PURPOSE: This rule sets forth requirements for the administrative and judicial review of decisions on permit applications pursuant to sections 444.810, 444.850 and 444.900, RSMo.

1. (1) Administrative Review.

   1. (A) Within thirty (30) days after the applicant or permittee is notified of the final decision of the director concerning the application for a permit, revision modification or renewal of a permit, application for transfer, sale or assignment of rights, the applicant, permittee or any person with an interest which is or may be adversely affected may request a hearing before the commission on the reasons for the final decision in accordance with this section.

   2. (B) Hearing Time Period and Relief.

      1. 1. The commission shall commence the

hearing within thirty (30) days of request. This hearing shall be of record and adjudicatory in nature.

1. 2. The commission, under the condi-

tions as it prescribes, may grant the temporary relief as it deems appropriate, pending final determination of the proceeding, if—

1. A. All parties to the proceeding have

been notified and given an opportunity to be heard on a request for temporary relief;

1. B. The person requesting that relief

shows that there is a substantial likelihood that s/he will prevail on the merits of the final determination of the proceeding;

1. C. The relief will not adversely affect

the public health or safety or cause significant, imminent environmental harm to land, air or water resources; and

1. D. The relief sought is not the

issuance of a permit where a permit has been denied, in whole or part, by the director.

1. 3. Hearing procedures.

   1. A. For the purpose of the hearing, the

commission or hearing officer may administer oaths and affirmations, subpoena witnesses and written or printed materials, compel attendance of witnesses or production of those materials, compel discovery and take evidence, including but not limited to, site inspections of the land to be affected and 10 CSR 40-6

other surface coal mining and reclamation operations carried on by the applicant in the general vicinity of the proposed operations.

1. B. A verbatim record of each public

hearing required by this section shall be made and a transcript made available on the motion of any part or by order of the commission.

1. C. Ex parte contacts between repre-

sentatives of the parties before the commission or hearing officer and the commission or hearing officer shall be prohibited.

1. 4. Within thirty (30) days after the close

of the record, the commission shall issue and furnish the applicant and each person who participated in the hearing, with the written Findings of Fact, Conclusions of Law and Order with respect to the appeal.

1. 5. The burden of proof at these hearings

shall be on the party seeking to reverse the decision of the director.

1. (2) Judicial Review.

   1. (A) Any applicant or any person with an interest which is or may be adversely affected and who had participated in the administrative proceedings as an objector shall have the right to appeal as provided in subsection (2)(B) of this rule if—

      1. 1. The applicant or person is aggrieved

by the decision in an administrative review proceeding conducted pursuant to section (1) of this rule; or

1. 2. Either the commission or director

under section (1) of this rule fails to act within time limits specified in the law, this chapter or regulatory program, whichever applies.

1. (B) Action identified in subsection (2)(A) of this rule shall be subject to judicial review as provided by law, but the availability of the review shall not be construed to limit the operation of the rights established in section 444.880, RSMo.

AUTHORITY: section 444.530, RSMo 1994.* Original rule filed Oct. 12, 1979, effective Feb. 11, 1980. *Original authority 1971, amended 1983, 1990, 1993.