and for discretionary review of the
administrative law judge's initial decision by the Interior Board of
Land Appeals (IBLA). In addition, existing 43 CFR 4.1105(a)(2) is
amended to include a reference to the rules added by this rulemaking.
EFFECTIVE DATE: These final regulations are effective on November 28,
1994.
FOR FURTHER INFORMATION CONTACT: Will A. Irwin, Administrative Judge,
Interior Board of Land Appeals, Office of Hearings and Appeals, U.S.
Department of the Interior, 4015 Wilson Boulevard, Arlington, Virginia
22203 (Telephone 703-235-3750).
SUPPLEMENTARY INFORMATION: OHA's proposed rulemaking was published in
the Federal Register on September 6, 1991 (56 FR 45806-11). Proposed 43
CFR 4.1370-4.1377 set forth new OHA procedures for reviewing OSM
decisions to suspend or rescind permits OSM finds were improvidently
issued under 30 CFR 773.20. Proposed 43 CFR 4.1380-4.1387 set forth new
OHA procedures for reviewing OSM decisions finding that a person is in
an ownership or control link to a person currently in violation of the
Surface Mining Control and Reclamation Act of 1977 (SMCRA) or other
applicable law. In addition, OHA proposed to amend the existing rule
that establishes OSM's burden of proof in individual civil penalty
proceedings, 43 CFR 3.1307(a).
Proposed 43 CFR 4.1370-4.1377 and 4.1380-4.1387 are based on
section 510(c) of SMCRA, 30 U.S.C. 1260(c) (1988). This section
requires an applicant for a surface coal mining and reclamation permit
to file with the permit application a schedule listing all notices of
violations of SMCRA and any law, rule, or regulation of the United
States, or of any department or agency in the United States pertaining
to air or water environmental protection incurred by the applicant in
connection with any surface coal mining operation during the three-year
period prior to the date of application. Where the schedule or other
information indicates that any surface coal mining operation owned or
controlled by the applicant is currently in violation of the Act or
other air or water environmental protection laws, the permit shall not
be issued until the applicant submits proof that such violation has
been corrected or is in the process of being corrected to the
satisfaction of the regulatory authority, department, or agency which
has jurisdiction over such violation.
In order to implement section 510(c), OSM has promulgated a rule
defining the words ``owned or controlled'' in that section, as well as
``owns or controls.'' 30 CFR 773.5. It has adopted a rule requiring
that an application for a permit include information about each person
who owns or controls the applicant, within the meaning of Sec. 773.5,
and about any surface coal mining operation owned or controlled by
either the applicant or any person who owns or controls the applicant.
30 CFR 778.13(c), (d). It has adopted a regulation concerning review of
applications for permits that provides: ``[b]ased on available
information * * *, the regulatory authority shall not issue the permit
if any surface coal mining and reclamation operation owned or
controlled by either the applicant or by any person who owns or
controls the applicant is currently in violation of the Act or any
other law, rule or regulation referred to in this paragraph.'' 30 CFR
773.15(b)(1). This is the so-called ``permit block,'' referring to the
language in section 510(c) that states ``the permit shall not be issued
until the applicant submits proof'' that a violation of a surface coal
mining operation owned or controlled by the applicant has been
corrected or is in the process of being corrected. OSM has also
established the Applicant/Violator System (AVS), a computerized system
to store data regarding violations and ownership and control links to
those violations. See Save Our Cumberland Mountains v. Lujan, 963 F.2d
1541, 1545-46 (D.C. Cir. 1992).
OHA's proposed rules were published on the same day as OSM proposed
related rules defining the AVS, requiring its use in reviewing permit
applications to determine whether there are any ownership or control
links between applicants and persons in violation, and proposing
procedures and standards for an applicant or other person shown in the
AVS to challenge ownership and control links shown in the AVS and the
status of the violation. 56 FR 45780-45804 (Sept. 6, 1991). OSM also
proposed to amend its existing rules governing suspension and
rescission of improvidently issued permits. OSM's proposed rules
provided a right to review of its decisions to suspend or rescind a
permit under the procedures set forth in OHA's proposed rulemaking of
sections 4.1370 through 4.1377. See proposed Sec. 773.20(c)(2), 56 FR
45799 (Sept. 6, 1991). OSM's proposed rules also provided a right to
review of its written decisions on challenges to ownership and control
links and the status of violations shown in the AVS under the
procedures set forth in OHA's proposed rulemaking of sections 4.1380
through 4.1387. See proposed 30 CFR 773.24(d)(2)(ii), 56 FR 45800
(Sept. 6, 1991).
OHA received comments on its proposed rules from Texas Utilities
Services, Inc. (TU Services), the Joint National Coal Association/
American Mining Congress Committee on Surface Mining Regulations (NCA/
AMC), and the National Wildlife Federation (NWF). The NCA/AMC comments
dealt with both OHA's and OSM's proposed rules.
Proposed Amendment of 43 CFR 4.1307(a)(3) Withdrawn
As part of its September 6, 1991, proposed rulemaking, OHA proposed
an amendment to 43 CFR 4.1307(a)(3) at 56 FR 45808 which set forth an
element of OSM's prima facie case in proceedings to review the
assessment of individual civil penalties. Proposed 43 CFR 4.1307(a)(3)
complemented proposed rules by OSM at 56 FR 48924, 48929-30 (Sept. 26,
1991) addressing individual civil penalties. Both TU Services' and NCA/
AMC's comments expressed reservations about the proposed amendment of
43 CFR 4.1307(a)(3). By a notice published in the Federal Register on
October 16, 1992, OSM withdrew its September 26, 1991, proposed
rulemaking. 57 FR 47431 (Oct. 16, 1992). Therefore, OHA hereby
withdraws the corresponding proposed amendment to 43 CFR 4.1307(a)(3).
Because this proposed rule concerning an element of OSM's prima facie
case in individual civil penalty proceedings is withdrawn, no response
to the comments concerning it is necessary.
As noted above, the NCA/AMC comments address both the proposed OSM
rules and the proposed OHA rules ``[b]ecause [their] comments on the
proposal by [OHA] are interrelated with [their] concerns about the OSM
proposal.'' NCA/AMC's comments that relate to the procedures for
administrative review are addressed here.
Procedural Due Process
NCA/AMC state that although the proposed rules ``purport to
establish a comprehensive scheme for administrative review of ownership
and control determinations emanating from the AVS, they fall far short
of providing the meaningful guarantees that the due process clause
requires.'' They fall short, NCA/AMC state, because the procedures do
not allow one to challenge the existence of the violation that forms
the basis for a permit block under section 510(c). Further, the
proposed rules do not provide ``any opportunity for challenging either
the status of the violation or the validity of the AVS link prior to
the deprivation of the operator's property interest through permit
denial, suspension, or revocation, unless the applicant is able to meet
the stringent requirements for seeking temporary relief'' contained in
proposed 43 CFR 4.1386 (emphasis in original). NCA/AMC state that the
``right to notice and a hearing prior to a governmental deprivation of
private property is a cornerstone of American jurisprudence, and is a
well-established principle in cases involving the constitutionality of
SMCRA provisions'' that the proposed rules fail to recognize. NCA/AMC
state that an appeal or challenge to AVS information ``must, of
necessity, include the right to a full and fair determination on the
merits of the violation in advance of any decision to prohibit mining
through the sanctions contained within section 510(c).'' Under the
balancing test announced in Mathews v. Eldridge, 424 U.S. 319 (1976),
the proposed rules do not afford due process, NCA/AMC argue.
A fundamental requirement of the Fifth Amendment to the
Constitution of the United States that ``[n]o person shall * * * be
deprived of life, liberty, or property, without due process of law'' is
the opportunity to be heard at a meaningful time and in a meaningful
manner. Armstrong v. Manzo, 380 U.S. 545, 552 (1965). In Mathews v.
Eldridge, supra, the U.S. Supreme Court discussed ``the extent to which
due process requires an evidentiary hearing prior to the deprivation of
some type of property interest even if such a hearing is provided
thereafter.'' 424 U.S. at 333. The Court quoted Morrissey v. Brewer,
408 U.S. 471, 481 (1972), that ``due process is flexible and calls for
such procedural protections as the particular situation demands,'' and
then stated:
[O]ur prior decisions indicate that identification of the specific
dictates of due process generally requires consideration of three
distinct factors: First, the private interest that will be affected
by the official action; second, the risk of an erroneous deprivation
of such interest through the procedures used, and the probable
value, if any, of additional or substitute procedural safeguards;
and finally, the Government's interest, including the function
involved and the fiscal and administrative burdens that the
additional or substitute procedural requirement would entail. See,
e.g., Goldberg v. Kelly. [397 U.S.] at 263-271.
Mathews v. Eldridge, supra at 334-35. In Goldberg v. Kelly, 397 U.S.
254 (1970), the Supreme Court decided procedural due process requires
that a state grant an evidentiary hearing before suspending or
terminating welfare payments to an individual who meets the statutory
qualifications for receiving them. ``[T]he crucial factor in this
context,'' the Court observed, ``is that termination of aid pending
resolution of a controversy over eligibility may deprive an eligible
recipient of the very means by which to live while he waits.'' Id. at
264 (emphasis in original). ``[C]ountervailing governmental interests
in conserving fiscal and administrative resources * * * are not
overriding in the welfare context,'' the Court stated. Id. at 265-66.
``[H]owever, * * * the pre-termination hearing need not take the form
of a judicial or quasi-judicial trial,'' the Court commented. Id. at
266. A complete record and a comprehensive opinion are not necessary;
an opportunity for the welfare recipient to confront and cross-examine
witnesses relied on by the government, and to retain an attorney,
however, are necessary. Id. at 267-270. Also necessary is an impartial
decisionmaker, who must ``state the reasons for his determination and
indicate the evidence be relied on.'' Id. at 271.
OHA believes that, when analyzed under Mathews v. Eldridge, the
procedures proposed for OSM decisions and for OHA administrative review
of those decisions provide adequate due process protection of the
interests involved.
The proposed rules recognize a distinction between a person who
holds a permit that might be suspended or rescinded because OSM
determines it was improvidently issued (43 CFR 4.1370-4.1377) and a
person who has applied for a permit or might apply for one in the
future (43 CFR 4.1380-4.1387). A person who holds a permit is entitled
to more protection than the person who has applied for one or plans to
do so. In recognition of this distinction, OSM's final rule 30 CFR
773.20(b)(2) will provide, for a person who has a permit, that OSM will
determine whether a violation, penalty or fee existed when it was cited
and whether an ownership or control link between a permittee and the
person responsible for the violation existed, still exists, or has been
severed, before issuing a notice to suspend or rescind a permit. An
applicant for a permit, however, may challenge the existence of a
violation in a review proceeding under 43 CFR 4.1360-4.1369 after the
application has been denied, not before. An applicant (or any other
person shown in the AVS) may challenge an ownership or control link or
the status of a violation before a permit application is denied, or
even filed, under proposed 30 CFR 773.24, as discussed further below.
(The ``status of a violation'' concerns whether the violation remains
outstanding, has been or is in the process of being corrected, or is
the subject of an administrative or judicial appeal. The status of a
violation is distinct from ``the existence of a violation,'' i.e.,
whether the violation existed at the time it was cited.)
The ``private interest that will be affected,'' i.e., a permit, is
limited. A permit is issued for a five-year term (with a right of
renewal unless its terms or other requirements are not being met), 30
U.S.C. 1256(b), (d) (1988), and is conditioned on compliance with
several performance standards, 30 U.S.C. 1265(a) (1988). It may be
terminated, revised, reviewed, suspended, or revoked. 30 U.S.C.
1256(c), 1261(c), 1265(c), 1271(a)(4) (1988). Thus, while valuable, a
permit to conduct surface coal mining is not a private interest
comparable to the welfare benefits in Goldberg v. Kelly, supra, that
entitles the holder to an evidentiary hearing prior to suspension or
rescission. In Mathews v. Eldridge, supra at 343, the Supreme Court
held that termination of disability payments may be effected without a
pretermination evidentiary hearing. Similarly, suspension or rescission
of a surface coal mining permit does not require a prior hearing in
addition to the other procedural safeguards provided in the OSM and OHA
rules.
Those rules significantly reduce ``the risk of an erroneous
deprivation'' of a permit. If OSM finds a permit was improvidently
issued because at the time it was issued one or more of the
circumstances set forth in the review criteria in 30 CFR 773.20(b)(1)
existed, it does so in accordance with the standards for challenging
ownership or control links and the status of violations in proposed 30
CFR 773.26, 56 FR 45801-45803 (Sept. 6, 1991). See proposed 30 CFR
773.20(b)(2), 56 FR 45799 (Sept. 6, 1991). As mentioned above, these
standards will apply, under OSM's final rule 30 CFR 773.20(b)(2), to a
determination whether a violation, penalty, or fee existed at the time
it was cited, remains unabated or delinquent, has been or is in the
process of being corrected, or is the subject of an appeal, and whether
an ownership or control link between the permittee and the person
responsible for the violation, penalty, or fee existed, still exists,
or has been severed. OSM has a choice of four remedial measures if it
finds a permit was improvidently issued, including suspension or
rescission of the permit. 30 CFR 773.20(c); see proposed
Sec. 773.20(c)(1), 56 FR 45799 (Sept. 6, 1991). If it decides to
suspend, it will give the permittee 30 days written notice and inform
the permittee of its right to review under 43 CFR 4.1370 et seq. See
proposed 30 CFR 773.20(c)(2), 56 FR 45799 (Sept. 6, 1991). If it
decides to rescind, it will issue the permittee a notice of proposed
suspension and rescission under 30 CFR 773.21 that includes the reasons
for finding the permit was improvidently issued and will inform the
permittee of its right to review under 43 CFR 4.1370 et seq. See
proposed 30 CFR 773.20(c)(2), 56 FR 45799 (Sept. 6, 1991).
Under OHA's proposed rules 43 CFR 4.1370-4.1377, the permittee may
file a request for review with OHA that includes OSM's notice;
documentary proof or offers of proof concerning the Sec. 773.20(b)
review criteria (or their analogues in Sec. 773.21(a)(1)-(4)); other
relevant information; a request for specific relief; and a request for
an evidentiary hearing. Sec. 4.1372. The permittee may amend its
request for review once as a matter of right before OSM files a
response and may also do so afterwards with leave of the administrative
law judge. The administrative law judge is to convene the hearing
within 90 days of receiving responses to the request (unless the
parties waive this deadline); this gives the parties an opportunity to
conduct discovery under 43 CFR 4.1130-4.1141. Sec. 4.1373. The
administrative law judge must issue an initial decision within 30 days
of the date the hearing record is closed. Sec. 4.1375. OSM has the
burden of going forward to present a prima facie case in support of its
notice while the person requesting review has the ultimate burden of
persuasion that the notice is in error. Sec. 4.1374. Any party may file
a petition for discretionary review of the administrative law judge's
initial decision with IBLA. The petition shall attach a copy of this
decision and specify the alleged errors. Other parties have 30 days to
file responses, after which IBLA shall issue a decision within 60 days
denying the petition or granting it and deciding the merits.
Sec. 4.1377.
OSM's proposed rule provides that its decision to suspend or
rescind will remain in effect during the time a request for review is
pending in OHA unless temporary relief is granted in accordance with 43
CFR 4.1376. 30 CFR 773.20(c)(2), 56 FR 45799 (Sept. 6, 1991). Proposed
43 CFR 4.1376 provides that with a request for review--or at any time
before the administrative law judge issues the initial decision--any
party may petition for temporary relief from OSM's notice of suspension
or notice of proposed suspension and rescission. Under Sec. 4.1376, the
petition must show that the petitioner has a substantial likelihood of
prevailing on the merits and that the relief it seeks will not
adversely affect public health or safety or cause significant, imminent
environmental harm. Other parties have 5 days to file responses. The
administrative law judge must hold a hearing within 10 days of the
filing of the responses if a hearing has been requested and must issue
a decision granting or denying temporary relief within 5 days of the
date of the hearing, or the filing of the responses if no hearing is
held. If all parties have been notified of the petition and given an
opportunity to respond (and a hearing has been held if requested), the
administrative law judge may grant temporary relief if the petitioner
has demonstrated a substantial likelihood of prevailing on the merits
and the relief will not adversely affect public health or safety or
cause significant, imminent environmental harm. These standards are
based on those contained in 30 U.S.C. 1275(c) (1988). As noted in the
preamble to the proposed regulations, 56 FR at 45807 (Sept. 6, 1991),
the focus of the adverse effect inquiry would be on the permitted
operation rather than operation allegedly in violation. Any party may
appeal the administrative law judge's decision granting or denying
temporary relief to IBIA, which shall decide the appeal expeditiously,
or may seek judicial review.
OHA believes ``the probable value, if any, of additional or
substitute procedural safeguards''--in particular, an evidentiary
hearing before a decision to suspend or rescind is effective--is
minimal. As in Mathews, supra at 343-345, although the definition of
ownership and control in 30 CFR 773.5 includes elements or judgment
where witness credibility and veracity will sometimes play a role
(e.g., Secs. 773.5(a)(3), 773.5(b)(6)), the determination is usually
made on the basis of documents, such as instruments of ownership or
voting securities, or on the basis of readily and often publicly
documentable circumstances such as a person's status as an officer or
director of an entity, the permittee or operator of a surface coal
mining operation, or a general partner in a parternship (e.g.,
Secs. 773.5(a)(1)-(2), 773.5(b)(1)-(2), (4)-(5)). Further, a permittee
receives sufficient notice of OSM's decision to suspend a permit (30
days under proposed Sec. 773.20(c)(2)) or rescind a permit (up to 180
days under Sec. 773.21) to enable it to request review by an
administrative law judge before the decision becomes effective. The
provisions in Secs. 4.1370-4.1377 imposing short time frames for each
step of review significantly reduce delay due to ``the torpidity of
[the] administrative review process,'' Mathews, supra at 342,
especially if temporary relief is sought.
The ``Government's interest'' is to effectively implement section
510(c), specifically, to ensure that no person in violation of SMCRA or
the other specified environmental laws obtains or retains a permit to
conduct surface mining operations until the violation is corrected or
in the process of being corrected. The Department's goal of achieving
compliance with these laws would be significantly burdened if it were
required to provide an evidentiary hearing before OSM could decide to
suspend or rescind a permit because the person should not have received
the permit when it was issued. It was OSM's experience in 1992-93 that
providing informal review by OSM of the proposed entry into the AVS of
information concerning ownership or control links became very time-and-
personnel-consuming. For 105 cases in 1993, for example, OSM spent more
than 11,000 hours from after investigating an ownership or control link
to issuing its final decision, a mean of 105 hours per case. It would
be even more costly to require an evidentiary hearing before a permit
was suspended or rescinded; meanwhile, mining would continue while
alleged outstanding violations existed.
In sum, as the Supreme Court stated in Mathews, supra at 343,
``there is less reason here than in Goldberg to depart from the
ordinary principle, established by our decisions, that something less
than an evidentiary hearing is sufficient prior to adverse
administrative action.'' OHA believes the procedures for OSM
decisionmaking and OHA administrative review on the proposed rules
provide all the due process that is due before an improvidently issued
permit is suspended or rescinded.
As noted above, OSM's proposed rules also provide that an applicant
for a permit or any other person that is shown in the AVS as having an
ownership or control link to a person may challenge the link (unless
the applicant or other person is bound by an earlier administrative or
judicial decision concerning the link). See proposed 30 CFR
773.24(a)(1), 56 FR 45800 (Sept. 6, 1991). An applicant or any other
person shown in the AVS may also challenge the status of the violation
cited in a federal violation notice naming a person with whom the
applicant or other person is linked (unless bound by a decision
concerning the status of the violation). See proposed 30 CFR
773.24(a)(2), 56 FR 45800 (Sept. 6, 1991). The applicant or other
person may submit a written explanation and supporting evidence to OSM
concerning the existence of the link or the status of the violation.
See proposed Sec. 773.24(b), 56 FR 45800 (Sept. 6, 1991). Applying the
standards for challenging ownership and control links and the status of
violations contained in proposed Sec. 773.26, 56 FR 45801-03 (Sept. 6,
1991), OSM will either correct the information in the AVS, if the
applicant or other person shows the link is erroneous or the violation
is no longer outstanding, or, if this is not shown, OSM will so notify
the applicant or other person. See proposed Sec. 773.24(d), 56 FR 45800
(Sept. 6, 1991). In either event, OSM will issue a written decision and
serve it by certified mail. See proposed Secs. 773.24(d)(2)(i), 56 FR
45800-01 (Sept. 6, 1991). The applicant or other person has a right to
request review within 30 days of service of OSM's decision under the
procedures proposed by OHA in 43 CFR 4.1380-4.1387. OSM's decision
remains in effect pending a decision on review unless temporary relief
is granted under proposed Sec. 4.1386. See proposed
Sec. 773.24(d)(2)(ii), 56 FR 45801 (Sept. 6, 1991).
OHA's procedures in proposed 43 CFR 4.1380-4.1387 closely parallel
those in Secs. 4.1370-4.1377. Any person who receives a written OSM
decision concerning a challenge to the existence of a link or the
status of a violation may request review. Sec. 4.1381. The required
contents of the request are set forth in proposed Sec. 4.1382; the
request may be amended once as a matter of right before a response is
filed by OSM and with the leave of an administrative law judge
thereafter. Sec. 4.1382(c). The administrative law judge is to convene
a hearing within 90 days of receipt of the responses unless the parties
waive that deadline, and give notice at least 10 days in advance of the
hearing. Sec. 4.1383. OSM has the burden of going forward to present a
prima facie case in support of its decision, while the person
requesting review has the ultimate burden of persuasion that the
decision is in error. Sec. 4.1384. An initial decision is required
within 30 days after the record of the hearing is closed. Sec. 4.1385.
At any time before the initial decision is issued, any party may file a
petition for temporary relief from OSM's decision. Temporary relief may
be granted if all parties to the proceeding have been notified of the
petition, have had an opportunity to respond, and a hearing has been
held if requested; and if the petitioner has demonstrated that it has a
substantial likelihood of prevailing on the merits and that temporary
relief will not adversely affect public health or safety or cause
significant, imminent environmental harm. Sec. 4.1386. Expedited review
by IBLA or judicial review of a decision granting or denying temporary
relief may be requested within 30 days of receipt of the decision.
Sec. 4.1386(h). If temporary relief is not requested, any party may
file a petiton for discretionary review of the administrative law
judge's initial decision within 30 days of receiving it. Sec. 4.1387.
The Board is to issue a decision denying the petition or granting it
and ruling on the merits within 60 days of the deadline for filing
responses to the petition section 4.1387(d).
The nature of a person's interest in an application for a permit
cannot be regarded as a ``legitimate claim of entitlement'' to a permit
and therefore requires less due process protection than the interest of
a person who holds a permit that is subject to suspension or rescission
because it was improvidently issued. See Board of Regents v. Roth, 408
U.S. 564, 569-71, 577 (1972). For a person who has applied for a permit
or may apply for one, due process does not require a hearing on the
existence of an ownership or control link or on the existence of a
violation when it was cited before OSM issues a decision under proposed
30 CFR 773.24. If the proposed procedures in Secs. 4.1370-4.1377 for
administrative review of notices of permit suspension or rescission
under proposed 30 CFR 773.20(c)(2) provide adequate due process
protection, as OHA believes, then the parallel procedures in proposed
Secs. 4.1380-4.1387 certainly satisfy due process requirements for
OSM's decisions regarding ownership and control links or the status of
a violation under proposed 30 CFR 773.24. In particular, an applicant's
opportunity to obtain temporary relief under 43 CFR 4.1386 from an OSM
decision provides sufficient due process at this stage. Further
administrative review is available to an applicant for a permit in an
appeal of the denial of the application under existing procedures in 43
CFR 4.1360 through 4.1369, when the existence of the violation may be
challenged. Providing an evidentiary hearing before OSM decisions under
proposed 30 CFR 773.24 would severely impede the Department's effective
implementation of section 510(c).
State Primacy
NCA/AMC argue that the proposed OSM and OHA regulations ``undermine
state primacy [under section 503 of SMCRA, 30 U.S.C. (1988)] entirely,
by preempting state permitting authority where the ownership and
control presumption is based on information contained within the AVS. *
* * Additionally, OSM and OHA propose to require that any appeals from
decisions on the ownership and control presumptions be made before the
OHA in accordance with the proposed OHA regulations at 43 CFR 4.1380. *
* * Moreover, OSM would create a completely federalized process for
administrative review of the AVS linkage.''
The regulatory authority in a state that has been delegated primacy
under section 503 will retain its authority to issue permits.
Information in the AVS is ``other information available to the
regulatory authority,'' within the meaning of section 510(c), that a
state regulatory authority must use in deciding whether or not issuance
of a permit should be blocked. The state regulatory authority's
decision is its own--subject, of course, to OSM oversight. See 30
U.S.C. 1202(g), 1211(c), 1253, 1254, 1255, and 1271.
An applicant or other person shown in the AVS in an ownership or
control link to any person cited in a state violation notice may
challenge the status of the violation in that notice under the state
program equivalents to proposed 30 CFR 773.24(b)-(d) and 773.26. See
proposed 30 CFR 773.24(a)(3), 56 FR 45800 (Sept. 6, 1991). Similarly,
decisions by a state regulatory authority to suspend or rescind a
permit are reviewed by the State program equivalent of proposed 43 CFR
4.1370-4.1377. See proposed 30 CFR 773.20(c)(2), 56 FR 45799 (Sept. 6,
1991). The fact that challenges to ownerships and control links and to
the status of violations are made to OSM by applicants or other persons
shown in the AVS under proposed 30 CFR 773.24(a)(1) and (a)(2), and
that OSM's decisions are reviewed under proposed 43 CFR 4.1380-4.1387,
is a function of OSM's maintenance of the data in AVS and its
responsibility to keep that data accurate and up-to-date. But OSM's
role in deciding on the accuracy of the data and OHA's role in
reviewing those decisions do not subvert the authority of the state
regulatory authority in a primacy state to make decisions on
applications for permits.
Burden of Proof
NCA/AMC object to OHA's proposed 43 CFR 4.1374(b) and 4.1384(b),
which place the ultimate burden of persuasion on a permittee that seeks
review of a notice of proposed suspension or rescission and on an
applicant or other persons that seeks review of an OSM decision on a
challenge to an ownership and control link or status of a violation
shown in the AVS. In proposed Secs. 4.1374(a) and 4.1384(a), OSM has
the burden of going forward to present a prima facie case of the
validity of the notice or decision. NCA/AMC state that when OSM seeks
to overturn a permit as improvidently issued, it should bear the
ultimate burden of proving its case. ``All permits, once issued, should
be accorded some presumption that they were issued in accordance and
compliance with applicable law. * * * [I]t is the party seeking to set
aside the permitting decision who should bear both the burden of going
forward to establish a prima facie case and the ultimate burden of
persuasion, ``NCA/AMC state.
Allocation of the burdens of proof in proposed 43 CFR 4.1374 and
4.1384 is consistent with other OHA regulations governing review of OSM
decisions. See 43 CFR 4.1171, 4.1193, 4.1366. OSM's burden of going
forward to support a prima facie case of the validity of its notice or
decision means it must present ``sufficient evidence * * * to establish
the essential facts * * * which evidence will remain sufficient if not
contradicted. It is evidence that will justify but not compel a finding
in favor of the one presenting it.'' James Moore, 1 IBSMA 216, 223 n.7,
86 I.D. 369, 373 n.7 (1979). It is the permittee, applicant, or other
person shown in the AVS who will have access to information that would
overcome OSM's prima facie case. Harry Smith Construction Co. v. OSM,
78 IBLA 27, 31 (1983). Under the Administrative Procedure Act, 5 U.S.C.
556(d) (1988), OSM properly bears only the burden of going forward with
proof, not the ultimate burden of persuasion. Environmental Defense
Fund, Inc. v. Environmental Protection Agency, 548 F.2d 998, 1012-13
(D.C. Cir. 1976).
Right of Appeals From OSM Decisions for Adversely Affected Persons;
Notice of Appeals to Adversely Affected Persons
The NWF comments criticized proposed 43 CFR 4.1371 for its failure
to incorporate the rights of citizens to challenge decisions by OSM
regarding improvidently issued permits under 30 CFR 773.20. As
explained above, 30 CFR 773.20 provides that a permit has been
improvidently issued if, under the violations review criteria at the
time the permit was issued, the regulatory authority should not have
issued the permit. Proposed 43 CFR 4.1371 grants a right of review to a
``permittee that is served with a notice of suspension under 30 CFR
773.20(c)(2) or a notice of proposed suspension and rescission under 30
CFR 773.21.'' The rights of citizens to appeal similar decisions have
been completely overlooked, NWF states.
Similarly, NWF objects to proposed 43 CFR 4.1381, which authorizes
``[a]ny person who receives a written decision from OSM'' pursuant to
proposed 30 CFR 773.24(d)(2) or 773.25(c)(2) to file a request for
review of OSM's finding that such person is in an ownership or control
link to any person cited in a violation notice within the scope of 30
CFR 773.5 and 773.15(b). No provision for citizen-initiated appeals of
these decisions exists under the proposed rules, NWF states.
``Decisions by OSM not to act on the information provided by citizens,
or decisions to issue permits in the face of information that indicates
an ownership or control link to a violation, should be subject to
review by the Office of Hearings and Appeals,'' NWF comments.
NWF also criticizes lack of notice to affected citizens. Although
proposed 43 CFR 4.1372(b) provides to ``OSM and all interested
parties'' the right to file an answer to a request for review of a
decision to suspend or rescind a permit as improvidently issued and to
request an evidentiary hearing even if the person requesting review
does not, it is silent as to how interested parties other than OSM are
to know that a request for review has been filed, NWF states. Only
counsel for OSM would be served with a copy of a request for review
under 43 CFR 4.1109, NWF observes. Similarly, the rules proposed in 43
CFR 4.1380-4.1387 for review of OSM decisions concerning ownership and
control links provide ``no notice to citizens who may be substantially
and adversely affected by a reversal of a determination of ownership
and control linkage,'' NWF comments. Specific provisions for notice to
all affected persons of appeals of both kinds of OSM decisions should
be adopted, NWF urges.
OHA agrees that provisions for notice to citizens of appeals of OSM
decisions concerning permit suspension and rescission and concerning
ownership and control links and for rights of appeal of such OSM
decisions were not included in the proposed rules. Adding such
provisions to the final rules on the basis of NWF's comments, however,
without providing an opportunity for notice and comment, might be
regarded as inconsistent with the requirements of the Administrative
Procedure Act. See American Federation of Labor v. Donovan, 757 F.2d
330, 338-40 (D.C. Cir. 1985). After consultation with OSM, OHA may
propose rules concerning these issues in the future. Meanwhile, no
right of appeal by citizens from OSM decisions not to find an ownership
or control link is available under these rules. Citizens may of course
avail themselves of existing procedures, e.g., 30 CFR 773.13, 842.11,
842.12, 842.15, and 843.21, and petition for leave to intervene in
proceedings under Secs. 4.1370-4.1377 and 4.1380-4.1387 in accordance
with 43 CFR 4.1110.
Changes in the Final Rules From the Proposed Rules
OHA believes no revisions to proposed 43 CFR 4.1370-4.1377 and
4.1380-4.1387 are required in response to the comments. However, OHA
has made the following changes to the proposed rules to improve their
clarity and to remove references to section numbers of the rules
proposed by OSM:
1. 43 CFR 4.1373(a): The phrase ``If a hearing is requested'' has
been added at the beginning of the first sentence, and the remainder of
the sentence revised, to account for the possibility that a hearing
might not be requested.
2. 43 CFR 4.1373(b): ``of the date of the hearing'' has been added
at the end of the sentence to make clear that notice shall be given at
least 10 days in advance of the hearing.
3. 43 CFR 4.1375: An alternative deadline is provided for issuance
of an initial decision when no hearing is held.
4. 43 CFR 4.1380: The language concerning the kind of OSM decisions
from which a request for review may be filed has been revised to
replace references to 30 CFR 773.5 and 773.15(b) with a more general
description, i.e., decisions on challenges by an applicant or other
person shown in the AVS to an ownership or control link or the status
of a violation.
5. 43 CFR 4.1381(a): The specific references to proposed 30 CFR
773.24(d)(2) and 773.25(c)(2) and to 30 CFR 773.5 and 773.15(b) have
been replaced with language describing the kind of OSM decision from
which a request for review may be filed, i.e., a written decision by
OSM, in response to a challenge from an applicant or other person shown
in the AVS, on whether or not the ownership or control link has been
shown to be erroneous or has been rebutted and/or whether the violation
covered by the notice remains outstanding, has been corrected, or is
the subject of a good faith appeal.
6. 43 CFR 4.1383(a): The phrase ``If a hearing is requested'' has
been added at the beginning of the first sentence, and the remainder of
the sentence revised, to account for the possibility that a hearing
might not be requested.
7. 43 CFR 4.1383(b): ``of the date of the hearing'' has been added
at the end of the sentence to make clear that notice shall be given at
least 10 days in advance of the hearing.
8. 43 CFR 4.1385: An alternative deadline is provided for issuance
of an initial decision when no hearing is held.
In addition, in order to implement the Administrative Dispute
Resolution Act, OHA has added rules (Secs. 4.1371(c), 4.1381(c))
providing the parties an opportunity to employ alternatives means of
dispute resolution, as defined in 5 U.S.C. 571(3) (1988), before the
hearing and appeals procedures set forth in the following rules. Any
party could decline this opportunity, in its discretion, at any time.
Because no new obligations are imposed and this voluntary procedure
does not affect substantive rights, its adoption does not require
separate notice under the Administrative Procedure Act.
Determination of Effects
The Department has determined that these rules will not have a
significant economic effect on a substantial number of small entities
under the Regulatory Flexibility Act, 5 U.S.C. 601 et seq.
Executive Order 12866
These rules were not subject to OMB review under Executive Order
12866.
National Environmental Policy Act
The Department has determined that these rules will not
significantly affect the quality of the human environment on the basis
of the categorical exclusion of regulations of a procedural nature set
forth in 516 DM 2, Appendix 1, section 1.10.
Paperwork Reduction Act
These rules contain no information collection requirement requiring
Office of Management and Budget approval under 44 U.S.C. 3501 et seq.
Takings Implication Assessment
These rules do not pose any takings implications requiring
preparation of a Takings Implication Assessment under Executive Order
No. 12630 of March 18, 1988.
Drafting Information
The primary author of these regulations is Will A. Irwin,
Administrative Judge, Interior Board of Land Appeals, Office of
Hearings and Appeals, U.S. Department of the Interior.
List of Subjects in 43 CFR Part 4
Administrative practice and procedure, Mines, Public lands, Surface
mining.
For the reasons set forth in the preamble, subpart L of part 4 of
title 43 of the Code of Federal Regulations is amended as set forth
below:
Dated: August 18, 1994.
Bonnie R. Cohen,
Assistant Secretary--Policy, Management and Budget.
43 CFR part 4 is amended as follows:
PART 4--[AMENDED]
Subpart L--Special Rules Applicable to Surface Coal Mining Hearings
and Appeals
1. The authority citation for part 4, subpart L, continues to read
as follows:
Authority: 30 U.S.C. 1256, 1260, 1261, 1264, 1268, 1271, 1272,
1275, 1293; 5 U.S.C. 301.
2. Section 4.1105 is amended by revising paragraph (a)(2)
introductory text to read:
Sec. 4.1105 Parties.
(a) * * *
(2) In a review proceeding under Secs. 4.1160 through 4.1171,
4.1180 through 4.1187, 4.1300 through 4.1309, 4.1350 through 4.1356,
4.1360 through 4.1369, 4.1370 through 4.1377, 4.1380 through 4.1387 or
4.1390 through 4.1394 of this part, OSM, as represented by the Office
of the Solicitor, Department of the Interior, and--
* * * * *
3. New Secs. 4.1370 through 4.1377 and a new undesignated heading
preceding them are added to read:
Review of Decisions of the Office of Surface Mining Suspending or
Rescinding Improvidently Issued Permits
Sec.
4.1370 Scope.
4.1371 Who may file, where to file, when to file.
4.1372 Contents of request for review, response to request,
amendment of request.
4.1373 Hearing.
4.1374 Burdens of proof.
4.1375 Time for initial decision.
4.1376 Petition for temporary relief from notice of suspension or
notice of proposed suspension and rescission; appeals from decisions
granting or denying temporary relief.
4.1377 Petition for discretionary review of initial decisions.
Review of Decisions of the Office of Surface Mining Suspending or
Rescinding Improvidently Issued Permits
Sec. 4.1370 Scope.
Sections 4.1370 through 4.1377 govern the procedures for review of
notices from OSM of suspension of improvidently issued permits issued
under 30 CFR 773.20(c) or of notices of proposed suspension and
rescission of improvidently issued permits issued under 30 CFR 773.21.
Sec. 4.1371 Who may file, where to file, when to file.
(a) A permittee that is served with a notice of suspension under 30
CFR 773.20(c)(2) or a notice of proposed suspension and rescission
under 30 CFR 773.21 may file a request for review with the Hearings
Division, Office of Hearings and Appeals, U.S. Department of the
Interior, 4015 Wilson Boulevard, Arlington, Virginia 22203 (Telephone
703-235-3800) within 30 days of service of the notice.
(b) Failure to file a request for review within 30 days of service
of the notice shall constitute a waiver of review of the notice. An
untimely request for review shall be dismissed.
(c) Where appropriate under the Administrative Dispute Resolution
Act, 5 U.S.C. Secs. 571-583, the Hearings Division may use a dispute
resolution proceeding, if the parties agree to such proceeding, before
the procedures set forth in Secs. 4.1373 through 4.1377.
Sec. 4.1372 Contents of requests for review, response to request,
amendment of request.
(a) The request for review shall include:
(1) A copy of the notice of suspension or the notice of proposed
suspension and rescission;
(2) Documentary proof, or, where appropriate, offers of proof,
concerning the matters set forth in 30 CFR 773.20(b) or 773.21(a)(1)
through (4) showing that the person requesting review is entitled to
administrative relief;
(3) A statement whether the person requesting review wishes an
evidentiary hearing or waives the opportunity for such a hearing;
(4) A request for specific relief; and
(5) Any other relevant information.
(b) Within 20 days of service of the request for review by the
permittee in accordance with 43 CFR 4.1109, OSM and all interested
parties shall file an answer to the request for review or a motion in
response to the request or a statement that no answer or motion will be
filed. OSM or any interested party may request an evidentiary hearing
even if the person requesting review has waived the opportunity for
such a hearing.
(c) The permittee may amend the request for review once as a matter
of right before a response in accordance with paragraph (b) of this
section is required to be filed. After the period for filing such a
response, the permittee may file a motion for leave to amend the
request for review with the administrative law judge. If the
administrative law judge grants a motion for leave to amend, he shall
provide OSM and any other party that filed a response in accordance
with paragraph (b) not less than 10 days to file an amended response.
Sec. 4.1373 Hearing.
(a) If a hearing is requested, the administrative law judge shall
convene the hearing within 90 days of receipt of the responses under
Sec. 4.1372(a). The 90-day deadline for convening the hearing may be
waived for a definite time by the written agreement of all parties,
filed with the administrative law judge, or may be extended by the
administrative law judge, in response to a motion setting forth good
cause to do so, if no other party is prejudiced by the extension.
(b) The administrative law judge shall give notice of the hearing
at least 10 days in advance of the date of the hearing.
Sec. 4.1374 Burdens of proof.
(a) OSM shall have the burden of going forward to present a prima
facie case of the validity of the notice of suspension or the notice of
proposed suspension and rescission.
(b) The permittee shall have the ultimate burden of persuasion by a
preponderance of the evidence that the notice is invalid.
Sec. 4.1375 Time for initial decision.
The administrative law judge shall issue an initial decision within
30 days of the date the record of the hearing is closed, or, if no
hearing is held, within 30 days of the deadline for filing responses
under Sec. 4.1372(b).
Sec. 4.1376 Petition for temporary relief from notice of suspension or
notice of proposed suspension and rescission: appeals from decisions
granting or denying temporary relief.
(a) Any party may file a petition for temporary relief from the
notice of suspension or the notice of proposed suspension and
rescission in conjunction with the filing of the request for review or
at any time before an initial decision is issued by the administrative
law judge.
(b) The petition for temporary relief shall be filed with the
administrative law judge to whom the request for review has been
assigned. If none has been assigned, the petition shall be filed with
the Hearings Division, Office of Hearings and Appeals, U.S. Department
of the Interior, 4015 Wilson Boulevard, Arlington, Virginia 22203
(Telephone 703-235-3800).
(c) The petition for temporary relief shall include:
(1) A statement of the specific relief requested;
(2) A detailed statement of why temporary relief should be granted,
including--
(i) A showing that there is a substantial likelihood that
petitioner will prevail on the merits, and
(ii) A showing that the relief sought will not adversely affect the
public health or safety or cause significant, imminent environmental
harm to land, air or water resources;
(3) A statement whether the petitioner requests an evidentiary
hearing.
(d) Any party may file a response to the petition no later than 5
days after it was served and may request a hearing even if the
petitioner has not done so.
(e) The administrative law judge may hold a hearing on any issue
raised by the petition within 10 days of the filing of responses to the
petition, and shall do so if a hearing is requested by any party.
(f) The administrative law judge shall issue an order or decision
granting or denying the petition for temporary relief within 5 days of
the date of a hearing on the petition or, if no hearing is held, of
service of the responses to the petition on all parties.
(g) The administrative law judge may only grant temporary relief
if:
(1) All parties to the proceeding have been notified of the
petition and have had an opportunity to respond and a hearing has been
held if requested;
(2) The petitioner has demonstrated a substantial likelihood of
prevailing on the merits; and
(3) Temporary relief will not adversely affect public health or
safety or cause significant, imminent harm to land, air or water
resources.
(h) Any party may file an appeal of an order or decision granting
or denying temporary relief with the Board within 30 days of receipt of
the order or decision or, in the alternative, may seek judicial review
within 30 days in accordance with section 526(a) of the Act, 30 U.S.C.
1276(a). If an appeal is filed with the Board, the Board shall issue an
expedited briefing schedule and shall decide the appeal expeditiously.
Sec. 4.1377 Petition for discretionary review of initial decision.
(a) Any party may file a petition for discretionary review of an
initial decision of an administrative law judge issued under
Sec. 4.1375 with the Board within 30 days of receipt of the decision.
An untimely petition shall be dismissed.
(b) The petition for discretionary review shall set forth
specifically the alleged errors in the initial decision, with
supporting argument, and shall attach a copy of the decision.
(c) Any party may file a response to the petition for discretionary
review within 30 days of its service.
(d) The Board shall issue a decision denying the petition or
granting the petition and deciding the merits within 60 days of the
deadline for filing responses.
4. New Secs. 4.1380 through 4.1387 and a new undesignated heading
preceding them are added to read:
Review of Office of Surface Mining Written Decisions Concerning
Ownership and Control
Sec.
4.1380 Scope.
4.1381 Who may file; when to file; where to file.
4.1382 Contents of request for review; response to request;
amendment of request.
4.1383 Hearing.
4.1384 Burdens of proof.
4.1385 Time for initial decision.
4.1386 Petition for temporary relief from decision; appeals from
decisions granting or denying relief.
4.1387 Petition for discretionary review of initial decisions.
Review of Office of Surface Mining Written Decisions Concerning
Ownership and Control
Sec. 4.1380 Scope.
Sections 4.1380 through 4.1387 govern the procedures for review of
written decisions of OSM on challenges by an applicant or other person
shown in the Applicant Violator System to an ownership or control link
or the status of a violation.
Sec. 4.1381 Who may file; when to file; where to file.
(a) An applicant or any other person shown in the Applicant
Violator System who receives a written decision by OSM, in response to
a challenge to an ownership or control link or the status of a
violation, on whether or not the ownership or control link has been
shown to be erroneous or has been rebutted and/or whether the violation
covered by a federal violation notice remains outstanding, has been
corrected, or is the subject of a good faith appeal may file a request
for review with the Hearings Division, Office of Hearings and Appeals,
U.S. Department of the Interior, 4015 Wilson Boulevard, Arlington,
Virginia 22203 (Telephone 703-235-3800) within 30 days of service of
the decision.
(b) Failure to file a request for review within 30 days of service
of the decision constitutes a waiver of review of the decision. An
untimely request for review shall be dismissed.
(c) Where appropriate under the Administrative Dispute Resolution
Act, 5 U.S.C. Secs. 571-583, the Hearings Division may use a dispute
resolution proceeding, if the parties agree to such proceeding, before
the procedures set forth in Secs. 4.1383 through 4.1387.
Sec. 4.1382 Contents of request for review; response to request;
amendment of request.
(a) The request for review shall include:
(1) A copy of the decision of OSM;
(2) A statement of the alleged errors in the decision and the facts
that entitle the person requesting review to administrative relief;
(3) A statement whether the person requesting review wishes an
evidentiary hearing or waives the opportunity for such a hearing;
(4) A request for specific relief; and
(5) Any other relevant information.
(b) Within 20 days of service of the request for review in
accordance with 43 CFR 4.1109, OSM and all interested parties shall
file an answer to the request for review or a motion in response to the
request or a statement that no answer or motion will be filed. OSM or
any interested party may request an evidentiary hearing even if the
person requesting review has waived the opportunity for a hearing.
(c) The person filing the request for review may amend it once as a
matter of right before the response in accordance with paragraph (b) of
this section is required to be filed. After the period for filing such
a response, the person may file a motion for leave to amend the request
with the administrative law judge. If the administrative law judge
grants a motion for leave to amend, he shall provide OSM and any other
party that filed a response in accordance with paragraph (b) not less
than 10 days to file an amended response.
Sec. 4.1383 Hearing.
(a) If a hearing is requested, the administrative law judge shall
convene the hearing within 90 days of receipt of responses under
Sec. 4.1382(b). The 90-day deadline for convening the hearing may be
waived for a definite time by the written agreement of all parties,
filed with the administrative law judge, or may be extended by the
administrative law judge, in response to a motion setting forth good
cause to do so, if no other party is prejudiced by the extension.
(b) The administrative law judge shall give notice of the hearing
at least 10 days in advance of the date of the hearing.
Sec. 4.1384 Burdens of proof.
(a) OSM shall have the burden of going forward to present a prima
facie case of the validity of the decision.
(b) The person filing the request for review shall have the
ultimate burden of persuasion by a preponderance of the evidence that
the decision is in error.
Sec. 4.1385 Time for initial decision.
The administrative law judge shall issue an initial decision within
30 days of the date the record of the hearing is closed, or, if no
hearing is held, within 30 days of the deadline for filing responses
under Sec. 4.1382(b).
Sec. 4.1386 Petition for temporary relief from decision; appeals from
decisions granting or denying temporary relief.
(a) Any party may file a petition for temporary relief from the
decision of OSM in conjunction with the filing of the request for
review or at any time before an initial decision is issued by the
administrative law judge.
(b) The petition for temporary relief shall be filed with the
administrative law judge to whom the request for review has been
assigned. If none has been assigned, the petition shall be filed with
the Hearings Division, Office of Hearings and Appeals, U.S. Department
of the Interior, 4015 Wilson Boulevard, Arlington, Virginia 22203
(Telephone 703-235-3800).
(c) The petition for temporary relief shall include:
(1) A statement of the specific relief requested:
(2) A detailed statement of why temporary relief should be granted,
including:
(i) A showing that there is a substantial likelihood that
petitioner will prevail on the merits, and
(ii) A showing that granting the relief requested will not
adversely affect the public health or safety or cause significant,
imminent environmental harm to land, air or water resources;
(3) A statement whether the petitioner requests an evidentiary
hearing.
(d) Any party may file a response to the petition no later than 5
days after it was served and may request a hearing even if the
petitioner has not done so.
(e) The administrative law judge may hold a hearing on any issue
raised by the petition within 10 days of the filing of responses to the
petition, and shall do so if a hearing is requested by any party.
(f) The administrative law judge shall issue an order or decision
granting or denying the petition for temporary relief within 5 days of
the date of a hearing on the petition or, if no hearing is held, of
service of the responses to the petition on all parties.
(g) The administrative law judge may only grant temporary relief
if:
(1) All parties to the proceeding have been notified of the
petition and have had an opportunity to respond and a hearing has been
held if requested;
(2) The petitioner has demonstrated a substantial likelihood of
prevailing on the merits; and
(3) Temporary relief will not adversely affect public health or
safety or cause significant, imminent environmental harm to land, air
or water resources.
(h) Any party may file an appeal of an order or decision granting
or denying temporary relief with the Board within 30 days of receipt of
the order or decision or, in the alternative, may seek judicial review
within 30 days in accordance with section 526(a) of the Act, 30 U.S.C.
1276(a). If an appeal is filed with the Board, the Board shall issue an
expedited briefing schedule and shall decide the appeal expeditiously.
Sec. 4.1387 Petition for discretionary review of initial decisions.
(a) Any party may file a petition for discretionary review of an
initial decision of an administrative law judge issued under
Sec. 4.1385 with the Board within 30 days of receipt of the decision.
An untimely petition shall be dismissed.
(b) The petition for discretionary review shall set forth
specifically the alleged errors in the initial decision, with
supporting argument, and shall attach a copy of the decision.
(c) Any party may file a response to the petition for discretionary
review within 30 days of its service.
(d) The Board shall issue a decision denying the petition or
granting the petition and deciding the merits within 60 days of the
deadline for filing responses.
[FR Doc. 94-26553 Filed 10-27-94; 8:45 am]
BILLING CODE 4310-79-M