West Virginia Code of State Rules
Agency 199 - Explosives And Blasting
Title 199 - LEGISLATIVE RULE DEPARTMENT OF ENVIRONMENTAL PROTECTION OFFICE OF EXPLOSIVES AND BLASTING
Series 199-01 - West Virginia Explosives And Blasting Rule
Section 199-1-8 - Inspections
Universal Citation: 199 WV Code of State Rules 199-1-8
Current through Register Vol. XLI, No. 38, September 20, 2024
8.1. Inspections shall be made on any prospecting, active surface mining operation, or inactive surface mining operation as necessary to assure compliance with the W. Va. Code §§ 22-3-1 et seq. and 22-3A-1 et seq., this rule, and the terms and conditions of the blasting plan.
8.2. A permittee may request an on-site compliance conference to review the status of any condition or practice at any surface coal mining and reclamation operation. A compliance conference does not constitute an inspection within the meaning of W. Va. Code § 22-3-15 and this section. The Secretary may accept or refuse any request to conduct a compliance conference. If accepted, authorized representative of the Secretary shall conduct the compliance conference and shall review conditions and/or practices at the operation in order to advise whether any conditions and/or practices has the potential to become a violation of the law or any applicable permit condition. Neither the holding of a compliance conference or any opinion given by the authorized representative of the Secretary at a conference shall affect:
8.2.a. Any rights or obligations of the
Secretary or by the permittee with respect to any inspection, notice of
violation, or cessation order, whether prior or subsequent to the compliance
conference; or
8.2.b. The validity
of any notice of violation or cessation order issued with any condition or
practice reviewed at the compliance conference.
8.3. Notice of Violations.
8.3.a. When, on the basis of an inspection
carried out pursuant to subsection 8.1. of this rule, the Secretary determines
that the surface mining and reclamation operation or prospecting operation is
in violation of any of the requirements of the law, this rule, or the terms and
conditions of the permit or prospecting approval, a notice of violation shall
be issued. The notice of violation shall comply with all requirements and
provisions of this subsection.
8.3.b. Notice Procedures. A notice of
violation shall be in writing signed by the Secretary and shall set forth with
reasonable specificity:
8.3.b.1. The nature of
the violation;
8.3.b.2. The
remedial action required, which may include interim steps;
8.3.b.3. A reasonable time for abatement,
which may include time for accomplishment of interim steps, but in no case
shall the initial abatement period be in excess of thirty (30) days;
and
8.3.b.4. A reasonable
description of the portion of the prospecting or surface coal mining and
reclamation operation to which it applies.
8.3.c. Abatement. The Secretary may extend
the time set for 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 operator. The total time for abatement under a notice of
violation, including all extensions, shall not exceed 90 days from the date of
issuance except upon a showing by the operator that it is not feasible to abate
the violation within 90 calendar days due to one or more of the circumstances
in subdivision 8.3.e of this subsection. An extended abatement date pursuant to
this subsection shall not be granted when the operator's failure to abate
within 90 days has been caused by a lack of diligence or intentional delay by
the operator in completing the required remedial action.
8.3.d. Termination. The Secretary shall
terminate a notice of violation by written notice to the permittee when he
determines that all violations listed in the notice of violation have been
abated. Notices of violations shall not be terminated or vacated because of the
operator's inability to comply with the terms of abatement.
8.3.e. Criteria for Extensions of Abatement
Period. Circumstances which may qualify an operator for an abatement period of
more than 90 days are:
8.3.e.1. Where the
operator of a permitted operation has made timely application for and
diligently pursued a permit renewal or other necessary approval of designs or
plans but such permit renewal or other approval has not been or will not be
issued within 90 days after the time required for reasons not within the
control of the operator;
8.3.e.2.
Where there is a valid judicial order precluding abatement within 90 days as to
which the operator has diligently pursued all rights of appeal and as to which
there is no other effective legal remedy;
8.3.e.3. Where the operator cannot abate
within 90 days due to a labor strike;
8.3.e.4. Where climatic conditions preclude
abatement within 90 days, or where, due to climatic conditions, abatement
within 90 days clearly would cause more environmental harm than it would
prevent; or
8.3.e.5. Where
abatement within 90 days requires action that would violate safety standards
established by statute or regulation under the Mine Health and Safety Act of
1977.
8.3.f. Interim
Procedures. Whenever an abatement time in excess of 90 days is permitted,
interim abatement measures shall be imposed to the extent necessary to minimize
harm to the public or the environment.
8.3.g. Grant of Extension. If any of the
conditions in subdivision 8.3.e. of this subsection exist, the operator may
request that the Secretary grant an abatement period exceeding 90 days. An
authorized representative of the Secretary shall grant the extension only with
the concurrence of his immediate supervisor. The abatement period granted shall
not exceed the shortest possible time necessary to abate the violation. The
operator shall have the burden of establishing by clear and convincing proof
that he or she is entitled to an extension. The authorized representative of
the Secretary who grants or denies the extension shall promptly and fully
document in the file the reasons for granting or denying the request. The
immediate supervisor shall review this document before concurring in or
disapproving the extended abatement date and shall promptly and fully document
the reasons for concurrence or disapproval in the file.
8.3.h. Appeals. Any determination made under
subdivision 8.3.g. of this subsection shall carry with it a right of
appeal.
8.3.i. Extension Period. No
extension granted under subdivision 8.3.g. of this subsection may exceed 90
days in length. Where the condition or circumstance which prevented abatement
within 90 days exists at the expiration date of any such extension, the
operator may request and the Secretary may grant a further extension pursuant
to the procedures of subdivision 8.3.g. of this subsection.
8.4. Cessation Orders.
8.4.a. Imminent Harm.
8.4.a.1. When the Secretary finds that a
prospecting or surface mine operation creates an imminent danger to the health
or safety of the public or is causing or can reasonably be expected to cause
significant, imminent environmental harm to land, air, or water resources, a
cessation order shall be issued forthwith.
8.4.a.2. Any cessation order issued under the
provisions of W. Va. Code §
22-3-16(a), shall
remain in effect until the violation has been abated or until modified,
vacated, or terminated by the Secretary or the Surface Mine Board or by a
court.
8.4.a.3. In any cessation
order, the Secretary shall determine the appropriate remedial measures to be
taken to abate the violation in the most expeditious manner possible and shall
set forth these measures and the time by which abatement shall be accomplished
in the order.
8.4.b.
Failure to Abate.
8.4.b.1. If the operator
fails to meet the time set for abatement of a notice of violation issued
pursuant to subsection 8.3. of this rule, the Secretary shall issue a cessation
order; or
8.4.b.2. If the operator
fails to meet the time set for accomplishment of any interim step of a notice
of violation issued pursuant to subsection 8.3. of this rule, the Secretary may
issue a cessation order.
8.4.c. All cessation orders shall be issued
as follows:
8.4.c.1. A cessation order shall
set forth in writing with reasonable specificity:
8.4.c.1.A. The nature of the condition,
practice or violation for which the order was issued;
8.4.c.1.B. The remedial action or affirmative
obligation required by the operator, if any, including any interim
steps;
8.4.c.1.C. The time
established for abatement, if appropriate; and
8.4.c.1.D. A reasonable description of the
portion of the prospecting or surface mining and reclamation operation to which
it applies.
8.4.c.2.
Reclamation operations and other activities intended to protect public health
and safety and the environment shall continue during the period of any
cessation order unless otherwise provided in the order.
8.4.c.3. The Secretary 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 operator. A cessation order shall not
be terminated or vacated because of the operator's inability to comply with the
terms of abatement.
8.4.c.4. The
Secretary shall terminate a cessation order by written notice when it is
determined that all conditions, practices, or violations listed in the order
have been abated. The termination notice must be in writing and shall not
affect the right of the Secretary to assess civil penalties for the
violation.
8.4.d. Notice
of Informal Conference. Notices of informal conferences held as a result of a
cessation order issued pursuant to the provisions of W. Va. Code §
22-3-16(a) shall
be posted at the nearest regional office and sent by mail or communicated
verbally, whichever is more practicable, to any person who filed a report which
led to a cessation order for which the informal conference is to be held. The
results of the informal conference shall be provided to any person who filed a
report which led to the order within five (5) days after the close of the
informal conference.
8.4.e. Within
sixty (60) days after issuing a cessation order, the Secretary shall notify in
writing any person identified as owning or controlling the permittee, that the
cessation order was issued and that the person has been identified as an owner
or controller.
8.5. Show Cause Orders.
8.5.a. General. Where the
Secretary determines that a pattern of violations of the law is rule or the
terms and conditions of a permit exists or has existed, and that the violations
were caused willfully or through an unwarranted failure to comply, the
Secretary shall issue an order requiring the permittee to show cause why the
permit and the permittee's right to mine under the law should not be suspended
or revoked. For purposes of this subsection a willfully caused violation is a
violation resulting from an intentional act or omission, and an unwarranted
failure to comply means the failure of the permittee to prevent the occurrence
of any violation or the failure to abate any violation of the law, this rule,
or the terms and conditions of the permit due to indifference, lack of
diligence or lack of reasonable care.
8.5.b. Criteria for Establishing a Pattern of
Violations. The Secretary may determine that a pattern of violations exists or
has existed, where violations were cited on two or more inspections of the
permit area within any twelve (12) month period. In making such a
determination, the Secretary shall take into consideration the following
circumstances:
8.5.b.1. The number of
previous violations cited on more than one occasion for the same or related
requirements of the law, this rule, or the terms and conditions of the
permit;
8.5.b.2. The number of
previous violations, cited on more than one occasion, of different requirements
of the law, this rule, or the terms and conditions of the permit; and
8.5.b.3. The extent to which the violations
were isolated departures from lawful conduct.
8.5.c. Duplicate or Similar Violations. The
Secretary shall promptly review the history of violations of any permittee who
has been cited for violations of the same or related requirements of the law,
this rule, or the terms and conditions of the permit during three (3) or more
inspections of the permit area within any twelve (12) month period. After such
review, the Secretary shall determine whether or not a pattern of violations
exists.
8.5.d. Permittee
Responsibility. 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.
8.5.e. Hearings and
Appeals. If the permittee files an answer to the show cause order and requests
a hearing, a public hearing shall be held. The Secretary shall give thirty (30)
days advance written notice to the permittee and any interested party who
requests intervener status of the date, time, and place of the hearing. The
Secretary shall publish the notice if practicable, in a newspaper of general
circulation in the area of the operations, and shall also post the notice in
the regional office of the Department of Environmental Protection nearest the
operation.
8.5.f. Consent
Agreement. When the permittee demonstrates that sufficient resources are
available to him to abate the violation(s), the Secretary may enter into a
consent agreement.
8.5.g. Hearing
Record and Decisions. Within sixty (60) days following the hearing, the
Secretary shall issue a written determination as to whether a pattern of
violations exists, and furnish to the operator and all other parties to the
hearing a written decision or consent order and the reason therefore,
concerning suspension or revocation of the permit.
8.5.h. Revocation and Suspension. If the
Secretary revokes or suspends the permit and the permittees right to mine under
W. Va. Code §
22-3-1 et seq., the permittee
shall immediately cease surface coal mining operations in the subject permit
area, and initiate the appropriate remedial action as follows:
8.5.h.1. If the permit and the right to mine
are revoked, the operator shall complete reclamation within the time specified
in the revocation order; or
8.5.h.2. If the permit and right to mine are
suspended, the operator shall complete all affirmative obligations to abate all
conditions, practices, or violations, as specified in the suspension
order.
8.5.i. Failure to
Abate. 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 Secretary shall review the permittee's
history of violations to determine whether a pattern of violations exists and
shall issue an order to show cause where appropriate.
8.5.j. Consent Agreement. If, at any point in
the enforcement process following the issuance of a notice of violation, a
cessation order or a show cause order, a consent agreement is reached between
the Secretary and a permittee and/or operator, the following standards shall
apply to that consent order:
8.5.j.1. The
Secretary will require all abatement work mandated in the consent agreement to
be performed in the most expeditious manner physically possible. In no event
shall the time period in which remedial action must be completed exceed one (1)
year, nor can extensions to abatement times in consent orders total more than
one year; provided however, that for sites permitted before September 5, 1989,
the Secretary may grant a future extension if he finds in writing that
exceptional circumstances exist which preclude abatement in the twelve-month
period.
8.5.j.2. Violation of any
term in a consent agreement shall result in immediate forfeiture of the bond
for the site, unless the Secretary finds in writing that:
8.5.j.2.A. The operator and/or permittee have
shown good faith in taking remedial actions required by the consent agreement;
and
8.5.j.2.B. No environmental
harm has resulted, or will result, from the subject violation.
8.5.j.3. No consent agreement
shall be agreed to if the permittee, and/or operator or any entity owned or
controlled by the permittee and/or the operator, has violated or is in
violation of a previous consent agreement; provided however, that the Secretary
is required to make only best efforts to determine if said violation or
ownership and control ties exist.
8.5.j.4. No consent agreement can be reached
on a site if the permittee and/or operator have previously entered into two
consent orders on the same site.
The standards set forth in paragraphs 8.5.j.1 through 8.5.j.4 of this rule shall apply to any extension, modification, or other change in any existing consent agreement.
8.6. Civil Penalty Determinations. Except as specified in W. Va. Code § 22-3-30a(b), civil penalties for any notice of violation issued by the Secretary shall be determined by the following procedure.
8.6.a.
Notice of Violation Assessments. The Secretary shall review each notice of
violation and determine whether or not a civil penalty will be assessed and the
amount of the penalty. The Secretary for each notice of violation, may assess a
separate civil penalty for each day of the violation, beginning with the date
of issuance of a notice of violation to the date of abatement of the violation.
In determining whether or not to assess a separate daily civil penalty and
determine the amount of the civil penalty, the Secretary shall consider those
factors specified in W. Va. Code §
22-3-17, and subsection 8.7 of
this rule and may consider the extent to which the operator may have gained any
economic benefit as a result of a failure to comply. Any notice of violation
which continued unabated for two or more days after the initial abatement
period, and received a civil penalty assessment of $3,500 or more, shall be
assessed the penalty amount for a minimum of two separate days. The
determination as to whether or not to assess a civil penalty if the amount is
less than one thousand dollars ($1,000) will be at the discretion of the
Secretary. Notices of violations with a seriousness rating of 4 or greater
shall be assessed regardless of the amount. Termination of a notice of
violation shall not affect the right of the Secretary to assess a civil penalty
for those violations.
8.6.b.
Cessation Order Assessments. The Secretary shall, for any cessation order,
assess a civil penalty in accordance with W. Va. Code §
22-3-17(a) for
each day of continuing violation, except that such penalty shall not be
assessed for more than thirty (30) days. If the cessation order has not been
abated within the thirty (30) day period, the Secretary shall initiate action
pursuant to W. Va. Code §§
22-3-17(b), (g), (h) and
(j), as appropriate. If the order is
suspended in a temporary relief proceeding, the period specified for the
abatement shall not end until the date on which the Secretary issues a final
order with respect to the violation in question. If judicial review proceedings
are initiated in which the order is suspended by court, the daily assessment of
the civil penalty shall not be made for any period before entry of a final
order by the court.
8.7. Procedure for Assessing Civil Penalties.
8.7.a. Assessment Officer - Duties. For the
purposes of this section, the assessment officer shall not determine the
proposed penalty assessment until such time as the Secretary has caused an
inspection of the violation to be conducted and the findings of that inspection
are submitted to the assessment officer in writing. The Secretary must conduct
the inspection of the violation within the first fifteen (15) days after the
notice or order was served. The assessment officer may continue conferences,
conduct investigations, and interview witnesses as necessary.
8.7.b. Determination of Civil Penalty
Amounts. Civil penalty amounts for notices of violation shall be determined in
accordance with the factors specified in W. Va. Code §
22-3-17(c), and
the numerical point system in subsection 8.8 of this section. Within fifteen
(15) days of service of a notice of violation or cessation order, the person to
whom it was issued may submit written information about the violation to the
Secretary and to the inspector who issued the notice of violation or cessation
order.
8.7.c. Notice of Assessment.
The Secretary shall provide a copy of the proposed assessment and the
accompanying worksheet to the operator by certified mail, within thirty (30)
days of the date of the issuance of a notice or order. If the mail is tendered
at the address of the person set forth in the sign required under 38CSR2,
subdivision 14.1a, or at any address at which that person is in fact located,
and he or she refuses to accept delivery of or to collect such mail, the
requirements of this paragraph shall be deemed to have been complied with upon
such tender. Failure by the Secretary to serve any proposed assessment within
thirty (30) days shall not be grounds for dismissal of all or part of such
assessment unless the person against whom the proposed penalty has been
assessed:
8.7.c.1. Proves actual prejudice as
a result of the delay; and
8.7.c.2.
Makes a timely objection to the delay. An objection shall be timely only if
made in the normal course of administrative review. The Secretary shall also
give notice including any worksheet, in person or by certified mail, to the
operator of any penalty adjustment as a result of an informal conference within
thirty (30) days following the date of the conference. The reasons for
reassessment shall be documented in the file by the assessment officer. The
Secretary shall consider any information submitted pursuant to subdivision
8.7.b of this rule in determining the facts surrounding the violation and the
amount of the penalty. Unless a conference has been requested, the Secretary
shall review and if necessary reassess any penalty considering facts which were
not reasonably available on the date of issuance of the proposed assessment
because of the length of the abatement period. The Secretary shall serve a copy
of any such reassessment and of the worksheet showing the computation of the
reassessment within thirty (30) days after the date the violation is
abated.
8.7.d. Notice of
Informal Assessment Conference. The time and place of an informal assessment
conference shall be posted at the nearest Department of Environmental
Protection regional office to the operation, at least five days prior to the
conference date. Any person shall have the right to attend and participate in
the conference. Any person, other than the operator and Department of
Environmental Protection representatives, may submit in writing at the time of
the conference a request to present evidence concerning the violation(s) being
conferenced. Such request shall be granted by the assessment officer. Should
problems arise due to scheduling, the assessment officer may continue the
conference to a later time and/or date as the assessment officer deems
necessary to honor other scheduled conferences.
8.7.e. Informal Conference. An informal
conference on the assessment or reassessment must be scheduled within 60 days
of the receipt of a request, pursuant to W. Va. Code §
22-3-17(d)(1).
Failure to hold an informal conference in the time limits specified in this
subsection will not be considered as grounds for dismissal of the assessment,
unless the operator proves actual prejudice and makes timely objection to the
delay. The assessment officer shall consider all relevant information on the
violation including information which may be provided pursuant to subdivisions
8.7.b. and 8.7.d. of this subsection. Within thirty (30) days after the
conference is held the assessment officer shall either:
8.7.e.1. Settle the issue, in which case a
settlement agreement shall be prepared and signed by the assessment officer on
behalf of the Secretary and by the person assessed;
8.7.e.2. Affirm, raise, lower, or vacate the
penalty; or
8.7.e.3. Terminate the
conference when it is determined that the issues cannot be resolved or that the
person assessed is not diligently working toward resolution of the
issues.
8.7.f.
Settlement Agreement. If a settlement agreement is entered into, the person
assessed will be deemed to have waived all rights to further review of the
violation or penalty in question, except as otherwise expressly provided for in
the settlement agreement. The settlement agreement shall contain a clause to
this effect. If full payment of the amount specified in the settlement
agreement is not received by the Secretary within thirty (30) days after the
date of signing, the Secretary may enforce the agreement or rescind it and
affirm, raise, lower or vacate the penalty within thirty (30) days from the
date of the rescission.
8.7.g.
Rules of Evidence. At formal review proceedings pursuant to W. Va. Code §
22-3-17, no evidence as to any
statement made or evidence produced by one party at a conference shall be
introduced as evidence by another party, or may be used to impeach a
witness.
8.7.h. Fact of Violation.
The fact of violation may not be contested in a civil penalty review
proceeding, if it has already been decided in a formal review proceeding under
W. Va. Code §
22-3-17(d)(1).
8.7.i. Escrow. If a person requests judicial
review of a proposed assessment, the proposed penalty assessment shall continue
to be held in escrow until completion of the judicial review.
8.7.j. Penalty Adjustment. When an
administrative or judicial review of a civil penalty order results in an order
increasing the penalty, the person to whom the notice or order was issued shall
pay the amount of the increase within fifteen (15) days after the order is
mailed to each person.
8.7.k.
Mitigation. Unless caused by lack of diligence, inability to comply may be
considered in mitigation of the amount of civil penalty.
8.8. Assessment Rates.
8.8.a. History of Violations. History of
previous violations is an accounting of all Notices of Violation and Cessation
Orders that were written on the subject operation in the previous twelve (12)
months. Notices of Violation and Cessation Orders which were withdrawn or
vacated shall not be included in the accounting. The dollar amount to be
assessed shall be determined by multiplying the number of violations by a
factor of one hundred (100).
8.8.b.
Seriousness of the Violation.
1-2 Violation
is of an administrative nature resulting in no harm or danger to the
environment or public: or the standard is violated to such a minor degree that
environmental harm or public danger will not result.
3-4 Violation results in potential or actual
harm or danger remaining the permit area; or in the case where the impact
extends beyond the permit area; can be demonstrated that potential danger or
harm or will not result.
5-6
Violation extends beyond the permit area and results in a minor degree of
potential or actual harm or impact on the public.
7-8 Violation can reasonably be expected to
result in significant imminent environmental harm or create an imminent danger
to the health and safety of the public. A violation which initially has a
seriousness rating of 7 or higher is one which must be an imminent harm
cessation order, as set forth in subdivision 8.4.a of this rule.
9-10 Violation extends beyond the permit area
and results in a significant degree of environmental harm or danger to the
public.
|
Rating |
0 |
1 |
2 |
3 |
4 |
5 |
|
Dollar Amount |
- |
100 |
200 |
400 |
600 |
900 |
|
Rating |
6 |
7 |
8 |
9 |
10 |
|
Dollar Amount |
1200 |
1600 |
2100 |
2700 |
3500 |
8.8.c. Operator Negligence.
0 This violation is considered beyond the
control of the operator or his employees and no negligence can be attributed to
this violation.
1-2 This violation
was a result of an oversight on the part of the operator and may have been
avoided if more conscientious effort and/or reasonable care were
given.
3-4 This violation was
obvious and/or no action was taken by the operator to prevent the
problem.
5-6 The operator failed to
adequately respond to previous written instructions of the inspector to prevent
this event.
7-8 The operator had
been officially notified, in writing, of this problem and did not make any
effort at correcting the problem.
|
Rating |
0 |
1 |
2 |
3 |
4 |
5 |
|
Dollar Amount |
- |
100 |
225 |
350 |
475 |
600 |
|
Rating |
6 |
7 |
8 |
|
Dollar Amount |
725 |
875 |
875 |
8.8.d. Operator's Good Faith
Good faith percentage shall not include a history of violations in the amount. Good faith percentage shall be rounded to the nearest dollar amount.
0 Operator failed to
take appropriate remedial action. Violation has been modified to a cessation
order.
1-2 Operator took prompt,
but insufficient remedial action to fully abate the violation within the
required abatement period. Abatement period was extended for just cause.
Remedial action was completed prior to the end of the extended abatement
period.
3-4 Operator took prompt
remedial action and worked diligently to abate the violation. Conditions beyond
the operator's control prevented full abatement and required that the abatement
period be extended for just cause. Abatement of the violation was accomplished
before the end of the extended abatement period.
5-6 Operator initiated remedial action
immediately and expended all reasonable efforts to abate the violation.
Violation was abated before the end of the original abatement period.
7-8 Operator was already taking remedial
action at the time the violation was noted, and expended exemplary effort in
abating the violation before the end of the original abatement
period.
|
Rating |
0 |
1 |
2 |
3 |
4 |
5 |
|
% |
0% |
5% |
10% |
20% |
20% |
25% |
|
Rating |
6 |
7 |
8 |
|
% |
30% |
35% |
40% |
8.8.e. Determination of Penalty Amount
Seriousness of Violations $_________
Operator Negligence + $_________
Subtotal $_________
Less Good Faith % - $_________
Sub Total $_________
History of Violations + $_________
Total $_________
8.9. When an Individual Civil Penalty May be Assessed:
8.9.a. Except as provided in
subdivision 20.8.b. of this subsection, the Secretary may assess an individual
civil penalty against any corporate Secretary, officer or agent of a corporate
permittee who knowingly and willfully authorized, ordered, or carried out a
violation, failure or refusal.
8.9.b. The Secretary shall not assess an
individual civil penalty in situations resulting from a permit violation by a
corporate permittee until a cessation order has been issued by the Secretary to
the corporate permittee for the violation and the cessation order has remained
unabated for thirty (30) days.
8.10. Amount of Individual Civil Penalty.
8.10.a. In determining the amount of an
individual civil penalty assessed under subsection 8.9 of this rule, the
Secretary shall consider the criteria specified in W. Va. Code §
22-3-17(c).
8.10.b. The penalty shall not exceed $5,000
for each violation. Each day of a continuing violation may be deemed a separate
violation and the Secretary may assess a separate individual civil penalty for
each day the violation, failure or refusal continues, from the date of service
of the underlying notice of violation, cessation order or other order
incorporated in a final decision issued by the Secretary until abatement or
compliance is achieved.
8.11. Procedure for Assessment for Individual Civil Penalty.
8.11.a. The Secretary shall
serve on each individual to be assessed an individual civil penalty a notice of
proposed individual civil penalty assessment, including a narrative explanation
of the reasons for the penalty, the amount to be assessed, and a copy of an
underlying notice of violation and cessation order.
8.11.b. The notice of proposed individual
civil penalty assessment shall become a final order of the Secretary thirty
(30) days after service upon the individual unless:
8.11.b.1. The individual files within thirty
(30) days of service of the notice of proposed individual civil penalty
assessment a petition for review with the Surface Mine Board; or
8.11.b.2. The Secretary and the individual or
responsible corporate permittee agree within thirty (30) days of service of the
notice of proposed individual civil penalty assessment to a schedule or plan
for the abatement or correction of
8.11.c. For purposes of this subsection,
service is sufficient if it would satisfy state requirements for service of a
summons and complaint.
8.12. Payment of Penalty.
8.12.a. If a notice of proposed individual
civil penalty assessment becomes a final order in the absence of a petition for
review or abatement agreement, the penalty shall be due upon issuance of the
final order.
8.12.b. If an
individual named in a notice of proposed individual civil penalty assessment
files a petition for review in accordance with paragraph 8.11.b.1. of this
section, the penalty shall be due upon issuance of a final administrative order
affirming, increasing, or decreasing the proposed penalty.
8.12.c. Where the Secretary and the corporate
permittee or individual have agreed in writing on a plan for the abatement of
or compliance with the unabated order, an individual named in a notice of
proposed individual civil penalty assessment may postpone payment until
receiving either a final order from the Secretary stating that the penalty is
due on the date of such final order, or written notice that abatement or
compliance is satisfactory and the penalty has been withdrawn.
8.13. Fees and Costs of Administrative Proceedings.
8.13.a. Request
for Fees. Any person may on request be awarded by the appropriate board or
court a sum equal to costs and expenses including attorneys' fees and expert
witness fees as determined to have been reasonably incurred. Such request must
be filed within forty-five (45) days of date of entry of judgment.
The request shall include an affidavit setting forth costs and expenses and an itemized statement of attorneys' fees. The request shall be served upon all parties who shall have thirty (30) days to answer the request. Cost and expenses including attorneys' fees may be awarded to:
8.13.a.1. Any participating party against the
violator upon a finding that there is a violation of law, rules or the permit
has occurred, and there is a determination that the party made a significant
contribution to the full and fair determination of the issues;
8.13.a.2. To any participating party other
than the violator or his representative from the Department of Environmental
Protection upon a determination that the party made a significant contribution
to a full and fair determination of the issues;
8.13.a.3. To a violator from the Department
of Environmental Protection when the violator demonstrates that the Department
of Environmental Protection issues cessation order, a show cause order or
notice of violation in bad faith and for the purpose of harassing or
embarrassing the violator, provided that no award shall be made under this
subsection if the Department of Environmental Protection prevails upon the
issue of a violation;
8.13.a.4. To
a violator from any participating party other than the Department of
Environmental Protection where such participating parties initiated or
participated in the magistrate proceeding in bad faith and for the purpose of
harassing or embarrassing the violator; and
8.13.a.5. To the Department of Environmental
Protection from any participating party where the Department of Environmental
Protection demonstrates that any such party participating in such proceeding in
bad faith and for the purpose of harassing or embarrassing the Department of
Environmental Protection. An award may also include attorneys' fees and expert
witness fees expended in obtaining an award of costs, expenses and attorneys'
fees. Decisions on such awards may be appealed as other cases.
Disclaimer: These regulations may not be the most recent version. West Virginia may have more current or accurate information. We make no warranties or guarantees about the accuracy, completeness, or adequacy of the information contained on this site or the information linked to on the state site. Please check official sources.
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