Section 312 IAC 25-7-6 - State enforcement; notices of violationAuthority: IC 14-34-2-1
Affected: IC 4-21.5; IC 14-34-1; IC 14-34-3-1
Sec. 6.
(a) An authorized representative of the director shall issue a notice of violation if, on the basis of an inspection, he finds a violation of IC 14-34-1, this article, or any condition of a permit issued under IC 14-34-3-1 that does not create an imminent danger or harm for which a cessation order must be issued under section 5 of this rule.(b) A notice of violation issued under this section shall be in writing, signed by the director or inspector who issues it, and shall set forth with particularity the following: (1) The nature of the violation.(2) The remedial action required, that may include interim steps.(3) A reasonable time for abatement.(4) A reasonable description of the portion of the surface coal mining and reclamation operation to which it applies.(c) An authorized representative of the director may extend the time set for abatement 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 ninety (90) days from the date of issuance, except upon a showing by the permittee that, despite extraordinary efforts by the permittee, it is not possible to abate the violation within ninety (90) calendar days due to one (1) or more of the circumstances in subsection (f). An extended abatement date under this section shall not be granted when the permittee's failure or inability to abate within ninety (90) days has been caused by a lack of diligence or intentional delay by the person in completing the remedial action required.(d) If the person to whom the notice was issued fails to meet the time set for abatement, or for accomplishment of an interim step, the authorized representative shall issue a cessation order under section 5(b) of this rule.(e) An authorized representative of the director shall terminate each part of a notice of violation by written notice to the person to whom it was issued when he determines that such part of the violation listed in the notice of violation has been abated. This determination may be made by conducting an investigation to confirm the abatement or by accepting the information obtained from an appropriate governmental agency that the violation has been abated. Termination shall not affect the right of the director to assess civil penalties for those violations under sections 13 through 21 of this rule, concerning civil penalties.(f) Circumstances that may qualify a surface coal mining operation for an abatement period of more than ninety (90) days are as follows: (1) 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 ninety (90) days after a valid permit expires or is required for reasons not within the control of the person issued the notice of violation.(2) Where there is a valid judicial or administrative order precluding abatement within ninety (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.(3) Where the permittee cannot abate within ninety (90) days due to a labor strike.(4) Where climate conditions preclude abatement within ninety (90) days, or where, due to climate conditions, abatement within ninety (90) days clearly: (A) would cause more environmental harm than it would prevent; or(B) requires action that would violate safety standards established by statute or regulation under the Mine Safety and Health Act.(g) Whenever an abatement time in excess of ninety (90) days is permitted, interim abatement measures may be imposed to the extent necessary to minimize harm to the public or the environment.(h) If any of the conditions in subsection (f) exist, the permittee may request the authorized representative to grant an abatement period exceeding ninety (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 subsections (c) and (f). In determining whether or not to grant an abatement period exceeding ninety (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 that 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.(i) Any determinations made under subsection (h) shall be in writing and shall contain a right of appeal under IC 4-21.5.(j) No extension granted under subsection (h) may exceed ninety (90) days in length. Where the condition or circumstance that prevented abatement within ninety (90) days exists at the expiration of any such extension, the permittee may request a further extension in accordance with subsection (h).Natural Resources Commission; 312 IAC 25-7-6; filed Jun 21, 2001, 2:53 p.m.: 24 IR 3593, eff Dec 1, 2001; readopted filed May 29, 2007, 9:51 a.m.: 20070613-IR-312070146RFA; readopted filed Sep 19, 2013, 10:12 a.m.: 20131016-IR-312130125RFAReadopted filed 3/26/2019, 3:40 p.m.: 20190424-IR-312190011RFA