020-16 Wyo. Code R. § 16-2

Current through April 27, 2019

Section 16-2 - Enforcement

(a) All violations or minor violations that are observed must be identified in the inspection report, including comments on the abatement of all previously noted minor violations or violations. The enforcement options available to the Department range from the least severe, notation in an inspection report, to the most severe, criminal sanctions.

(b) Formal notices of violation for abatement shall direct the correction of a cited violation. Formal notices of violation will be routinely issued where site conditions constitute an existing or potential danger to the health and safety of the public, or cause or can be expected to cause environmental degradation. Formal notices of violation will be issued where minor violations previously identified in an inspection report are not satisfactorily resolved within the time frame specified in the inspection report as long as the failure to resolve the minor violation is not due to lack of diligence. If the reason is lack of diligence, a failure to abate cessation order will be issued. The total abatement time where a minor violation has been modified to a formal notice of violation shall not exceed 90 days unless allowed by Section 2(j) of this Chapter.

(c) Violations noted only in inspection reports shall be limited only to minor violations as noted in (f)(i) through (f)(ix). A formal notice of violation will be issued to all other violations. The required abatement measures and a reasonable abatement time not to exceed 35 days shall be included in the inspection report. Minor violations will not be tracked for withholding permit approvals, and other permit actions. A handwritten description of the minor violation will be given to the operator on site and will contain the information listed under item (g) of this Section. The operator has the right to appeal any minor violation as outlined in W.S. § 35-11-901.

(d) Civil penalties will not be issued to minor violations. They will, however, be reviewed to determine if a civil penalty would be appropriate. If it is found a civil penalty is appropriate, the minor violation will be upgraded to a formal notice of violation and a formal assessment issued.

(e) Failure to abate a minor violation will result in the issuance of a formal notice of violation and assessment of a civil penalty. Operators who consistently receive minor violations for similar infractions (more than two in a 12 month period) will be issued a formal notice of violation for subsequent similar violations for the remainder of the period. Once an operator receives two similar minor violations within a 12 month period, any subsequent similar violations will be counted toward a pattern of violations.

(f) Examples of minor violations which will be identified in the inspection report but may or may not be subject to a formal notice of violation are the following:

• (i) Failure to provide or maintain signs or perimeter markers;

• (ii) Reclamation deficiencies such as inadequate topsoil replacement depth, incorrect seeding practices, or improper sampling technique where there is no immediate potential for adverse environmental impact;

• (iii) Failure to perform necessary routine maintenance of surface water diversions or erosion control facilities where there is no immediate potential for adverse environmental impact;

• (iv) Failure to perform necessary routine maintenance on treatment facilities provided that the matter is referred to the Water Quality Division (WQD) and the WQD finds that effluent limits are being met and there is no immediate potential for adverse water quality impacts;

• (v) Required record keeping is unsatisfactory, except where there is a deliberate falsification of records or results;

• (vi) Minor construction deficiencies where there is no threat of structural failure or serious harm;

• (vii) Noted necessary corrections to maps, plans or other permit materials;

• (viii) Failure to comply with other laws applicable to the mine through permit conditions, where the agency with primary jurisdiction has instituted action to obtain compliance pursuant to its laws and regulations; and

• (ix) Rills on reclaimed lands or partially blocked culverts which are the result of a recent storm or runoff event.

(g) Any cessation order, notice for abatement or order to show cause issued under the Act shall be signed by the Director or authorized representative and shall contain:

• (i) The nature of the violation;

• (ii) All affirmative obligations necessary to completely abate the violation or imminent danger or harm in the most expeditious manner possible;

• (iii) The time established for abatement, if appropriate; and

• (iv) A reasonable description of that portion of the operation to which it applies.

(h) Within sixty (60) days after issuing a cessation order, the DEQ will notify in writing the permittee, the operator, and any person who has been listed or identified by the applicant, permittee, or OSM as an owner or controller of the operation as defined in Chapter 1 of these rules and regulations. All cessation orders remain in effect and, unless otherwise ordered, do not affect continuing reclamation operations, until the condition, practice or violation has been abated, or until vacated, modified or terminated in writing by the designated representative, Administrator, Director, or Council. Within 30 days after the issuance of a cessation order the permittee must provide or update all the information required under Chapter 2 related to ownership or control. Information does not need to be provided if a court of competent jurisdiction granted a stay of the cessation order and that stay remains in effect. Within sixty (60) days of any addition, departure, or change in position of any person identified in Chapter 2, Section 2(a)(i)(E), the applicant or permittee shall provide the information required by that section and the date of any departure.

(i) Any notice or order shall be terminated by written notice to the person to whom it was issued, when it is determined that all violations or conditions listed in the notice or order have been abated. This determination may be made by conducting an investigation to confirm the abatement, by accepting the information obtained from a government agency or by accepting a signed statement from a permittee that the violation in a notice of violation has been abated. The Division reserves the right to confirm the information included in a signed statement. Termination shall not affect the right to assess civil penalties.

(j) If at any time, the DEQ discovers that any person owns or controls an operation with an unabated or uncorrected violation, the LQD will determine whether enforcement action is appropriate under this Chapter. Results of each enforcement action, including administrative and judicial decisions, shall be entered into AVS.

(k) The specified time for abatement of the violation may be extended up to 90 days from issuance of the notice, 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 (W.S. § 35-11-409(c) ).

• (i) The total time for abatement shall not exceed 90 days from the date of issuance, except upon establishing by clear and convincing proof that the permittee cannot feasibly abate the violation within 90 days due to one or more of the following:
  • (A) 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 his valid permit expires or is required, for reasons not within the control of the permittee;
  • (B) There is a valid judicial order precluding abatement within 90 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) The permittee cannot abate within 90 days due to a labor strike;
  • (D) 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
  • (E) Abatement would require the operator to violate a requirement or regulation established under the Mine Safety and Health Act of 1977.

• (ii) 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.

• (iii) An extension beyond 90 days may not be authorized without the concurrence of the Administrator or person acting in this capacity, and the abatement period granted shall not exceed the shortest possible time necessary to abate the violation. The authorized representative shall promptly and fully document in the file the reasons for granting or denying the request. The Administrator or designee shall review that document before concurring in or disapproving the extended abatement period and shall promptly and fully document the reasons for concurrence or disapproval in the file. An extended abatement date shall not be granted when the permittee's failure to abate within 90 days has been caused by a lack of diligence or intentional delay.

• (iv) No extension granted under this provision may 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 in accordance with the procedures of this subsection.

(l) Order to show cause for the suspension or revocation of a permit pursuant to W.S. § 35 -ll-409(c):

• (i) For the purpose of this subsection:
  • (A) Willful violation means an act or omission which violates this Act or any regulation, and which is committed or omitted with knowledge or reason to know of its unlawfulness.
  • (B) Unwarranted failure to comply means the failure to prevent or abate the occurrence of any violation due to indifference, lack of diligence, or lack of reasonable care.
  • (C) Pattern of violations means the occurrence of similar violations not appearing to be isolated departures from lawful conduct as determined during two or more inspections of the permit area within any 12 month period, unless exceptional factors present in the particular case otherwise account for such violations.

• (ii) The Director shall make a written explanation for declining to issue an order to show cause or vacating an outstanding order, once he determines that there were violations of the same or related requirements of the Act, regulations, or the permit during three or more inspections within any 12 month period. The explanation shall include that, after taking into account exceptional factors present in the particular case, it would be demonstrably unjust to issue or fail to vacate the show cause order. This shall be included and documented in the records of the case.

• (iii) Notice, hearing and any decision by the Council on whether to suspend or revoke the permit shall be the equivalent of that required for permit applications. If the Council suspends or revokes the permit, the operator shall cease operations, continue reclamation, and complete all affirmative obligations as specified in the order.

(m) All cessation orders, notices for abatement and orders to show cause shall be served on the operator either by tendering a copy at the operation or sending it by certified mail or by hand to the operator. All orders to show cause shall issue forthwith upon a determination that the factors exist which justify its issuance.

(n) Pending completion of the investigation and hearing on any enforcement action taken by the Department, the operator may file with the Council a request for temporary relief. The Council shall expeditiously issue an order or decision granting or denying such relief, which shall be within five days from any request for relief from a cessation order. The Council may grant such relief, under such conditions as it may prescribe, if:

• (i) A hearing has been held in the locality of the permit area on the request for temporary relief in which all parties were given an opportunity to be heard;

• (ii) The operator shows that there is a substantial likelihood that the findings of the Council will be favorable to him; and

• (iii) Such relief will not adversely affect the health or safety of the public or cause significant, imminent environmental harm to land, air, or water resources.

(o) Inability to comply shall not be a proper factor for consideration in any decision to vacate, or terminate any notice or order under this subsection or to determine whether a pattern of violation exists. It may only be a factor for the duration of the suspension of a permit and in mitigation of the amount of civil penalty, when not caused by lack of diligence.

(p) Surface coal mining operations conducted by any person without a valid permit constitute a condition or practice which causes or can reasonably be expected to cause significant, imminent environmental harm to land, air or water resources. For those operations which are an integral, uninterrupted extension of previously permitted operations, and where the person conducting such operations has filed a timely and complete application for a permit to conduct such operations, the cessation order shall be limited to the unpermitted operation.

020-16 Wyo. Code R. § 16-2