Complaints — Cease and Desist Orders. [Contingent Effective Date, See Compiler's notes.]
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If the commissioner determines that any operator, permittee, or person is in violation of this part, the board's rules, or any permit condition required by this part, or order issued pursuant to this part, the commissioner shall issue a complaint to the operator, permittee, or person fixing a reasonable time, but not more than ninety (90) days, for the abatement of the violation. The board may promulgate rules under § 59-8-103(b)(1) that allow for reasonable extensions beyond ninety (90) days when it is not feasible to abate the violation within that time; however, when the abatement time permitted is in excess of ninety (90) days, interim abatement measures shall be imposed to the extent necessary to minimize harm to the public or the environment.
If, upon expiration of the period of time as originally fixed or subsequently extended, for good cause shown and upon the written finding of the commissioner, the commissioner finds that the violation has not been abated and that the operator, permittee, or person has not reached an agreement with the commissioner, the commissioner shall immediately order a cessation of surface coal mining and reclamation operations or the portion of the operations relevant to the violation.
A cease and desist order remains in effect until the commissioner determines that the violation has been abated, or until modified, vacated, or terminated by the commissioner under subsection (d).
In the cease and desist order issued under this subsection (a), the commissioner shall determine the steps necessary to abate the violation in the most expeditious manner possible and shall include the necessary measures in the cease and desist order.
If a cease and desist order is not complied with, or the operator, permittee, or person refuses or fails to correct the violation, the permit may be revoked and the performance bond shall then be forfeited to the commissioner. When a bond is forfeited, the commissioner shall give notice to the attorney general and reporter, who shall collect the forfeiture.
If the commissioner determines that any condition or practice exists, or that the operator, permittee, or person is in violation of this part, the board's rules, or any permit condition required by this part, or order issued pursuant to this part, which condition, practice, or violation also creates an imminent danger to the health and safety of the public, or is causing, or can reasonably be expected to cause significant, imminent environmental harm to land, air, or water resources, the commissioner shall immediately order a cessation of surface coal mining and reclamation operations or the portion of the operations relevant to the condition, practice, or violation. The cease and desist order remains in effect until the commissioner determines that the condition, practice, or violation has been abated, or until modified, vacated, or terminated by the commissioner under subsection (d). If the commissioner finds that the ordered cessation of surface coal mining and reclamation operations, or any portion of operations, shall not completely abate the imminent danger to the health and safety of the public or the significant, imminent environmental harm to land, air, or water resources, then the commissioner shall, in addition to issuing a cease and desist order, impose affirmative obligations on the operator requiring the operator to take whatever steps the commissioner deems necessary to abate the imminent danger or the significant environmental harm.
The commissioner shall also issue an immediate cease and desist order to any operator mining without a valid permit or mining an area not covered by a valid permit.
The commissioner shall issue cease and desist orders, or suspend or revoke permits, for a pattern of violations caused by an unwarranted failure to comply with this part, the board's rules, or a permit or order, after issuing a show cause order and offering an opportunity for a public hearing of which all interested parties shall be notified. If the operator, permittee, or person fails to show cause as to why the permit should not be suspended or revoked, the commissioner shall suspend or revoke the permit. A written or electronic record shall be kept of any show cause hearing by the commissioner and the hearing shall be subject to title 4, chapter 5, part 3. Within sixty (60) days following a show cause hearing, the commissioner shall issue and furnish to the permittee and all other parties to the hearing a written decision, and the commissioner's findings, concerning suspension or revocation of the permit. Appeals of the commissioner's decision shall be pursuant to § 59-8-120.
If the permit is revoked, then mining shall immediately cease and reclamation shall be completed within a period specified by the commissioner, or the commissioner shall declare the performance bond for the operation to be forfeited. When a bond is forfeited, the commissioner shall give notice to the attorney general and reporter, who shall collect the forfeiture.
Complaints and cease and desist orders shall set forth with reasonable specificity:
The nature of the violation;
The remedial action required;
The period of time established for abatement; and
A reasonable description of the portion of the surface coal mining and reclamation operation to which the complaint or order applies.
The commissioner shall deliver each complaint or cease and desist order issued under this section by:
Personal service upon the operator, permittee, or person; or
Certified mail return receipt requested, when the complaint or cease and desist order is mailed to the operator, permittee, or person at the address shown in the permit application, to the agent for service of process for the operator, permittee, or person at the address shown in the permit application, to the surety's address as shown on the bond document filed with the permit, or, when no permit has been issued, to the last known address of the operator, permittee, or person.
All complaints and cease and desist orders shall be in writing and shall be signed by the commissioner.
The commissioner may modify, vacate, or terminate any complaint or cease and desist order issued pursuant to this section.
Any complaint or cease and desist order issued pursuant to this section, which requires cessation of active mining, expires within thirty (30) days of actual notice to the operator, permittee, or person, unless an informal public hearing is held at the site or within a reasonable proximity to the site where any viewings of the site can be conducted during the course of the informal public hearing; however, the complaint or cease and desist order shall not expire if the operator, permittee, or person waives the informal hearing.
The commissioner shall send a copy of all complaints and cease and desist orders to the permittee's surety.
Except as provided in subsection (c), a complaint or cease and desist order issued pursuant to this section shall inform the alleged violator or violators of the opportunity for an informal public hearing as provided in subdivision (d)(5), if applicable, and a hearing before the board as provided in § 59-8-120. If the complaint or cease and desist order is appealed within thirty (30) days of the date the complaint or cease and desist order is served, the operator, permittee, or person may request that the commissioner make a decision upon both the complaint or cease and desist order and a notice of proposed assessment arising from the complaint or cease and desist order as provided in § 59-8-117(b), if appropriate. Upon the request of the alleged violator or violators, the department shall promptly make available and provide access to any documents and other information that address the factual basis of the complaint.