SECTION 460:10-37-5. Public hearing

(a)   Except as provided in (b) and (c) of this section, a notice of violation or cessation order which requires cessation of mining, expressly or by necessary implication, shall expire within 30 days after it is served unless a public hearing has been held within that time. No hearing will be required where the condition, practice or violation in question has been abated or the hearing has been waived.

(b)   A notice of violation or cessation order shall not expire as provided in (a) of this section if the public hearing has been waived or if, with the consent of the person to whom the notice or order was issued, the public hearing is held later than 30 days after the notice or order was served. For purposes of this section:

(1)   The public hearing will be deemed waived if the person to whom the notice or order is issued:

(A)   Is informed, by written notice served in the manner provided in (b) (2) of this Section, that he will be deemed to have waived a public hearing unless he requests one within 30 days after service notice; and

(B)   Fails to request a public hearing with that time.

(2)   The written notice referred to in (b) (1) (i) of this section shall be delivered to such person by an authorized representative or sent by certified mail to such person no later than 5 days after the notice or order is served on such person.

(3)   The person to whom the notice or order is issued shall be deemed to have consented to an extension of the time for holding the public hearing if his request is received on or after the 21st day after service of the notice or order. The extension of time shall be equal to the number of days elapsed after the 21st day.

(c)   The Department shall give as much advance notice as is practicable of the time, place and subject matter of the public hearing to the operator to whom the notice or order was issued.

(d)   The Department shall also post a notice of the hearing at the office of the Department.

(e)   A public hearing shall be conducted by an authorized representative of the Department, who may accept oral or written arguments and any other relevant information from any person attending.

(f)   Within five days after the close of the public hearing, the Department shall affirm, modify or vacate the notice or order in writing. The decision shall be sent to:

(1)   The operator to whom the notice or order was issued; and

(2)   Any person who filed a report which led to the notice or order.

(g)   The granting of waiver of a public hearing shall not affect the right of any person to judicial review under 45 O.S. (1981), Section 738.