16.1.
Inspection Frequencies. -- The Secretary shall inspect each active operation at
least once every calendar quarter. Operations with approved inactive status
shall be inspected at least once every six (6) months. More inspections may be
conducted as necessary to ensure compliance.
16.2. Compliance Conference. -- A permittee
may request an on-site compliance conference to review the status of any
condition or practice at any quarrying or reclamation operation. Any compliance
conference shall not constitute an inspection within the meaning of W. Va. Code
§
22-4-24 and this section. The
Secretary may accept or refuse any request to conduct a compliance conference.
If accepted, an 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, this rule or 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:
16.2.a. Any rights or obligations of the
Secretary or the permittee with respect to any enforcement action, whether
prior or subsequent to the compliance conference; or
16.2.b. The validity of any enforcement
action taken with respect to any condition or practice reviewed at the
compliance conference.
16.3. Notice of non-compliances. -- When, on
the basis of an inspection carried out pursuant to subsection 16.1 of this
section, the Secretary determines that a quarrying or reclamation operation is
in violation of any of the requirements of the Act, this rule, or the terms and
conditions of the permit, a notice of non-compliance may be issued. Each day of
noncompliance constitutes a separate violation.
16.3.a. Notice Procedures. -- A notice of
non-compliance shall be in writing signed by the Secretary and shall set forth
with reasonable specificity:
16.3.a.1. The
nature of the violation;
16.3.a.2.
The remedial action required, which may include interim steps;
16.3.a.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
16.3.a.4. A reasonable
description of the portion of the quarrying or reclamation operation to which
it applies.
16.3.b.
Extension of Abatement Period -- 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.
16.3.c. Termination --
The Secretary shall terminate a notice of non-compliance by written notice to
the permittee when he or she determines that all violations listed in the
notice of non-compliance have been abated. Notices of non-compliance shall not
be terminated or vacated because of the operator's inability to comply with the
terms of abatement.
16.4.
Cessation Order for Failure to Abate -- The Secretary may issue a Cessation
Order suspending the permit or portion of the permit for failure of the
operator to abate a notice of non-compliance within the time
specified.
16.5. Cessation Order
for Imminent and Substantial Harm -- The Secretary may issue a Cessation Order
whenever he or she finds that an ongoing operation is causing or is likely to
cause imminent and substantial harm to the environment, public safety or public
health.
16.6. Cessation of
Operations -- Any cessation order issued by the Secretary, shall order the
operation or a portion of the operation to cease and shall remain in effect
until the non-compliance has been abated or until modified, vacated, or
terminated by the Secretary or the Surface Mine Board or by a court.
16.7. Remedial Measures -- 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.
16.8. Consent
Agreement. -- When the permittee demonstrates that sufficient resources are
available to him or her to abate the violation(s), the Secretary may enter into
a consent agreement.
16.9.
Quarrying Without a Permit -- Quarrying operations conducted by any person
without a valid permit constitutes a condition or practice which causes or can
reasonably be expected to cause imminent and substantial harm to the
environment, public safety, or public health.
16.10. Permittee Responsibility. --
Violations by any persons conducting quarrying operations on behalf of the
permittee shall be attributed to the permittee, unless the permittee
establishes that they were acts of deliberate sabotage.
16.11. Civil Penalty Determinations.
16.11.a. Violation Assessments. -- The
Secretary shall review each notice of non-compliance or order, and determine
whether or not a civil penalty will be assessed and the amount of the penalty.
The Secretary for each notice of non-compliance or order may assess a separate
civil penalty for each day of the violation, beginning with the date of
issuance of a notice of non-compliance or order 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 W. Va. Code §
22-4-24(e), and
subsection 16.13 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 non-compliance which continued unabated for two (2) or
more days after the initial abatement period, and received a civil penalty
assessment of three thousand five hundred dollars ($3,500) or more, shall be
assessed the penalty amount for a minimum of two (2) 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 non-compliance with a seriousness rating of four (4) or
greater shall be assessed regardless of the amount. Termination of a notice of
non-compliance shall not affect the right of the Secretary to assess a civil
penalty for those violations.
16.12. Procedure for Assessing Civil
Penalties.
16.12.a. Assessment Officer --
Duties. For the purposes of this section, the assessment officer shall not
determine the proposed penalty assessment until such time as the Secretary has
caused an inspection of the violation to be conducted, and the findings of that
inspection are submitted to the assessment officer in writing. The Secretary
must conduct the inspection of the violation within the first fifteen (15) days
after the notice or order was served. The assessment officer may continue
conferences, conduct investigations, and interview witnesses as
necessary.
16.12.b. Determination
of Civil Penalty Amounts. -- Civil penalty amounts for notices of
non-compliance or order shall be determined in accordance with the factors
specified in W. Va. Code §
22-4-24(e), and
the numerical point system in subsection 16.13 of this section. Within fifteen
(15) days of service of a notice of non-compliance or 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 non-compliance or
order.
16.12.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 permit application, 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 proves actual
prejudice as a result of the delay and makes a timely objection to the delay.
An objection shall be timely only if made in the normal course of
administrative review. The operator may, within twenty (20) days of receipt of
notice of assessment, request an informal assessment conference to allow the
Assessment Officer to consider the fact of violation and the amount of penalty.
The Secretary 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 reassessment shall be documented in the file by the
assessment officer. The Secretary shall consider any information submitted by
the Secretary, the operator or any affected party 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 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.
16.12.d. Notice of Informal Assessment
Conference. - The operator shall be notified of the time and place of the
informal assessment conference at least five days prior to the conference date.
The time and place of an informal assessment conference shall be posted at the
nearest Department of Environmental Protection regional office to the
operation. 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 if it is determined
that the person or persons have been affected by the violation. 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.
16.12.e. Informal Conference. -- An informal
conference on the assessment or reassessment must be scheduled within sixty
(60) days of the receipt of a request from the affected operator. 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 by the Secretary, the operator or
any affected party. Within thirty (30) days after the conference is held the
assessment officer shall either:
16.12.e.1.
Vacate the non-compliance and penalty;
16.12.e.2. 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;
16.12.e.3. Affirm, raise, lower, or vacate
the penalty; or
16.12.e.4.
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
16.12.f. 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 non-compliance 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 the time period specified in the agreement,
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.
16.12.g. Rules of
Evidence. -- At formal review proceedings pursuant to W. Va. Code §
22-4-25, no evidence as to any
statement made by one party at a conference shall be introduced as evidence by
another party, or may be used to impeach a witness.
16.12.h. Escrow. -- If a person requests an
administrative or judicial review of a proposed assessment, the proposed
penalty assessment shall continue to be held in escrow until completion of the
administrative or judicial review.
16.12.i. 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 thirty (30) days after the order is
received.
16.12.j. Mitigation. --
Unless caused by lack of diligence, inability to comply may be considered in
mitigation of the amount of civil penalty.
16.12.k. In Kind Assessment. - The Secretary
may accept in kind assessment by reclamation of an abandoned quarry site in
lieu of cash payment of civil administrative penalties. The site to be
reclaimed shall be approved by the Secretary. The cost of reclamation must be
determined by the Secretary to equal or exceed the amount of civil penalty
owed. If the cost of reclamation is less that the amount of civil penalties
owed, the balance shall be collected pursuant to W. Va. Code §
22-4-24.
16.13. Assessment Rates.
16.13.a. History of Violations. -- History of
previous violations is an accounting of all notices of non-compliance and
orders that were written on the subject operation in the previous twelve (12)
months. Notices of non-compliance and 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 non-compliances by a factor of one
hundred (100).
16.13.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 an
imminent and substantial harm to the environment public safety or public
health. A violation which initially has a seriousness rating of seven (7) or
higher is one which must be a cessation order, as set forth in subdivision 16.5
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
|
|
Dollar
Amount
|
-
|
100
|
200
|
400
|
600
|
900
|
|
Rating
|
6
|
7
|
8
|
9
|
10
|
|
Dollar
Amount
|
1200
|
1600
|
2100
|
2700
|
3500
|
16.13.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
|
|
Dollar
Amount
|
0
|
100
|
225
|
350
|
475
|
|
Rating
|
5
|
6
|
7
|
8
|
|
Dollar
Amount
|
600
|
725
|
875
|
1000
|
16.13.d. Operator's Good Faith.
Good faith percentage shall not include a history of
non-compliances in the amount. Good faith percentage shall be rounded to the
nearest dollar amount.
0 Operator failed to take appropriate remedial action. Notice
of non-compliance 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
|
|
%
|
0%
|
5%
|
10%
|
15%
|
20%
|
|
Rating
|
5
|
6
|
7
|
8
|
|
%
|
25%
|
30%
|
35%
|
40%
|
16.13.e. Determination of Penalty Amount.
Seriousness of Violations $_________
Operator Negligence + $_________
Subtotal $_________
Less Good Faith % - $_________
Sub Total $_________
History of Violations + $_________
Total $_________
