(a) Pattern of violations.
(1) Except as provided in subsection (b) of this section,
the Director of the Surface Mining and Reclamation Division shall
issue an order to a permittee requiring the permittee to show cause
why the permit and right to mine under the Act should not be suspended
or revoked if the Director of the Surface Mining and Reclamation Division
determines that a pattern of violations of any requirements of the
Act, this chapter (relating to Coal Mining Regulations), or any permit
condition required by the Act exists or has existed, and that the
violations were caused by the permittee willfully or through unwarranted
failure to comply with those requirements or conditions. Violations
by any person conducting surface coal mining operations on behalf
of the permittee shall be attributed to the permittee, unless the
permittee establishes that they were acts of deliberate sabotage.
(2) The Director of the Surface Mining and Reclamation
Division may determine that a pattern of violations exists or has
existed, based on two or more inspections of the permit area within
any 12-month period, after considering the circumstances, including:
(A) the number of violations, cited on more than one
occasion, of the same or related requirements of the Act, this chapter
(relating to Coal Mining Regulations), or the permit;
(B) the number of violations, cited on more than one
occasion, of different requirements of the Act, this chapter, the
applicable program, or the permit; and
(C) the extent to which the violations were isolated
departures from lawful conduct.
(3) The Director of the Surface Mining and Reclamation
Division shall determine that a pattern of violations exists, if the
Director finds that there were violations of the same or related requirements
of the Act, this chapter, or the permit during three or more inspections
of the permit area within any 12-month period.
(b) Discretion of the Division Director. The Director
of the Surface Mining and Reclamation Division may decline to issue
a show cause order, or may vacate an outstanding show cause order,
if the Director of the Surface Mining and Reclamation Division finds
that, taking into account exceptional factors present in the particular
case, it would be demonstrably unjust to issue or to fail to vacate
the show cause order. The basis for this finding shall be fully explained
and documented in the records of the case.
(c) Public notice requirements. At the same time as
the issuance of the order, the Director of the Surface Mining and
Reclamation Division shall:
(1) if practicable, publish notice of the order, including
a brief statement of the procedure for intervention in the proceeding,
in a newspaper of general circulation in the area of the surface coal
mining and reclamation operations; and
(2) post the notice at the district or field office
closest to the area of the surface coal mining and reclamation operations.
(d) Public hearing. Following issuance of a show cause
order, the Commission shall hold a public hearing after appropriate
written notice of the time, date and place of the hearing. The hearing
shall be of record and subject to the APA.
(e) Determination after hearing. Within 60 days after
the hearing, the Commission shall issue a written determination as
to whether a pattern of violations exists and, if appropriate, an
order. If the permit and the permittee's right to mine are revoked
or suspended, the permittee shall immediately cease surface coal mining
operations on the permit area and shall:
(1) if revoked, complete reclamation within the time
frame specified in the order; or
(2) if suspended, complete all affirmative obligations
to abate all conditions, practices or violations as specified in the
order.
(f) Failure to abate. When 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 Director of the Surface Mining and Reclamation Division
shall review the permittee's history of violations to determine whether
a pattern of violations exists pursuant to this section, and shall
issue an order to show cause as appropriate pursuant to §12.680
of this title (relating to Service of Notices of Violation, Cessation
Orders, and Show Cause Orders).
|