020-16 Wyo. Code R. §§ 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.
Notes
State regulations are updated quarterly; we currently have two versions available. Below is a comparison between our most recent version and the prior quarterly release. More comparison features will be added as we have more versions to compare.
No prior version found.