W. Va. Code R. § 38-2-20 - Inspection and Enforcement

In addition to the requirements set forth in section 15, 16, and 17 of the Act, the following requirements shall be met.

20.1. Inspection Frequencies.

20.1.a. Scheduling. In addition to the requirements of subsection (a) of section 15 of the Act, the Secretary shall have a right of entry to, upon, and through any prospecting operation or surface coalmining and reclamation operation without advance notice upon presentation of appropriate credentials. No search warrant shall be required, except with respect to entry into a building. The Secretary shall conduct:

20.1.a.1. An average of at least one partial inspection per month of each active surface mining operation.

20.1.a.2. One complete inspection per calendar quarter of each active and inactive surface mining operation. An inactive operation is one which has requested and received approval to temporarily cease operations as provided in subsection 14.11 of this rule, or one that has been granted Phase I bond release, and the revegetation on the surface coal mining and reclamation operation has been successfully established at the end of the first growing season with a minimum ground cover of sixty (60%) percent and the operation is in compliance with the requirements set by subparagraph (B), paragraph 10, subsection (b) of section 13 of the Act or until soil productivity for prime farmlands has returned to the equivalent levels of yield as nonmined land of the same soil type in the surrounding area under equivalent management practices as determined by the soil survey performed pursuant to paragraph (15) subsection (a) of section 9 of the Act and subsection 10.3 and section 10 of this rule.

20.1.a.3. Prospecting operations shall be inspected as necessary to assure compliance with the Act and this rule.

20.1.a.4. At least one partial inspection monthly and one complete inspection quarterly for each prospecting operation for which approval has been granted for coal removal in excess of 250 tons.

20.1.a.5. More frequent inspections shall be made on any prospecting, active surface mining operation, or inactive surface mining operation as necessary to assure compliance with the Act, this rule, and the terms and conditions of the permit.

20.1.a.6. When a permit has been revoked and is not under a reclamation contract, In lieu of the inspection frequency established in paragraphs 20.1.a.1 and 20.1.a.2 of this subsection, the Secretary shall inspect each revoked site on a set frequency commensurate with the public health and safety and environmental consideration present at each specific site, but in no case shall the inspection frequency be set at less than one complete inspection per calendar year. In selecting an alternate inspection frequency, the Secretary shall first conduct a complete inspection of the site and provide public notice. The Secretary shall place a notice in the newspaper with the broadest circulation in the locality of the revoked mine site providing the public with a 30-day period in which to submit written comments. 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 address of Department of Environmental Protection Office where written comments on the reduced inspection frequency may be submitted, and the closing date of the comment period. following the inspection and public notice, the Secretary 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:

20.1.a.6.A. Whether, and to what extent, there exists on the site impoundments, earthen structures or other conditions that pose, or may reasonably be expected to ripen into, imminent dangers to the health or safety of the public or significant environmental harms to land, air, or water resources;

20.1.a.6.B. The extent to which existing impoundments or earthen structures were constructed and certified in accordance with prudent engineering designs approved in the permit;

20.1.a.6.C. The degree to which erosion and sediment control is present and functioning;

20.1.a.6.D. 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;

20.1.a.6.E. 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 them; and

20.1.a.6.F. Based on a review of the complete and partial inspection report record for the site during at least two consecutive years, the rate at which adverse environmental or public health and safety conditions have and can be expected to progressively deteriorate.

20.1.b. Partial Inspection. For purposes of this section, a partial inspection is an on-site or aerial review of a person's compliance with some of the provisions of the Act, this rule, and the terms and conditions of the permit.

20.1.c. Complete Inspection. For purposes of this section, a complete inspection is an on-site review of a person's compliance with all the provisions of the Act, this rule, and the terms and conditions of the permit within the entire area disturbed or affected by the surface coal mining and reclamation operations.

20.1.d. Aerial Inspection. Aerial inspections shall be conducted in a manner which reasonably insures the identification and documentation of conditions at each surface coal mining and reclamation site inspected.

Any potential violation observed during an aerial inspection shall be investigated on-site within three days: provided, that any indication of a condition, practice or violation constituting cause for the issuance of a cessation order shall be investigated on-site immediately. 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 subdivision 20.1.a of this subsection.

20.1.e. A permittee may request an on-site compliance conference to review the status of any condition or practice at any surface coal mining and reclamation operation. Any compliance conference shall not constitute an inspection within the meaning of W. Va. Code § 22-3-15 and this section. The Secretary may accept or refuse any request to conduct a compliance conference. If accepted, authorized representative of the Secretary shall conduct the compliance conference and shall review conditions and/or practices at the operation in order to advise whether any conditions and/or practices has a potential to become a violation of the Act of any applicable permit condition. Neither the holding of a compliance conference or any opinion given by the authorized representative of the Secretary at a conference shall affect:

20.1.e.1. Any rights or obligations of the Secretary or by the permittee with respect to any inspection, notice of violation, or cessation order, whether prior or subsequent to the compliance conference; or

20.1.e.2. The validity of any notice of violation or cessation order issued with any condition or practice reviewed at the compliance conference.

20.2. Notice of Violations.

20.2.a. When, on the basis of an inspection carried out pursuant to subsection 20.1 of this section, the Secretary determines that the surface mining and reclamation operation or prospecting operation is in violation of any of the requirements of the Act, this rule, and the terms and conditions of the permit or prospecting approval, a notice of violation shall be issued. Such notice of violation shall comply with all requirements and provisions of this subsection.

20.2.b. Notice Procedures. A notice of violation shall be in writing signed by the Secretary and shall set forth with reasonable specificity:

20.2.b.1. The nature of the violation;

20.2.b.2. The remedial action required, which may include interim steps;

20.2.b.3. A reasonable time for abatement, which may include time for accomplishment of interim steps, but in no case shall the initial abatement period be in excess of thirty (30) days; and

20.2.b.4. A reasonable description of the portion of the prospecting or surface coal mining and reclamation operation to which it applies.

20.2.c. Abatement. The Secretary 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 operator. 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 operator that it is not feasible to abate the violation within 90 calendar days due to one or more of the circumstances in subdivision 20.2.e of this subsection. An extended abatement date pursuant to this subsection shall not be granted when the operator's failure to abate within 90 days has been caused by a lack of diligence or intentional delay by the operator in completing the required remedial action.

20.2.d. Termination. The Secretary shall terminate a notice of violation by written notice to the permittee when he determines that all violations listed in the notice of violation have been abated. Notices of violations shall not be terminated or vacated because of the operator's inability to comply with the terms of abatement.

20.2.e. Criteria for Extensions of Abatement Period. Circumstances which may qualify an operator for an abatement period of more than 90 days are:

20.2.e.1. Where the operator of a permitted operation has made timely application for and diligently pursued a permit renewal or other necessary approval of designs or plans but such permit renewal or other approval has not been or will not be issued within 90 days after the time required for reasons not within the control of the operator;

20.2.e.2. Where there is a valid judicial order precluding abatement within 90 days as to which the operator has diligently pursued all rights of appeal and as to which there is no other effective legal remedy;

20.2.e.3. Where the operator cannot abate within 90 days due to a labor strike;

20.2.e.4. Where climatic conditions preclude abatement within 90 days, or where, due to climatic conditions, abatement within 90 days clearly would cause more environmental harm than it would prevent; or

20.2.e.5. Where abatement within 90 days requires action that would violate safety standards established by statute or regulation under the Mine health and Safety Act of 1977.

20.2.f. Interim Procedures. 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.

20.2.g. Grant of Extension. If any of the conditions in subdivision 20.2.e of this subsection exist, the operator may request that the Secretary grant an abatement period exceeding 90 days. An authorized representative of the Secretary shall grant the extension only with the concurrence of his immediate supervisor. The abatement period granted shall not exceed the shortest possible time necessary to abate the violation. The operator shall have the burden of establishing by clear and convincing proof that he is entitled to an extension. The authorized representative of the Secretary who grants or denies the extension shall promptly and fully document in the file the reasons for granting or denying the request. The immediate supervisor shall review this document before concurring in or disapproving the extended abatement date and shall promptly and fully document the reasons for concurrence or disapproval in the file.

20.2.h. Appeals. Any determination made under subdivision 20.2.g of this subsection shall carry with it a right of appeal.

20.2.i. Extension Period. No extension granted under subdivision 20.2.g of this subsection may exceed 90 days in length. Where the condition or circumstance which prevented abatement within 90 days exists at the expiration date of any such extension, the operator may request and the Secretary may grant a further extension pursuant to the procedures of subdivision 20.2.g of this subsection.

20.3. Cessation Orders.

20.3.a. Imminent Harm.

20.3.a.1. When the Secretary finds that a prospecting or surface mine operation creates an imminent danger to the health or safety of the public or is causing or can reasonably be expected to cause significant, imminent environmental harm to land, air, or water resources, a cessation order shall be issued forthwith.

20.3.a.2. Any cessation order issued under the provisions of subsection (a) of section 16 of the Act, shall remain in effect until the violation has been abated or until modified, vacated, or terminated by the Secretary or the Surface Mine Board or by a court.

20.3.a.3. In any cessation order, the Secretary shall determine the appropriate remedial measures to be taken to abate the violation in the most expeditious manner possible and shall set forth these measures and the time by which abatement shall be accomplished in the order.

20.3.a.4. Mining operations conducted by any person without a valid surface mining permit, or approval for prospecting, constitute a condition or practice which causes or can reasonably be expected to cause significant, imminent environmental harm to land, air, or water resources, unless such operations are an integral, uninterrupted extension of previously permitted operations, and the person conducting such operations has filed a timely and complete application for a permit or approval to conduct such operations.

20.3.b. Failure to Abate.

20.3.b.1. If the operator fails to meet the time set for abatement of a notice of violation issued pursuant to subsection 20.2 of this section, the Secretary shall issue a cessation order; or

20.3.b.2. If the operator fails to meet the time set for accomplishment of any interim step of a notice of violation issued pursuant to subsection 20.2 of this section, the Secretary may issue a cessation order.

20.3.c. All cessation orders shall be issued as follows:

20.3.c.1. A cessation order shall set forth in writing with reasonable specificity:

20.3.c.1.A. The nature of the condition, practice or violation for which the order was issued;

20.3.c.1.B. The remedial action or affirmative obligation required by the operator, if any, including any interim steps;

20.3.c.1.C. The time established for abatement, if appropriate; and

20.3.c.1.D. A reasonable description of the portion of the prospecting or surface mining and reclamation operation to which it applies.

20.3.c.2. Reclamation operations and other activities intended to protect public health and safety and the environment shall continue during the period of any cessation order unless otherwise provided in the order.

20.3.c.3. The Secretary 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 operator. A cessation order shall not be terminated or vacated because of the operator's inability to comply with the terms of abatement.

20.3.c.4. The Secretary shall terminate a cessation order by written notice when it is determined that all conditions, practices, or violations listed in the order have been abated. The termination notice must be in writing and shall not affect the right of the Secretary to assess civil penalties for the violation.

20.3.d. Notice of Informal Conference. Notices of informal conferences held as a result of a cessation order issued pursuant to the provisions of subsection (a), section 16 of the Act shall be posted at the nearest regional office and sent by mail or communicated verbally, whichever is more practicable, to any person who filed a report which led to a cessation order for which the informal conference is to be held. The results of the informal conference shall be provided to any person who filed a report which led to the order within five (5) days after the close of the informal conference.

20.3.e. Within sixty (60) days after issuing a cessation order, the Secretary shall notify in writing any person identified as owning or controlling the permittee, that the cessation order was issued and that the person has been identified as an owner or controller.

20.4. Show Cause Orders.

20.4.a. General. Where the Secretary determines that a pattern of violations of the Act, this rule or the terms and conditions of a permit exists or has existed, and that the violations were caused willfully or through an unwarranted failure to comply, the Secretary shall issue an order requiring the permittee to show cause why the permit and the permittees right to mine under the Act should not be suspended or revoked. For purposes of this subsection a willfully caused violation is a violation resulting from an intentional act or omission, and an unwarranted failure to comply means the failure of the permittee to prevent the occurrence of any violation or the failure to abate any violation of the Act, this rule, or the terms and conditions of the permit due to indifference, lack of diligence or lack of reasonable care. The Secretary shall provide email notice of the issuance of a show cause order to members of the public who have subscribed to the Secretary's email notification service and otherwise provide notice to any person whose citizen's complaint has resulted in the issuance of any violation that led to the issuance of the show cause order.

20.4.b. Criteria for Establishing a Pattern of Violations. The Secretary may determine that a pattern of violations exists or has existed, where violations were cited on two or more inspections of the permit area within any twelve (12) month period. In making such a determination, the Secretary shall take into consideration the following circumstances:

20.4.b.1. The number of previous violations cited on more than one occasion for the same or related requirements of the Act, this rule, or the terms and conditions of the permit;

20.4.b.2. The number of previous violations, cited on more than one occasion, of different requirements of the Act, this rule, or the terms and conditions of the permit; and

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

20.4.c. Duplicate or Similar Violations. The Secretary shall promptly review the history of violations of any permittee who has been cited for violations of the same or related requirements of the Act, this rule, or the terms and conditions of the permit during three (3) or more inspections of the permit area within any twelve (12) month period. After such review, the Secretary shall determine whether or not a pattern of violations exists.

20.4.d. Permittee Responsibility. Violations by any persons 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.

20.4.e. Hearings and Appeals. If the permittee files an answer to the show cause order and requests a hearing, a public hearing shall be held. The Secretary shall give thirty (30) days advance written notice to the permittee and any interested party who requests intervener status of the date, time, and place of the hearing. The Secretary shall publish the notice if practicable, in a newspaper of general circulation in the area of the operations, and shall also post the notice in the regional office of the Department of Environmental Protection nearest the operation.

20.4.f. Consent Agreement. When the permittee demonstrates that sufficient resources are available to him to abate the violation(s), the Secretary may enter into a consent agreement.

20.4.g. Hearing Record and Decisions. within sixty (60) days following the hearing, the Secretary shall issue a written determination as to whether a pattern of violations exists, and furnish to the operator and all other parties to the hearing a written decision or consent order and the reason therefore, concerning suspension or revocation of the permit.

20.4.h. Revocation and Suspension. If the Secretary revokes or suspends the permit and the permittees right to mine under the Act, the permittee shall immediately cease surface coal mining operations in the subject permit area, and initiate the appropriate remedial action as follows:

20.4.h.1. If the permit and the right to mine under the Act are revoked, the operator shall complete reclamation within the time specified in the revocation order; or

20.4.h.2. If the permit and right to mine under the Act are suspended, the operator shall complete all affirmative obligations to abate all conditions, practices, or violations, as specified in the suspension order.

20.4.i. Failure to Abate. Whenever a permittee fails to abate a violation contained in a notice of violation or cessation order within the abatement period set in the notice or order or as subsequently extended, the Secretary shall review the permittees history of violations to determine whether a pattern of violations exists and shall issue an order to show cause where appropriate.

20.4.j. Consent Agreement. If, at any point in the enforcement process following the issuance of a notice of violation, a cessation order or a show cause order, a consent agreement is reached between the Secretary and a permittee and/or operator, the following standards shall apply to that consent order:

20.4.j.1. The Secretary will require all abatement work mandated in the consent agreement to be performed in the most expeditious manner physically possible. In no event shall the time period in which remedial action must be completed exceed one (1) year, nor can extensions to abatement times in consent orders total more than one year; provided however, that for sites permitted before September 5, 1989, the Secretary may grant a future extension if he finds in writing that exceptional circumstances exist which preclude abatement in the twelve-month period.

20.4.j.2. Violation of any term in a consent agreement shall result in immediate forfeiture of the bond for the site, unless the Secretary finds in writing that:

20.4.j.2.A. The operator and/or permittee have shown good faith in taking remedial actions required by the consent agreement; and

20.4.j.2.B. No environmental harm has resulted, or will result, from the subject violation.

20.4.j.3. No consent agreement shall be agreed to if the permittee, and/or operator or any entity owned or controlled by the permittee and/or the operator, has violated or is in violation of a previous consent agreement; provided however, that the Secretary is required to make only best efforts to determine if said violation or ownership and control ties exist.

20.4.j.4. No consent agreement can be reached on a site if the permittee and/or operator have previously entered into two consent orders on the same site.

The standards set forth in 1. through 4. above shall apply to any extension, modification, or other change in any existing consent agreement.

20.5. Civil Penalty Determinations.

20.5.a. Notice of Violation Assessments. The Secretary shall review each notice of violation and determine whether or not a civil penalty will be assessed and the amount of the penalty. The Secretary for each notice of violation, may assess a separate civil penalty for each day of the violation, beginning with the date of issuance of a notice of violation to the date of abatement of the violation. In determining whether or not to assess a separate daily civil penalty and determine the amount of the civil penalty, the Secretary shall consider those factors specified in subsection (c), section 17, of the Act, and subsection 20.7 of this rule and may consider the extent to which the operator may have gained any economic benefit as a result of a failure to comply. Any notice of violation which continued unabated for two or more days after the initial abatement period, and received a civil penalty assessment of $3,500 or more, shall be assessed the penalty amount for a minimum of two separate days. The determination as to whether or not to assess a civil penalty if the amount is less than one thousand dollars ($1,000) will be at the discretion of the Secretary. Notices of violations with a seriousness rating of 4 or greater shall be assessed regardless of the amount. Termination of a notice of violation shall not affect the right of the Secretary to assess a civil penalty for those violations.

20.5.b. Cessation Order Assessments. The Secretary shall, for any cessation order, assess a civil penalty in accordance with subsection (a), section 17, of the Act for each day of continuing violation, except that such penalty shall not be assessed for more than thirty (30) days. If the cessation order has not been abated within the thirty (30) day period, the Secretary shall initiate action pursuant to subsections (b), (g), (h) and (j), section 17, of the Act as appropriate. If the order is suspended in a temporary relief proceeding, the period specified for the abatement shall not end until the date on which the Secretary issues a final order with respect to the violation in question. If judicial review proceedings are initiated in which the order is suspended by court, the daily assessment of the civil penalty shall not be made for any period before entry of a final order by the court.

20.6. Procedure for Assessing Civil Penalties.

20.6.a. Assessments The Secretary shall not determine the proposed penalty assessment until such time an inspection of the violation has been conducted and the findings of that inspection are submitted to the Secretary in writing. The Secretary must conduct the inspection of the violation within the first fifteen (15) days after the notice or order was served.

20.6.b. Determination of Civil Penalty Amounts. Civil penalty amounts for notices of violation shall be determined in accordance with the factors specified in paragraph (c), section 17, of the Act and the numerical point system in subsection 20.7 of this section. Within fifteen (15) days of service of a notice of violation or cessation order, the person to whom it was issued may submit written information about the violation to the Secretary and to the inspector who issued the notice of violation or cessation order.

20.6.c. Notice of Assessment. The Secretary shall provide a copy of the proposed assessment and the accompanying worksheet to the operator by certified mail, within thirty (30) days of the date of the issuance of a notice or order. If the mail is tendered at the address of the person set forth in the sign required under subdivision 14.1.a of this rule, or at any address at which that person is in fact located, and he or she refuses to accept delivery of or to collect such mail, the requirements of this paragraph shall be deemed to have been complied with upon such tender. Failure by the Secretary to serve any proposed assessment within thirty (30) days shall not be grounds for dismissal of all or part of such assessment unless the person against whom the proposed penalty has been assessed:

(1) proves actual prejudice as a result of the delay; and

(2) makes a timely objection to the delay. An objection shall be timely only if made in the normal course of administrative review. The Secretary shall consider any information submitted pursuant to subdivision 20.6.b of this subsection in determining the facts surrounding the violation and the amount of the penalty. Unless a conference has been requested, the Secretary shall review and if necessary reassess any penalty considering facts which were not reasonably available on the date of issuance of the proposed assessment because of the length of the abatement period. The reasons for reassessment shall be documented in the file by the Secretary. The Secretary shall serve a copy of any such reassessment and of the worksheet showing the computation of the reassessment within thirty (30) days after the date the violation is abated.

20.6.d. Notice of Informal Assessment Conference. The Secretary shall arrange for a conference to review the proposed assessment or reassessment, upon written request of the person to whom the notice or order was issued, if the request is received within fifteen (15) days from the date the proposed assessment or reassessment is received.. The Secretary shall assign an assessment officer to hold the assessment conference. The time and place of an informal assessment conference shall be posted at the nearest Department of Environmental Protection regional office to the operation, at least five days prior to the conference date. Any person shall have the right to attend and participate in the conference. Any person, other than the operator and Department of Environmental Protection representatives, may submit in writing at the time of the conference a request to present evidence concerning the violation(s) being conferenced. Such request shall be granted by the assessment officer. Should problems arise due to scheduling, the assessment officer may continue the conference to a later time and/or date as the assessment officer deems necessary to honor other scheduled conferences.

20.6.e. Informal Conference. An informal conference on the assessment or reassessment must be scheduled within 60 days of the receipt of a request, pursuant to paragraph (1) subsection (d) of section 17, of the Act. Failure to hold an informal conference in the time limits specified in this subsection will not be considered as grounds for dismissal of the assessment, unless the operator proves actual prejudice and makes timely objection to the delay. The assessment officer shall consider all relevant information on the violation including information which may be provided pursuant to subdivisions 20.6.b and 20.6.d of this subsection. The assessment officer shall also give notice including any worksheet, in person or by certified mail, to the operator of any penalty adjustment as a result of an informal conference within thirty (30) days following the date of the conference. The reasons for the assessment officer's action shall be documented in the file. within thirty (30) days after the conference is held the assessment officer shall either:

20.6.e.1. Settle the issue, in which case a settlement agreement shall be prepared and signed by the assessment officer on behalf of the Secretary and by the person assessed;

20.6.e.2. Affirm, raise, lower, or vacate the penalty; or

20.6.e.3. Terminate the conference when it is determined that the issues cannot be resolved or that the person assessed is not diligently working toward resolution of the issues.

20.6.f. An increase or reduction of a proposed civil penalty of more than 25 percent and more than $500.00 shall not be final and binding until approved by the Secretary.

20.6.g. Settlement Agreement. If a settlement agreement is entered into, the person assessed will be deemed to have waived all rights to further review of the violation or penalty in question, except as otherwise expressly provided for in the settlement agreement. The settlement agreement shall contain a clause to this effect. If full payment of the amount specified in the settlement agreement is not received by the Secretary within thirty (30) days after the date of signing, the Secretary may enforce the agreement or rescind it and affirm, raise, lower or vacate the penalty within thirty (30) days from the date of the rescission.

20.6.h. Rules of Evidence. At formal review proceedings pursuant to section 17 of the Act, no evidence as to any statement made or evidence produced by one party at a conference shall be introduced as evidence by another party, or may be used to impeach a witness.

20.6.i. Fact of Violation. The fact of violation may not be contested in a civil penalty review proceeding, if it has already been decided in a formal review proceeding under paragraph 1 subsection (d) of section 17 of the Act.

20.6.j. Escrow. If a person requests an a judicial review of a proposed assessment, the proposed penalty assessment shall be held in escrow until completion of the judicial review.

20.6.k. Penalty Adjustment. When an administrative or judicial review of a civil penalty order results in an order increasing the penalty, the person to whom the notice or order was issued shall pay the amount of the increase within fifteen (15) days after the order is mailed to each person.

20.6.l. Mitigation. Unless caused by lack of diligence, inability to comply may be considered in mitigation of the amount of civil penalty.

20.7. Assessment Rates.

20.7.a. History of Violations. History of previous violations is an accounting of all Notices of Violation and Cessation Orders that were written on the subject operation in the previous twelve (12) months. Notices of Violation and Cessation Orders which were withdrawn or vacated shall not be included in the accounting. The dollar amount to be assessed shall be determined by multiplying the number of violations by a factor of one hundred (100).

20.7.b. Seriousness of the violation.

1-2 Violation is of an administrative nature resulting in no harm or danger to the environment or public: or the standard is violated to such a minor degree that environmental harm or public danger will not result.

3-4 Violation results in potential or actual harm or danger remaining in the permit area; or in the case where the impact extends beyond the permit area; can be demonstrated that potential danger or harm or will not result.

5-6 Violation extends beyond the permit area and results in a minor degree of potential or actual harm or impact on the public.

7-8 Violation can reasonably be expected to result in significant imminent environmental harm or create an imminent danger to the health and safety of the public. A violation which initially has a seriousness rating of 7 or higher is one which must be an imminent harm cessation order, as set forth in subdivision 20.3.a of this rule.

9-10 Violation extends beyond the permit area and results in a significant degree of environmental harm or danger to the public.

Rating	0	1	2	3	4	5	6	7	8	9	10
Dollar Amount	0	100	200	400	600	900	1,200	1,600	2,100	2,700	3,500

20.7.c. Operator Negligence.

0 This violation is considered beyond the control of the operator or his employees and no negligence can be attributed to this violation.

1-2 This violation was a result of an oversight on the part of the operator and may have been avoided if more conscientious effort and/or reasonable care were given.

3-4 This violation was obvious and/or no action was taken by the operator to prevent the problem.

5-6 The operator failed to adequately respond to previous written instructions of the inspector to prevent this event.

7-8 The operator had been officially notified, in writing, of this problem and did not make any effort at correcting the problem.

Rating	0	1	2	3	4	5	6	7	8
Dollar Amount	0	100	225	350	475	600	725	875	1,000

20.7.d. Operator's Good Faith

Good faith percentage shall not include a history of violations in the amount. Good faith percentage shall be rounded to the nearest dollar amount.

0 Operator failed to take appropriate remedial action. Violation has been modified to a cessation order.

1-2 Operator took prompt, but insufficient remedial action to fully abate the violation within the required abatement period. Abatement period was extended for just cause. Remedial action was completed prior to the end of the extended abatement period.

3-4 Operator took prompt remedial action and worked diligently to abate the violation. Conditions beyond the operator's control prevented full abatement and required that the abatement period be extended for just cause. Abatement of the violation was accomplished before the end of the extended abatement period.

5-6 Operator initiated remedial action immediately and expended all reasonable efforts to abate the violation. Violation was abated before the end of the original abatement period.

7-8 Operator was already taking remedial action at the time the violation was noted, and expended exemplary effort in abating the violation before the end of the original abatement period.

Rating	0	1	2	3	4	5	6	7	8
Percentage	0%	5%	10%	15%	20%	25%	30%	35%	40%

20.7.e. Determination of Penalty Amount

Seriousness of Violations	$
Operator Negligence	(+)$
Subtotal	$
Less Good Faith %	(-) $
Sub Total	$
History of Violations	(+)$
Total	$

20.8. When an Individual Civil Penalty May be Assessed:

20.8.a. Except as provided in subdivision 20.8.b of this subsection, the Secretary may assess an individual civil penalty against any corporate director, officer or agent of a corporate permittee who knowingly and willfully authorized, ordered, or carried out a violation, failure or refusal.

20.8.b. The Secretary shall not assess an individual civil penalty in situations resulting from a permit violation by a corporate permittee until a cessation order has been issued by the Secretary to the corporate permittee for the violation and the cessation order has remained unabated for thirty (30) days.

20.9. Amount of Individual Civil Penalty.

20.9.a. In determining the amount of an individual civil penalty assessed under subsection 20.8 of this rule, the Secretary shall consider the criteria specified in subsection (c) of section 17 of the Act.

20.9.b. The penalty shall not exceed $5,000 for each violation. Each day of a continuing violation may be deemed a separate violation and the Secretary may assess a separate individual civil penalty for each day the violation, failure or refusal continues, from the date of service of the underlying notice of violation, cessation order or other order incorporated in a final decision issued by the Secretary until abatement or compliance is achieved.

20.10. Procedure for Assessment for Individual Civil Penalty.

20.10.a. The Secretary shall serve on each individual to be assessed an individual civil penalty a notice of proposed individual civil penalty assessment, including a narrative explanation of the reasons for the penalty, the amount to be assessed, and a copy of an underlying notice of violation and cessation order.

20.10.b. The notice of proposed individual civil penalty assessment shall become a final order of the Secretary thirty (30) days after service upon the individual unless:

20.10.b.1. The individual files within thirty (30) days of service of the notice of proposed individual civil penalty assessment a petition for review with the Surface Mine Board; or

20.10.b.2. The Secretary and the individual or responsible corporate permittee agree within thirty (30) days of service of the notice of proposed individual civil penalty assessment to a schedule or plan for the abatement or correction of the violation, failure, or refusal.

20.10.c. For purposes of this subsection, service is sufficient if it would satisfy state requirements for service of a summons and complaint.

20.11. Payment of Penalty.

20.11.a. If a notice of proposed individual civil penalty assessment becomes a final order in the absence of a petition for review or abatement agreement, the penalty shall be due upon issuance of the final order.

20.11.b If an individual named in a notice of proposed individual civil penalty assessment files a petition for review in accordance with paragraph 20.10.b.1 of this section, the penalty shall be due upon issuance of a final administrative order affirming, increasing, or decreasing the proposed penalty.

20.11.c. Where the Secretary and the corporate permittee or individual have agreed in writing on a plan for the abatement of or compliance with the unabated order, an individual named in a notice of proposed individual civil penalty assessment may postpone payment until receiving either a final order from the Secretary stating that the penalty is due on the date of such final order, or written notice that abatement or compliance is satisfactory and the penalty has been withdrawn.

20.12. Fees and Costs of Administrative Proceedings.

20.12.a. Request for Fees. Any person may on request be awarded by the appropriate board or court a sum equal to costs and expenses including attorneys' fees and expert witness fees as determined to have been reasonably incurred. Such request must be filed within forty-five (45) days of date of entry of judgment. The request shall include an affidavit setting forth costs and expenses and an itemized statement of attorneys' fees. The request shall be served upon all parties who shall have thirty (30) days to answer the request. Cost and expenses including attorneys' fees may be awarded to:

20.12.a.1. Any participating party against the violator upon a finding that there is a violation of the Act, the regulations or the permit has occurred, and there is a determination that the party made a significant contribution to the full and fair determination of the issues;

20.12.a.2. To any participating party other than the violator or his representative from the Department of Environmental Protection upon a determination that the party made a significant contribution to a full and fair determination of the issues;

20.12.a.3. To a violator from the Department of Environmental Protection when the violator demonstrates that the Department of Environmental Protection issues cessation order, a show cause order or notice of violation in bad faith and for the purpose of harassing or embarrassing the violator, provided that no award shall be made under this subsection if the Department of Environmental Protection prevails upon the issue of a violation;

20.12.a.4. To a violator from any participating party other than the Department of Environmental Protection where such participating parties initiated or participated in the magistrate proceeding in bad faith and for the purpose of harassing or embarrassing the violator; and

20.12.a.5. To the Department of Environmental Protection from any participating party where the Department of Environmental Protection demonstrates that any such party participating in such proceeding in bad faith and for the purpose of harassing or embarrassing the Department of Environmental Protection. An award may also include attorneys' fees and expert witness fees expended in obtaining an award of costs, expenses and attorneys' fees. Decisions on such awards may be appealed as other cases under the Act.

Notes

W. Va. Code R. § 38-2-20