Current through all regulations passed and filed through December 16, 2024
(A) For purposes of
this rule:
(1) "Chief" shall mean the chief,
his or her authorized representative, or any inspection officer.
(2) "Inactive coal mining and reclamation
operation" means an operation:
(a) For which
the chief has secured from the permittee the written notice required under
paragraph (A) of rule
1501:13-9-16
of the Administrative Code; or
(b)
For which reclamation phase II as defined in paragraph (B)(1)(b) of rule
1501:13-7-05
or paragraph (B)(1)(b) of rule 1501:13-7-05.1 of the Administrative Code has
been completed.
(3)
"Abandoned coal mining and reclamation operation" means an operation where the
chief has found in writing that:
(a) All
surface and underground coal mining and reclamation activities at the site have
ceased;
(b) The chief has issued at
least one notice of violation, and either:
(i)
Is unable to serve the notice despite diligent efforts to do so; or
(ii) The notice was served and has progressed
to a failure-to-abate cessation order;
(c) The chief:
(i) Is taking action to ensure that the
permittee and operator, and owners and controllers of the permittee and
operator, will be precluded from receiving future permits while violations
continue at the site; and
(ii) Is
taking action pursuant to rules
1501:13-14-02 and
1501:13-14-06
of the Administrative Code, or section
1513.02,
1513.15,
1513.40,
or
1513.99 of the Revised
Code to ensure that abatement occurs or that there will not be a recurrence of
the failure-to-abate, except where after evaluating the circumstances, the
chief concludes that further enforcement offers little or no likelihood of
successfully compelling abatement or recovering any reclamation costs;
and
(d) Where the site
is, or was, permitted and performance security was provided:
(i) The permit has either expired or been
revoked; and
(ii) The chief
initiated and is diligently pursuing forfeiture of, or has forfeited, any
available performance security.
(4) "Active coal mining and reclamation
operation" means an operation other than an inactive or abandoned coal mining
and reclamation operation.
(B) The chief shall have a right of entry to,
upon, or through any coal mining and reclamation operations, coal exploration
operations, any premises in which any records required to be maintained are
located and any area of land upon which the chief has reason to believe that
coal mining and reclamation operations are being conducted.
(C) The chief shall conduct an average of at
least one partial inspection per month of each active coal mining and
reclamation operation under his or her jurisdiction, and shall conduct such
partial inspections of each inactive coal mining and reclamation operation
under his or her jurisdiction as are necessary to ensure effective enforcement.
A "partial inspection" is an on-site or aerial review of a person's compliance
with some of the permit conditions and requirements imposed under Chapter 1513.
of the Revised Code and these rules.
(1) If
the chief or his or her authorized representative conducts an aerial
inspection, the aerial inspection shall be conducted in a manner which
reasonably ensures the identification and documentation of conditions at each
coal mining and reclamation site inspected.
(2) Any potential violation observed during
an aerial inspection shall be investigated on site within three calendar days
after the aerial inspection, provided that any indication of a condition,
practice or violation constituting cause for issuance of a cessation order
under division (D)(1) of section
1513.02
of the Revised Code shall be investigated on site immediately, and provided
further that an onsite 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 paragraph (C) or (D) of this
rule.
(D) The chief shall
conduct an average of at least one complete inspection per calendar quarter of
each active and inactive coal mining and reclamation operation under his or her
jurisdiction. A "complete inspection" is an on-site review of a person's
compliance with all permit conditions and requirements imposed under Chapter
1513. of the Revised Code and these rules.
(E) In lieu of the inspection frequency
established in paragraphs (C) and (D) of this rule, the chief shall inspect
each abandoned site on a set frequency commensurate with the public health and
safety and environmental considerations present at each specific site, but in
no case shall the inspection frequency be set at less than one complete
inspection per calendar year.
(1) In
selecting an alternate inspection frequency authorized under paragraph (E) of
this rule, the chief shall first conduct a complete inspection of the abandoned
site and provide public notice under paragraph (E)(2) of this rule. Following
the inspection and public notice, the chief 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:
(a) How the site meets each of the criteria
under the definition of an abandoned site under paragraph (A)(3) of this rule
and thereby qualifies for a reduction in inspection frequency;
(b) Whether, and to what extent, there exist
on the site impoundments, earthen structures, or other conditions that pose, or
may reasonably be expected to pose imminent dangers to the health or safety of
the public or significant environmental harms to land, air, or water
resources;
(c) The extent to which
existing impoundments or earthen structures were constructed and certified in
accordance with prudent engineering designs approved in the permit;
(d) The degree to which erosion and sediment
control is present and functioning;
(e) 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;
(f) 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 time; and
(g) Based on a review of the complete and
partial inspection report record for the site during at least the last two
consecutive years, the rate at which adverse environmental or public health and
safety conditions have and can be expected to progressively
deteriorate.
(2) The
public notice and opportunity to comment required under paragraph (E)(1) of
this rule shall be provided as follows:
(a)
The chief shall place a notice in the newspaper with the broadest circulation
in the locality of the abandoned site providing the public with a thirtyday
period in which to submit written comments; and
(b) 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 performance security status of the permit, the
telephone number,
address, and electronic mail address
where written comments on the reduced inspection frequency may be submitted,
and the closing date of the comment period.
(F) The chief shall conduct such inspections
of all coal exploration operations as are necessary to ensure compliance with
Chapter 1513. of the Revised Code and rules adopted thereunder.
(G) Except as provided in paragraph (M) of
this rule, the inspections required under paragraphs (C), (D), (E), and (F) of
this rule shall:
(1) Occur without advance
notice or search warrant and upon presentation of appropriate
credentials;
(2) Be carried out on
an irregular basis, so as to monitor compliance at all operations, including
those which operate nights, holidays, and weekends;
(3) Occur without prior notice to the
permittee or operator being inspected or any agent or employee of such
permittee or operator, except for necessary on-site meetings;
(4) Include the prompt filing of inspection
reports or other documents adequate to enforce the requirements of and to carry
out the terms and purposes of Chapter 1513. of the Revised Code and rules
adopted thereunder;
(5) Include the
collection of evidence with respect to every violation; and
(6) Allow for inspection of any monitoring
equipment or method of exploration or operation and allow access to and
acquisition of copies of any records required to be maintained under Chapter
1513. of the Revised Code and rules adopted thereunder.
(H) Citizen's request for inspection.
(1) A citizen may request an inspection by
furnishing to the chief a signed or electronically
signed, written statement,
or an oral report followed by a signed
or electronically signed, written statement, giving:
(a) The reason for believing that a violation
exists; and
(b) A phone number and
address where the citizen can be contacted.
(2) The identity of any person supplying the
information to the chief in a request for an inspection shall remain
confidential, if requested by the person, unless the person elects to accompany
the inspector on the inspection or unless disclosure is required under the
state's freedom of information laws.
(3) If an inspection is to be conducted as a
result of information provided by the citizen, the citizen shall be notified as
far in advance as is practicable when the inspection is to occur and shall be
allowed to accompany the inspector. The citizen shall be in the presence of and
under control, direction, and supervision of the inspector during the
inspection. The citizen does not have the right to enter buildings without
consent of the permittee or without a search order.
(4) Within ten days of the inspection or, if
there is no inspection, within fifteen days of receipt of the citizen's written
statement, the chief or his or her representative shall send the citizen and
the permittee the following:
(a) If an
inspection was made, a description of the enforcement action taken or an
explanation of why no enforcement action was taken;
(b) If no inspection was conducted, an
explanation of the reason why; and
(c) An explanation of the citizen's right to
informal review of the action of the chief.
(5) The chief shall give copies of all
materials in paragraphs (H)(4)(a) and (H)(4)(b) of this rule within the time
limits specified in those paragraphs to the person, permittee, or operator
alleged to be in violation, except that the name of the citizen shall be
removed unless disclosure of the citizen's identity is permitted under
paragraph (H)(2) of this rule.
(I) Inspection of operations where coal is
extracted incidental to the extraction of other minerals.
(1) Authorized representatives of the chief
and of the U.S. secretary of the interior shall have the right to conduct
inspections of operations claiming the exemption from the requirements of
Chapter 1513. of the Revised Code in accordance with rule
1501:13-4-16
of the Administrative Code.
(2)
Each authorized representative of the chief or of the U.S. secretary of the
interior conducting an inspection under paragraph (I)(1) of this rule:
(a) Shall have a right of entry to, upon, and
through any mining and reclamation operations without advance notice or a
search warrant, upon presentation of appropriate credentials;
(b) May, at reasonable times and without
delay, have access to and copy any records relevant to the exemption;
and
(c) Shall have a right to
gather physical and photographic evidence to document conditions, practices, or
violations at a site.
(3)
No search warrant shall be required with respect to any activity under
paragraphs (I)(1) and (I)(2) of this rule, except that a search warrant may be
required for entry into a building.
(J) Informal review.
(1) Any person who is or may be adversely
affected by a coal mining and reclamation operation may request, in writing
or by electronic mail, the chief to review
informally an authorized representative's or inspection officer's decision not
to inspect or take appropriate enforcement alleged by that person in a request
for inspection under paragraph (H) of this rule. The request for review shall
include a statement of how the person is or may be adversely affected and why
the decision merits review.
(2) The
chief shall conduct the review and inform the person, in writing
or by electronic mail, of the results of the
review within thirty days of receipt of the request. The person alleged to be
in violation shall also be given a copy of the results of the review, except
that the name of the person who is or may be adversely affected shall not be
disclosed unless confidentiality has been waived or disclosure is required
under the state's freedom of information laws.
(3) Informal review under this rule shall not
affect any right to formal review or to a citizen's suit under Chapter 1513. of
the Revised Code and rules adopted thereunder.
(K) Any person who is or may be adversely
affected by coal exploration or a coal mining and reclamation operation may
notify the chief, in writing or by electronic
mail, of any alleged failure to make adequate and complete or periodic
inspections as provided in paragraphs (C), (D), (E), and (F) of this rule.
(1) The notification shall include sufficient
information to create a reasonable belief that this rule is not being complied
with and to demonstrate that the person is or may be adversely
affected.
(2) The chief shall,
within fifteen days of receipt of the notification, determine whether this rule
is being complied with, and if not, shall immediately order an
inspection.
(3) The chief shall
furnish the complainant with a written or
electronic finding, stating his or her determination and
actions.
(L) The
permittee or operator may accompany the chief during any inspection.
(M) Compliance review.
(1) A permittee may request an on-site
compliance review with the chief or his or her authorized representative to
review the compliance status of any condition or practice proposed at any coal
exploration or coal mining and reclamation operation. Any such review shall not
constitute an inspection within the meaning of division (C)(1) of section
1513.09
of the Revised Code or paragraph (C), (D), (E), or (F) of this rule.
(2) The chief or his or her authorized
representative may accept or refuse any request to conduct a compliance review
under paragraph (M)(1) of this rule.
(3) The chief or his or her authorized
representative shall, at any compliance review, review the proposed conditions
and practices in order to advise whether any such condition or practice may
become a violation of any requirement under Chapter 1513. of the Revised Code,
these rules, or the permit.
(4)
Neither the holding of a compliance review under this rule nor any opinion
given by the chief or his or her authorized representative at such review shall
affect:
(a) Any rights or obligations of the
state or the permittee with respect to any inspection, notice of violation or
cessation order, whether prior or subsequent to such compliance review;
or
(b) The validity of any notice
of violation or cessation order issued with respect to any condition or
practice reviewed at the compliance review.