Md. Code Regs. 26.20.33.04

Current through Register Vol. 51, No. 21, October 18, 2024

Section 26.20.33.04 - Show Cause Order and Hearing

A. If, after a review of the history of any permit, the Director determines that a persistent or repeated failure to comply under Regulation .02 or .03 of this chapter exists or has existed, or that the permittee has not produced coal or removed overburden on the permit site for more than 6 months, the Director shall issue a show cause order as required by Regulation .01B of this chapter.

B. The Director may decline to issue a show cause order if he finds that, taking into account exceptional factors present in the particular case, it would be demonstrably unjust to issue the order. The basis for this finding shall be documented, in writing, and may include a determination that the violations were not the result of willful or unwarranted failure to comply on the part of the permittee.

C. A show cause order issued by the Director shall be in writing and sent by certified mail to the permittee. The order shall contain a:

(1) Detailed description of the basis for the Bureau's determination that the permittee has persistently or repeatedly failed to comply with the requirements of the Regulatory Program, or has failed to produce coal or remove overburden on the permit site for a period in excess of 6 months;

(2) Statement that the permittee has 30 days from receipt of the order to request an adjudicatory hearing;

(3) Statement that unless the permittee requests an adjudicatory hearing to show cause why the permit should not be revoked and the bonds forfeited, the Bureau will immediately, upon expiration of the 30-day period, revoke the permit and forfeit the bonds covering the permit area;

(4) Statement that the permittee may be represented by an attorney;

(5) Statement that permit revocation and bond forfeiture will result in denial of future Maryland operator licenses to anyone involved in the failure to comply with the Regulatory Program.

D. If the permittee requests a hearing, the Bureau shall give 30 days written notice of the date, time, and place of the hearing to the permittee and all interested parties. If practicable, the Bureau shall publish notice of the hearing in a newspaper of general circulation in the area of the permit and shall post the notice at the Bureau's office.

E. Show cause hearings to revoke a permit and forfeit the bonds shall be held in accordance with COMAR 26.20.34. The Bureau shall have the burden of going forward to establish a prima facie case for revocation of a permit and forfeiture of the bonds. The ultimate burden of persuasion that a permit should not be revoked and the bonds should not be forfeited shall rest with the permittee. The show cause order shall be made part of the hearing record, provided that the Bureau makes available a witness, subject to cross-examination on the reasons contained in the order for initiating revocation and bond forfeiture proceedings.

F. The existence of a show cause proceeding does not relieve the permittee from the permittee's responsibilities under the permit and the Regulatory Program. Failure to abate any continuing violation, or to manage the site properly, may subject the permittee to civil penalties and will be a significant factor in any decision to seek further prosecution.

Md. Code Regs. 26.20.33.04

Regulations .04 were previously codified as COMAR 08.13.09.42 a A_G, respectively. Recodification occurred in April, 1993. For a history of these regulations before April, 1993, see "Administrative History of COMAR 08.13.09 before April, 1993" which follows COMAR 26.20.01.