Section 11-8-2.3-33-3301 - Formal Hearing(a) Within forty-five (45) days after the action of the Permit Board, as recorded in the minutes of the Permit Board, the applicant or any other interested party may request a formal hearing concerning the action. The Permit Board shall commence the hearing within 60 days after receipt of the first request for a formal hearing. This hearing shall be of record, adjudicatory in nature, and no person who presided at public hearing under § 53-9-37 of the act and § 3109 shall either preside at the hearing, or participate in the decision following the hearing, or in any administrative appeal therefrom. The Permit Board shall have the burden of going forward to present a prima facie case of the validity of the decision. The person filing the request for review shall have the ultimate burden of persuasion by a preponderance of the evidence that the decision is in error.(b) Any party may file a petition for temporary relief from the Permit Board's action in conjunction with the filing of the request for a formal hearing or at any time before a final decision is issued by the Permit Board after a formal hearing. (1) The petition for temporary relief shall be filed with the Executive Director. The petition for temporary relief shall include:(A) A statement of the specific relief requested;(B) A detailed statement of why temporary relief should be granted, including: (i) A showing that there is a substantial likelihood that the petitioner will prevail on the merits, and(ii) 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; and(C) A statement whether the petitioner requests a formal hearing regarding the petition for temporary relief.(2) Any party may file a response to the petition no later than 5 days after it was served and may request a formal hearing on the petition for temporary relief even if the petitioner has not done so.(3) The Permit Board may hold a formal hearing on any issue raised by the petition within 10 days of the filing of responses to the petition, and shall do so if a hearing is requested by any party. The Permit Board shall issue an order or decision granting or denying the petition for temporary relief within 5 days of the date of a hearing on the petition or, if no hearing is held, of service of the responses to the petition on all parties.(4) The Permit Board may grant temporary relief only if:(A) All parties to the proceeding have been notified of the petition and have had an opportunity to respond and a hearing has been held if requested;(B) The petitioner has demonstrated a substantial likelihood of prevailing on the merits;(C) Temporary relief will not adversely affect public health or safety or cause significant, imminent harm to land, air or water resources, and(D) The relief sought is not the issuance of a permit where a permit has been denied, in whole or in part, by the Permit Board, except that continuation under an existing permit may be allowed where the operation has a valid permit issued under the Act.(5) Any party may seek judicial review of the Permit Board's decision regarding temporary relief as allowed by § 53-9-77 for final decisions of the Permit Board.(c) For the purpose of a formal hearing, the Permit Board may administer oaths and affirmations, subpoena witnesses and written or printed materials, compel attendance of witnesses or production of those materials, and take evidence including, but not limited to, site inspections of the land to be affected and other surface coal mining and reclamation operations carried on by the applicant in the general vicinity of the proposed operations.(d) A verbatim record of each formal hearing required by this Section shall be made, and a transcript made available on the request of any party pursuant to the Mississippi Public Records Act.(e) Ex parte contacts between interested parties or their representatives, who are not employees of the Department, and Permit Board members authorized to vote on the issue(s) of the formal hearing and/or an appointed hearing officer shall be prohibited.(f) Except as provided in§ 3301(b)(3), at the conclusion of the formal hearing or within thirty (30) days after the formal hearing, the Permit Board shall enter in its minutes a final decision affirming, modifying, or reversing its prior decision to issue, modify, revoke or deny the permit. The Permit Board shall mail within seven (7) days after its final decision as recorded in the minutes of the Permit Board, notice of that decision to the applicant and all persons who participated as a party in the formal hearing. The deadlines in this subsection may be extended by written agreement of the parties.11 Miss. Code. R. § 8-2.3-33-3301