49-416a. Review of notice or order; investigation and public hearing; order vacating, affirming, modifying or terminating notice or order; show cause order to suspend or revoke permit, hearing; assess - Kansas Statutes

49-416a

Chapter 49.--MINES AND MINING Article 4.--MINED-LAND CONSERVATION AND RECLAMATION

      49-416a.   Review of notice or order; investigation and public hearing;order vacating, affirming, modifying or terminating notice or order; showcause order to suspend or revoke permit, hearing; assessment of costs.(a) An operator issued a notice or order by the secretary orany person having an interest which is or may be adversely affected by suchnotice or order or by any modification, vacation, or termination of suchnotice or order, may apply to the secretary for review of thenotice or orderwithin 30 days of receipt thereof or within 30 days ofits modification, vacation, or termination. Upon receipt of such application,the secretary shall cause such investigation to be made as the secretarydeems appropriate.Such investigation shall provide an opportunity for a public hearing, atthe request of the applicant or the person having an interest which is ormay be adversely affected, to enable the applicant or such person to presentinformation relating to the issuance and continuance of such notice or orderor the modification, vacation, or termination thereof. The filing of anapplication for review under this subsection shall not operate as a stayof any order or notice. The operator and other interested persons shallbe given written notice of the time and place of the hearing at least fivedays prior thereto. Any such hearing shall be of record.

      (b)   Upon receiving the report of such investigation, thesecretary shall makefindings of fact, and shall issue a written decision, incorporating thereinan order vacating, affirming, modifying, or terminating the notice or order,or the modification, vacation, or termination of such notice or order complainedof and incorporate its findings therein. Where the application for reviewconcerns an order for cessation of surface coal mining and reclamation operationsthe secretary shall issue the written decision within 30 days of thereceipt of the application for review, unless temporary relief has been granted.

      (c)   Pending completion of the investigation and hearing required by thissection, the applicant may file with the secretary a writtenrequest that the secretary grant temporary relief from any notice or orderissued together witha detailed statement giving reasons for granting such relief. The secretaryshall issue an order or decision granting or denying such relief expeditiously.Where the applicant requests relief from an order for cessation of coalmining and reclamation operations, the order or decision on such a requestshall be issued within five days of its receipt. Thesecretary may grant suchrelief, under such conditions as the secretary may prescribe, if:

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

      (2)   the applicant shows that there is substantial likelihood that thefindings of the secretary will be favorable tothe applicant; and

      (3)   such relief will not adversely affect the health or safety of thepublic or cause significant, imminent environmental harm to land, air, orwater resources.

      (d)   Following the issuance of an order to show cause as to why a permitshould not be suspended or revoked the secretary or hearingofficer shall hold a public hearingafter giving written notice of the time, place, and date thereof. Any suchhearing shall be of record. Within 60 days following the publichearing, the secretary shall issue and furnish to the operator and all otherparties to the hearing a written decision, and the reasons therefor, concerningsuspension or revocation of the permit. If the secretary revokes the permit,the operator immediately shall cease surface coal mining operations on thepermit area and shall complete reclamation within a period specified bythe secretary, or the secretary shall declareas forfeited the performance bondsfor the operation.

      (e)   Whenever an order is issued under this section, or as a result ofany administrative proceeding under this act, at the request of any person,a sum equal to the aggregate amount of all costs and expenses, includingattorney fees, as determined by the secretary tohave been reasonably incurredby such person for or in connection with such person'sparticipation in suchproceedings, including any judicial review of agency actions, may be assessedagainst either party as the court, resulting from judicial review or thesecretary, resulting from administrative proceedings, deems proper.

      History:   L. 1979, ch. 169, § 18;L. 1988, ch. 192, § 22; July 1.