5.1
General
In certain circumstances, suspension or revocation of an
individual's coal mining certification may be warranted. In no circumstances
will any action to suspend a person's certification be taken without good cause
shown for taking such an action, including:
(1) consideration of the facts or
circumstances that may warrant such action, including an opportunity for the
certified person to present facts and explain circumstances on his or her own
behalf; and,
(2) giving the
certified person a reasonable opportunity to comply with all lawful
requirements, except in cases of reckless actions or conduct that demonstrates
a serious disregard for health and safety. (34-22-107(3) and 34-22-107(4))
(3) The Director or Office may
take immediate action to temporarily suspend a certification, pending the
outcome of a hearing before the Board, in circumstances where:
(a) the office has reasonable grounds to
believe and finds that the certificate holder has been guilty of deliberate and
willful violation of applicable mining law; or
(b) where it is imperatively necessary for
safety in mines; for example, where the health and safety of other individuals
may be compromised by not doing so.
(4) Written notice of such action, together
with the reasons therefore, shall be promptly given to the certificate holder
and to the operator of any coal mine at which the certificate holder is
employed.
5.2
Types of Suspension
The type and duration of suspension shall be determined by
the Office or Board on a case by case basis and may include consideration of
the following:
(1) Temporary
Suspension for a Prescribed Period:
(a) is a
suspension period having a predetermined beginning and end, which may not
necessarily be effective immediately. Such a suspension may require completion
of additional or refresher training to be satisfactorily completed before
reinstatement of certification is considered. (34-22-107(4))
(2) Immediate and Indefinite
Suspension:
(a) is a suspension pursuant to
an emergency order as set forth in Section
24-4-105(12) of
the Colorado APA, pending a full evidentiary hearing and final determination by
Board, or
(b) a suspension pending
outcome of a revocation process. (24-4-105(12))
5.3
Conditions or Conduct
for Consideration of Suspension or Possible Revocation
The Board or Office may commence a proceeding for
consideration of suspension or revocation of an individual's certification
upon:
(1) a request by the Office or
Board, and the Board's own motion for good cause shown (34-22-107(2))
;
(2) filing with the Office or
Board, a signed and sworn complaint, stating good cause for the Office or Board
to conduct an investigation of the complaint (34-22-107(2)), or;
(3) evidence showing a reason to believe that
the certified individual engaged in falsification of information on
certification applications, documents used to establish qualifications, or mine
records. (24-4-104(13)(a) and 34-22-107(6)(d))
5.4
Authority to Suspend or Revoke
State Certification
(1) The Board may
suspend or revoke certification in accordance with Colorado law and these
rules. No certification shall be revoked by the Board, except where the Board
finds, in writing, based on evidence of a hearing record, that the person is
guilty of (34-22-107(2)) :
(a) Reckless
disregard of applicable mining law (34-22-107(6) (a-d)); or
(b) Reckless disregard for compliance with
health and safety standards; or
(c)
Demonstrated incompetence in the mine which endangers life or
property;
(d) Intentional
withholding or altering of mine examination information or reports where life
and property is endangered.
(2) The Board shall decide on a case-by-case
basis whether a person whose certificate has been revoked may subsequently be
issued a certificate, and the duration of the revocation period, and such
decision shall be written in the notice of revocation. (34-22-107(9))
5.5
Process of
Suspending and/or Revoking Certification
The following process shall be followed in suspension or
revocation of certification, except in cases where the Board has issued an
emergency order to suspend certification as provided in 24-4-105(12).
(1) The Board shall consider evidence
presented through one or more of the provisions of Rule 5,
conduct its own investigation of the circumstances or
complaint, and determine if there is just cause to begin a process.
(34-22-107(6))
(2) If just
cause is determined, the Board shall give written notice by certified mail of
the intent to suspend and/or revoke certification. Such notice shall include:
(a) Facts, conduct or circumstances
warranting such action
(b) That the
Board has just cause and reason to believe that such actions are
necessary
(c) The date of a hearing
before the Board, set no sooner than 60 days after the date of the notice.
(34-22-107(7))
(3) The
Board may consider a request from the certified individual who has been
notified, as provided in Rule 5.5(2), for either:
(a) a waiver of 60 day notice to effect an
expedited hearing before the Board,
(b) or an extension of the hearing date, to
allow the individual sufficient time to gather information and/or seek legal
representation.
5.6
Non-eligibility for Employment in
Other Certified Positions
A person shall be considered as non-eligible for examination
or employment in any certified position, allowed by these rules, during any
period of suspension or revocation.
