ALABAMA SURFACE MINING COMMISSION ADMINISTRATIVE CODE

CHAPTER 880-X-11C INSPECTION AND ENFORCEMENT PROCEDURES ENFORCEMENT

TABLE OF CONTENTS

880-X-11C-.01 Scope

880-X-11C-.02 Cessation Orders

880-X-11C-.03 Notices Of Violation

880-X-11C-.04 Suspension Or Revocation Of Permits

880-X-11C-.05 Service Of Notices Of Violation, And Cessation Orders, And Show Cause Orders

880-X-11C-.06 Informal Public Hearings

880-X-11C-.07 Formal Review Of Citations

880-X-11C-.08 Inability To Comply

880-X-11C-.09 Injunctive Relief

880-X-11C-.01 Scope. This Rule sets forth rules regarding enforcement by the State Regulatory Authority of the Act, these regulations and all conditions of permits and coal exploration approvals imposed under the Act, or these regulations. Civil penalties in connection with notices of violation and cessation orders issued under this Rule are set forth in Rule 880-X-11D.

Author:

Statutory Authority: Code of Ala. 1975, 9-16-71, 72, 73, 74, 75, 76, 79, 80, 85, 92, 93, 94, 95.

History:

880-X-11C-.02 Cessation Orders.

(1)(a) An authorized representative of the Alabama Surface Mining Commission shall immediately order a cessation of surface coal mining and reclamation operations on the portion thereof relevant to the condition, practice or violation and issue a citation for an expeditious hearing before a hearing officer pursuant to Sections 9 and 10 of the Act, if he finds, on the basis of any inspection, any condition or practice, or any violation of the Act, these regulations or any condition of an exploration approval or permit imposed under the Act, or these regulations, which condition, practice or violation:

1. Creates an imminent danger to the health or safety of the public; or

2. Is causing or can reasonably be expected to cause significant, imminent environmental harm to land, air, or water resources.

(b) If the cessation ordered under Paragraph (1)(a) of this rule will not completely abate the imminent danger or harm in the most expeditious manner physically possible, the authorized representative of the Alabama Surface Mining Commission shall impose affirmative obligations on the person to whom it is issued to abate the condition, practice, or violation. The order shall specify the time by which abatement shall be accomplished.

(c) Surface coal mining and reclamation operations conducted by any person without a valid surface coal mining permit or license constitute a condition or practice which causes or can reasonably be expected to cause significant, imminent environmental harm to land, air or water resources.

(2)(a) An authorized representative of the Alabama Surface Mining Commission shall immediately order a cessation of coal exploration or surface coal mining and reclamation operations, or of the relevant portion thereof, when a notice of violation has been issued under Rule 880-X-11C-.03(1) and the person to whom it was issued fails to abate the violation within the abatement period fixed or subsequently extended by the authorized representative.

(b) A cessation order issued under this Paragraph shall require the person to whom it is issued to take the steps the authorized representative of the Alabama Surface Mining Commission deems necessary to abate the violations in the most expeditious manner possible; such measures shall be included in the order.

(3) A cessation order issued under Paragraph (1) and (2) of this Rule shall be in writing, signed by the authorized representative who issues it, and shall set forth with reasonable specificity: (a) the nature of the violation; (b) the remedial action or affirmative obligation required, if any, including interim steps, if appropriate; (c) the time established for abatement, if appropriate, including the time for meeting any interim steps; and (d) a reasonable description of the portion of the coal exploration or surface coal mining and reclamation operation to which it applies. The order shall remain in effect until the condition, practice or violation has been abated or until vacated, modified or terminated in writing by an authorized representative of the Alabama Surface Mining Commission, or until the order expires pursuant to Section 25(e) of the Act.

(4) Reclamation operation and other activities intended to protect public health and safety and the environment shall continue during the period of any order unless otherwise provided in the order.

(5) An authorized representative of the Alabama Surface Mining Commission may modify, terminate or vacate a cessation order for good cause, and may extend the time for abatement if the failure to abate within the time previously set was not caused by lack of diligence on the part of the person to whom it was issued.

(6) An authorized representative of the Alabama Surface Mining Commission shall terminate a cessation order, by written notice to the person to whom the order was issued, when he determines that all conditions, practices or violations listed in the order have been abated. Termination shall not affect the right of the Alabama Surface Mining Commission to assess civil penalties for those violations under Rule 880-X-11D.

(7) Within sixty days after issuing a cessation order, the Alabama Surface Mining Commission shall notify in writing any person who has been identified under 880-X-8K-.11(8) and 880-X-6A-.06(d) and (e) as owning or controlling the permittee, that the cessation order was issued and that the person has been identified as an owner or controller.

Author: Randall C. Johnson

Statutory Authority: Code of Ala. 1975, 9-16-71, 72, 73, 74, 75, 76, 79, 80, 85, 92, 93, 94, 95.

History: May 20, 1982; Amended: November 14, 1989; effective: March 7, 1991; Amended: September 12, 1991; effective: June 10, 1992.

880-X-11C-.03 Notices Of Violation.

(1) An authorized representative of the State Regulatory Authority shall issue a notice of violation if, on the basis of an inspection, he finds a violation of the Act, these regulations or any condition of a permit or an exploration approval imposed under the Act, or these regulations, which does not create an imminent danger or harm for which a cessation order must be issued under Rule 880-X-11C-.02.

(2) A notice of violation issued under this Rule shall be in writing, signed by the authorized representative who issues it, and shall set forth with reasonable specificity:

(a) The nature of the violation;

(b) The remedial action required, which may include interim steps;

(c) A reasonable time for abatement, which may include time for accomplishment of interim steps; and

(d) A reasonable description of the portion of the coal exploration or surface coal mining and reclamation operation to which it applies.

(3) An authorized representative of the State Regulatory Authority may extend the time set for abatement or for accomplishment of an interim step, if the failure to meet the time previously set was not caused by lack of diligence on the part of the person to whom it was issued. The total time for abatement under a notice of violation, including all extensions, shall not exceed 90 days from the date of issuance, except upon a showing by the permittee that it is not feasible to abate the violation within 90 calendar days due to one or more of the circumstances in Rule 880-X-11C-.03(6). An extended abatement date pursuant to this Rule shall not be granted when the permittee's failure to abate within 90 days has been caused by a lack of diligence or intentional delay by the permittee in completing the remedial action required.

(4) If the person to whom the notice was issued fails to meet any time set for abatement or for accomplishment of an interim step, the authorized representative shall issue a cessation order under Rule 880-X-11C-.02(2).

(5) An authorized representative of the State Regulatory Authority shall terminate a notice of violation by written notice to the person to whom it was issued, when he determines that all violations listed in the notice of violation have been abated. Termination shall not affect the right of the State Regulatory Authority to assess civil penalties for those violations under Rule 880-X-11D (civil penalties).

(6) Circumstances which may qualify a surface coal mining operation for an abatement period of more than 90 days are:

(a) Where the permittee of an ongoing permitted operation has timely applied for and diligently pursued a permit renewal or other necessary approval of designs or plans but such permit or approval has not been or will not be issued within 90 days after a valid permit expires or is required, for reasons not within the control of the permittee;

(b) Where there is a valid judicial order precluding abatement within 90 days as to which the permittee has diligently pursued all rights of appeal and as to which he or she has no other effective legal remedy;

(c) Where the permittee cannot abate within 90 days due to a labor strike;

(d) Where climatic conditions preclude abatement within 90 days or where, due to climatic conditions, abatement within 90 days clearly:

1. Would cause more environmental harm than it would prevent; or

2. Requires action that would violate safety standards established by statute or regulation under the Mine Safety and Health Act.

(7) Whenever an abatement time in excess of 90 days is permitted, interim abatement measures shall be imposed to the extent necessary to minimize harm to the public or the environment.

(8) If any of the conditions in Paragraph (6)(a) - (d) exist, the permittee may request the authorized representative to grant an abatement period exceeding 90 days. The authorized representative shall not grant such an abatement period without the concurrence of the Director or his or her designee and the abatement period granted shall not exceed the shortest possible time necessary to abate the violation. The permittee shall have the burden of establishing by clear and convincing proof that he or she is entitled to an extension under the provisions of Rule 880-X-11C-.03(3) and (6). In determining whether or not to grant an abatement period exceeding 90 days the authorized representative may consider any relevant written or oral information from the permittee or any other source. The authorized representative shall promptly and fully document in the file his or her reasons for granting or denying the request. The inspector's immediate supervisor shall review this document before concurring in or disapproving the extended abatement date and shall promptly and fully document the reasons for his or her concurrence or disapproval in the file.

(9) Any determination made under Paragraph (8) shall be in writing and shall contain a right of appeal to the Division of Hearings and Appeals in accordance with Section 10 of the Act and Chapter 880-X-5 of these regulations.

(10) No extension granted under Paragraph (8) may exceed 90 days in length. Where the condition or circumstance which prevented abatement within 90 days exists at the expiration of any such extension, with permittee may request a further extension in accordance with the procedures of Paragraph (8).

Author:

Statutory Authority: Code of Ala. 1975, 9-16-71, 72, 73, 74, 75, 76, 79, 80, 85, 92, 93, 94, 95.

History:

880-X-11C-.04 Suspension Or Revocation Of Permits.

(1)(a) Except as provided in Paragraph (2) of this Rule, the Director of the State Regulatory Authority shall issue an order to a permittee requiring him to show cause why his permit should not be suspended or revoked and shall provide opportunity for a public hearing pursuant to Sections 9 and 10 of the Act, when, on the basis of an inspection by an authorized representative of the State Regulatory Authority the Director of the State Regulatory Authority determines that a pattern of violations of any requirements of the Act, or any permit condition required by the Act exists or has existed, and also finds that the violations are caused by the unwarranted failure of the permittee to comply with any requirements of the Act or any permit conditions, or that such violations are willfully caused by the permittee. Willful violation means an act or omission which violates the Act, or any permit condition required by the Act, committed by a person who intends the result which actually occurs. Unwarranted failure to comply means the failure of the permittee to prevent the occurrence of any violation of the permit or any requirement of the Act, due to indifference, lack of diligence, or lack of reasonable care, or the failure to abate any violation of such permit or the Act, due to indifference, lack of diligence, or lack of reasonable care. Violations by any person conducting surface coal mining operations on behalf of the permittee shall be attributed to the permittee, unless the permittee establishes that they were acts of deliberate sabotage.

(b) The Director of the State Regulatory Authority may determine that a pattern of violations exists or has existed, based on two or more inspections of the permit area within any 12-month period, after considering the circumstances, including:

1. The number of violations, cited on more than one occasion, of the same or related requirements of the Act, these regulations, or the permit;

2. The number of violations, cited on more than one occasion, of different requirements of the Act, these regulations, or the permit; and

3. The extent to which the violations were isolated departures from lawful conduct.

(c) The Director of the State Regulatory Authority shall determine that a pattern of violations exists, if he finds that there were violations of the same or related requirements of the Act, these regulations, or the permit during three or more inspections of the permit area within any 12-month period.

(2) The Director of the State Regulatory Authority may decline to issue a show cause order, or may vacate an outstanding show cause order, if he finds that, taking into account exceptional factors present in the particular case, it would be demonstratively unjust to issue or to fail to vacate the show cause order. The basis for this finding shall be fully explained and documented in the records of case.

(3) At the same time as the issuance of the order, the Director of the State Regulatory Authority shall:

(a) If practicable, publish notice of the order, including a brief statement of the procedure for intervention in the proceeding, in a newspaper of general circulation in the area of the surface coal mining and reclamation operations.

(b) Post a notice at the district or field office closest to the area of the surface coal mining and reclamation operations.

(4) If the permittee files an answer to the order to show cause or requests a hearing, a hearing shall be held before the DHA pursuant to the provisions of Chapter 880-X-5. The Director of the State Regulatory Authority shall publish, if practicable, the notice in a newspaper of general circulation in the area of the surface mining and reclamation operation and shall post it in the field office closest to those operations.

(5) Pursuant to the provisions of Chapter 880-X-5, the DHA shall issue a written determination as to whether a pattern of violations exists and, if appropriate, an order. If the permit and the permittee's right to mine under the Act are revoked or suspended, the permittee shall immediately cease surface coal mining operations on the permit area and shall:

(a) If the permit and the right to mine under the Act are revoked, complete reclamation within the time specified in the order; or

(b) If the permit and the right to mine under the Act are suspended, complete all affirmative obligations to abate all conditions, practices or violations, as specified in the order.

(6) Whenever a permittee fails to abate a violation contained in a notice of violation or a cessation order within the abatement period set in the notice or order or as subsequently extended, the State Regulatory Authority shall review the permittee's history of violations to determine whether a pattern of violations exists pursuant to this Rule, and shall issue an order to show cause as appropriate pursuant to Rule 880-X-11D-.07(2)(b).

Author:

Statutory Authority: Code of Ala. 1975, 9-16-71, 72, 73, 74, 75, 76, 79, 80, 85, 92, 93, 94, 95.

History:

880-X-11C-.05 Service Of Notices Of Violation Cessation_Orders, And Show Cause Orders.

(1) A notice of violation or cessation order shall be served on the person to whom it is directed or his designated agent promptly after issuance, as follows:

(a) By tendering a copy at the coal exploration or surface coal mining and reclamation operation to the designated agent or to the individual who, based upon reasonable inquiry by the authorized representative, appears to be in charge of the coal exploration or surface coal mining and reclamation operation referred to in the notice or order. If no such individual can be located at the site, a copy may be tendered to any individual at the site who appears to be an employee or agent of the person to whom the notice or order is issued. Service shall be complete upon tender of the notice or order and shall not be deemed incomplete because of refusal to accept.

(b) As an alternative to Paragraph (1)(a) of this Rule, service may be made by sending a copy of the notice or order by certified mail or by hand to the person to whom it is issued or his designated agent. Service shall be complete upon tender of the notice or order or of the mail and shall not be deemed incomplete because of refusal to accept.

(2) A show cause order may be served on the person to whom it is issued in either manner provided in Paragraph (1)(a) of this Rule.

(3) Designation by any person of an agent for service of notices and orders shall be made in writing to the State Regulatory Authority at the address listed in the current issue of the State Directory.

(4) The State Regulatory Authority may furnish copies to any person having an interest in the coal exploration, surface coal mining and reclamation operation, or the permit area, such as the owner of the fee, a corporate officer of the permittee or entity conducting coal exploration, or the bonding company.

Author:

Statutory Authority: Code of Ala. 1975, 9-16-71, 72, 73, 74, 75, 76, 79, 80, 85, 92, 93, 94, 95.

History:

880-X-11C-.06 Informal Public Hearing.

(1) Except as provided in Paragraph (2) of this Rule, a notice of violation or cessation order which requires cessation of all or any portion of the surface coal mining and reclamation operation, expressly or by necessary implication, shall expire within 30 days after it is served unless an informal public hearing has been held within that time. The hearing shall be held at or reasonably close to the mine site so that it may be viewed during the hearing or at any other location acceptable to the State Regulatory Authority and the person to whom the notice or order was issued. The State Regulatory Authority Field Office nearest to the mine site shall be deemed to be reasonably close to the mine site unless a closer location is requested and agreed to by the State Regulatory Authority. Expiration of a notice or order shall not affect the State Regulatory Authority's right to assess civil penalties with respect to the period during which the notice or order was in effect. No hearing will be required where the condition, practice or violation in question has been abated or the hearing has been waived.

(2) A notice of violation or cessation order shall not expire as provided in Paragraph (1) of this Rule if the informal public hearing has been waived or if, with the consent of the person to whom the notice or order was issued, the informal public hearing is held later than 30 days after the notice or order was served. For purposes of this Rule:

(a) The informal public hearing will be deemed waived if the person to whom the notice or order is issued;

1. Is informed, by written notice served in the manner provided in Paragraph (2)(b) of this Rule, that he will be deemed to have waived an informal public hearing unless he requests one within 30 days after service of the notice; and

2. Fails to request an informal public hearing within that time.

(b) The written notice referred to in Paragraph (2)(a)1. of this Rule shall be delivered to such person by an authorized representative or sent by certified mail to such person no later than 5 days after the notice or order is served on such person.

(c) The person to whom the notice or order is issued shall be deemed to have consented to an extension of the time for holding the informal public hearing if his request is received on or after the 21st day after service of the notice or order. The extension of time shall be equal to the number of days elapsed after the 21st day.

(3) The State Regulatory Authority shall give as much advance notice as is practicable of the time, place, and subject matter of the informal public hearing to:

(a) The person to whom the notice or order was issued; and

(b) Any person who filed a report which led to that notice or order.

(4) The State Regulatory Authority shall also post notice of the hearing at the field office closest to the mine site, and publish it, where practicable, in a newspaper of general circulation in the area of the mine.

(5) An informal public hearing shall be conducted by a representative of the State Regulatory Authority, who may accept oral or written arguments and any other relevant information from any person attending.

(6) Within five days after the close of the informal hearing, the State Regulatory Authority shall affirm, modify, or vacate the notice or order in writing. The decision shall be sent to --

(a) The person to whom the notice or order was issued; and

(b) Any person who filed a report which led to the notice or order.

(7) The granting or waiver of an informal public hearing shall not affect the right of any person to formal review under Sections 5, 9, and 10 of the Act.

(8) The person conducting the hearing for the State Regulatory Authority shall determine whether or not the mine site should be viewed during the hearing. In making this determination the only consideration shall be whether a view of the mine site will assist the person conducting the hearing in reviewing the appropriateness of the enforcement action or of the required remedial action.

Author:

Statutory Authority: Code of Ala. 1975, 9-16-71, 72, 73, 74, 75, 76, 79, 80, 85, 92, 93, 94, 95.

History:

880-X-11C-.07 Formal Review Of Citations.

(1) A person issued a notice of violation or cessation order under Rule 880-X-11C-.02 or 880-X-11C-.03, or a person having an interest which is or may be adversely affected by the issuance, modification, vacation or termination of a notice or order, may request review of that action by filing an application for review and a request for hearing before the DHA within 30 days after receiving notice of the action.

(2) The filing of an application for review and request for a hearing under this Rule shall not operate as a stay of any notice or order, or of any modification, termination or vacation of either.

Author:

Statutory Authority: Code of Ala. 1975, 9-16-71, 72, 73, 74, 75, 76, 79, 80, 85, 92, 93, 94, 95.

History:

880-X-11C-.08 Inability To Comply.

(1) No cessation order or notice of violation issued under this Rule may be vacated because of inability to comply.

(2) Inability to comply may not be considered in determining whether a pattern of violations exists.

(3) Unless caused by lack of diligence, inability to comply may be considered only in mitigation of the amount of civil penalty under Rule 880-X-11D and of the duration of the suspension of a permit under Rule 880-X-11C-.04(5).

Author:

Statutory Authority: Code of Ala. 1975, 9-16-71, 72, 73, 74, 75, 76, 79, 80, 85, 92, 93, 94, 95.

History:

880-X-11C-.09 Injunctive_Relief. The State Regulatory Authority may request the Attorney General to institute a civil action for relief, including a permanent or temporary injunction, restraining order or any other order, in the court of jurisdiction for the judicial circuit in which the coal exploration or surface coal mining and reclamation operation is located or in which the person to whom the notice of violation or order has been issued has his principal office, whenever that person or his or her agent, in violation of the Act, these regulations, or any condition of an exploration approval or permit imposed under the Act, or these regulations;

(a) Violates or fails or refuses to comply with any order or decision of the State Regulatory Authority or an authorized representative of the State Regulatory Authority under the Act or these regulations;

(b) Interferes with, hinders or delays the State Regulatory Authority or an authorized representative of the State Regulatory Authority in carrying out the provisions of the Act, these regulations, or the program;

(c) Refuses to admit an authorized representative of the State Regulatory Authority to a mine;

(d) Refuses to permit inspection of a mine by an authorized representative of the State Regulatory Authority;

(e) Refuses to furnish any required information or report requested by the State Regulatory Authority in the furtherance of the provisions of the Act;

(f) Refuses to permit access to, and copying of, such records as the State Regulatory Authority determines necessary in carrying out the provisions of the Act; or

(g) Refuses to permit inspection of monitoring equipment.

Author:

Statutory Authority: Code of Ala. 1975, 9-16-71, 72, 73, 74, 75, 76, 79, 80, 85, 92, 93, 94, 95.

History: