§ 8012. Request for hearing

(a) A respondent or the Attorney General may request a hearing on an order issued by the Secretary. Notice of a request for hearing shall be filed with the Environmental Division and the Secretary. Upon receipt of the notice, the Secretary shall forward a copy of the order to the Environmental Division.

(b) The Environmental Division shall have authority to:

(1) Determine whether a violation has occurred. An order shall be reversed when it is determined that a violation has not occurred.

(2) Affirm, or vacate and remand to the Secretary an order issued under subdivision 8008(b)(5) of this title. The Environmental Division shall vacate and remand an order under this subdivision when a violation is found to exist but the procedure contained in the order is insufficient to carry out the purposes of this chapter.

(3) Affirm, modify, or reverse any provision of any order issued by the Secretary except those identified by subdivision (2) of this subsection. In deciding whether to affirm or reverse a stop work order under this subdivision, the Environmental Division shall consider the economic effect of the order on individuals other than the respondent.

(4) Review and determine anew the amount of a penalty by applying the criteria set forth in subsections 8010(b) and (c) of this title.

(5) Affirm, modify, or dissolve an emergency order.

(c) Notice of the request for hearing shall be filed within 15 days of receipt of the order. The hearing shall be held before the Environmental Division within 30 days of receipt by the Division of the notice, unless continued for good cause. The Environmental Division shall issue a written decision within 20 days of the conclusion of the hearing, and no later than 60 days from the request for hearing, unless the hearing process is extended for good cause. The decision shall be sent to the parties by certified mail, return receipt requested, and shall include:

(1) a statement of conclusion as to whether a violation exists and findings of facts in support of the conclusion;

(2) identification of the applicable statute, rule, permit, assurance, or order;

(3) the order to be imposed or penalty to be assessed, or both, if a violation is determined to exist;

(4) a statement that the respondent, the Secretary, and the Attorney General have a right to appeal the decision, and a description of the procedures for requesting an appeal; and

(5) a warning that the decision will become final if no appeal is requested within 10 days of the date the decision is received.

(d) Notice of a request for hearing shall stay the order and payment of the penalty, if imposed, pending the hearing. The Secretary may issue an emergency order with regard to the alleged violation that is the subject of the hearing, if grounds for such an order develop during the hearing process.

(e) Any claim a person may have under a private right of action which is not determined in a proceeding under this chapter shall be preserved. (Added 1989, No. 98, § 1; amended 1993, No. 232 (Adj. Sess.), § 38, eff. March 15, 1995; 2007, No. 191 (Adj. Sess.), § 6a; 2009, No. 154 (Adj. Sess.), § 236; 2011, No. 73 (Adj. Sess.), § 2.)