Section R11-1-152. Rehearing or review of decision

A.       Except as provided in subsection (G), any party in a contested case before the Office of State Mine Inspector who is aggrieved by a decision rendered in such case may file with the Office of State Mine Inspector, not later than ten days after service of the decision, a written motion for rehearing or review of the decision specifying the particular grounds there- for. For purposes of this subsection, a decision shall be deemed to have been served when personally delivered or mailed by certified mail to the party at his last known residence or place of business.

B.       A motion for rehearing under this rule may be amended at any time before it is ruled upon by the Office of State Mine Inspec- tor. A response may be filed within ten days after service of such motion or amended motion by any other party. The Office of State Mine Inspector may require the filing of written briefs upon the issues raised in the motion and may provide for oral argument.

C.       A rehearing or review of the decision may be granted for any of the following causes materially affecting the moving party’s rights:

1.        Irregularity in the administrative proceedings of the agency or its hearing officer or the prevailing party, or any order or abuse of discretion, whereby the moving party was deprived of a fair hearing;

2.        Misconduct of the Office of State Mine Inspector or its hearing officer or the prevailing party;

3.        Accident or surprise which could not have been pre- vented by ordinary prudence;

4.        Newly discovered material evidence which could  not with reasonable diligence have been discovered and pro- duced at the original hearing;

5.        Excessive or insufficient penalties;

6.        Error in the admission or rejection of evidence or other errors of law occurring at the administrative hearing;

7.        That the decision is not justified by the evidence or is contrary to law.

D.       The Office of State Mine Inspector may affirm or modify the decision or grant a rehearing to all or any of the parties and on

all or part of the issues for any of the reasons set forth in sub- section (C). An order granting a rehearing shall specify with particularity the ground or grounds on which the rehearing is granted, and the rehearing shall cover only those matters so specified.

E.       Not later than ten days after a decision is rendered, the Office of State Mine Inspector may on its own initiative order a rehearing or review of its decision for any reason for which it might have granted a rehearing on motion of a party. After giv- ing the parties or their counsel notice and an opportunity to be heard on the matter, the Office of State Mine Inspector may grant a motion for rehearing for a reason not stated in the motion. In either case the order granting such a rehearing shall specify the ground therefor.

F.       When a motion for rehearing is based upon affidavits, they shall be served with the motion. An opposing party may within ten days after such service serve opposing affidavits, which period may be extended for an additional period not exceeding 20 days by the Office of State Mine Inspector for good cause shown or by written stipulation of the parties. Reply affidavits may be permitted.

G.      If in a particular decision the Office of State Mine Inspector makes specific findings that the immediate effectiveness of such decision is necessary for the immediate preservation of the public peace, health and safety and that a rehearing or review of the decision is impracticable, unnecessary or con- trary to the public interest, the decision may be issued as a final decision without an opportunity for rehearing or review. If a decision is issued as a final decision without an opportu- nity for rehearing, any application for judicial review of the decision shall be made within the time limits permitted for applications for judicial review of the Office of State Mine Inspector’s final decisions.

H.      For purposes of this Section the terms “contested case” and “party” shall be defined as provided in A.R.S. § 41-1001.

I.         To the extent that the provisions of this rule are in conflict with the provisions of any statute providing for rehearing of deci- sions of the Office of State Mine Inspector, such statutory pro- visions shall govern.

Historical Note

Adopted effective August 18, 1980 (Supp. 80-4).