§ 880-X-11C-.03. Notices Of Violation
(1) An authorized representative of the State Regulatory Authority shall issue a notice of violation if, on the basis of an inspection, he finds a violation of the Act, these regulations or any condition of a permit or an exploration approval imposed under the Act, or these regulations, which does not create an imminent danger or harm for which a cessation order must be issued under Rule 880-X-11C-.02.
(2) A notice of violation issued under 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 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 surface coal mining and reclamation operation to which it applies.
(3) An authorized representative of the State Regulatory Authority 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 person to whom it was issued. 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 permittee that it is not feasible to abate the violation within 90 calendar days due to one or more of the circumstances in Rule 880-X-11C-.03(6). An extended abatement date pursuant to this Rule 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 by the permittee in completing the remedial action required.
(4) 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 Rule 880-X-11C-.02(2).
(5) An authorized representative of the State Regulatory Authority shall terminate a notice of violation by written notice to the person to whom it was issued, when he determines that all violations listed in the notice of violation have been abated. Termination shall not affect the right of the State Regulatory Authority to assess civil penalties for those violations under Rule 880-X-11D (civil penalties).
(6) Circumstances which may qualify a surface coal mining operation for an abatement period of more than 90 days are:
(a) Where 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 a valid permit expires or is required, for reasons not within the control of the permittee;
(b) Where 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) Where the permittee cannot abate within 90 days due to a labor strike;
(d) Where climatic conditions preclude abatement within 90 days or where, due to climatic conditions, abatement within 90 days clearly:
1. Would cause more environmental harm than it would prevent; or
2. Requires action that would violate safety standards established by statute or regulation under the Mine Safety and Health Act.
(7) 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) If any of the conditions in Paragraph (6)(a) - (d) exist, the permittee may request the authorized representative to grant an abatement period exceeding 90 days. The authorized representative shall not grant such an abatement period without the concurrence of the Director or his or her designee 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 Rule 880-X-11C-.03(3) and (6). In determining whether or not to grant an abatement period exceeding 90 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 inspector'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.
(9) Any determination made under Paragraph (8) shall be in writing and shall contain a right of appeal to the Division of Hearings and Appeals in accordance with Section 10 of the Act and Chapter 880-X-5 of these regulations.
(10) No extension granted under Paragraph (8) 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, with permittee may request a further extension in accordance with the procedures of Paragraph (8).
Statutory Authority: Code of Ala. 1975, §§ 9-16-71, 72, 73, 74, 75, 76, 79, 80, 85, 92, 93, 94, 95.
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