SECTION 45.1-249. Administrative review of notice or order issued under § 45.1-245  

A. A permittee who is issued a notice or order pursuant to § 45.1-245 , or any person having an interest which is or may be adversely affected by such notice or order by any modification, vacation, or termination of such notice or order, may apply to the Director for the review of the notice or order within thirty days of the receipt thereof or within thirty days of its modification, vacation, or termination. Upon receipt of such application, the Director shall cause such investigation to be made as he deems appropriate, which shall include an opportunity for a public formal hearing, at the request of the applicant or the person having an interest which is or may be adversely affected, to enable the applicant or such person to present information relating to the issuance and continuance of such notice or order or the modification, vacation or termination thereof. The filing of an application for review under this subsection shall not operate as a stay of any order or notice.

B. Upon receiving the report of such investigation, the Director shall make findings of fact, and shall issue a written decision, incorporating therein an order vacating, affirming, modifying or terminating the notice or order complained of and incorporate his findings therein. When the application for review concerns an order for cessation of coal surface mining and reclamation operations issued pursuant to the provisions of subsection A or B of § 45.1-245 , the Director shall issue the written decision within thirty days of the receipt of the application for review unless temporary relief has been granted by the Director pursuant to subsection C of this section or by a court pursuant to § 45.1-245 .

C. Pending completion of the hearing required by this section, the applicant may file with the Director a written request that the Director grant temporary relief from any notice or order issued under § 45.1-245 , together with a detailed statement giving reasons for granting such relief. The Director shall issue an order granting or denying such relief expeditiously. Where the applicant requests relief from an order for cessation of coal surface mining and reclamation operations issued pursuant to subsection A or B of § 45.1-245 , the order on such a request shall be issued within five days of its receipt. The Director may grant such relief, under such conditions as he may prescribe, if:

1. A hearing has been held in the locality of the permit area on the request for temporary relief in which all parties were given an opportunity to be heard;

2. The applicant shows that there is substantial likelihood that the decision of the Director will be favorable to him; and

3. Such relief will not adversely affect the health or safety of the public or cause significant imminent environmental harm to land, air or water resources.

D. Following the issuance of an order to show cause as to why a permit should not be suspended or revoked pursuant to § 45.1-245 , the Director shall hold a public formal hearing, unless waived by the permittee, after giving written notice of the time, place and date thereof. Within sixty days following the formal hearing, the Director shall issue and furnish to the permittee and all other parties to the hearing a written decision concerning suspension or revocation of the permit and reasons therefor. If the Director revokes the permit, the permittee shall immediately cease coal surface mining operations on the permit area and shall complete reclamation within a period specified by the Director or the Director shall declare as forfeited the performance bonds for the operation.

E. The Director is authorized to promulgate regulations providing for the award of costs and expenses, including attorney fees, to any party to any administrative proceedings under this chapter, incurred by such person in connection with his participation in such proceedings and to assess such costs and expenses against any other party, as may be proper. For the purpose of this subsection, the term "party" shall include the Commonwealth or any of its agents, officers or employees.

1979, c. 290; 1983, c. 93.