Section 11-8-2.5-65-6511 - Formal Review of Citations(a) Any interested party aggrieved by an action of the Commission, Executive Director or Executive Director's authorized representative taken pursuant to the Act or these regulations may request a formal hearing before the Commission as provided in §§ 53-9-77 and 49-17-41. A request for formal review must be filed within thirty days of the date the Commission, the Executive Director, or the Executive Director's authorized representative took the action to be contested during the formal review. The Commission, through the Department, shall notify the parties in writing of the time and place of the hearing at least five working days prior to the hearing date. Any person who participated as a party in a formal hearing before the Commission may appeal from a final decision of the Commission made under the Act and these regulations as provided in §§ 53-9-77 and 49-17-41.(b) The filing of an application for review and request for a hearing under this Section shall not operate as a stay of any notice or order, or of any modification, termination or vacation of either.(c) Temporary Relief From Notices Of Violation and Cessation Orders. Any party to a proceeding that is the result of the issuance of a notice of violation or cessation order, including, but not limited to, the person to whom a notice of violation or cessation order is directed, may apply to the Commission for temporary relief from the notice or cessation order. The application shall be filed with the office of the Executive Director, and a copy shall be filed at the same time with the State Geologist and the General Counsel of the Department.(d) The application for temporary relief shall include:(1) A detailed written statement setting forth the reasons why relief should be granted;(2) A showing that there is a substantial likelihood that the findings and decisions of the Commission in the matters to which the application relates will be favorable to the applicant;(3) A statement that the relief sought will not adversely affect the health or safety of the public or cause significant, imminent environmental harm to land, air, or water resources;(4) If the application relates to an order of cessation, a statement of whether the requirement of § 6511(f) for decision on the application within 5 days is waived; and(5) A statement of the specific relief requested.(e) Except as provided in § 6511(f), all parties to the proceeding to which the application relates shall have 5 days from the date of their receipt of the application to file a written response. Except as provided in § 6511(f), the Commission may hold a hearing on any issue raised by the application. The Commission may designate a hearing officer to conduct any proceedings necessary under this section. The Commission may designate the Executive Director as a hearing officer. Where the application seeks temporary relief from a notice of violation, the Commission shall expeditiously issue an order granting or denying such relief.(f) If the application seeks temporary relief from a cessation order, the order granting or denying the request shall be issued within 5 days of its receipt by the Commission. If the 5-day requirement is waived by the applicant, the Commission shall expeditiously conduct a hearing and render a decision on the application. If the applicant does not waive the 5-day requirement, the following special rules of procedure shall apply:(1) The 5-day period shall not begin to run until the application is filed in the office of the Executive Director, or a copy is received in the office of the General Counsel of the Department, or a copy is received in the office of the State Geologist, whichever is later.(2) Prior to or at the hearing on the application, the applicant shall file with the Commission an affidavit stating the date upon which the application was filed with the Executive Director and the copies were delivered to the General Counsel of the Department and the State Geologist. In the alternative, the applicant may make an oral statement on the record at the hearing setting forth that information.(3) In addition to the service requirements of paragraph (c), the applicant shall serve any other parties with a copy of the application simultaneously with the filing of the application. If service is accomplished by mail, the applicant shall inform such 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.(4) The Department, through the General Counsel, his designee, and all other parties may indicate their objection to the application by communicating such objection to the Commission and the applicant in person or by telephone through the Executive Director. The Department and all other parties shall simultaneously reduce their objections to writing. The written objections must be immediately filed with the Commission and immediately served upon the applicant.(5) Upon receipt of communication that there is an objection to the request, the Commission shall immediately order a location, time, and date for the hearing by communicating such information to the General Counsel of the Department, the State Geologist, all other parties, and the applicant by telephone or facsimile transmission. The Commission also shall post notice of the hearing as required by the Mississippi Open Meetings Law. The Commission shall reduce the communications to the parties and the applicant to writing and shall attach the writing to the minutes of the hearing, along with the notice posted pursuant to the Mississippi Open Meetings Law.(6) If a hearing is held - (i) The Commission 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. Where written proposed findings of fact and conclusions of law have been submitted at the hearing, they may be orally presented for the record at the hearing.(ii) The Commission shall either rule from the bench on the application, orally stating the reasons for its decision, or it shall within 24 hours of completion of the hearing reconvene to issue its decision. The decision shall be memorialized as written findings of fact and conclusions of law either issued by the Commission at its next meeting or issued by the Executive Director in the interim. If the Commission makes an oral ruling, its approval of the record of the hearing, combined with any order memorializing the decision, shall constitute its written findings of fact and conclusions of law.(7) The order or decision of the Commission shall be issued within 5 working days of the receipt of the application for temporary relief.(8) If at any time after the initiation of this expedited procedure, the applicant requests a delay or acts in a manner so as to frustrate the expeditious nature of this proceeding or fails to supply the information required by § 6511(d), such action shall constitute a waiver of the 5-day requirement.(g) Any party desiring to appeal a decision of the Commission granting or denying temporary relief may appeal to and seek relief from the appropriate chancery court pursuant to § 53-9-77.(h) An application for expedited review of an order of cessation may be filed under this section, whenever temporary relief has not been granted under this section, by the following: (1) A permittee who has been issued an order of cessation by the Commission; or(2) Any interested party to the cessation order. Except as provided in this section, expedited review of a cessation order shall be conducted by the Commission, and a decision made on the application, within 30 days of receipt of the complete application for expedited review from a party entitled to expedited review. A permittee or other interested party waives his or her right to expedited review upon being granted temporary relief pursuant to this section. The application for expedited review shall be filed in the same manner as that described in § 6511(c). If the party filing the application was served with the cessation order, the application must be filed within 30 days of receipt of the order. If the party filing the application was not served with the order, the party must file the application within 40 days of issuance of the order. Prior to filing the application, a person who was served with the cessation order must notify the General Counsel of the Department within 15 days of receipt of the order of his or her intent to file an application. If the applicant was not served with the order, he or she must so notify the General Counsel of the Department within 20 days of issuance of the order.
(i) Any person filing an application for expedited review under this section shall incorporate the following in that application regarding each claim for relief: (1) A statement of facts entitling that person to administrative relief;(2) A request for specific relief;(3) A specific statement which delineates each issue to be addressed by the applicant during the expedited proceeding;(4) A copy of the order to be reviewed;(5) A list identifying each of the applicant's witnesses by name, address, and place of employment, including expert witnesses and the area of expertise to which they will address themselves at the hearing, and a detailed summary of each witness's expected testimony;(6) Copies of all exhibits and other documentary evidence that the applicant intends to introduce as evidence at the hearing and descriptions of all physical exhibits and evidence which is not capable of being copied or attached; and(7) Any other relevant information.(j) If the applicant for expedited review fails to comply with all the requirements of § 6511(i), the Commission may find that the applicant has waived the 30-day decision requirement or the Commission shall order that the application be perfected and the application shall not be considered filed for purposes of the 30-day decision until perfected. Failure to timely comply with the Commission's order shall constitute a waiver of the 30-day decision requirement.(k) In computing the 30-day time period for an expedited decision, intermediate Saturdays, Sundays, and State of Mississippi legal holidays shall be excluded in the computation.(l) Any person qualified to receive a 30-day decision may waive that right:(1) by filing an application pursuant to § 6511(a);(2) by failing to comply with all the requirements of § 6511(h) and (i); or(3) in accordance with § 6511(n)(8).(m) Any person qualified to receive a 30-day decision shall waive that right: (1) by obtaining temporary relief pursuant to § 6511(c) - (f);(2) by failing to perfect an application for expedited review pursuant to § 6511(h) and (i); or(3) in accordance with § 6511(n)(7).(n) If the applicant does not waive the 30-day requirement, the following special rules shall apply: (1) The applicant shall serve all known parties with a copy of the application simultaneously with the filing of the application with the General Counsel of the Department. If service is accomplished by mail, the applicant shall inform all known parties by telephone at the time of mailing that an application is being filed and shall inform the Commission, through the Executive Director, that such notice has been given.(2) Any party desiring to file a response to the application for review shall file a written response within 5 working days of service of the application.(3) If the applicant has requested a hearing, the Commission, through the Executive Director, shall act immediately upon receipt of the application to notify the parties of the time and place of the hearing at least 5 working days prior to the hearing date.(4) The Commission 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. Where written proposed findings of fact and conclusions of law have been submitted at the hearing, they may be orally presented for the record at the hearing.(5) The Commission shall either rule from the bench on the application, orally stating the reasons for its decision, or it shall within 30 days of the filing of the perfected application reconvene to issue its decision. The decision shall be memorialized as written findings of fact and conclusions of law either issued by the Commission at its next meeting or issued by the Executive Director under the authority of the Commission in the interim. If the Commission makes an oral ruling, its approval of the record of the hearing in combination with any subsequent order memorializing the decision shall constitute its written findings of fact and conclusions of law.(6) If all parties waive the opportunity for a hearing and the Commission, either en banc or through the Executive Director, determines that a hearing is not necessary, but the applicant does not waive the 30-day decision requirement, the Commission shall issue an initial decision on the application within 30 days of receipt of the perfected application. The decision shall contain findings of fact and an order disposing of the application. The decision shall be served upon all the parties.(7) If at any time after the initiation of this expedited procedure, the applicant requests a delay or acts in a manner so as to frustrate the expeditious nature of this proceeding or fails to supply the information required by § 6511(i), such action shall constitute a waiver of the 30-day requirement.(8) If the applicant seeks to offer witnesses, exhibits, or testimony at the hearing in addition to those identified, submitted, described, or summarized in the application for expedited review perfected in accordance with the requirements of § 6511(i), upon objection by an opposing party to such offer, the Commission may allow such objecting party additional time in order to prepare for cross-examination of unidentified witnesses or to identify and prepare rebuttal evidence or otherwise uncover any additional prejudice which may result to such party. The Commission may rule that the running of the 30-day time for decision is stayed for the period of any additional time allowed pursuant to this subsection or may determine that the applicant has waived his right to the 30-day decision.(9) Any party desiring to appeal a decision of the Commission granting or denying an application for expedited review may appeal to and seek relief from the appropriate chancery court pursuant to § 53-9-77.(o) Any hearing held under this section before the Commission shall be deemed the formal hearing allowed by §§ 53-9-77, 49-17-41, or 49-17-29 concerning the issues addressed by the Commission's decision stemming from that hearing. The Commission shall not be required to conduct any additional public or formal hearings on those matters. A hearing regarding temporary relief will be deemed the only hearing before the Commission regarding temporary relief due the applicant for relief, but the Commission shall conduct an additional hearing on the merits of the notice of violation or cessation order as is necessary for the full adjudication of all issues raised in a timely manner by the person on whom the notice or order is served or any other interested party.11 Miss. Code. R. § 8-2.5-65-6511