Section 9-16-79 Hearings and appeals procedure.
Section 9-16-79
Hearings and appeals procedure.
Procedures for hearings and appeals under this article shall be made as herein provided and in accordance with such general rules and regulations as the regulatory authority may prescribe. These procedures shall take precedence over the Alabama Administrative Procedure Act.
(1)a. A determination by the regulatory authority as specified by law shall be made promptly and shall include a statement as to the action to be taken and reasons therefor. Notice of the determination or decision shall be promptly given to the parties involved by delivery or by mailing such notices to their last known addresses. When the regulatory authority gives a notice of determination, unless an appeal is filed by any person having an interest which may be adversely affected with the chief hearing officer within 30 days of such notice such determination shall be deemed final and not subject to appeal;
b. Unless such appeal is withdrawn, the hearing officer shall affirm, modify, or set aside the determination of the regulatory authority in a written decision incorporating therein findings of fact and law. The parties shall be promptly notified in writing of the hearing officers' decision;
c. The decision of a hearing officer shall become final 10 days after notice of such decision has been mailed, postage prepaid, to the parties to the proceedings at the addresses furnished or, if none shall have been furnished, at their last known addresses;
d. Within 30 days from the time a decision of the hearing officer has become final, any party to the proceedings may secure administrative review by filing a petition for review with the commission.
(2) An appeal to a hearing officer of a decision or order of the regulatory authority shall not automatically act as a stay of the decision or order. Pending completion of an appeal taken pursuant to subsection (a) of this section, a written application may be filed with the hearing officer requesting that he grant temporary relief from any notice or order issued under Section 9-16-93 together with a detailed statement giving reasons for granting such relief. The hearing officer shall issue an order or decision granting or denying such relief expeditiously: Provided, that where the applicant requests relief from an order for cessation of coal mining and reclamation operations issued pursuant to Section 9-16-93, the order or decision on such application shall be issued within 5 days of its receipt. The hearing officer may grant such relief, under such conditions as he may prescribe, if:
a. A hearing has been held in the locality of the permit area on the application for temporary relief in which all parties were given an opportunity to be heard;
b. The applicant shows that there is substantial likelihood that the findings of the hearing officer will be favorable to him; and
c. 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.
Provided further, that where the hearing officer denies temporary relief from a cessation order or fails to act on the application for temporary relief within 5 days, the applicant may apply to the appropriate circuit court for relief pursuant to Rule 65 of the Alabama Rules of Civil Procedure.
(3)a. The commission may grant or deny a petition for review. If the commission takes no action on a petition within 30 days, it shall be deemed denied. If the commission grants a petition for review but fails to act within 90 days of granting the petition, the commission shall be deemed to have entered a final decision affirming the order of the hearing officer.
b. The commission shall make its review of a decision of a hearing officer based on the administrative record, and the hearing officer's decision shall either be affirmed, reversed or referred back to the hearing officer with instructions for further specific inquiry. The commission shall promptly notify the parties in writing of its decision.
c. The manner in which disputed claims before the commission shall be presented and the conduct of hearings and appeals before it shall be in accordance with the regulations prescribed by the commission. At any hearing the parties shall be afforded a reasonable opportunity for fair hearing and all testimony shall be taken down but need not be transcribed unless an appeal is applied for or taken. No person shall participate in the hearing or disposition of any claim as a member of the commission if he has an interest therein.
(4)a. Any decision of the commission shall become final 10 days after the date notification thereof shall have been mailed, postage prepaid, to the parties to the proceeding, at their last known addresses. The director shall be deemed to be a party to all such proceedings and to any judicial action involving any such decision.
b. Within 30 days from the time a petition for review is deemed denied or 30 days after the decision of the commission has become final, any party to the proceeding may secure a judicial review thereof by filing a notice of appeal in circuit court. All parties to the administrative procedure shall be named parties in such an appeal. In such action, the notice of appeal need not be verified but shall state the grounds upon which a review is sought. Service shall be made in accordance with the Alabama Rules of Civil Procedure. No circuit court shall permit an appeal unless the person filing such appeal has exhausted his administrative remedies as provided by this article. Provided, where an appeal is taken to the commission from a cessation order issued pursuant to Section 9-16-93 and the commission fails or refuses to stay the order pending a final determination on the merits, the affected surface coal mining operator may apply to the appropriate circuit court for relief. The court may, under such conditions as it may prescribe, grant such temporary relief as it deems appropriate pending final determination of the proceedings if:
1. All parties to the proceedings have been notified and given an opportunity to be heard on a request for temporary relief;
2. The person requesting such relief shows that there is a substantial likelihood that he will prevail on the merits of the final determination of the proceeding; and
3. Such relief will not adversely affect the public health or safety or cause significant imminent environmental harm to land, air, or water resources.
(5) Upon notification by the court that notice of appeal has been filed, the regulatory authority shall transmit to the court the entire record of the proceedings under review, including the findings of fact and the decision of the hearing officer or the commission within 30 days or within such additional time as the court may allow. With the permission of the court, the record of the proceedings under review may be shortened by stipulation of all parties to the review proceedings. Any party unreasonably refusing to stipulate to limit the record may be taxed by the court for such additional costs as may be occasioned by the refusal.
The court may require or permit subsequent corrections or additions to the record when deemed desirable.
(6) The cause shall be tried de novo in said circuit court and shall be a preference case on the docket thereof. The court shall have jurisdiction to determine the reasonableness and lawfulness of the order of the regulatory authority. Upon a finding by the court that the order is not reasonable or lawful, or not supported by the clear preponderance of the evidence, the cause shall be remanded to the regulatory authority for further proceedings in accordance with the provisions of this article. The parties shall have all rights of exception and appeal as in other equity cases.
(7) In any appeal from an order of the commission the appellant may, upon application to the circuit court, supersede any order of the commission on giving such supersedeas bond in an amount the court deems proper and necessary to avoid the likelihood of material damage. The court may, under such conditions as it may prescribe, grant such supersedeas as it deems appropriate pending final determination of the proceeding if:
a. All parties to the proceedings have been notified and given an opportunity to be heard on a request for a supersedeas;
b. The person requesting the supersedeas shows that there is a substantial likelihood that he will prevail on the merits of the final determination of the proceedings; and
c. Such relief will not adversely affect the public health or safety or cause significant imminent environmental harm to land, air or water resources.
Such a bond shall be made payable to the respondent appellee. If a supersedeas bond has been given on appeal to the circuit court as hereinabove provided for, such bond shall continue in force and effect during an appeal to the Supreme Court of Alabama and until final adjudication of the case, and all the conditions of such bond shall be complied with, and no other supersedeas bond need be given by the appellant unless the court hearing the case shall determine that the amount of such supersedeas bond is either excessive or inadequate, in which case the court may order such bond reduced or increased as the court may decide.
(8) An appeal may be taken from the decisions of the circuit court in the same manner as provided in civil cases.
(9) Whenever an order is issued under this section or as a result of any administrative proceeding under this article, at the request of any person, a sum equal to the aggregate amount of all costs and expenses (including attorney fees) as determined by the commission, or, if no appeal is taken to the commission, as determined by the hearing officer, to have been reasonably incurred by such person for or in connection with his participation in such proceedings, including any judicial review of the commission actions, may be assessed against either party as the court, resulting from judicial review, or the commission or the hearing officer, resulting from administrative proceedings, deems proper.
(10) The procedure provided in this article for hearings and appeals shall be exclusive except as otherwise specified.
(11) Nothing in this article shall prevent the regulatory authority from making efforts to obtain voluntary compliance through warning, conference or any other appropriate means. However, nothing in this section shall be taken to negate the mandatory enforcement of Section 9-16-93.
(Acts 1981, No. 81-435, p. 682, §10; Acts 1983, No. 83-774, p. 1415, §6.)