Current through Register Vol. 6, March 22, 2024
(1) The department shall issue a cessation
order for each violation, condition, or practice that creates an imminent
danger to the health or safety of the public or is causing or can reasonably be
expected to cause significant and imminent environmental harm to land, air, or
water resources, for failure to comply with an order of abatement, and for
conducting mining operations or prospecting without a permit. Within 60 days
after issuance of a cessation order, the department shall notify, in writing,
any person who has been identified pursuant to ARM
17.24.303(1) (g) and (1)
(h), and
17.24.413(1) (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. The department
shall issue a notice of noncompliance for other violations.
(2) A notice of noncompliance, notice of
violation, penalty order, or cessation order must be served upon the person to
whom it is directed or his designated agent promptly after issuance by:
(a) tendering a copy of the notice or order
at the operation to a designated agent, to the individual in charge of the
operation or, if the designated agent or person in charge cannot be located at
the operation, to any agent or employee at the operation;
(b) sending a copy of the notice or order by
certified mail to the permittee or his designated agent; or
(c) hand delivery of a copy of the notice or
order to the permittee or his designated agent. Designation of an agent other
than the agent named in the permit application for service of process may be
made by filing with the department a written designation signed by the former
designated agent;
(d) service is
complete upon tender of the document and is not incomplete because of refusal
to accept.
(3) Whenever
an abatement order has been complied with, the department shall inspect or
review the abatement, and, if the abatement is satisfactorily completed, shall
terminate the order of abatement. The termination must be issued onsite at the
time of the inspection.
(4) Filing
of an application for review does not operate as a stay of any order.
(5)
(a)
Except as provided in (5) (b) (ii), an abatement order must specify compliance
within a reasonable period of time, not exceeding 90 days.
(b) The department may impose an abatement
period of more than 90 days whenever:
(i) 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 such permit or approval has not been or will not be issued within 90
days after a valid permit expires or is required, for reasons not within the
control of the permittee;
(ii) a
valid judicial order as to which the permittee has diligently pursued all
rights of appeal and as to which he has no other effective legal remedy
precludes abatement within 90 days;
(iii) the permittee cannot abate within 90
days due to a labor strike;
(iv)
climatic conditions preclude abatement within 90 days, or due to climatic
conditions, abatement within 90 days clearly would cause more environmental
harm than it would prevent; or
(v)
abatement within 90 days requires action that would violate safety standards
established by statute or regulation under the Mine Safety and Health Act of
1977; and
(vi) the failure to abate
has not been caused by a lack of diligence or intentional delay by the
permittee.
(c) Whenever
an abatement time in excess of 90 days is permitted, the department shall
impose interim abatement measures to the extent necessary to minimize harm to
the public or the environment.
(d)
Whenever any of the conditions in (5) (b) exist, the permittee may request
extension of the abatement period beyond 90 days. The department may not grant
an extension for more time than is necessary for abatement. The permittee has
the burden of establishing by clear and convincing proof that he is entitled to
an extension. In determining whether or not to grant an abatement period
exceeding 90 days, the department may consider any relevant written or oral
information from the permittee or any other source. The department shall
promptly and fully document in the file its reasons for granting or denying the
request. The department's decision on an application for extension beyond 90
days is subject to hearing if a hearing is requested by a person with an
interest that is or may be adversely affected; such a request must be submitted
in writing to the Board of Environmental Review within 30 days of notice of the
department's decision on the application. The hearing must be a contested case
hearing in accordance with
82-4-206, MCA.
(e) An extension granted under this section
must not exceed 90 days in length. Where the condition or circumstance which
prevented abatement within 90 days exists at the expiration of any such
extension, the permittee may request a further extension.
AUTH:
82-4-205, MCA; IMP,
82-4-251,
MCA