Colorado § 34-33-124 - Review by board.

§ 34-33-124. Review by board.

(1) (a) An operator issued any notice of violation or cessation order pursuant to the provisions of section 34-33-123 or any person having an interest which is or may be adversely affected by such notice or order or by any modification, vacation, or termination of such notice or order may request review thereof by the board within ninety days after the issuance of the notice or order or within ninety days after its modification, vacation, or termination. Such request for review may include a request for a hearing to enable the operator or such person to present information relating to the issuance and continuance of such notice or order or the modification, vacation, or termination thereof. Upon receipt of such request for a hearing, the hearing shall be held and, prior to such hearing, the board shall cause an investigation to be made as it deems appropriate. The filing of a request for review under this paragraph (a) shall not operate as a stay of any order or notice.

(b) The operator, any other persons requesting a hearing, and all other persons expressing an interest shall be given written notice of the time and place of any hearing requested under this section at least five days prior to such hearing. Notice of such hearings shall also be included in the monthly mailings of the division. Any such hearing shall be of record and shall be subject to the "State Administrative Procedure Act", article 4 of title 24, C.R.S.

(2) Upon receiving the report of any investigation and after any public hearing under paragraph (b) of subsection (1) of this section, the board shall make findings of fact and shall issue a written decision, incorporating therein its findings and an order vacating, affirming, modifying, or terminating the notice of violation or cessation order or the modification, vacation, or termination of such notice or order reviewed. Where the request for review concerns an order for cessation of surface coal mining and reclamation operations issued pursuant to section 34-33-123, the board shall issue a written decision within thirty days of the receipt of the request for review unless temporary relief has been granted by the board pursuant to subsection (3) of this section, by the office pursuant to section 34-33-123 (6), or by the court pursuant to section 34-33-128 (3).

(3) Pending completion of the investigation and hearing under this section, the operator or any other party may file with the board a written request that the board grant temporary relief from any notice or order, together with a detailed statement giving reasons for granting such relief. The board shall issue an order or decision granting or denying such relief expeditiously; except that, where the operator requests relief from an order for cessation of surface coal mining and reclamation operations issued pursuant to section 34-33-123, the order or decision on such a request shall be issued within five days of its receipt. The board may grant such relief under such conditions as it may prescribe if:

(a) An informal hearing has been held in the locality of the permit area on the request for temporary relief in which all parties were given an opportunity to be heard;

(b) The party requesting temporary relief shows that there is substantial likelihood that the findings of the board will be favorable to him; and

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

(4) Following the issuance of an order to show cause as to why a permit should not be suspended or revoked pursuant to section 34-33-123 (7), the board shall hold a public hearing after giving written notice of the time, place, and date thereof to the permittee. Advance notice of such hearing shall be included in the monthly mailings of the office. Any such hearing shall be of record and shall be subject to the "State Administrative Procedure Act", article 4 of title 24, C.R.S. Within sixty days following the public hearing, the board shall issue and furnish to the permittee and all other parties to the hearing a written decision, and the reasons therefor, concerning suspension or revocation of the permit. If the board suspends or revokes the permit, the permittee shall immediately cease those surface coal mining operations on the permit area as specified by the board and shall complete reclamation within a period specified by the board, or the board shall declare the performance bonds for the operation as forfeited. Proceeds of forfeited bonds shall be available to the office and shall be used by the office for reclamation of the area covered by the bond.

(5) Whenever an order is issued under this section or as a result of any administrative proceeding under this article, at the request of any party to such proceeding, a sum equal to the aggregate amount of all costs and expenses (including attorney fees) which the board determines to have been reasonably incurred by such party for or in connection with his participation in such proceedings may be assessed against any party to the proceedings, as the board deems just and proper.

Source: L. 79: Entire article added, p. 1293, § 1, effective July 1. L. 81: (1)(b), IP(3), and (3)(b) amended, pp. 1683, 1684, §§ 6, 7, effective June 16. L. 92: (2) and (4) amended, p. 1965, § 67, effective July 1.

ANNOTATION

A district court is only statutorily authorized to award fees incurred on judicial review and not for underlying administrative proceedings. Fontanari v. Snowcap Coal Co., 2023 COA 29, 531 P.3d 1073.