2 Colo. Code Regs. § 407-2-5

Current through Register Vol. 47, No. 24, December 25, 2024

Rule 2 CCR 407-2-5 - INSPECTIONS, ENFORCEMENT AND CIVIL PENALTIES

5.01GENERAL PROVISIONS

5.01.1 Scope.

Rule 5 sets forth requirements for:

(1) The inspection of surface coal mining and reclamation operations and of coal exploration operations which substantially disturb the natural land surface;

(2) The enforcement by the Division and Board of the Act, these Rules, and all conditions of the permits and coal exploration approvals imposed under the State program; and

(3) The assessment of penalties for violations of the Act, these Rules, and conditions of permits or exploration approvals.

5.01.2 Applicability.

Permittees, operators of surface coal mining and reclamation operations, and persons requiring coal exploration approval or engaged in coal exploration activities which substantially disturb the natural land surface are subject to the provisions of Rule 5. 117(3), 123

5.01.3Responsibilities.

(1) The Division is responsible for: 105

(a) Conducting inspections of surface coal mining and reclamation operations and coal exploration activities which substantially disturb the natural land surface;

(b) Responding to citizens' requests for inspections;

(c) Issuing cessation orders when a surface coal mining operation or coal exploration activity creates an imminent danger to the health or safety of the public, or is causing or can reasonably be expected to cause significant environmental harm to land, air, or water resources;

(d) Issuing notices of violation to any persons or operators who are in violation of the Act or any conditions of exploration approvals or permits required by the Act, and requiring abatement of such violations;

(e) Holding informal public hearings on the portions of any notices of violation or cessation orders which require cessation of mining;

(f) Issuing orders to show cause why permits should not be suspended or revoked for patterns of violations; and

(g) Assessing civil penalties, holding assessment conferences to resolve issues surrounding penalties, and entering into assessment agreements with violators regarding the payment of agreed penalties.

(2) The Board is responsible for:

(a) Holding public hearings on the suspension or revocation of permits for patterns of violations and deciding whether permits should be suspended or revoked;

(b) Holding public hearings on notices of violation or cessation orders to enable operators, persons conducting coal exploration activities subject to the Act, or any persons having interests which are or may be adversely affected to present information relating to the issuance, continuance, modification, vacation, or termination of such notices or orders;

(c) Holding public hearings on the amount of penalties or the fact of violations; and

(d) Suspending penalties in appropriate cases.

5.02INSPECTIONS

5.02.1Scope

This Section sets forth the requirements for inspection by the Division of surface coal mining and reclamation operations and of coal exploration activities which substantially disturb the natural land surface.

5.02.2 Frequency, Time and Manner of Inspections

(1) The Division shall conduct an average of at least one partial inspection per month of each active surface coal mining and reclamation operation under its jurisdiction. A partial inspection is an on-site or aerial review of a permittee's compliance with some of the permit conditions and requirements. 122(4)(b)

(2) The Division shall conduct an average of at least one complete inspection per calendar quarter of each active and inactive surface coal mining and reclamation operation under its jurisdiction. A complete inspection is an on-site review of a permittee's compliance with all permit conditions and requirements within the entire area disturbed or affected by surface coal mining and reclamation operations.

(3)

(a) Aerial inspections shall be conducted in a manner which reasonably ensures the identification and documentation of conditions at each surface coal mining and reclamation site inspected.

(b) Any potential violation observed during an aerial inspection shall be investigated on-site within three days from the date of the inspection. Any indication of a condition, practice or violation constituting cause for the issuance of a cessation order as outlined in Section 34-33-123(1) of the Act shall be investigated on-site immediately. An on-site investigation of a potential violation observed during an aerial inspection shall not be considered to be an additional partial or complete inspection for the purposes of paragraphs (1) and (2) of this section.

(4) For the purposes of this section, an inactive surface coal mining and reclamation operation is one for which:

(a) The Division has secured from the permittee the written notice provided for under Section 4.30.1(2) of these regulations: or

(b) Reclamation as defined at Rule 3.03.1 has been completed and liability of the permittee has been reduced by the Division accordingly.

(5) The Division shall conduct periodic inspections of all coal exploration activities which substantially disturb the natural land surface and may conduct periodic inspection of all other coal exploration activities.

(6) Inspections shall occur on an irregular basis during times of operation of the mine. Inspection may occur at any time at sites if a surface coal mining operation does not have a valid permit under these rules or if there is reason to believe in a particular instance that significant environmental harm exists. The inspections shall occur without prior notice to the permittee or his agents or employees, except as necessary for on-site meetings with the permittee. 122(4)(b) 122(4)(c)

(7) The inspections shall include the filing of inspection reports by the authorized representative of the Division who conducted the inspection. Inspection forms shall be approved by the Board. 122(4)(c)

(8) In lieu of the inspection frequency established in paragraphs (1) and (2) of this section, the Division shall inspect each abandoned site on a set minimum frequency commensurate with the public health and safety and environmental considerations present at each site, but in no case shall the inspection frequency be set at less than one complete inspection per calendar year.

(a) In selecting an alternate inspection frequency authorized under the paragraph above, the Division shall first conduct a complete inspection of the abandoned site and provide public notice under paragraph (8)(b) of this section. Following the inspection, the Division shall prepare and maintain for public review a written finding and proposed decision justifying the alternative inspection frequency selected. This written finding shall justify the new inspection frequency by affirmatively addressing in detail all of the following criteria:

(i) How the site meets each of the criteria under the definition of an abandoned site under Rule 1.04 and thereby qualifies for a reduction in inspection frequency;

(ii) Whether, and to what extent, there exist on the site impoundments, earthen structures, or other conditions that pose, or may reasonably be expected to develop into, imminent dangers to the health or safety of the public or significant environmental harms to land, air, or water resources;

(iii) The extent to which existing impoundments or earthen structures were constructed and certified in accordance with prudent engineering designs approved in the permit;

(iv) The degree to which erosion and sediment control is present and functioning;

(v) The extent to which the site is located near or above urbanized areas, communities, occupied residential dwellings, schools, and other public or commercial buildings and facilities;

(vi) The extent of reclamation completed prior to abandonment and the degree of stability of reclaimed and/or unreclaimed areas, taking into consideration the physical characteristics of the land mined and the extent of settlement or revegetation that has occurred naturally with them; and

(vii) A review of the complete and partial inspection report record for the site during at least the last two consecutive years, and estimates of the rate at which adverse environmental or public health and safety conditions have and can be expected to progressively deteriorate.

(b) The public notice and opportunity to comment required under paragraph (8)(a) of this section shall be provided as follows:

(i) The Division shall place a notice in the newspaper with the broadest circulation in the locality of the abandoned site providing the public with a 30-day period in which to submit written comments.

(ii) The public notice shall contain the permittee's name, the permit number, the precise location of the land affected, the inspection frequency proposed, the general reasons for reducing the inspection frequency, the bond status of the permit, the telephone number and address of the regulatory authority where written comments on the reduced inspection frequency may be submitted, and the closing date of the comment period.

(c) The Division shall implement a final inspection frequency based on its findings and any additional information received during the comment period.

5.02.3Right of Entry.

(1) Each permittee shall conspicuously maintain at each entrance to the surface coal mining and reclamation operations a clearly visible sign which sets forth the name, business address and telephone number of the permittee and the permit number of the surface coal mining and reclamation operations. 122(5)

(2) Any authorized representative of the Division, upon presentation of appropriate credentials, shall have the power to enter at reasonable times, without delay, upon or through any surface coal mining and reclamation operations or any coal exploration operations and to have access to and copy any record, wherever located, and to inspect any monitoring equipment or method of exploration or operation, required under the Act, these Rules or any permit or exploration approval. A search warrant shall not be required for such purposes. 117(5) 122(4)(a)

5.02.4Availability of Records.

(1) Copies of all records, reports, inspection materials, or information obtained under these Rules by the Division or Board, except information identified as confidential, shall be immediately available to the public at the Division office and at a convenient place in the area of mining to which the information pertains until the Division has terminated jurisdiction at the surface coal mining operation, pursuant to 3.03.3(1). 122(8)

(2) After the Division has terminated jurisdiction over surface mining activities pursuant to 3.03.3(1), copies of all records, reports, inspection materials, or information obtained under these Rules by the Division or Board, except information identified as confidential, will be maintained at the Division office. Copies of the subject information will be available for public review or will be provided promptly by mail at the request of interested persons. The information will be retained for at least five years after the expiration of the period during which the subject operation is active or is covered by any portion of reclamation bond, whichever is later.

(3) In order to protect preparation for hearings and enforcement proceedings, the Director of OSM and the Division and Board may enter into agreements regarding procedures for the special handling of investigative and enforcement reports and other attorney work-product materials.

5.02.5Inspections Based Upon Citizen's Requests.

(1) Any person who believes there is a violation of the Act, these Rules, or permit conditions required by the Act or that any imminent danger or harm exists, may request the Division to conduct an inspection for violations. 122(7)

(a) The Division shall conduct the inspection if the citizen request is a signed written request or an oral request followed by a signed written request, which gives the Division sufficient basis to believe that a violation of the Act, these Rules, or any permit or exploration approval has occurred. The Division shall conduct the inspection within 10 days of receipt of the written request. If the request gives the Division sufficient basis to believe that imminent danger or harm exists, the inspection shall be conducted no later than the next day, following receipt of such request.

(b) The Division will have "sufficient basis to believe" if:

(i) The request alleges facts that, if true, would constitute any of the above-described violations; or

(ii) The request either states the basis upon which the facts are known by the requesting citizen or provides other corroborating evidence sufficient to give the Division a basis to believe that the violation has occurred.

(2) The identity of any person supplying information to the Division in requesting an inspection shall remain confidential, if requested by that person, unless that person elects to accompany the inspector on the inspection pursuant to (3) below. Such confidentiality shall extend to all materials that may be furnished to alleged violators under (4) and (5) below.

(3) When an inspection is to be conducted as a result of a citizen's request, the Division shall notify the person who made the request as far in advance as is practicable, of the date and time when the proposed inspection is to be conducted. Such person shall be allowed to accompany the inspecting authorized representative during the inspection provided that he or she has submitted the written request for an inspection under 5.02.5(1)(a), and remains in the presence of and under the control, direction and supervision of the authorized representative, and agrees to comply with all applicable State and Federal safety rules and regulations during the inspection. 122(7)

(4) Within 10 days of the inspection, or if no inspection is conducted, with-in 15 days of receipt of the citizen's written request, the Division shall send the person requesting the inspection and the alleged violator the following: 102, 122(7)

(a) If an inspection was conducted, either a description of the enforcement action taken or an explanation of why no enforcement action was taken;

(b) If no inspection was conducted, an explanation of the reason why; and

(c) In either case, an explanation of the person's right, if any, to informal review of the action or inaction of the Division under (5) below.

(5) Any person who has requested an inspection may request in writing that the Administrator informally review the Division's decision either not to inspect or not to take enforcement action on the basis of an inspection with respect to any violation alleged by that person. The Administrator shall conduct the informal review and report the results in writing to both the person requesting the review and the alleged violator within 30 days of the Administrator's receipt of the request for review. Informal review under 5.02.5(5) shall not affect any right to formal review under 34-33-124 of the Act or to a citizen's suit under 34-33- 135 of the Act. 122(7)

5.02.6Review of Adequacy of Inspections.

(1) Any person who is or may be adversely affected by a surface coal mining and reclamation operation or a coal exploration operation may notify the Administrator in writing of any alleged failure on the part of the Division to make adequate complete or partial inspections as required in 5.02.2(1) and (2). The notice shall include information sufficient to establish a reasonable belief that 5.02.2(1) and (2) are not being complied with and shall demonstrate that the person is or may be adversely affected.

(2) The Administrator shall, within 15 days of its receipt of the notice determine whether 5.02.2(1) and (2) are being complied with. If it is determined that 5.02.2(1) and (2) are not being complied with by the Division, the Administrator shall immediately order the Division to conduct such inspections as are needed to remedy the noncompliance. The Administrator shall also furnish the complainant with a written statement of the reasons for such determinations and the actions, if any, taken to remedy the noncompliance.

5.03ENFORCEMENT

5.03.1Scope.

This Section sets forth the general requirements for enforcement by the Division and Board of the Act, and these Rules, all conditions of permits and coal exploration approvals imposed under the state program, including provisions relating to notices of violation, cessation orders, and suspensions or revocations of permits. Penalties in connection with notices of violation and cessation orders are set forth in 5.04.

5.03.2Cessation Orders and Notices of Violation.

(1)

(a) When an authorized representative of the Division conducts any inspection and determines that any condition or practice subject to the Act, or any violation of the Act, these Rules, or any permit or exploration approval exists at a surface coal mining operation or coal exploration operation and that such condition, practice, or violation creates an imminent danger to the health or safety of the public or is causing or can reasonably be expected to cause significant environmental harm to land, air, or water resources, then such authorized representative shall immediately order a cessation of the surface coal mining and reclamation operations or coal exploration operations of the portion thereof relevant to the condition, practice, or violation. 123(1)

(b) Surface coal mining and reclamation operations conducted by any person without a valid permit or coal exploration operations conducted without the required approval constitute a condition or practice which causes or can reasonably be expected to cause significant, imminent environmental harm to land, air or water resources.

(c) When the authorized representative determines that a cessation ordered pursuant to (1)(a) above will not completely abate the imminent danger or the significant harm or reasonable expectation thereof in the most expeditious manner physically possible, such authorized representative shall, in addition to the cessation order, impose affirmative obligations on the operator or person who issued the cessation order requiring abatement of the danger or significant harm or reasonable expectation thereof. The order shall fix a reasonable time, not to exceed 90 days, within which abatement shall be accomplished and may require, among other things, the use of existing or additional personnel and equipment.

(d) Within sixty days after issuing a cessation order, the Division shall notify in writing any person who has been identified under 2.07.7(5) and 2.03.4(3) and (4) as owning or controlling the permittee, that the cessation order was issued and that the person has been identified as a controller.

(e) The Division may refrain from issuing a cessation order for a violation at an abandoned site, as defined in 1.04(1), if abatement of the violation is required under any previously issued notice or order.

(2)

(a) When an authorized representative of the Division conducts any inspection and determines that any condition or practice subject to the Act, or any violation of the Act, these Rules, or any permit or exploration approval exists at a surface coal mining operation or coal exploration operation but that such condition, practice, or violation does not create an imminent danger or significant harm or reasonable expectation thereof for which a cessation order must be issued under (1)(a) above, then such authorized representative shall issue a notice of violation to the operator or person conducting surface coal mining operations or coal exploration operations subject to the Act or to the designated agent of either. 117(3), 123(2)

(b) Notices of violation shall fix a reasonable time, not to exceed 90 days, within which abatement shall be accomplished; provided, that an extension of the abatement period originally fixed may be allowed in writing by the authorized representative, subject to the foregoing overall 90 day limitation, upon written request and showing of good cause for such an extension, except upon a showing by the person who is issued a notice of violation pursuant to (a) above that it is not feasible to abate the violation within 90 calendar days due to one or more of the circumstances in 5.03.2(2)(c).

(c) An extended abatement date pursuant to this section shall not be granted when the failure to abate within 90 days has been caused by a lack of diligence or intentional delay by the permittee or person who is issued a notice of violation pursuant to (a) above in completing the remedial action required. Circumstances which may qualify a surface coal mining operation for an abatement period of more than 90 days are:

(i) 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;

(ii) Where there is a valid judicial order precluding abatement within 90 days as to which the permittee or other person who is issued a notice of violation pursuant to (a) above has diligently pursued all rights of appeal and as to which he or she has no other effective legal remedy;

(iii) Where the permittee or other person who is issued a notice of violation pursuant to (a) above cannot abate within 90 days due to a labor strike;

(iv) 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;

(v) Where abatement within 90 days requires action that would violate safety standards established by statute or regulation under the Mine Safety and Health Act of 1977.

(d) 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. 123(2)

(e) If any of the conditions in paragraph (c) of this section exist, the permittee or other person who is issued a notice of violation pursuant to (a) above 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 Administrator or his or her designee and the abatement period granted shall not exceed the shortest possible time necessary to abate the violation. The permittee or other person who is issued a notice of violation pursuant to (a) above shall have the burden of establishing by clear and convincing proof that he or she is entitled to an extension under the provisions of 5.03.2(2)(b) and (c). 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 authorized representative'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.

(f) Any determination made under paragraph (e) of this section shall be appealable to the Mined Land Reclamation Board in accordance with 5.03.5. 123(3)

(g) No extension granted under paragraph (e) of this section 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 or other person who is issued a notice of violation pursuant to (a) above may request a further extension in accordance with the procedures of paragraph (e) of this section.

(h) The Division may refrain from issuing a notice of violation for a violation at an abandoned site, as defined in 1.04(1), if abatement of the violation is required under any previously issued notice or order.

(3) If the person who is issued a notice of violation pursuant to (2) above fails to abate the violation within the abatement period as originally fixed or as subsequently extended, or fails to accomplish an interim step designated by the authorized representative of the Division within the abatement period, for good cause shown and upon written finding to that effect, the authorized representative of the Division shall immediately order a cessation of the surface coal mining and reclamation operations or coal exploration operations or of the portion thereof relevant to the violation. The Division may refrain from issuing a failure-to-abate cessation order for such failure to abate a violation or failure to accomplish an interim step, if the operation is an abandoned site as defined in 1.04(1). 123(3)

(4)

(a) Each notice of violation or cessation order issued shall be on a form approved by the Board, shall be signed by the authorized representative issuing it, and shall set forth with reasonable specificity the following:

(i) The nature of the violation, including a reference to the provisions of the statute, regulation, permit, or approval allegedly violated;

(ii) A description of the steps necessary to abate the violation in the most expeditious manner physically possible, including a description of any affirmative obligations imposed under 5.03.2(1)(c) above;

(iii) The period of time fixed for abatement; and

(iv) A reasonable description of the portion of the surface coal mining and reclamation operation or coal exploration operation to which the notice of violation or cessation order applies.

(b) The notice of violation or cessation order additionally shall:

(i) Inform the person to whom it is issued that a civil penalty may be assessed for the violation;

(ii) Inform such person that he or she has the right to review the notice of violation or cessation order in an informal public hearing in accordance with Rule 5.03.2 and /or a public hearing before the Board in accordance with Rule 5.03.5; and

(iii) Describe the procedure which must be followed to obtain such review.

(5)

(a) Except as set forth in (6) below, cessation orders shall remain in effect until: 123(5)

(i) It is determined by an authorized representative of the Division that the condition, practice, or violation has been abated, or

(ii) The cessation order is modified, vacated, or terminated in writing by an authorized representative of the Division.

(b) An authorized representative may modify, vacate, or terminate a cessation order for good cause, subject to the limitation of 5.03.7(2).

(c) An authorized representative may, upon written request and a showing of good cause, extend the time for abatement, subject to the overall 90 day limitation of 5.03.2(2)(b), if the failure to abate within the time previously fixed in a cessation order was not caused by lack of diligence on the part of the person issued such order.

(d) An authorized representative shall immediately terminate a notice of violation or cessation order by written notice to the person issued the notice or order or his designated agent when such representative determines that all conditions, practices, or violations listed in the notice or order have been abated. Termination shall not affect the right of the Division to assess civil penalties under 5.04.5.

(e) Reclamation operations and other activities intended to protect public health and safety and the environment shall continue during the period of any order unless otherwise provided in the order.

(6) Any notice of violation or cessation order expressly or implicitly requiring the cessation of mining shall automatically expire 30 days after service of the notice or order to the operator unless an informal public hearing on the portion of the notice or order dealing with the cessation of mining is held within such time or unless the opportunity for such a hearing is waived in writing by the operator issued the notice or order. However, the expiration of any notice or order shall not affect the Division's authority to assess civil penalties under 5.04. 123(6)

(7) Informal public hearings. 123(6)

(a) An informal public hearing shall be held within 30 days after the issuance of either a notice of violation or cessation order expressly or implicitly requiring the cessation of mining unless the operator issued the notice or order waives the opportunity for such a hearing in writing. The waiver of an opportunity for such a hearing shall not affect the operator's right to obtain formal review under 5.03.5.

(b) The Division shall give as much advance notice as is practicable of the date, time, place, and subject matter of such hearing to the operator to whom the notice or order was issued and to any person who requested an inspection which led to the issuance of the notice or order. The Division shall also post a notice of such hearing at the Division office and, when practicable, publish such notice in a newspaper of general circulation in the area of the mine site.

(c) Such hearing shall be held at or reasonably close to the mine site so that the mine site may be viewed during the hearing.

(d) Such hearing shall be presided over by an authorized representative of the Division, other than the representative who issued the notice or order in question, who shall accept oral or written arguments and any other relevant information from any person attending.

(e) The Division shall affirm, modify, vacate, or terminate the notice or order, or grant temporary relief therefrom, by a written decision sent within five days after the close of the hearing to both the operator to whom the notice or order was issued and to any person who requested an inspection which led to the issuance of the notice or order.

5.03.3Suspension or Revocation of Permits.

(1) Show cause orders.

(a) When the Division determines that a pattern of violations of any requirements of the Act, these Rules, or any permit conditions required by the Act exists or has existed and that such violations are or were caused by the unwarranted failure of the permittee to comply with any requirements of the Act, these Rules, or any permit conditions or that such violations are or were willfully caused by the permittee, the Division shall forthwith issue an order to the permittee to show cause why the permit should not be suspended or revoked. If practicable, at the time of issuance of the show cause order, the Division shall publish notice of the show cause order, including a brief statement of the procedure for intervention in the proceeding, in a newspaper of general circulation in the area of the surface coal mining and reclamation operation. 123(7)

(b) Violations caused by any person conducting surface coal mining operations on behalf of the permittee shall be attributed to the permittee, unless the permittee establishes by a preponderance of evidence that the acts were the results of sabotage.

(2) Patterns of Violations. 123(7)

(a) The Division may determine that a pattern of violations exists or has existed, based upon two or more inspections of the permit area within any 12-month period, after considering all the circumstances including: 123(7)

(i) The number of violations, cited on more than one occasion, of the same or related requirements of the Act, these Rules, or the permit;

(ii) The number of violations, cited on more than one occasion, of different requirements of the Act, these Rules, or the permit;

(iv) The extent to which the cited violations were isolated departures from lawful conduct.

(b) The Administrator shall promptly review the history of violations of any permittee who has been cited for violations of the Act, these rules, or the permit during three or more inspections of the permit area within any 12-month period to determine if a pattern of violation exists or has existed.

(c) The Administrator may decline to issue a show cause order, or may vacate an outstanding show cause order, if he or she finds that, given exceptional circumstances of a particular case, it would be demonstrably unjust to issue or to fail to vacate the order. The basis of this finding shall be fully set forth in the case records.

(3) Following the issuance of an order to show cause as to why a permit should not be suspended or revoked, the Board shall provide an opportunity for a public hearing pursuant to 5.03.5. 123(7), 124(4)

(a) If within 30 days after service of a show cause order the permittee files a response to the show cause order and a written request for review thereof, a hearing shall be held as set forth in 5.03.5.

(b) If the permittee does not file a response and request review, the Board shall make findings of fact and issue a written decision, and the reasons therefor, concerning suspension or revocation of the permit.

(4) If the Board suspends or revokes the permit by its written decision issued pursuant to 5.03.5(4)(c) or pursuant to (3)(b) above, the permittee shall immediately cease those surface coal mining operations on the permit area as specified by the Board. As further described in 3.04, the permittee shall either complete reclamation within a period specified by the Board, or the Board shall declare the performance bonds for the operation as forfeited. Proceeds of forfeited bonds shall be available to the Division and shall be used by the Division for reclamation of the area covered by the bond. 124(4)

(5) Whenever a permittee fails to abate a violation contained in a notice of violation or cessation order within the abatement periods set in the notice or order or as subsequently extended, the Administrator shall review the permittee's history of violations to determine whether a pattern of violations exists pursuant to (2) above, and shall issue an order to show cause as appropriate in 5.03.3(1).

5.03.4Service of Notices of Violation, Cessation Orders, and Show Cause Orders.

(1) Notices of violation and cessation orders shall be served in a timely fashion on the operator, or through his designated agent or management personnel at the mine, in person or by certified mail, return receipt requested as follows: 123(4)

(a) When the person or agent is a natural person, by delivery to him personally, or by leaving a copy at his dwelling house or usual place of abode with some member of his family over the age of 18 years, or by leaving a copy at his usual place of business with the person in charge of such place.

(b) When the person or agent is a partnership or other unincorporated association, by delivery to one or more of the partners or members, or by delivery to the managing agent of such partnership or association.

(c) When the person or agent is a corporation, by delivery to any officer, manager, general agent, or registered agent of such corporation, or, if no such person can be found, by delivery to any stockholder, agent, or principal employee of such corporation.

(2) Show cause orders shall be served by certified mail directed to either the permittee to whom any such order is issued or such permittee's designated agent. 123(7)

(3) All permittees, operators, and persons conducting coal exploration activities subject to the Act shall designate an agent to receive all notices, orders, and all modifications, vacations, and terminations thereof that may be served by the Board or Division under Rule 5.

(a) Such designation shall be made in writing to the Division on a form prepared by the Division, and such designation may be amended in like manner.

(b) The designated agent shall be either a corporation whose ordinary business is serving as an agent for receipt of service or an individual who has a permanent address in Colorado other than a post office box.

(c) The designated agent shall be available in the county in which the mine site is located or the coal exploration activities are being conducted or in the City and County of Denver, Colorado, to receive service during all normal business hours of mining or exploration operations.

(4) A notice of violation or cessation order may be served by the Division by publication in a newspaper of general circulation in the area of the mine or exploration site if the Division, after diligent efforts to serve both the person and designated agent to be served under (1) above, finds that such person and agent have concealed themselves to avoid service by the Division.

(5) Service shall be complete upon delivery, mailing, or publication under (1), (2), or (4) above and shall not be deemed to be incomplete due to any refusal to accept.

5.03.5Formal Review by the Board.

(1)

(a) An operator or person issued any notice of violation or cessation order, or any person having an interest which is or may be adversely affected by such notice or order or by any modification, vacation, or termination of such notice or order may request review thereof by the Board within 90 days after the issuance of the notice or order or within 90 days after its modification, vacation, or termination. However, the filing of such a request shall not operate as a stay or modification of any notice or order. 117(3),(5) 124(1)(a)

(b) A permittee issued any show cause order pursuant to 5.03.3(1) shall request formal review by the Board in accordance with 5.03.3(3)(a).

(c) A person issued any notice and order to pay a fixed penalty under 5.04.3(5) shall request formal review by the Board in accordance with 5.04.4.

(d) A person issued any notice of proposed individual civil penalty assessment under 5.05may request review thereof by the Board within 30 days after issuance of the proposed individual civil penalty assessment.

(2) Upon receipt of a request for review in accordance with (1) above, the Board shall cause an investigation to be conducted by the Division as it deems appropriate, and the Board shall receive the completed report of such investigation before the hearing. 124(1)(a)

(3) A formal hearing shall be held within 60 days after the Board's receipt of a request therefore pursuant to (1) above, subject to the time limitation imposed in certain cases by (4)(b) below. 124(1)(a)

(a) Such hearing shall be "of record" and subject to the provisions of the "State Administrative Procedure Act", C.R.S., 24-4- 101 et seq. as amended. At such hearings, no evidence as to statements made or evidence produced by any person at an informal hearing held under 5.03.2(7) or at an assessment conference held under 5.04.3 shall be introduced as evidence or to impeach any witness. 124(1)(b)

(b) The person issued any notice of violation or cessation order, any other persons requesting a hearing pursuant to (1) above, and all other persons expressing an interest, shall be given at least 5 days written notice of the date, time, and place of the hearing. When practicable, advance notice of such hearing shall also be included in the Division's monthly mailings. Advance notice of such hearings shall be posted at the Division office closest to the mine or exploration site. 124(1)(b)

(c) A permittee issued a show cause order and any interested person shall be given at least 30 days written notice of the date, time, and place of the hearing. When practicable, the Division shall publish notice of the hearing in a newspaper of general circulation in the area of the mine site and include such notice in the Division's monthly mailings. Advance notice of such hearings shall be posted at the Division office closest to the mine site. 123(7)

(d) A person issued a notice and order to pay a fixed penalty shall be given at least five days written notice of the date, time, and place of the hearing. When practicable, advance notice of such hearing shall also be included in the Division's monthly mailings. Advance notice of such hearing shall be posted at the Division office.

(4) Decisions of the Board. 124(2)

(a) When a hearing has been held on a notice of violation, the Board shall make findings of fact and issue a written decision within 30 days after the close of the hearing. Such decision shall incorporate the Board's findings and its order affirming, modifying, vacating, or terminating the notice or the modification, vacation, or termination thereof.

(b) When a hearing has been held on a cessation order, the Board shall make findings of fact and issue a written decision within 30 days after its receipt of the written request for review; however, if temporary relief has been granted by the Board pursuant to (5) below, by the Division pursuant to 5.03.2(7)(e), or by a court pursuant to Section 34-33-128(3) of the Act, the Board shall issue its written decision within 30 days after the close of the hearing. Decisions shall incorporate the Board's findings and its order affirming, modifying, vacating, or terminating the order or the modification, vacation, or termination thereof.

(c) When a hearing has been held on a show cause order, the Board shall issue and furnish to the permittee and other parties to the hearing, within 60 days after the close of the hearing, a written decision, and the reasons therefor, concerning suspension or revocation of the permit. 124(4)

(d) When a hearing has been held on a notice and order to pay a fixed penalty, the Board shall issue its decision in conformance with 5.04.4(3).

(e) When a hearing has been held on a notice of proposed individual civil penalty assessment, the Board shall make findings of fact and issue written decision within 30 days after the close of the hearing. Such decision shall incorporate the Board's findings and its order affirming, increasing or decreasing the proposed penalty.

(5) Temporary relief.

(a) Pending completion of the investigation and hearing, an operator issued any notice of violation or cessation order explicitly or implicitly requiring the cessation of mining or any other party may file with the Board a written request that the Board grant temporary relief from the notice or order. Such request shall include a detailed statement giving reasons for requesting such relief. 124(3)

(b) The Board shall issue a written decision granting or denying such temporary relief expeditiously; where the operator requests temporary relief from a cessation order, the decision shall be issued within five days of receipt of the request for temporary relief.

(c) The Board may grant temporary relief under such conditions as it may prescribe if:

(i) An informal hearing has been held pursuant to 5.03.2(7) on the request for temporary relief and all parties were given an opportunity to be heard; 124(3)(a)

(ii) The operator shows that there is substantial likelihood that the decision of the Board under (4) above will be favorable to him; and124(3)(b)

(iii) The requested temporary relief will not adversely affect the health or safety of the public or cause significant environmental harm to land, air, or water resources. 124(3)(c)

5.03.6Costs, Expenses and Attorney's Fees.

Whenever a decision or order is issued by the Board under 5.03.5(4) or as a result of any administrative proceeding under the Act, at the request of any party to such proceeding, a sum equal to the aggregate amount of all costs and expenses, including Attorney fees, which the Board determines to have been reasonably incurred by such party for or in connection with his participation in such proceedings may be assessed against any party to the proceedings, as the Board deems just and proper. The sum may in addition include all costs and expenses, including attorneys' fees, which the Board determines to have been reasonably incurred by the requesting party in seeking the award. 124(5)

(1) The petition for an award of costs and expenses including attorney's fees must be filed with the Board, within 45 days of receipt of such order. Failure to make a timely filing of the petition may constitute a waiver of the right to such an award.

(2) A petition filed under 5.03.6 shall include the name of the person from whom costs and expenses are sought and the following shall be submitted in support of the petition:

(a) An affidavit setting forth in detail all costs and expenses including attorney's fees reasonably incurred for, or in connection with, the person's participation in the proceeding;

(b) Receipts or other evidence of such costs and expenses, and

(c) Where attorney's fees are claimed, evidence concerning the hours expended on the case, the customary commercial rate of payment for such services in the area, and the experience, reputation and ability of the individual or individuals performing the services.

(3) Any person served with a copy of the petition shall have 30 days from service of the petition within which to file an answer to such petition.

(4) Appropriate cost and expenses including attorney's fees may be awarded:

(a) To any person from the permittee, if the person initiates any administrative proceedings reviewing enforcement actions, upon a finding that a violation of the Act, regulations or permit has occurred, or that any imminent hazard existed or to any person who participates in an enforcement proceeding where such a finding is made if the Board determines that the person made a substantial contribution to the full and fair determination of the issues;

(b) To a permittee from any person where the permittee demonstrates that the person initiated a proceeding under 5.03.5 or participated in such a proceeding in bad faith for the purpose of harassing or embarrassing the permittee; or

(c) To the Division where it demonstrates that any person applied for review pursuant to 5.03.5 or that any party participated in such a proceeding in bad faith for the purpose of harassing or embarrassing the Division.

(d) To a permittee from the Division when the permittee demonstrates that the Division issued a cessation order, a notice of violation, or an order to show cause why a permit should not be suspended or revoked, in bad faith and for the purpose of harassing or embarrassing the permittee.

(e) From the Division to any person, other than a permittee or his or her representative, who initiates or participates in any administrative proceeding under the Act, and who prevails in whole or in part, achieving at least some degree of success on the merits, upon a finding that such person made a substantial contribution to a full and fair determination of the issues.

5.03.7Insufficient Grounds for Vacating Citations.

(1) No notice of violation, cessation order, show cause order, or order revoking or suspending a permit may be vacated because it is subsequently determined that the Division did not have information sufficient under 5.02.5 to justify an inspection. 122(6) 123(6) 124(2)

(2) No issued cessation order or notice of violation may be vacated because of an inability to comply with the requirements of the Act or these Rules. 123(6), 124(2)

(3) Inability to comply with the requirements of the Act or these Rules may not be considered in determining whether a pattern of violations exists. 123(7)

(4) Unless caused by lack of diligence, inability to comply may be considered only in mitigation of the amount of civil penalty under 5.04 and of the duration of the suspension of a permit under 5.03.3(3)(b) or 5.03.5(4)(c).

5.04CIVIL PENALTIES

5.04.1Scope.

This Section covers the assessment of civil penalties with respect to cessation orders and notices of violation.

5.04.2When Civil Penalties Will Be Assessed.

The Division shall review each notice of violation and cessation order in accordance with the assessment procedures of 5.04.5 and 5.04.6 to determine whether a civil penalty will be assessed, the amount of the penalty, and whether each day of a continuing violation will be deemed a separate violation for purposes of total penalty assessment. 123(8)

5.04.3Procedures for Assessment of Civil Penalties

(1) Within 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 Division. The Division shall consider any information so submitted in determining the facts surrounding the violation and the amount of the civil penalty to be proposed under (2) below. 123(8)(a)

(2) The Division shall notify the person issued a notice of violation or cessation order, or his designated agent, of the amount of proposed civil penalty within 30 days after the issuance of a notice of violation or cessation order. Such notice shall be served by certified mail directed to such person or agent, and service shall not be incomplete due to any refusal to accept service. Notifications shall be sufficient if the certified mail is directed either to such person at the address set forth on the sign required by 5.02.3(1) or to such agent at the last designated address of such agent under a designation pursuant to 5.03.4(3). 123(8)(b)

(a) The notice of proposed penalty shall inform the person to whom it is issued that:

(i) If an assessment conference is held upon request therefore under (3) below but the issues are not resolved, or if an agreed penalty is fixed in an assessment agreement but is not paid within the prescribed time; then

(ii) The notice of proposed penalty will constitute the notice and order of fixed penalty described in (5)(b) below; and

(iii) The notice of proposed penalty will be effective as such notice and order, for the purpose of fixing the 30 day period required by (5)(b) below for payment of a fixed penalty, from either the date of the conclusion of the assessment conference at which issues are not resolved or the date of any default under an agreement to pay an agreed penalty fixed at an assessment conference, whichever date is applicable under the circumstances.

(b) The notice of proposed penalty shall describe the procedure which must be followed to obtain formal review by the Board under 5.03.5 on the fact of the violation or amount of the penalty.

(c) Failure by the Division to serve any notice of proposed penalty within 30 days after issuance of a notice of violation or cessation order shall not be grounds for dismissal of all or part of such assessment unless the person whom the notice of proposed penalty has been assessed proves actual prejudice as a result of the delay and makes a timely objection to the delay in the normal course of the administrative review.

(3) The person issued a notice of proposed penalty shall have 10 days after receipt of the notice within which to request, on a form approved by the Board, an assessment conference in which all relevant information concerning the violation and penalty, including all information which the person may submit, shall be reviewed by the person or his authorized representative and a conference officer, who shall be an authorized representative of the Division. 123(8)(b)

(a) The Division shall post notice of the date, time, and place of the assessment conference at the Division office at least five days before the assessment conference.

(b) Any interested person shall have a right to attend and participate in the assessment conference.

(c) The assessment conference shall be held within 30 days from the request therefore, and should be held at the earliest practicable time. Failure to hold an assessment conference within 30 days of the request therefore will not constitute grounds for dismissal of all or part of the proposed penalty unless the person proves actual prejudice as a result of the delay.

(d) The conference officer may terminate the conference when he determines that the issues cannot be resolved or that the person assessed is not diligently working toward resolution of the issues.

(4) If the issues are resolved at the assessment conference, the conference officer shall prepare an assessment agreement on a form approved by the Board. 123(8)(c)

(a) Such agreement shall provide, among other relevant provisions, as follows:

(i) That an agreed penalty shall be paid within a prescribed time, which time shall not exceed 30 days after the agreement is signed by both parties; and

(ii) That by paying the agreed penalty within the prescribed time the person waives all rights to further review of the violation or penalty.

(b) Such agreement shall be signed by both the conference officer and the person charged with the violation, or his authorized representative; however, the agreement shall not be effective if it is not signed by the person or his authorized representative at the conference or within 10 days thereafter, and in the event of the failure to sign within such period the issues resolved in such assessment agreement shall be considered not to have been resolved. If the agreement is not signed at the conference, it shall be sent by certified mail, returned receipt requested, to the person charged with the violation or his authorized representative. The 10-day period shall commence upon receipt of the agreement.

(c) The agreement penalty incorporated into an assessment conference may vary up to 25 percent from the amount of proposed penalty provided that such variance does not exceed $500 unless the Administrator approves a greater variance in writing.

(5)

(a) If any person issued a notice of violation or cessation order does not request an assessment conference under (2) above, if an assessment conference is held but the issues are not resolved, or if an agreed penalty is fixed in an assessment agreement but is not paid within the prescribed time, then the Division shall order the civil penalty fixed at an amount determined to be appropriate, in the light of the criteria set forth in 5.04.5(3) and relevant information received at any assessment conference.

(b) Notice of the fixed penalty and an order to pay the same shall be consolidated in a "notice and order" form approved by the Board. Such notice and order shall require the payment of the fixed penalty within 30 days after its receipt and shall describe the procedure which must be followed to obtain formal review by the Board under 5.03.5 on the fact of the violation or the amount of the penalty.

(c) The notice and order shall be served by certified mail on the operator or his designated agent no later than one-hundred twenty (120) days after the date the notice or order describing the violation was originally issued. Service shall be considered complete if the certified mail is directed either to the operator at the address set forth on the sign required by 5.02.3(1) or to such agent at the last designated address of such agent under a designation pursuant to 5.03.4(3).

5.04.4Public Hearings on Penalties.

(1) If the person who is issued a notice and order under 5.04.3(5) wishes to contest either the amount of fixed penalty or the fact of the violation, he shall both forward the amount of the fixed penalty to the Division within 30 days after receipt of the notice and order and submit a written request to the Board for a public hearing in accordance with 5.03.5. The fact of the violation may not be contested if it has been decided in a review proceeding commenced under 5.03.5(4)(a) or (4)(b). 123(8)(f)

(a) The amount of fixed penalty forwarded to the Division shall be placed by the Division into an interest bearing escrow account.

(b) Failure of the person to either forward the amount of the fixed penalty to the Division within 30 days or to request a public hearing shall result in waiver of all legal rights to further contest either the violation or the amount of the fixed civil penalty. 123(8)(e)

(2) Upon submission of a request for hearing in accordance with (1) above, such hearing shall be held in accordance with 5.03.5(2)-(4). When appropriate the Board shall consolidate such hearing with other proceedings under 5.03.3 and 5.03.5. 123(8)(f)

(3) After a public hearing has been held, the Board shall make findings of fact and shall issue a written decision as to the occurrence of the violation and the amount of civil penalty which is warranted. The decision shall incorporate, when appropriate, an order requiring that the penalty be paid, and/or that the funds escrowed under (1)(a) above be released for payment of the penalty if the period in which to request judicial review expires without such review being requested. 123(8)(f)

(a) The decision shall be immediately served by certified mail directed to the person issued the notice and order or such person's designated agent.

(b) The person ordered to pay any penalty must pay the difference between the amount escrowed under (1)(a) above and the amount the person is ordered to pay within 30 days of the order's issuance. Failure to pay such difference within such time shall result in a waiver of all legal rights to judicial review of the fact of the violation or the amount of the penalty. 123(8)(f)

(4) If, after Board review or judicial review of the fixed civil penalty, it is determined that no violation occurred or that the amount of the penalty should be reduced, the Board shall, within 30 days of such determination, remit the appropriate amount to the appropriate person with interest at the rate prevailing in the escrow account established under (1) above. 123(8)(g)

(5) Civil penalties fixed under 5.04 may be recovered in a civil action brought by the attorney general, at the request of the Board, in the district court of this state for the district in which any of the affected land is located or in such other district agreeable to all parties to such action. 123(8)(h)

5.04.5System for Assessment of Civil Penalties.

(1) The Division may assess civil penalties in amounts up to $5,000 for each violation of the Act, these Rules, or any permit or exploration approval; however, the Division shall assess a civil penalty for each violation contained in a cessation order. 123(8)(a)

(2) The Division shall assess a minimum civil penalty of $1,750 and a maximum of $5,000 for each violation contained within a cessation order for conducting surface coal mining operations without a valid permit or conducting coal exploration without the required written approval. Increases in the amount of the penalty beyond the minimum $1,750 shall be based on the criteria regarding seriousness and fault set forth in Rules 5.04.5(3)(b) and (c).

(3) The amount of penalty assessed per violation shall be governed by the following determinations:

(a) History of previous violations. Up to $1,750 of the penalty assessment shall be based on the history of previous violation at the particular surface coal mining and reclamation operation or coal exploration operation.

(i) $50 shall be assessed for each past violation contained in a notice of violation, and $250 shall be assessed for each past violation (but not a condition or practice) contained in a cessation order. Past violations shall be considered without regard to whether such violations led to civil penalty assessment.

(ii) Past violations shall not be considered for purposes of penalty assessment if:

(A) The notice or order based on such violation has been vacated;

(B) The notice or order based on such violation is the subject of pending administrative or judicial review, or the time to request such review or to appeal any administrative or judicial decision has not expired; or

(C) The notice or order based on such violation was issued more than one year prior to the issuance of the notice or order regarding the violation under consideration.

(b) Seriousness. Up to $1,750 of the penalty assessment shall be based on the seriousness of violation. The amount to be assessed for seriousness shall be based on the following factors:

(i) In the case of a violation of performance requirements:

(A) The probability of the occurrence of the event which a violated standard is designed to prevent, and

(B) The duration and extent of the potential or actual damage in terms of area and impact on the public environment.

(ii) In the case of a violation of administrative requirements, the extent to which enforcement was obstructed by the particular violation.

(c) Fault. Up to $1,500 of the penalty assessment shall be based on the degree of fault of the person to whom the notice or order was issued in causing or failing to correct the violation, condition, or practice which led to the issuance of the notice or order, either through act or omission.

(i) A violation which would have been unavoidable despite the exercise of reasonable care shall result in no assessment for fault.

(ii) A violation which occurred as the result of negligence (the failure of a person to prevent the occurrence of any violation due to indifference, lack of diligence, or lack of reasonable care, or the failure to abate any violation due to indifference, lack of diligence, or lack of reasonable care) shall result in an assessment for fault of at least $250 but not more than $750.

(iii) A violation which occurred as the result of a greater degree of fault than negligence (reckless, knowing, or intentional conduct) shall result in an assessment for fault of at least $750 but not more than $1,500.

(d) Good faith in achieving compliance. The Division may subtract up to $1,250 of the penalty assessment if the person to whom the notice of violation or cessation order was issued took extraordinary measures to abate the violation and that abatement was achieved in the shortest possible time and before the expiration of the time fixed for abatement in the notice or order, or any modification thereof.

5.04.6 Assessment of Separate Violations for Each Day.

(1) The Division may assess a separate civil penalty for each day from the date of issuance of the notice of violation or cessation order to the date fixed for abatement of a violation. In determining whether to make such an assessment, the Division shall consider the factors listed in 5.04.5(2) and may consider the extent to which the person to whom the notice or order was issued gained any economic benefit as a result of a failure to comply. 123(8)(a)

(2) The Division shall assess a civil penalty for a minimum of two separate days for any violation which continues for two or more days after the issuance of a notice of violation or cessation order describing the violation which is assessed $5,000 under 5.04.5(2).

(3) When a person fails to correct a violation, for which a notice of violation or cessation order has been issued, within the abatement period as originally fixed or subsequently modified, the Division shall assess a civil penalty of not less than $750 for each day during which such failure to correct the violation continues beyond the fixed abatement period. However, the abatement period shall not end until the entry of an order of the court in cases in which judicial review proceedings have been initiated under Section 34-33-128 of the Act, and the court has ordered the suspension of the abatement requirements of the notice of violation or cessation order. 123(8)(i)

(4) Such penalty for the failure to abate the violation described in 5.04.6(3) shall not be assessed for more than 30 days for each such violation. If the person has not abated the violation within the 30 day period, the Division shall take appropriate action pursuant to Section 34-33-123(7), 34-33-123(9), 34-33-123(10) or 34-33-123(12) of the Act within 30 days to ensure that there will not be a reoccurrence of the failure to abate.

5.05Individual Civil Penalties

5.05.1Scope

This rule addresses the assessment of individual civil penalties under section 123(10) of the Act.

5.05.2When an Individual Civil Penalty May Be Assessed

The Division may assess an individual civil penalty against any Corporate Director, Officer or Agent of a Corporate Permittee who knowingly and willingly authorized, ordered or carried out a violation, failure or refusal to comply with any regulatory requirements or order of the Board. An individual civil penalty shall not be assessed in situations resulting from a violation until a cessation order has been issued by the Division to the Corporate Permittee for the violation, and the cessation order has remained unabated for 30 days.

5.05.3Amount of Individual Civil Penalty

The amount of civil penalty shall be based on the criteria set forth in 5.04.5 and 5.04.6.

5.05.4Procedure for assessment of individual civil penalty.

(1) Notice. The Division shall serve on each individual 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 any underlying Notice of Violation and cessation order. Such notice shall be served by certified mail directed to such person, and service shall not be incomplete due to any refusal to accept service. Notifications shall be sufficient if the certified mail is directed to such person at the address set forth in the permit application as required by 2.03.4.

(2) Final order and opportunity for review. The Notice of Proposed Individual Civil Penalty assessment shall become a final order of the Division 30 days after service upon the individual unless:

(a) The individual files a request for review by the Board within 30 days of service of the Notice of Proposed Individual Civil Penalty assessment. Upon submission of a request for hearing, such hearing shall be held in accordance with 5.03.5(2)- (4); or

(b) The Division and the individual or responsible Corporate Permittee agree within 30 days of service of the Notice of Proposed Individual Civil Penalty Assessment to a schedule or plan for the abatement or correction of the violation, failure or refusal.

5.05.5Payment of Penalty

(1) No abatement or appeal. If a Notice of Proposed Individual Civil Penalty Assessment becomes a final order in the absence of a request for review or abatement agreement, the penalty shall be due upon issuance of the final order.

(2) Appeal. If an individual named in a Notice of Proposed Individual Civil Penalty Assessment files a request for review in accordance with 5.03.5 the penalty shall be due upon issuance of the Board Order.

(3) Abatement Agreement. Where the Division and the Corporate Permittee or an 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 Division 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.

(4) Delinquent Payment. Following the expiration of 30 days after the issuance of a final order assessing an individual civil penalty, any delinquent penalty may be recovered in a civil action brought by the Attorney General, at the request of the Board, in the District Court of this State for the district in which any of the affected land is located or in such other district agreeable to all parties of such action.

5.06Alternative Enforcement

5.06.1Scope

This rule governs the use of measures provided in sections 123(9), (11) and (12) of the Act for criminal penalties and civil actions to compel compliance with provisions of the Act.

5.06.2General provisions.

(1) Whenever a court of competent jurisdiction enters a judgment against or convicts a person under these provisions, the Division must update AVS to reflect the judgment or conviction.

(2) The existence of a performance bond or bond forfeiture cannot be used as the sole basis for determining that an alternative enforcement action is unwarranted.

(3) Nothing in this rule eliminates or limits any additional enforcement rights or procedures available under Federal or State law.

5.06.3Criminal penalties.

Under sections 123(9) and (11) of the Act, the Division or Board may request the Attorney General to pursue criminal penalties against any person who:

(1) Willfully and knowingly violates a condition of the permit;

(2) Willfully and knowingly fails or refuses to comply with:

(a) Any order issued under section 123 or 128 of the Act; or

(b) Any order incorporated into a final decision issued by the Board under the Act (except for those orders specifically excluded under section 123(9) of the Act); or

(3) Knowingly makes any false statement, representation, or certification, or knowingly fails to make any statement, representation, or certification in any application, record, report, plan, or other document filed or required to be maintained by the Division or any order or decision issued by the Board under the Act.

5.06.4Civil Actions for Relief

(1) The Board or Division may request the attorney general to institute a civil action for relief, including a permanent or temporary injunction, restraining order, or any other appropriate order, in the district court of this state for the district in which the surface coal mining and reclamation operation is located or in which the permittee thereof has his principal office, whenever such person or his agent: 123(12)

(a) Violates, fails, or refuses to comply with any order or decision issued by the Board or Division under the Act or these Rules;

(b) Interferes with, hinders, or delays the Board or Division in carrying out the provisions of the Act or these Rules;

(c) Refuses to admit an authorized representative of the Division to the mine, or refuses to permit inspection of the mine by such representative;

(d) Refuses to furnish any information or report requested by the Division or Board in furtherance of the provisions of the Act or these Rules; or

(e) Refuses to permit access to and copying of such records as the Division or Board determines are necessary in carrying out the provisions of the Act or these Rules.

(2) A civil action for relief includes a permanent or temporary injunction, restraining order, or any other appropriate order by a district court of the United States for the district in which the surface coal mining and reclamation operation is located or in which the permittee has his/her principal office.

(3) Temporary restraining orders will be issued in accordance with Rule 65 of Chapter 7 of the Colorado Rules of Civil Procedure, as amended.

(4) Any relief granted by the court to enforce an order based on a violation or failure or refusal to comply with any order or decision issued by the Board or Division under the Act or these Rules shall continue in effect until the completion or final termination of all proceedings for review of such order under the Act, unless, prior thereto, the district court granting such relief sets such order aside or modifies it.

2 CCR 407-2-5