SECTION 460:2-35-8. Request for temporary relief

(a)   Where review is requested pursuant to 460:2-35-2, any party may file a request for temporary relief at any time prior to a decision by the hearing examiner, so long as the relief sought is not the issuance of a permit where an application has been disapproved, in whole or in part.

(b)   The request shall be filed with the hearing examiner to whom the case has been assigned. If no assignment has been made, the application shall be filed with the OHA, Department of Mines.

(c)   The application shall include:

(1)   A detailed written statement setting forth the reasons why relief should be granted;

(2)   A statement of the specific relief requested;

(3)   A showing that there is a substantial likelihood that the person seeding relief will prevail on the merits of the final determination of the proceedings; and

(4)   A showing that the relief sought will not adversely affect the public health or safety or cause significant imminent environmental harm to land, air, or water resources.

(d)   The hearing examiner may hold a hearing on any issue raised by the application.

(e)   The hearing examiner shall expeditiously issue an order or decision granting or denying such temporary relief. Temporary relief may be granted only 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 relief shows that there is substantial likelihood of prevailing on the merits of the final determination of the proceedings;

(3)   Such relief will not adversely affect the public health or safety or cause significant imminent environmental harm to land, air, or water resources; and

(4)   If such relief is the dissolution of the stay imposed under 460:2-35-6(b), the party requesting dissolution must establish that the public interest will not be adversely affected by such action.

(f)   Appeals of temporary relief decisions

(1)   Any party desiring to appeal the decision of the hearing examiner granting or denying temporary relief may appeal to the Director or, in the alternative, may seek judicial review pursuant to Section 787 of the act.

(2)   The Director shall issue an expedited briefing schedule and shall issue a decision on the appeal expeditiously.