2 Colo. Code Regs. § 407-5-5

Current through Register Vol. 47, No. 23, December 10, 2024

Rule 2 CCR 407-5-5 - SUSPENSION AND/OR REVOCATION OF CERTIFICATION

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))

5.3Conditions 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))

5.4Authority 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))

5.5Process 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.

5.6Non-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.

2 CCR 407-5-5