Administrative Code

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Virginia Administrative Code
Title 4. Conservation and Natural Resources
Agency 25. Department of Mines, Minerals and Energy
Chapter 130. Coal Surface Mining Reclamation Regulations
7/5/2020

4VAC25-130-789.1. Petition for Award of Costs and Expenses under Section 45.1-249E of the Act.

Part 789
Procedures Applicable to Administrative Hearing

(a) Any person may file a petition for award of costs and expenses including attorneys' fees reasonably incurred as a result of that person's participation in any administrative proceeding under the Act which results in--

(1) A final order being issued by a Hearing Officer, or

(2) A final order being issued by the Director or division.

(b) The petition for an award of costs and expenses including attorneys' fees must be filed with the Hearing Officer who issued the final order, or if the final order was issued by the Director or division, with the Director or division, within 30 days of receipt of such order. Failure to make a timely filing of the petition may constitute a waiver of the right to such an award.

(c) A petition, filed under this section, shall include the name of the person from whom costs and expenses are sought and the following shall be submitted in support of the petition--

(1) An affidavit setting forth in detail all costs and expenses including attorneys' fees reasonably incurred for, or in connection with, the person's participation in the proceeding;

(2) Receipts or other evidence of such costs and expenses; and

(3) Where attorneys' fees are claimed, evidence concerning the hours expended on the case, the customary commercial rate of payment for such services in the area, and the experience, reputation and ability of the individual or individuals performing the services. The person or agency to whom the petition is filed may consult with the division's legal counsel regarding claimed attorneys' fees.

(d) Any person served with a copy of the petition shall have 30 days from service of the petition within which to file an answer to such petition.

(e) Appropriate costs and expenses including attorneys' fees may be awarded--

(1) To any person from the permittee, if the person initiates any administrative proceedings reviewing enforcement actions, upon a finding that a violation of the Act, regulations or permit has occurred, or that an imminent hazard existed, or to any person who participates in an enforcement proceeding where such a finding is made if the Hearing Officer or Director or division determines that the person made a substantial contribution to the full and fair determination of the issues;

(2) To a permittee or permit applicant from any person where the permittee or permit applicant demonstrates that the person initiated an administrative proceeding under the Act or participated in such a proceeding in bad faith for the purpose of harassing or embarrassing the permittee or permit applicant.

(f) An award under these sections may include--

(1) All costs and expenses, including attorneys' fees and expert witness fees, reasonably incurred as a result of initiation and/or participation in a proceeding under the Act; and

(2) All costs and expenses, including attorneys' fees and expert witness fees, reasonably incurred in seeking the award.

(g) Any person aggrieved by a decision concerning the award of costs and expenses in an administrative proceeding under the Act may appeal such award to the division within 30 days, unless the Director or division has made the initial decision concerning such an award. Awards by the Director or division are final for the purposes of judicial review.

(h) For the purposes of this section, "person" shall include the Commonwealth, its agents, officers, or employees, and "permit applicant" shall include applicants for permit revisions, renewals, and transfer, assignment or sale of permit rights.

Statutory Authority

§§ 45.1-161.3 and 45.1-230 of the Code of Virginia.

Historical Notes

Derived from VR480-03-19 § 789.1, eff. December 15, 1981; amended, eff. June 28, 1982; October 28, 1982; December 14, 1982; October 11, 1983; December 27, 1983; May 8, 1984; June 22, 1984; August 2, 1984; October 16, 1985; January 7, 1987; July 22, 1987; November 25, 1987; October 12, 1988; December 26, 1990; July 1, 1991; July 17, 1991; November 20, 1991; July 7, 1992; May 5, 1993; October 19, 1994.

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