Ohio Administrative Code
Title 1501:13 - Division of Mineral Resources Management - Coal
Chapter 1501:13-14 - Enforcement
Section 1501:13-14-02 - Enforcement
Universal Citation: OH Admin Code 1501:13-14-02
Current through all regulations passed and filed through September 16, 2024
(A) Cessation orders.
(1) Imminent danger; significant harm.
(a) An authorized representative of the chief
shall immediately order a cessation of coal mining and reclamation operations
or of the relevant portion thereof, if he or she finds on the basis of any
inspection, any condition or practice, or any violation of Chapter 1513. of the
Revised Code or rules adopted thereunder, or any condition of a coal
exploration approval or permit or a coal mining and reclamation permit, which:
(i) Creates an imminent danger to the health
or safety of the public; or
(ii) Is
causing or can reasonably be expected to cause significant, imminent
environmental harm to land, air or water resources.
(b) If the cessation ordered under paragraph
(A)(1)(a) of this rule will not completely abate the imminent danger or harm in
the most expeditious manner physically possible, the authorized representative
of the chief shall impose affirmative obligations on the person to whom it is
issued to abate the condition, practice or violation. The order shall specify
the time by which abatement shall be accomplished.
(2) Coal mining operations conducted by any
person without a valid permit issued pursuant to these rules constitute a
condition or practice which causes or can reasonably be expected to cause
significant imminent environmental harm to land, air or water resources, unless
such operations are an integral, uninterrupted extension of previously
permitted operations, and the person conducting such operations has filed a
timely and complete application for a permit to conduct such
operations.
(3) Failure to abate
violation.
(a) An authorized representative of
the chief shall immediately order the cessation of coal exploration or coal
mining and reclamation operations, or of the relevant portion thereof, when a
notice of violation has been issued under paragraph (B) of this rule and the
person to whom it was issued fails to abate the violation within the abatement
period fixed or subsequently extended by the authorized
representative.
(b) A cessation
order issued under paragraph (A)(3) of this rule shall require the person to
whom it is issued to take all steps the authorized representative of the chief
deems necessary to abate the violations covered by the order in the most
expeditious manner physically possible.
(c) Whenever 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
chief shall review the permittee's history of violations to determine whether a
pattern of violations exists pursuant to this rule, and shall issue an order to
show cause as appropriate pursuant to paragraph (C) of this rule.
(4) A cessation order issued under
paragraph (A)(1) or (A)(3) of this rule shall be in writing, signed by the
authorized representative who issues it, and shall set forth with reasonable
specificity:
(a) The nature of the condition,
practice, or violation;
(b) The
remedial action or affirmative obligation required, if any, including interim
steps, if appropriate;
(c) The time
established for abatement, if appropriate, including the time for meeting any
interim steps; and
(d) A reasonable
description of the portion of the coal exploration or coal mining and
reclamation operation to which it applies. The order shall remain in effect
until the condition, practice or violation has been abated or until the order
is vacated, modified or terminated in writing by an authorized representative
of the chief.
(5)
Reclamation operations and other activities intended to protect public health
and safety and the environment shall continue during the period of any order
unless otherwise provided in the order.
(6) An authorized representative of the chief
may modify, terminate or vacate a cessation order for good cause, and may
extend the time for abatement if the failure to abate within the time
previously set was not caused by lack of diligence on the part of the person to
whom it was issued.
(7) An
authorized representative of the chief shall terminate a cessation order, by
written notice to the person to whom the order was issued, when he or she
determines that all conditions, practices, or violations listed in the order
have been abated. Termination shall not affect the right of the chief to assess
civil penalties for those violations under rule
1501:13-14-03 of
the Administrative Code.
(8) Within
thirty days after a cessation order is issued, the permittee shall submit to
the chief the information required pursuant to paragraph (G)(5) of rule
1501:13-5-01
of the Administrative Code. Within sixty days after issuing a cessation order,
the chief shall notify in writing any person who has been identified under
paragraph (B)(5) or (B)(7) of rule
1501:13-4-03
or paragraph (G)(5) of rule
1501:13-5-01
of the Administrative Code as owning or controlling the permittee that the
cessation order was issued and that the person has been identified as an owner
or controller.
(9) If performance
security was provided together with reliance on the reclamation forfeiture fund
in accordance with paragraph (C)(2) of rule
1501:13-7-01
of the Administrative Code and the chief has issued a cessation order under
paragraph (A)(3) of this rule for failure to abate a violation of the
contemporaneous reclamation requirement under rule
1501:13-9-13
of the Administrative Code, the chief may require the permittee to increase the
amount of performance security for the permit from twenty-five hundred dollars
per acre of land to five thousand dollars per acre of land.
(a) If the cessation order is for failure to
abate a violation of the contemporaneous reclamation requirement for
backfilling and/or grading and permittee has not abated the violation within
thirty days of the issuance of the cessation order, the chief may, in writing,
order the permittee to increase, within ten days, the amount of performance
security to five thousand dollars per acre of land.
(b) If the cessation order is for failure to
abate a violation of the contemporaneous reclamation requirement for any reason
other than backfilling and/or grading and permittee has not abated the
violation within thirty days of the issuance of the cessation order, the chief
may determine the amount of performance security increase and may, in writing,
order the permittee to increase, within ten days, performance security by the
amount specified in the order, not to exceed a total of five thousand dollars
per acre of land.
(c) If the chief
orders the permittee to increase the amount of performance security under
paragraph (A)(9)(a) or (A)(9)(b) of this rule, the chief shall also order the
permittee to show cause why the permittee has the ability to comply with the
requirements of Chapter 1513. of the Revised Code in accordance with paragraph
(B) of rule
1501:13-7-06
of the Administrative Code.
(d) If
the chief orders the permittee to increase the amount of performance security
under paragraph (A)(9)(a) or (A)(9)(b) of this rule, the increased performance
security shall remain in effect for the permit, including all future acreage of
the permit, until the chief determines that the amount of performance security
may be reduced. When the permittee abates the violation contained in the
cessation order that resulted in the increase in performance security, the
permittee may request the chief, in writing, to reduce the amount of
performance security per acre. The chief shall determine, in writing, whether
or not the performance security may be reduced and the amount of performance
security reduction, if any, based on the overall site conditions of the permit,
the success of the reclamation performed, the permittee's compliance with other
enforcement actions, and the outcome of the show cause hearing held pursuant to
paragraph (B) of rule
1501:13-7-06
of the Administrative Code or of any show cause hearing requested under
paragraph (C) of this rule.
(e) A
reduction in the amount of performance security under paragraph (A)(9) (d) of
this rule shall not be considered release of performance security and is not
subject to division (F) of section
1513.16 of the Revised
Code.
(B) Notices of violation.
(1) An authorized
representative of the chief shall issue a notice of violation, if, on the basis
of an inspection, he or she finds a violation of Chapter 1513. of the Revised
Code or rules adopted thereunder or any condition of a permit or an exploration
permit, which does not create an imminent danger or harm for which a cessation
order must be issued under paragraph (A) of this rule.
(2) A notice of violation issued under this
rule shall be in writing, signed by the authorized representative of the chief
who issued it, and shall set forth with reasonable specificity:
(a) The nature of the violation;
(b) The remedial action required, which may
include interim steps;
(c) A
reasonable time for abatement, which may include time for accomplishment of
interim steps; and
(d) A reasonable
description of the portion of the coal exploration or coal mining and
reclamation operation to which it applies.
(3) An authorized representative of the chief
may extend the time set for the 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 person to whom it was issued. The total time for
abatement under a notice of violation, including all extensions, shall not
exceed ninety days from the date of issuance, except upon a showing by the
permittee that it is not feasible to abate the violation within ninety calendar
days due to one or more of the circumstances listed in paragraph (B)(3) of this
rule. An extended abatement date pursuant to this rule shall not be granted
when the permittee's failure to abate within ninety days has been caused by
lack of diligence or intentional delay by the permittee in completing the
remedial action required. Circumstances which may qualify a coal mining
operation for an abatement period of more than ninety days are:
(a) When a permittee has applied in a timely
manner for, and diligently pursued, a permit renewal or other necessary
approval of designs or plans but such renewal or approval has not been issued
within ninety days after the permittee's valid permit expires for reasons not
within the control of the permittee;
(b) When there is a valid judicial order
precluding abatement within ninety days as to which the permittee has
diligently pursued all rights of appeal and as to which he or she has no other
effective legal remedy;
(c) When
the permittee cannot abate within ninety days due to a labor strike;
(d) When climatic conditions preclude
abatement within ninety days or when, due to climatic conditions, abatement
within ninety days clearly would cause more environmental harm than it would
prevent; or
(e) When abatement
within ninety days requires action that would violate safety standards
established by statute or regulation under the Mine Safety and Health Act of
1977,
30 U.S.C.
801 to
965,
as amended.
(4) Whenever
an abatement time in excess of ninety days is granted, interim abatement
measures shall be imposed to the extent necessary to minimize harm to the
public or the environment.
(5) If
any of the conditions in paragraph (B)(3) of this rule exist, the permittee may
request the authorized representative to grant an abatement period exceeding
ninety days. The authorized representative shall not grant or deny such an
abatement period without the concurrence of the chief and the abatement period
granted shall not exceed the shortest possible time necessary to abate the
violation. The permittee shall have the burden of establishing by clear and
convincing proof that he or she is entitled to an extension under the
provisions of paragraph (B)(3) of this rule. In determining whether or not to
grant an abatement period exceeding ninety days, the authorized representative
may consider any relevant written or oral information from the permittee or any
other source. The authorized representative shall promptly and fully document
in the file his or her reasons for granting or denying the request. The
authorized representative's immediate supervisor shall review this document
before concurring in or disapproving the extended abatement date and shall
promptly and fully document the reasons for his or her concurrence or
disapproval in the file.
(6) Any
determination made under paragraph (B)(5) of this rule shall be in writing and
shall contain a right of appeal to the reclamation commission.
(7) No extension granted under paragraph
(B)(5) of this rule may exceed ninety days in length. If the condition or
circumstance which prevented abatement within ninety days exists at the
expiration of any such extension, the permittee may request a further extension
in accordance with the procedures of paragraph (B)(5) of this rule.
(8) If the person to whom the notice was
issued fails to meet any time set for abatement or for accomplishment of an
interim step, the authorized representative shall issue a cessation order under
paragraph (A) of this rule.
(9) An
authorized representative of the chief shall terminate a notice of violation by
written notice to the person to whom it was issued, when he or she determines
that all violations listed in the notice of violation have been abated.
Termination shall not affect the right of the chief to assess civil penalties
for those violations under rule
1501:13-14-03 of
the Administrative Code.
(C) Show cause orders.
(1) If the chief determines that, for any
permit, there exists or has existed a pattern of violations of any requirements
of Chapter 1513. of the Revised Code, these rules, or any permit condition, and
that the violations were caused by the permittee willfully or through
unwarranted failure to comply with those requirements or conditions, then the
chief shall issue an order to the permittee requiring him or her to show cause
why his or her permit and right to mine should not be suspended or revoked.
Violations by any person conducting 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 chief shall determine that a pattern
of violations exists, if he or she finds that there were violations of the same
or related requirements of Chapter 1513. of the Revised Code, these rules, or
the permit during three or more inspections of the permit area within any
twelve-month period.
(3) The chief
may determine that a pattern of violations exists or has existed, based on two
or more inspections of the permit area within any twelve-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 Chapter 1513. of the Revised Code, these rules, or the
permit;
(b) The number of
violations, cited on more than one occasion, of different requirements of
Chapter 1513. of the Revised Code, these rules, or the permit; and
(c) The extent to which the violations were
isolated departures from lawful conduct.
(4) A show cause order shall set forth in the
order itself or in attachments to the order:
(a) A list of the unwarranted or willful
violations which contribute to a pattern of violations;
(b) A copy of each order or notice which
contains one or more of the violations listed as contributing to a pattern of
violations;
(c) A brief statement
indicating the basis for determining that the violations were caused by the
permittee willfully or through unwarranted failure to comply;
(d) The chief's intent to either revoke or
suspend the permit, including the length and terms of a suspension;
and
(e) A statement advising the
permittee that if he or she wishes a show cause hearing, he or she must, within
thirty days from receipt of the show cause order, file
an answer
to the show cause order and request a hearing.
(5) The permittee's answer to a show cause
order shall contain a statement setting forth:
(a) The reasons in detail why a pattern of
violations does not exist or has not existed including all the reasons for
contesting:
(i) The fact of any of the
violations alleged by the chief as constituting a pattern of
violations;
(ii) The willfulness of
such violations; or
(iii) Whether
such violations were caused by the unwarranted failure of the
permittee;
(b) All
mitigating factors the permittee believes exist in determining the terms of the
revocation or the length of terms of the suspension; and
(c) Any other alleged relevant
facts.
(6) If the
permittee files an answer to the show cause order and requests a show cause
hearing, the chief shall give thirty days written notice of the date, time and
place of the hearing to all interested parties. The chief shall publish notice
of the hearing, if practicable, in a newspaper of general circulation in the
area of the coal mining and reclamation operations, and shall post it at the
division of mineral resources management district office closest to the coal
mining and reclamation operations.
(7) If the permittee files an answer and
requests a hearing, the chief or his or her representative shall hold a show
cause hearing, which shall be a public adjudicatory hearing of record. The
permittee issued the order to show cause shall appear at the hearing. The chief
or his or her representative may accept oral or written statements and any
other relevant information. An electronic or stenographic record shall be made
of the hearing. The record shall be maintained and shall be accessible to the
parties of the hearing until final release of the permittee's performance
security required by Chapter 1513. of the Revised Code and rules adopted
thereunder.
(8) In a show cause
hearing, the chief shall have the burden of going forward to establish a prima
facie case for suspension or revocation of the permit. The ultimate burden of
persuasion that the permit should not be suspended or revoked shall rest with
the permittee.
(9) Within sixty
days following the show cause hearing:
(a) The
chief shall issue a written determination as to whether a pattern of violations
exists and, if appropriate, an order for the suspension or revocation of the
permit.
(i) In making a determination that a
pattern of violations exists, the chief need not find that all the violations
listed in the show cause order occurred, but only that sufficient violations
occurred to establish a pattern;
(ii) If the permit is suspended, the minimum
suspension period shall be three working days unless the chief finds that
imposition of the minimum suspension period would result in manifest injustice
and would not further the purposes of Chapter 1513. of the Revised Code;
and
(b) The chief shall
furnish the permittee and all other parties of the hearing with the written
determination, which shall state the reasons for this determination issued
pursuant to paragraph (C)(9)(a) of this rule.
(10) Whenever the chief orders the revocation
or suspension of the permit in the determination issued pursuant to paragraph
(C)(9)(a) of this rule, the permittee shall immediately cease coal mining
operations on the permit area and shall:
(a)
If the permit and the right to mine are revoked, complete reclamation within
the time specified in the order or the chief shall declare as forfeited the
performance security for the operation; or
(b) If the permit and right to mine are
suspended, complete all affirmative obligations to abate all conditions,
practices or violations, as specified in the order.
(D) Service of notices and orders.
(1) Any notice or order shall be served on
the person to whom it is directed or his or her designated agent promptly after
issuance, as follows:
(a) By tendering a copy
at the coal exploration or coal mining and reclamation operation to the person
to whom it is directed or to the designated agent, or to the individual who,
based upon reasonable inquiry by the chief's authorized representative, appears
to be in charge of the coal exploration or coal mining and reclamation
operation referred to in the notice or order. If no such individual can be
located at the site, a copy may be tendered to any individual at the site who
appears to be an employee or agent of the person to whom the notice or order is
issued. In the event a notice or order is tendered to anyone other than to whom
it is directed or his or her designated agent, service shall also be made by
certified mail. Service shall be complete upon tender of the notice or order
and shall not be deemed incomplete because of refusal to accept; or
(b) As an alternative to paragraph (D)(1)(a)
of this rule, service may be made by sending a copy of the notice or order by
certified mail to the address shown as current on the permit in accordance with
paragraph (B)(1)(a) of rule
1501:13-4-03
of the Administrative Code or by hand to the person to whom it is issued or his
or her designated agent. Service shall be complete upon tender of the notice or
order of the mail and shall not be deemed incomplete because of refusal to
accept.
(c) In the event that
attempts to deliver the notice or order by hand or by certified mail are
unsuccessful, service of the notice or order may be made by first class mail to
the most current address on file with the division of mineral resources
management.
(2)
Designation by any person of an agent for service of notices and orders shall
be made in writing to the division of mineral resources management.
(E) Expiration of order of cessation.
(1) Except as provided in paragraph
(E)(2) of this rule, a notice of violation or order which requires cessation of
mining shall expire within thirty days after it is served unless a hearing has
been held pursuant to section
1513.13 of the Revised Code
within that time.
(2) A notice of
violation or cessation order shall not expire as provided in paragraph (E)(1)
of this rule, if the condition, practice, or violation in question has not been
abated or if the hearing has been waived by the person to whom the notice or
order was issued.
(F) Review of citations.
(1) A person issued a
notice of violation or cessation order under this rule, or a person having an
interest which is or may be adversely affected by the issuance, modification,
vacation, or termination of a notice or order may request review of that action
by filing an application for review and request for hearing under section
1513.13 of the Revised Code
within thirty days after receiving notice of the action. Such person may also
request temporary relief under division (C) of section
1513.13 of the Revised
Code.
(2) The filing of an
application for review and request for a hearing under paragraph (F) of this
rule shall not operate as a stay of any notice or order, or of any
modification, termination or vacation of either.
(G) Lack of information. No notice of violation, cessation order, show cause order, or order revoking or suspending a permit may be vacated because it is subsequently determined that the chief did not have information sufficient, under these rules, to justify an inspection.
(H) Inability to comply.
(1) No cessation order or notice of
violation issued under these rules may be vacated because of inability to
comply.
(2) Inability to comply may
not be considered in determining whether a pattern of violations exists
pursuant to paragraph (C) of this rule.
(3) Unless caused by lack of diligence,
inability to comply may be considered only in mitigation of the amount of civil
penalty under rule
1501:13-14-03 of
the Administrative Code and of the duration of the suspension of a permit under
paragraph (C) of this rule.
(I) Injunctive relief. The chief may request the attorney general of the state of Ohio to institute a civil action for relief, including a permanent or temporary injunction, restraining order or any other order in the court of common pleas for the county in which the coal exploration or coal mining and reclamation operation is located or in which the person to whom the notice of violation or order has been issued has his or her principal office whenever that person or his or her agent, in violation of Chapter 1513. of the Revised Code or rules adopted thereunder, or any condition of a coal exploration permit or a coal mining and reclamation permit:
(1) Violates or fails or refuses to comply
with any order or decision of the chief or any authorized representative of the
chief under Chapter 1513. of the Revised Code or rules adopted
thereunder;
(2) Interferes with,
hinders or delays the chief or an authorized representative in carrying out the
provisions of Chapter 1513. of the Revised Code or rules adopted
thereunder;
(3) Refuses to admit an
authorized representative of the chief to a mine;
(4) Refuses to permit inspection of a mine by
an authorized representative of the chief;
(5) Refuses to furnish any required
information or report;
(6) Refuses
to permit access to or copying of any required records; or
(7) Refuses to permit inspection of
monitoring equipment.
(J) For dates of federal rules and federal laws referenced in this rule, see rule 1501:13-1-14 of the Administrative Code.
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