Hearings. [Contingent Effective Date, See Compiler's notes.]
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Any hearing brought before the board pursuant to §§ 59-8-112, 59-8-113, 59-8-114, 59-8-115, 59-8-116, 59-8-117, and 59-8-125 shall be conducted as a contested case.
The hearing shall be heard before an administrative judge sitting alone pursuant to §§ 4-5-301(a)(2) and 4-5-314(b), unless settled by the parties.
The administrative judge to whom the case has been assigned shall convene the parties for a scheduling conference within thirty (30) days of the date the petition is filed.
The scheduling order for the contested case issued by the administrative judge shall establish a schedule that results in a hearing being completed within one hundred eighty (180) days of the scheduling conference, unless the parties agree to a longer time or the administrative judge allows otherwise for good cause shown, and an initial order being issued within sixty (60) days of completion of the record of the hearing.
The administrative judge's initial order, together with any earlier orders issued by the administrative judge, shall become final, unless appealed to the board by the commissioner or other party within thirty (30) days of entry of the initial order or, unless the board passes a motion to review the initial order pursuant to § 4-5-315, within the longer of thirty (30) days or seven (7) days after the first board meeting to occur after the entry of the initial order. Upon appeal to the board by a party, or upon passage of a motion of the board to review the administrative judge's initial order, the board shall afford each party an opportunity to present briefs, shall review the record, and shall allow each party an opportunity to present oral arguments.
If appealed to the board or reviewed by the board, the review of the administrative judge's initial order shall be limited to the record, but shall be de novo with no presumption of correctness.
In an appeal or review as provided in subdivisions (a)(5) and (6), the board shall render a final order, in accordance with § 4-5-314, affirming, modifying, remanding, or vacating the administrative judge's order.
A final order rendered pursuant to this section is effective upon its entry, except as provided in § 4-5-320(b), unless a later effective date is stated in the final order.
A petition to stay the effective date of a final order may be filed under § 4-5-316.
A petition for reconsideration of a final order may be filed pursuant to § 4-5-317.
Judicial review of a final order may be sought by filing a petition for review in accordance with § 4-5-322.
An order of an administrative judge that becomes final in the absence of an appeal or review by the board shall be deemed to be a decision of the board in that case for purposes of the standard of review by a court; provided, in other matters before the board, it may be considered but shall not be binding on the board.
Notwithstanding § 20-4-101(a) to the contrary, in the case of or refusal to comply with a notice of hearing, subpoena, or order issued under this section, venue and jurisdiction for the action shall be in the Davidson County chancery court or the chancery court in the district where the surface mining operation is located, upon application of the board or the commissioner, to issue an order requiring such person to appear and testify or produce evidence as the case may require, and any failure to obey the order of the court may be punished by the court as contempt.
Notwithstanding subsection (a), any operator, permittee, or person to whom an order of suspension of a permit or order to cease and desist surface coal mining and reclamation operations is directed pursuant to this part, shall comply with the order immediately, but, on appeal to the board, shall, within thirty (30) days, have a hearing and decision on the order, unless temporary relief has been granted by the commissioner or by a court.
Any aggrieved person may, after filing an appeal to the board, file with the board a written request that the commissioner grant temporary relief from any complaint or order, together with a detailed statement giving reasons for requesting the relief. The board shall issue an order or decision granting or denying the relief within five (5) days of its receipt, unless the parties agree to a longer time. The board may grant the relief requested, under the conditions the board prescribes, if:
All parties to the proceeding have been notified and a hearing has been held in the locality of the surface coal mining and reclamation operations on the request for temporary relief in which all parties were given an opportunity to be heard;
The operator, permittee, or person shows that there is a substantial likelihood that the final decision of the board in the hearing will be favorable to the operator, permittee, or person; and
The relief will not adversely affect the health or safety of the public or cause significant, imminent environmental harm to land, air, or water resources.
Whenever an order or decision is issued, either by the board or as a result of any administrative proceeding under this part, at the request of any person, a sum equal to the aggregate amount of the expenses for the hearing and administrative judge as determined by the board to have been reasonably incurred by the person for, or in connection with, the person's participation in the proceedings, including any judicial reviews of agency action, may be assessed against either party as the court, resulting from judicial review, or the board, deems proper.