SECTION 460:2-17-7. Determination on application concerning an order of cessation issued pursuant to Section 776 or Section 777 of the act

(a)   If the 5-day requirement of Section 786C of the act is waived, the hearing examiner in a proceeding for temporary relief shall expeditiously conduct a hearing and render a decision on the application.

(b)   If there is no waiver of the 5-day requirement of Section 786C of the act, the following special rules shall apply:

(1)   The 5-day time for decision shall not begin to run until the application is filed pursuant to 460:2-17-3 or a copy of the application is received by the Department legal counsel, whichever occurs at a later date.

(2)   The application shall include an affidavit stating that telephone notice has been given to the Department. The telephone notice shall identify the mine, mine operation, the date and number of the order from which relief is requested, the name of the inspector involved, and the name and phone number of the applicant.

(3)   Prior to or at the hearing, the applicant shall file with the OHA an affidavit stating the date upon which the copy of the application was delivered to the office of the Department legal counsel or the applicant may make an oral statement at the hearing setting forth that information. For purposes of the affidavit or statement, the applicant may rely upon telephone confirmation by the office of the Department legal counsel that the application was received.

(4)   In addition to the service requirements of (1) and (2) of this Subsection, the applicant shall serve any other parties by telephone at the time of mailing that an application is being filed, the contents of the application, and with whom the application was filed.

(5)   The Department legal counsel and all other parties may indicate their objection to the application by communicating such objection to the hearing examiner and the applicant by telephone. However, no ex parte communication as to the merits of the proceeding may be conducted with the hearing examiner. The Department legal counsel and all other parties shall simultaneously reduce the objections to writing. The written objections must be immediately filed with the hearing examiner and immediately served upon the applicant.

(6)   Upon receipt of communication that there is an objection to the request, the hearing examiner shall immediately order a location, time, and date for the hearing by communicating such information to the legal counsel, all other parties, and the applicant by telephone. The hearing examiner shall reduce such communications to writing in the form of a memorandum in the file.

(7)   If a hearing is held:

(A)   The hearing examiner may require the parties to submit proposed findings of fact and conclusions of law at the hearing which may be orally supplemented on the record at the hearing or where written proposed findings of fact and conclusions of law have not been admitted at the hearing, they may be orally presented for the record at the hearing.

(B)   The hearing examiner shall either rule from the bench on the application, orally stating the reasons for his decision or he shall within 24 hours of completion of the hearing issue a written decision. If the hearing examiner makes an oral ruling, his approval of the record of the hearing shall constitute his written decision.

(8)   The order or decision of the hearing examiner shall be issued within 5 working days of receipt of the application for temporary relief.

(9)   If at any time after the initiation of this expedited procedure, the applicant request a delay or acts in a manner as to frustrate the expeditious nature of this proceeding or fails to supply the information required by 460:2-17-4, such action shall constitute a waiver of the 5-day requirement of section 786C of the act.