10 CSR 40-8.030 - Permanent Program Inspection and Enforcement
PURPOSE: This rule sets forth requirements for permanent program inspection and enforcement pursuant to sections 444.810, 444.865, 444.885, and 444.895, RSMo.
(1) Inspections by the Commission or
Director .
(A) The director shall cause to be
conducted an average of at least one (1) partial inspection per month of each
active surface coal mining and reclamation operation in the state, and shall
conduct partial inspections of each inactive surface coal mining and
reclamation operation as are necessary to ensure compliance. A partial
inspection is an on-site review of a person 's compliance with some of the
permit conditions and requirements imposed under the state program. The
inspector shall collect evidence of any violation of those conditions or
requirements observed.
1. For purposes of this
rule, an active surface coal mining and reclamation operation is one for which
the commission has not released the permittee from Phase II reclamation
liability, as defined under
10 CSR
40-7.021(2)(B).
2. For purposes of this rule, an inactive
surface coal mining and reclamation operation is one for which the commission
has secured from the permittee the written notice provided for under
10 CSR
40-3.150(3) or the permittee has been
released from Phase II reclamation liability, as defined under
10 CSR
40-7.021(2)(B), which has been
completed.
(B) The
director shall cause to be conducted an average of at least one (1) complete
inspection per calendar quarter of each active or inactive surface coal mining
and reclamation operation in the state. A complete inspection is an on-site
review of a person 's compliance with all permit conditions and requirements
imposed under the regulatory program , within the entire area disturbed or
affected by surface coal mining and reclamation operations . This includes
collection of evidence with respect to every violation of those conditions or
requirements.
(C) The director
shall cause periodic inspections to be conducted of all coal exploration
operations required to comply in whole or in part with the regulatory program .
These inspections shall include the collection of evidence with respect to
every violation of any condition of the exploration permit and plan or any
requirement of the regulatory program .
(D) An aerial inspection shall be conducted
in a manner which reasonably ensures the identification and documentation of
conditions at each surface coal mining and reclamation site inspected and shall
be counted as a partial inspection. Any potential violation observed during an
aerial inspection shall be investigated on-site within three (3) days;
provided, that any indication of a condition, practice, or violation
constituting cause for the issuance of a cessation order under section
444.885, RSMo shall be
investigated on-site immediately and provided further, that an on-site
investigation of a potential violation observed during an aerial inspection
shall not be considered to be an additional partial or complete inspection for
the purposes of subsections (1)(A) and (B) of this rule.
(E) The inspections required under
subsections (1)(A)-(D) of this rule shall-
1.
Be carried out on an irregular basis, so as to monitor compliance at all
operations, including those which operate nights, weekends, or
holidays;
2. Occur without prior
notice to the person being inspected or any agent or employee of the person ,
except for necessary on-site meetings; and
3. Include the prompt filing of inspection
reports adequate to enforce the requirements of and to carry out the terms and
purposes of the regulatory program , the permit and plan .
(F) Abandoned site means a surface coal
mining and reclamation operation for which the regulatory authority has found
in writing that-
1. All surface and
underground coal mining and reclamation activities at the site have
ceased;
2. The regulatory authority
or office has issued at least one (1) notice of violation and either-
A. Is unable to serve the notice despite
diligent efforts to do so; or
B.
The notice was served and has progressed to a failure-to-abate cessation
order;
3. The regulatory
authority is taking action to ensure-
A. That
the permittee and operator , and owners and controllers of the permittee and
operator will be precluded from receiving future permits while violations
continue at the site; and
B.
Pursuant to sections 444.870.5, 444.870.6, 444.885.3, or 444.885.5 of the
Surface Coal Mining Law, that abatement occurs or that there will not be a
recurrence of the failure-to-abate, except where, after evaluating the
circumstances, it concludes that further enforcement offers little or no
likelihood of successfully compelling abatement or recovering any reclamation
costs; and
4. Where the
site is, or was, permitted or bonded-
A. The
permit has expired or been revoked; and
B. The regulatory authority has initiated and
is diligently pursuing forfeiture of, or has forfeited, the performance
bond .
(G) In
lieu of the inspection frequency established in subsections (1)(A) and (B) of
this rule, the regulatory authority shall inspect each abandoned site on a set
frequency commensurate with the public health and safety and environmental
considerations present at each specific site, but in no case shall the
inspection frequency be set at less than one complete inspection per calendar
year.
1. In selecting an alternate inspection
frequency authorized under the subsection above, the regulatory authority shall
first conduct a complete inspection of the abandoned site and provide public
notice under paragraph (G)2. of this section. Following the inspection and
public notice , the regulatory authority shall prepare and maintain for public
review a written finding justifying the alternative inspection frequency
selected. This written finding shall justify the new inspection frequency by
affirmatively addressing in detail all of the following criteria:
A. How the site meets each of the criteria
under the definition of an abandoned site under subsection (F) of this section
and thereby qualifies for a reduction in inspection frequency;
B. Whether, and to what extent, there exist
on the site impoundments, earthen structures or other conditions that currently
pose, or may reasonably be expected to pose, imminent dangers to the health or
safety of the public or significant environmental harms to land, air, or water
resources;
C. The extent to which
existing impoundments or earthen structures were constructed and certified in
accordance with prudent engineering designs approved in the permit ;
D. The degree to which erosion and sediment
control is present and functioning;
E. The extent to which the site is located
near or above urbanized areas, communities, occupied dwellings, schools and
other public or commercial buildings and facilities;
F. The extent of reclamation completed prior
to abandonment and the degree of stability of unreclaimed areas, taking into
consideration the physical characteristics of the land mined and the extent of
settlement or revegetation that has occurred naturally with time; and
G. Based on a review of the complete and
partial inspection report record for the site during at least the last two (2)
consecutive years, the rate at which adverse environmental or public health and
safety conditions have and can be expected to progressively
deteriorate.
2. Provide
the public notice and opportunity to comment required under subparagraph (G)1.
of this section as follows:
A. The regulatory
authority shall place a notice in the newspaper with the broadest circulation
in the locality of the abandoned site providing the public with a thirty
(30)-day period in which to submit written comments.
B. The public notice shall contain the
permittee 's name, the permit number, the precise location of the land affected,
the inspection frequency proposed, the general reasons for reducing the
inspection frequency, the bond status of the permit , the telephone number and
the address of the regulatory authority where written comments on the reduced
inspection frequency may be submitted, and the closing date of the comment
period.
(2) Right of Entry.
(A) The commission , director , or authorized
agent, without advance notice and upon presentation of appropriate credentials,
pursuant to section 444.865.2, RSMo-
1. Shall
have the right of entry to, upon or through any surface coal mining and
reclamation operations , coal exploration operations, or any premises in which
any records required to be maintained under section 444.865.1, RSMo are
located; and
2. May have access to
and copy at reasonable times, and without delay, any records and inspect any
monitoring equipment, exploration, or method of operation.
(B) Entry Shall Not Be Refused.
1. No person shall refuse entry or access
requested under subsection (2)(A) of this rule, nor obstruct or hamper any such
person in carrying out the inspection.
2. If necessary a search warrant will be
obtained pursuant to section 444.865.4, RSMo or the director may obtain an
injunction pursuant to section 444.885.5, RSMo.
(3) Availability of Records.
(A) The director shall make available to the
director of the office and the regional director of the office , upon request,
copies of all documents relating to applications for and approvals of existing,
new, or revised coal exploration permits or surface coal mining and reclamation
operations permits and all documents relating to inspection and enforcement
actions.
(B) Except as provided in
10 CSR
40-6.030(5) and subsection (3)(C) of
this rule, copies of all records, reports, inspection materials, or information
obtained shall be made immediately available to the public in the area of
mining until at least five (5) years after expiration of the period during
which the subject operation is active or is covered by any portion of a
reclamation bond so that they are conveniently available to residents of that
area.
(C) In order to protect
preparation for hearings and enforcement proceedings, the director of the
office and the commission may enter into agreements regarding procedures for
the special handling of investigative and enforcement reports and other such
materials.
(4) Public
Participation. Any person who is or may be adversely affected by a surface coal
mining operation may notify the commission or director , or an authorized
representative responsible for conducting the inspection, in writing, of any
violation of 10 CSR 40-3-10 CSR 40-9, which s/he has reason to believe exists
at the surface mining site.
(A) Citizens'
Request for Inspections.
1. A citizen may
request an inspection by furnishing to the director , or an authorized
representative , a signed, written statement (or an oral report followed by a
signed, written statement) stating the reasons the citizen believes a condition
or practice exists which constitutes a violation of the regulatory program and
setting forth a phone number and address where the citizen can be
contacted.
2. The identity of any
person supplying information relating to a possible violation shall remain
confidential, if requested by that person , unless that person elects to
accompany the inspector on the inspection, or unless disclosures are required
under any law.
3. If an inspection
is conducted as a result of information provided by a citizen, the citizen
shall be notified as far in advance as practicable when the inspection is to
occur and shall be allowed to accompany the authorized representative during
the inspection.
4. Within ten (10)
days of the inspection or, if there is no inspection, within fifteen (15) days
of receipt of the citizen's written statement, the director shall send the
citizen the following:
A. If an inspection
was made, a description of the enforcement action taken, which may consist of
copies of the inspection report and all notices of violation and cessation
orders issued as a result of the inspection or an explanation of why no
enforcement action was taken;
B. If
no inspection was conducted, an explanation of the reasons why; and
C. An explanation of the citizen's right, if
any, to informal review of the action or inaction under subsection
(4)(C).
5. The director
shall give copies of all materials within the time limits specified to the
person alleged to be in violation, except that the name of the citizen shall be
removed unless disclosure of the citizen's identity is permitted.
(B) Review of Adequacy and
Completeness of Inspections. Any person who is or may be adversely affected by
a surface coal mining and reclamation operation or a coal exploration operation
may notify the director in writing of any alleged failure to make adequate and
complete or periodic inspections. The notification shall include sufficient
information to create a reasonable belief that adequate and complete
inspections are not being made and to demonstrate that the person is or may be
adversely affected. The director , within fifteen (15) days of receipt of the
notification, shall determine whether adequate and complete inspections are
being made and, if not, immediately shall order an inspection. The director
also shall furnish the complainant with a written statement of the reasons for
that determination and the actions, if any, taken to remedy the
noncompliance.
(C) Review of
Decision Not to Inspect or Enforce.
1. Any
person who is or may be adversely affected by a coal exploration or surface
coal mining and reclamation operation may ask the director to informally review
an authorized representative 's decision not to inspect or take appropriate
enforcement action with respect to any violation alleged by that person in a
request for inspection. The request for review shall be in writing and include
a statement of how the person is or may be adversely affected and why the
decision merits review.
2. The
director shall conduct the review and inform the person , in writing, of the
results of the review within thirty (30) days of receipt of the request. The
person alleged to be in violation also shall be given a copy of the results of
the review, except that the name of the citizen shall not be disclosed unless
confidentiality has been waived or disclosure is required.
3. Informal review shall not affect any right
to formal review or to a citizen's suit.
(5) Citizens' Suits.
(A) A person who intends to initiate a civil
action on his/her own behalf under section
444.880, RSMo shall give notice
of intent to do so in accordance with this section.
(B) Notice shall be given by certified mail
to the director of the region and to the director .
(C) Notice shall be given by certified mail
to the alleged violator, if the complaint alleges a violation of the law or any
regulation, order, or permit issued under the law.
(D) Service of notice under this section is
complete upon mailing to the last known address of the person being
notified.
(E) A person giving
notice regarding an alleged violation shall state, to the extent known-
1. Sufficient information to identify the
provision of the law, regulation, order, or permit allegedly
violated;
2. The act or omission
alleged to constitute a violation;
3. The name, address, and telephone numbers
of the person (s) responsible for the alleged violation;
4. The date, time, and location of the
alleged violation;
5. The name,
address, and telephone number of the person giving notice; and
6. The name, address, and telephone number of
legal counsel, if any, of the person giving notice.
(F) A person giving notice of an alleged
failure by the commission to perform a mandatory act or duty under the law
shall state, to the extent known-
1. The
provision of the law containing the mandatory act or duty allegedly not
performed;
2. Sufficient
information to identify the omission alleged to constitute the failure to
perform a mandatory act or duty under the law;
3. The name, address, and telephone number of
the person giving notice; and
4.
The name, address, and telephone number of legal counsel, if any, of the person
giving notice.
(6) Enforcement of Cessation Orders.
(A) Issuance of Cessation Orders for Imminent
Danger or Harm.
1. An authorized
representative of the commission immediately shall order a cessation of surface
coal mining and reclamation operations or of the relevant portion of them, if
s/he finds any condition or practice, or any violation of the regulatory
program or any condition of a permit imposed under the program which-
A. Creates an imminent danger to the health
or safety of the public; or
B. Is
causing or can reasonably be expected to cause significant, imminent
environmental harm to land, air, or water resources.
2. Surface coal mining and reclamation
operations conducted by any person without a valid surface coal mining permit
constitute a condition or practice which causes or can be reasonably expected
to cause significant environmental harm to land, air, or water resources,
unless these operations are an integral, uninterrupted extension of previously
permitted operations, and the person conducting these operations has filed a
timely and complete application for a permit to conduct the
operations.
3. If the cessation
ordered under paragraph (6)(A)1. of this rule will not completely abate the
imminent danger or harm in the most expeditious manner physically possible, the
authorized representative of the 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 and may require, among other things, the use of existing
or additional personnel and equipment.
(B) Cessation Order in Situations of a
Failure to Abate a Notice of Violation or Notice of Delinquent Reclamation .
1. An authorized representative of the
commission immediately shall order a cessation of coal exploration or surface
coal mining and reclamation operations , or of the relevant portion of them,
when a notice of violation has been issued under subsection (7)(A) of this rule
and the permittee to whom it was issued fails to abate the violation within the
abating period fixed by the authorized representative or subsequently extended
by the commission or director .
2.
The director shall order a cessation of coal exploration or surface coal mining
and reclamation operations , or the relevant portion, if a permittee fails to
abate a notice of delinquent reclamation within the period established for
abatement.
3. A cessation order
issued under this subsection shall require the person to whom it is issued to
take all steps the authorized representative of the commission deems necessary
to abate the violations covered by the order in the most expeditious manner
physically possible.
(C)
A cessation order issued under subsection (6)(A) or (B) of this rule shall be
in writing, signed by the authorized representative who issues it and shall set
forth with reasonable specificity-
1. The
nature of the violation;
2. The
remedial action or affirmative obligation required, if any, including interim
steps, if appropriate;
3. The time
established for abatement, if appropriate, including the time for meeting any
interim steps; and
4. 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 the commission or director .
(D) Reclamation operations and
other activities intended to protect the public health and safety and the
environment shall continue during the period of any order unless otherwise
provided in the order.
(E) The
commission or the director 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.
(F) The commission or director shall
terminate a cessation order, by written notice to the person to whom the order
was issued, when it is determined that all conditions, practices, or violations
listed in the order have been abated. Termination shall not affect the rights
of the commission to assess civil penalties for those violations under this
rule or 10
CSR 40-8.040.
(G) Within sixty (60) days after issuing a
cessation order, the regulatory authority shall notify in writing the
permittee , the operator , and any person who has been listed or identified under
10 CSR
40-6.070(12)(E) or
10 CSR
40-6.030(1)(C) and (D), and
10 CSR
40-6.100(1)(C) and (D) as owning or
controlling the permittee , that the cessation order was issued, and that the
person has been identified as an owner or controller of the
operation.
(H) Post-permit issuance
information requirements for permittees.
1.
Within thirty (30) days after the issuance of a cessation order under
10 CSR
40-8.030(6) the permittee , must
provide or update all the information required under
10 CSR
40-6.030.
2. The permittee does not have to submit
information under paragraph (6)(H)1. of this rule if a court of competent
jurisdiction grants a stay of the cessation order and the stay remains in
effect.
3. Within sixty (60) days
of any addition, departure, or change in position of any person identified in
10 CSR
40-6.030(1)(B), the permittee must
provide-
A. The information required under
10 CSR
40-6.030(1)(C); and
B. The date of any departure.
(7)
Enforcement of Notices of Violation.
(A) An
authorized representative of the commission shall issue a notice of violation
if s/he finds a violation of the regulatory program or any condition of a
permit imposed under the regulatory program which does not create an imminent
danger or harm for which a cessation order must be issued under section (6).
The commission or director may modify, terminate, or vacate a notice of
violation 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.
(B) A
notice of violation issued under this section shall be in writing, signed by
the authorized representative who issues it and shall set forth with reasonable
specificity-
1. The nature of the
violation;
2. The remedial action
required, which may include interim steps;
3. A reasonable time for abatement, which may
include time for accomplishment of interim steps; and
4. A reasonable description of the portion of
the coal exploration or surface coal mining and reclamation operation to which
it applies.
(C) The
commission or director may extend the time set for abatement or for
accomplishment of an interim step, if the failure to meet the time previously
set out 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 ninety (90) days from the date of
issuance except upon a showing by the permittee that it is not feasible to
abate the violation within ninety (90) calendar days due to one (1) or more of
the circumstances in subsection (7)(F). An extended abatement date pursuant to
this section shall not be granted when the permittee 's failure to abate within
ninety (90) days has been caused by a lack of diligence or intentional delay by
the permittee in completing the remedial action required.
(D) If the person to whom the notice is
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
section (6).
(E) The commission or
director shall terminate a notice of violation by written notice to the person
to whom it was issued, when it is determined that all violations listed in the
notice of violation have been abated. Termination shall not affect the right of
the commission to assess civil penalties for those violations under
10 CSR
40-8.040.
(F) Circumstances which may qualify a surface
coal mining operation for an abatement period of more than ninety (90) days are
where-
1. 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 the permit or
approval has not been or will not be issued within ninety (90) days after a
valid permit expires or is required, for reasons not within the control of the
permittee ;
2. There is a valid
judicial order precluding abatement within ninety (90) days as to which the
permittee has diligently pursued all rights of appeal and as to which s/he has
no other effective legal remedy;
3.
The permittee cannot abate within ninety (90) days due to a labor
strike;
4. Climatic conditions
preclude abatement within ninety (90) days, or where due to climatic
conditions, abatement within ninety (90) days clearly would cause more
environmental harm than it would prevent; or
5. Abatement within ninety (90) days requires
action that would violate safety standards established by statute or regulation
under the Mine Safety and Health Act of 1977.
(G) Whenever an abatement time in excess of
ninety (90) days is permitted, interim abatement measures shall be imposed to
the extent necessary to minimize harm to the public or the
environment.
(H) If any of the
conditions in subsection (7)(F) of this rule exists, the permittee may request
the authorized representative to grant an abatement period exceeding ninety
(90) days. The authorized representative shall not grant this abatement period
without the concurrence of the director or his/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 s/he is entitled to an extension under the provisions of
subsections (7)(C) and (F). In determining whether or not to grant an abatement
period exceeding ninety (90) days, the authorized representative may consider
any relevant written or oral information from the permittee or any other
source. The authorized representative shall document, promptly and fully, in
the file his/her reasons for granting or denying the request. The authorized
representative 's immediate supervisor shall review this document before
concurring in or disapproving the extended abatement date and shall document,
promptly and fully, the reasons for his/her concurrence or disapproval in the
file.
(I) Any determination made
under subsection (7)(H) of this rule shall contain a right of appeal to the
Land Reclamation Commission within thirty (30) days of receipt of the written
decision.
(J) No extension granted
under subsection (7)(H) of this rule may exceed ninety (90) days in length.
Where the condition or circumstance which prevented abatement within ninety
(90) days exists at the expiration of any such extension, the permittee may
request a further extension in accordance with the procedures of subsection
(7)(H) of this rule.
(8)
Revocation of Permits. Permits shall be revoked as stated in
10 CSR
40-7.031.
(9) Services of Notices of Violations and
Cessation Orders.
(A) A notice of violation or
cessation order shall be served on the person to whom it is directed or his/her
designated agent promptly after issuance, as follows:
1. 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;
or
2. As an alternative to
paragraph (9)(A)1., 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/her 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.
(B) A show
cause order may be served on the person to whom it is issued in either manner
provided in paragraph (9)(A)2.
(C)
Designation by any person of an agent for service of notices and orders shall
be made in writing to the director .
(D) The director shall furnish copies of
notices and orders to the director of the region promptly after their issuance.
The director may furnish copies to any person having an interest in the coal
exploration or surface coal mining and reclamation operation, such as the owner
of the fee, a corporate officer of the permittee , or the bonding
company.
(10) Formal
Review of Citations.
(A) A person issued a
notice of violation or cessation order under sections (6) and (7) of this rule,
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 request
for hearing with the commission , under this rule within thirty (30) days after
receiving notice of the action.
(B)
The filing of an application for review and request for a hearing under this
section shall not operate as a stay of any notice or order, or of any
modification, termination, or vacation of either.
(11) Failure to Give Notice and Lack of
Information. No notice of violation, cessation order, show cause order, or
order revoking or suspending a permit may be vacated for failure to give notice
to the director of the region and to the director , or because it is
subsequently determined that the commission or director did not have
information sufficient to justify an inspection.
(12) Inability to Comply.
(A) No cessation order or notice of violation
issued under this section may be vacated because of inability to
comply.
(B) Inability to comply may
not be considered in determining whether a pattern of violations
exists.
(C) Unless caused by lack
of diligence, inability to comply may be considered only in mitigation of the
amount of civil penalty under
10 CSR
40-8.040 and of the duration of the suspension of a
permit under 10 CSR 40-7.031.
(13) Injunctive Relief.
(A) The commission or director may request
the attorney general to institute a civil action for relief, including a
permanent or temporary injunction, restraining order or any other appropriate
order, in the circuit court of the county in which the surface coal mining and
reclamation operation or coal exploration is located or in which the operator
has his/her principal office , whenever this operator or his/her agent-
1. Violates or fails or refuses to comply
with any final order or decision by the commission or director or any
authorized representative ;
2.
Interferes with, hinders, or delays the commission , the director or its
authorized representative in carrying out the provisions of this law;
3. Refuses to admit the commission members,
the director or any authorized representatives to the mine or refuses to permit
inspection of the mine;
4. Refuses
to furnish any information or report requested by the commission or
director ;
5. Refuses to permit
access to, or copying of, records as the commission or director determines
necessary;
6. Refuses to permit
inspection of monitoring equipment; or
7. Mines or disturbs any land without a
permit .
(B) For purposes
of this section, a final order or decision under paragraph (13)(A)1. of this
rule shall include any order or decision of the commission , the director or any
authorized representative or hearing officer, even if it is subject to further
administrative or judicial review, so long as the order or decision determines
the rights or obligations of an operator , or if legal consequences may flow
from a violation of, failure to comply with, or refusal to comply with the
terms of the order or decision.
(14) The rules of discovery that apply in any
civil court action shall apply to hearings held before the commission . All
decisions with regard to the scope and manner of discovery assigned to the
court in a civil action shall be performed by the commission or hearing officer
in administrative proceedings held pursuant to this law and its
rules.
(15) Intervention.
(A) Any person , including the Office of
Surface Mining, may petition for leave to intervene at any stage of an
administrative proceeding under the regulatory program .
(B) A petitioner for leave to intervene shall
incorporate in the petition a statement setting forth the interest of the
petitioner and, where required, a showing of why his/her interest is or may be
adversely affected.
(C) The
commission shall grant intervention where the petitioner-
1. Had a statutory right to initiate the
proceeding in which s/he wishes to intervene; or
2. Has an interest which is or may be
adversely affected by the outcome of the proceeding.
(D) If neither paragraph (15)(C)1. nor 2. of
this rule apply, the commission shall consider the following in determining
whether intervention is appropriate:
1. The
nature of the issues;
2. The
adequacy of representation of petitioner's interest which is provided by the
existing parties to the proceedings;
3. The ability of the petitioner to present
relevant evidence and argument; and
4. The effect of the intervention on the
commission 's implementation of its statutory mandate.
(E) Any person , including the Office of
Surface Mining, granted leave to intervene in a proceeding may participate in a
proceeding as a full party or, if desired, in a capacity less than that of a
full party. If an intervenor wishes to participate in a limited capacity, the
extent and the terms of the participation shall be at the discretion of the
commission .
(16)
Petitions for Award of Costs and Expenses Under Section 444.895.5, RSMo.
(A) Who May File. 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 law which results in a final order being issued by the
commission .
(B) Where to File-Time
for Filing. The petition for an award of costs and expenses including
attorneys' fees must be filed with the commission within forty-five (45) days
of receipt of this order. Failure to make a timely filing of the petition may
constitute a waiver of the right to this award.
(C) Contents of Petition. 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 these 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 these services in the area and the experience, reputation,
and ability of the individual or individuals performing the services.
(D) Answer. Any person served with
a copy of the petition shall have thirty (30) days from service of the petition
within which to file an answer to this petition.
(E) Who May Receive an Award. Appropriate
costs and expenses including attorneys' fees may be awarded to-
1. Any person from the permittee , if the
person initiates any administrative proceedings reviewing enforcement actions,
upon a finding that a violation of the regulatory program 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 commission
determines that the person made a substantial contribution to the full and fair
determination of the issue;
2. Any
person other than a permittee or his/her representative from the state, if the
person initiates or participates in any proceeding under the law upon a finding
that the person made a substantial contribution to a full and fair
determination of the issues;
3. A
permittee from the state when the permittee demonstrates that the commission or
the director issued an order of cessation, a notice of violation or an order to
show cause why a permit should not be suspended or revoked, in bad faith and
for the purpose of harassing or embarrassing the permittee ;
4. A permittee from any person where the
permittee demonstrates that the person initiated a proceeding under section
444.895, RSMo, or participated
in a proceeding in bad faith for the purpose of harassing or embarrassing the
permittee ; or
5. The state where it
demonstrates that any person applied for review pursuant to section
444.895, RSMo, or that any party
participated in a proceeding in bad faith and for the purpose of harassing or
embarrassing the state.
(F) Awards. An award under these sections may
include all costs and expenses, including attorneys' fees and expert witness
fees, reasonably incurred as a result of initiation, participation in a
proceeding under the law, or both.
(17) Informal Public Hearing.
(A) Except as provided in subsections (17)(B)
and (C), a notice of violation or cessation order which requires cessation of
mining, expressly, or by necessary implication, shall expire within thirty (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. The county courthouse 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 director or commission .
Expiration of a notice or order shall not affect the director 's or commission 's
right to assess civil penalties for the violations mentioned in the notice or
order under 10 CSR 40-8.040 (civil
penalties). For the purposes of this section, mining means extracting coal from
the earth or coal waste piles and transporting it within or from the permit
area .
(B) A notice of violation or
cessation order shall not expire as provided in subsection (17)(A) of this
rule, if the condition, practice, or violation in question has been abated, 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 thirty (30) days after the notice or order was served. For
purposes of this section-
1. The informal
public hearing will be deemed waived if the person to whom the notice or order
was issued-
A. Is informed, by written notice
served in the manner provided in paragraph (17)(B)2. of this rule, that s/he
will be deemed to have waived an informal public hearing unless s/he requests
one within thirty (30) days' service of the notice or order; and
B. Fails to request an informal public
hearing within that time;
2. The written notice referred to in
sub-paragraph (17)(B)1.A. of this rule shall be included with the notice of
violation or cessation order; and
3. 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/her request is received on or after
the twenty-first day after service of the notice or order. The extension of
time shall be equal to the number of days elapsed after the twenty-first
day.
(C) The director
shall give as much advance notice as is practicable of the time, place and
subject matter of the informal public hearing to-
1. The person to whom the notice or order was
issued;
2. Any person who filed a
report which led to that notice or order; and
3. The office of the director of the
region.
(D) The director
also shall post notice of the hearing at the county courthouse closest to the
mine site and publish it, where practicable, in a newspaper of general
circulation in the area of the mine.
(E) An informal public hearing shall be
conducted by the director or commission who may accept oral or written
arguments and any other relevant information from any person
attending.
(F) Within fifteen (15)
days after the close of the informal public hearing, the commission shall
affirm, modify, or vacate the notice or order in writing. The decision shall be
sent to-
1. The person to whom the notice or
order was issued;
2. Any person who
filed a report which led to the notice or order; and
3. The office of the director of the
region.
(G) The granting
or waiver of an informal public hearing shall not affect the right of any
person to formal review under sections 444.870.2, 444.885.1, and 444.895, RSMo.
At the formal review proceedings, no evidence as to statements made or evidence
produced at an informal public hearing shall be introduced as evidence or to
impeach a witness.
(H) The person
conducting the hearing for the commission shall determine whether or not the
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.
(18) Delinquency in Reclamation .
(A) If the director determines that a
permittee has failed to complete reclamation within the time limits specified
in 10 CSR
40-3.120(8) or
10 CSR
40-3.270(8), s/he shall issue a
notice of delinquent reclamation to the permittee .
(B) The notice of delinquent reclamation
shall be in writing, shall be signed by the director and shall set forth with
reasonable specificity-
1. The nature of the
delinquency;
2. The remedial action
required, which may include interim steps; and
3. A reasonable time for abatement, which may
include time for accomplishment of interim steps.
(C) The commission or director may extend the
time set for abatement in accordance with the criteria set forth in subsection
(7)(F). Except as set out in
10 CSR
40-7.031(2)(A) 2., the total time for
abatement of a notice of delinquent reclamation , including all extensions
described under subsection (7)(F), shall not exceed-
1. One hundred eighty (180) days from the
date of issuance if the notice of delinquent reclamation is issued for failure
to comply with the requirements of
10 CSR
40-3.120(8)(A) 1., 2. or 4., or
10 CSR
40-3.270(8)(A) 1., 2. or
4.;
2. One (1) year from the date
of issuance if the notice of delinquent reclamation is issued for failure to
comply with the requirements of
10 CSR
40-3.120(8)(A) 3., 5., 6., 7., or 8.,
or 10 CSR
40-3.270(8)(A) 3., 5., 6., 7., or 8.;
and
3. If the notice of delinquent
reclamation is issued for failure to comply with the requirements of
10 CSR
40-3.120(8)(A) 1., 2., or 4., or
10 CSR
40-3.270(8)(A) 1., 2., or 4., the
director , until the notice of delinquent reclamation is abated, shall report to
the commission on a monthly basis the status of the abatement work.
(D) A notice of delinquent
reclamation shall be served on the permittee or his/her designated agent
promptly after issuance as follows:
1. By
tendering a copy at the 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.
Service shall be completed upon tender of the notice and shall not be deemed
incomplete because of refusal to accept; or
2. As an alternative to paragraph (18)(D)1.
of this rule, service may be made by sending a copy of the notice by certified
mail to the permittee or his/her designated agent. Service shall be complete
upon tender of the notice by mail and shall not be deemed incomplete because of
refusal to accept.
(E) A
person issued a notice of delinquent reclamation under this section, or a
person having an interest which is or may be adversely affected by the
issuance, modification, vacation, or termination of a notice of delinquent
reclamation , may request a formal hearing before the commission within thirty
(30) days after receiving notice of the action.
1. The filing of an application for review
and request for a hearing shall not constitute a stay of any notice or of any
modification, termination, or vacation of the stay.
2. A hearing shall be conducted by the
commission within one hundred twenty (120) days of the receipt of the request
for a hearing, except that the hearing shall be conducted within thirty (30)
days of the receipt of the request, if so requested in the application. Within
forty-five (45) days after the close of the hearing, the commission shall
affirm, modify, or vacate the notice of delinquent reclamation .
(F) If a permittee fails to
complete remedial action by the date(s) established by the director , the
director shall file with the commission a complaint for revocation of the
permit , as set out in
10 CSR
40-7.031(2).
(G) In addition to penalties pursuant to
10 CSR
40-8.040, a penalty of twenty-five cents (25ยข)
per ton of coal sold, shipped, or otherwise disposed of during the delinquency
period may be imposed upon the permittee if the director determines that the
delinquency was caused by a lack of diligence by the permittee . The delinquency
period shall begin at the time of the issuance of the notice of delinquent
reclamation and shall end when the remedial action is completed or when the
time set for abatement of the delinquent reclamation expires, whichever comes
first.
1. If the director determines that a
penalty, as specified in this subsection, should be imposed, s/he, within
thirty (30) days after the end of the delinquency period, shall send a notice
to the permittee or his/her designated agent proposing the amount of the
penalty. If the notice of delinquent reclamation is issued for failure to
comply with the requirements of
10 CSR
40-3.120(8)(A) 1., 2., or 4., or
10 CSR
40-3.270(8)(A) 1., 2., or 4., the
director shall propose the maximum penalty that may be imposed pursuant to this
subsection. The permittee or designated agent shall have thirty (30) days after
receipt of the notice to request a hearing before the commission to contest the
penalty.
2. The penalty shall be
paid within thirty (30) days after receipt of notice of the proposed penalty or
within thirty (30) days after the commission 's decision on a contested penalty,
whichever comes last. The penalty shall be credited to the Coal Mine Land
Reclamation Fund.
(H) In
addition to the penalty described in subsection (18)(G), the commission may
require a permittee who has been issued a notice of delinquent reclamation to
submit additional bonding. The additional bonding shall be of an amount
sufficient to cover the extra liability to the reclamation fund represented by
the delinquency and shall remain in effect for a minimum of one (1)
year.
Notes
*Original authority: 444.810, RSMo 1979, amended 1983, 1993, 1995.
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