Mo. Code Regs. tit. 10 § 40-8.030

Current through Register Vol. 49, No.12, June 17, 2024

Section 10 CSR 40-8.030 - Permanent Program Inspection and Enforcement

PURPOSE: This rule sets forth requirements for permanent program inspection and enforcement pursuant to sections 444.810, 444.865, 444.885, and 444.895, RSMo.

(1) Inspections by the Commission or Director.

(A) The director shall cause to be conducted an average of at least one (1) partial inspection per month of each active surface coal mining and reclamation operation in the state, and shall conduct partial inspections of each inactive surface coal mining and reclamation operation as are necessary to ensure compliance. A partial inspection is an on-site review of a person's compliance with some of the permit conditions and requirements imposed under the state program. The inspector shall collect evidence of any violation of those conditions or requirements observed.

1. For purposes of this rule, an active surface coal mining and reclamation operation is one for which the commission has not released the permittee from Phase II reclamation liability, as defined under 10 CSR 40-7.021(2)(B).

2. For purposes of this rule, an inactive surface coal mining and reclamation operation is one for which the commission has secured from the permittee the written notice provided for under 10 CSR 40-3.150(3) or the permittee has been released from Phase II reclamation liability, as defined under 10 CSR 40-7.021(2)(B), which has been completed.

(B) The director shall cause to be conducted an average of at least one (1) complete inspection per calendar quarter of each active or inactive surface coal mining and reclamation operation in the state. A complete inspection is an on-site review of a person's compliance with all permit conditions and requirements imposed under the regulatory program, within the entire area disturbed or affected by surface coal mining and reclamation operations. This includes collection of evidence with respect to every violation of those conditions or requirements.

(C) The director shall cause periodic inspections to be conducted of all coal exploration operations required to comply in whole or in part with the regulatory program. These inspections shall include the collection of evidence with respect to every violation of any condition of the exploration permit and plan or any requirement of the regulatory program.

(D) An aerial inspection shall be conducted in a manner which reasonably ensures the identification and documentation of conditions at each surface coal mining and reclamation site inspected and shall be counted as a partial inspection. Any potential violation observed during an aerial inspection shall be investigated on-site within three (3) days; provided, that any indication of a condition, practice, or violation constituting cause for the issuance of a cessation order under section 444.885, RSMo shall be investigated on-site immediately and provided further, that 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 subsections (1)(A) and (B) of this rule.

(E) The inspections required under subsections (1)(A)-(D) of this rule shall-

1. Be carried out on an irregular basis, so as to monitor compliance at all operations, including those which operate nights, weekends, or holidays;

2. Occur without prior notice to the person being inspected or any agent or employee of the person, except for necessary on-site meetings; and

3. Include the prompt filing of inspection reports adequate to enforce the requirements of and to carry out the terms and purposes of the regulatory program, the permit and plan.

(F) Abandoned site means a surface coal mining and reclamation operation for which the regulatory authority has found in writing that-

1. All surface and underground coal mining and reclamation activities at the site have ceased;

2. The regulatory authority or office has issued at least one (1) notice of violation and either-

A. Is unable to serve the notice despite diligent efforts to do so; or

B. The notice was served and has progressed to a failure-to-abate cessation order;

3. The regulatory authority is taking action to ensure-

A. That the permittee and operator, and owners and controllers of the permittee and operator will be precluded from receiving future permits while violations continue at the site; and

B. Pursuant to sections 444.870.5, 444.870.6, 444.885.3, or 444.885.5 of the Surface Coal Mining Law, that abatement occurs or that there will not be a recurrence of the failure-to-abate, except where, after evaluating the circumstances, it concludes that further enforcement offers little or no likelihood of successfully compelling abatement or recovering any reclamation costs; and

4. Where the site is, or was, permitted or bonded-

A. The permit has expired or been revoked; and

B. The regulatory authority has initiated and is diligently pursuing forfeiture of, or has forfeited, the performance bond.

(G) In lieu of the inspection frequency established in subsections (1)(A) and (B) of this rule, the regulatory authority shall inspect each abandoned site on a set frequency commensurate with the public health and safety and environmental considerations present at each specific site, but in no case shall the inspection frequency be set at less than one complete inspection per calendar year.

1. In selecting an alternate inspection frequency authorized under the subsection above, the regulatory authority shall first conduct a complete inspection of the abandoned site and provide public notice under paragraph (G)2. of this section. Following the inspection and public notice, the regulatory authority shall prepare and maintain for public review a written finding 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:

A. How the site meets each of the criteria under the definition of an abandoned site under subsection (F) of this section and thereby qualifies for a reduction in inspection frequency;

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

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

D. The degree to which erosion and sediment control is present and functioning;

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

F. The extent of reclamation completed prior to abandonment and the degree of stability of unreclaimed areas, taking into consideration the physical characteristics of the land mined and the extent of settlement or revegetation that has occurred naturally with time; and

G. Based on a review of the complete and partial inspection report record for the site during at least the last two (2) consecutive years, the rate at which adverse environmental or public health and safety conditions have and can be expected to progressively deteriorate.

2. Provide the public notice and opportunity to comment required under subparagraph (G)1. of this section as follows:

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

B. 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 the address of the regulatory authority where written comments on the reduced inspection frequency may be submitted, and the closing date of the comment period.

(2) Right of Entry.

(A) The commission, director, or authorized agent, without advance notice and upon presentation of appropriate credentials, pursuant to section 444.865.2, RSMo-

1. Shall have the right of entry to, upon or through any surface coal mining and reclamation operations, coal exploration operations, or any premises in which any records required to be maintained under section 444.865.1, RSMo are located; and

2. May have access to and copy at reasonable times, and without delay, any records and inspect any monitoring equipment, exploration, or method of operation.

(B) Entry Shall Not Be Refused.

1. No person shall refuse entry or access requested under subsection (2)(A) of this rule, nor obstruct or hamper any such person in carrying out the inspection.

2. If necessary a search warrant will be obtained pursuant to section 444.865.4, RSMo or the director may obtain an injunction pursuant to section 444.885.5, RSMo.

(3) Availability of Records.

(A) The director shall make available to the director of the office and the regional director of the office, upon request, copies of all documents relating to applications for and approvals of existing, new, or revised coal exploration permits or surface coal mining and reclamation operations permits and all documents relating to inspection and enforcement actions.

(B) Except as provided in 10 CSR 40-6.030(5) and subsection (3)(C) of this rule, copies of all records, reports, inspection materials, or information obtained shall be made immediately available to the public in the area of mining until at least five (5) years after expiration of the period during which the subject operation is active or is covered by any portion of a reclamation bond so that they are conveniently available to residents of that area.

(C) In order to protect preparation for hearings and enforcement proceedings, the director of the office and the commission may enter into agreements regarding procedures for the special handling of investigative and enforcement reports and other such materials.

(4) Public Participation. Any person who is or may be adversely affected by a surface coal mining operation may notify the commission or director, or an authorized representative responsible for conducting the inspection, in writing, of any violation of 10 CSR 40-3-10 CSR 40-9, which s/he has reason to believe exists at the surface mining site.

(A) Citizens' Request for Inspections.

1. A citizen may request an inspection by furnishing to the director, or an authorized representative, a signed, written statement (or an oral report followed by a signed, written statement) stating the reasons the citizen believes a condition or practice exists which constitutes a violation of the regulatory program and setting forth a phone number and address where the citizen can be contacted.

2. The identity of any person supplying information relating to a possible violation shall remain confidential, if requested by that person, unless that person elects to accompany the inspector on the inspection, or unless disclosures are required under any law.

3. If an inspection is conducted as a result of information provided by a citizen, the citizen shall be notified as far in advance as practicable when the inspection is to occur and shall be allowed to accompany the authorized representative during the inspection.

4. Within ten (10) days of the inspection or, if there is no inspection, within fifteen (15) days of receipt of the citizen's written statement, the director shall send the citizen the following:

A. If an inspection was made, a description of the enforcement action taken, which may consist of copies of the inspection report and all notices of violation and cessation orders issued as a result of the inspection or an explanation of why no enforcement action was taken;

B. If no inspection was conducted, an explanation of the reasons why; and

C. An explanation of the citizen's right, if any, to informal review of the action or inaction under subsection (4)(C).

5. The director shall give copies of all materials within the time limits specified to the person alleged to be in violation, except that the name of the citizen shall be removed unless disclosure of the citizen's identity is permitted.

(B) Review of Adequacy and Completeness of Inspections. 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 director in writing of any alleged failure to make adequate and complete or periodic inspections. The notification shall include sufficient information to create a reasonable belief that adequate and complete inspections are not being made and to demonstrate that the person is or may be adversely affected. The director, within fifteen (15) days of receipt of the notification, shall determine whether adequate and complete inspections are being made and, if not, immediately shall order an inspection. The director also shall furnish the complainant with a written statement of the reasons for that determination and the actions, if any, taken to remedy the noncompliance.

(C) Review of Decision Not to Inspect or Enforce.

1. Any person who is or may be adversely affected by a coal exploration or surface coal mining and reclamation operation may ask the director to informally review an authorized representative's decision not to inspect or take appropriate enforcement action with respect to any violation alleged by that person in a request for inspection. The request for review shall be in writing and include a statement of how the person is or may be adversely affected and why the decision merits review.

2. The director shall conduct the review and inform the person, in writing, of the results of the review within thirty (30) days of receipt of the request. The person alleged to be in violation also shall be given a copy of the results of the review, except that the name of the citizen shall not be disclosed unless confidentiality has been waived or disclosure is required.

3. Informal review shall not affect any right to formal review or to a citizen's suit.

(5) Citizens' Suits.

(A) A person who intends to initiate a civil action on his/her own behalf under section 444.880, RSMo shall give notice of intent to do so in accordance with this section.

(B) Notice shall be given by certified mail to the director of the region and to the director.

(C) Notice shall be given by certified mail to the alleged violator, if the complaint alleges a violation of the law or any regulation, order, or permit issued under the law.

(D) Service of notice under this section is complete upon mailing to the last known address of the person being notified.

(E) A person giving notice regarding an alleged violation shall state, to the extent known-

1. Sufficient information to identify the provision of the law, regulation, order, or permit allegedly violated;

2. The act or omission alleged to constitute a violation;

3. The name, address, and telephone numbers of the person(s) responsible for the alleged violation;

4. The date, time, and location of the alleged violation;

5. The name, address, and telephone number of the person giving notice; and

6. The name, address, and telephone number of legal counsel, if any, of the person giving notice.

(F) A person giving notice of an alleged failure by the commission to perform a mandatory act or duty under the law shall state, to the extent known-

1. The provision of the law containing the mandatory act or duty allegedly not performed;

2. Sufficient information to identify the omission alleged to constitute the failure to perform a mandatory act or duty under the law;

3. The name, address, and telephone number of the person giving notice; and

4. The name, address, and telephone number of legal counsel, if any, of the person giving notice.

(6) Enforcement of Cessation Orders.

(A) Issuance of Cessation Orders for Imminent Danger or Harm.

1. An authorized representative of the commission immediately shall order a cessation of surface coal mining and reclamation operations or of the relevant portion of them, if s/he finds any condition or practice, or any violation of the regulatory program or any condition of a permit imposed under the program which-

A. Creates an imminent danger to the health or safety of the public; or

B. Is causing or can reasonably be expected to cause significant, imminent environmental harm to land, air, or water resources.

2. Surface coal mining and reclamation operations conducted by any person without a valid surface coal mining permit constitute a condition or practice which causes or can be reasonably expected to cause significant environmental harm to land, air, or water resources, unless these operations are an integral, uninterrupted extension of previously permitted operations, and the person conducting these operations has filed a timely and complete application for a permit to conduct the operations.

3. If the cessation ordered under paragraph (6)(A)1. of this rule will not completely abate the imminent danger or harm in the most expeditious manner physically possible, the authorized representative of the commission shall impose affirmative obligations on the person to whom it is issued to abate the condition, practice, or violation. The order shall specify the time by which abatement shall be accomplished and may require, among other things, the use of existing or additional personnel and equipment.

(B) Cessation Order in Situations of a Failure to Abate a Notice of Violation or Notice of Delinquent Reclamation.

1. An authorized representative of the commission immediately shall order a cessation of coal exploration or surface coal mining and reclamation operations, or of the relevant portion of them, when a notice of violation has been issued under subsection (7)(A) of this rule and the permittee to whom it was issued fails to abate the violation within the abating period fixed by the authorized representative or subsequently extended by the commission or director.

2. The director shall order a cessation of coal exploration or surface coal mining and reclamation operations, or the relevant portion, if a permittee fails to abate a notice of delinquent reclamation within the period established for abatement.

3. A cessation order issued under this subsection shall require the person to whom it is issued to take all steps the authorized representative of the commission deems necessary to abate the violations covered by the order in the most expeditious manner physically possible.

(C) A cessation order issued under subsection (6)(A) or (B) of this rule shall be in writing, signed by the authorized representative who issues it and shall set forth with reasonable specificity-

1. The nature of the violation;

2. The remedial action or affirmative obligation required, if any, including interim steps, if appropriate;

3. The time established for abatement, if appropriate, including the time for meeting any interim steps; and

4. A reasonable description of the portion of the coal exploration or surface coal mining and reclamation operation to which it applies. The order shall remain in effect until the condition, practice, or violation has been abated or until vacated, modified, or terminated in writing by the commission or director.

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

(E) The commission or the director may modify, terminate, or vacate a cessation order for good cause and may extend the time for abatement if the failure to abate within the time previously set was not caused by lack of diligence on the part of the person to whom it was issued.

(F) The commission or director shall terminate a cessation order, by written notice to the person to whom the order was issued, when it is determined that all conditions, practices, or violations listed in the order have been abated. Termination shall not affect the rights of the commission to assess civil penalties for those violations under this rule or 10 CSR 40-8.040.

(G) Within sixty (60) days after issuing a cessation order, the regulatory authority shall notify in writing the permittee, the operator, and any person who has been listed or identified under 10 CSR 40-6.070(12)(E) or 10 CSR 40-6.030(1)(C) and (D), and 10 CSR 40-6.100(1)(C) and (D) as owning or controlling the permittee, that the cessation order was issued, and that the person has been identified as an owner or controller of the operation.

(H) Post-permit issuance information requirements for permittees.

1. Within thirty (30) days after the issuance of a cessation order under 10 CSR 40-8.030(6) the permittee, must provide or update all the information required under 10 CSR 40-6.030.

2. The permittee does not have to submit information under paragraph (6)(H)1. of this rule if a court of competent jurisdiction grants a stay of the cessation order and the stay remains in effect.

3. Within sixty (60) days of any addition, departure, or change in position of any person identified in 10 CSR 40-6.030(1)(B), the permittee must provide-

A. The information required under 10 CSR 40-6.030(1)(C); and

B. The date of any departure.

(7) Enforcement of Notices of Violation.

(A) An authorized representative of the commission shall issue a notice of violation if s/he finds a violation of the regulatory program or any condition of a permit imposed under the regulatory program which does not create an imminent danger or harm for which a cessation order must be issued under section (6). The commission or director may modify, terminate, or vacate a notice of violation and may extend the time for abatement if the failure to abate within the time previously set was not caused by lack of diligence on the part of the person to whom it was issued.

(B) A notice of violation issued under this section shall be in writing, signed by the authorized representative who issues it and shall set forth with reasonable specificity-

1. The nature of the violation;

2. The remedial action required, which may include interim steps;

3. A reasonable time for abatement, which may include time for accomplishment of interim steps; and

4. A reasonable description of the portion of the coal exploration or surface coal mining and reclamation operation to which it applies.

(C) The commission or director may extend the time set for abatement or for accomplishment of an interim step, if the failure to meet the time previously set out 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 it is not feasible to abate the violation within ninety (90) calendar days due to one (1) or more of the circumstances in subsection (7)(F). An extended abatement date pursuant to this section shall not be granted when the permittee's failure to abate within ninety (90) days has been caused by a lack of diligence or intentional delay by the permittee in completing the remedial action required.

(D) If the person to whom the notice is 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 section (6).

(E) The commission or director shall terminate a notice of violation by written notice to the person to whom it was issued, when it is determined that all violations listed in the notice of violation have been abated. Termination shall not affect the right of the commission to assess civil penalties for those violations under 10 CSR 40-8.040.

(F) Circumstances which may qualify a surface coal mining operation for an abatement period of more than ninety (90) days are where-

1. 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 the 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 permittee;

2. There is a valid judicial order precluding abatement within ninety (90) days as to which the permittee has diligently pursued all rights of appeal and as to which s/he has no other effective legal remedy;

3. The permittee cannot abate within ninety (90) days due to a labor strike;

4. Climatic conditions preclude abatement within ninety (90) days, or where due to climatic conditions, abatement within ninety (90) days clearly would cause more environmental harm than it would prevent; or

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

(G) Whenever an abatement time in excess of ninety (90) days is permitted, interim abatement measures shall be imposed to the extent necessary to minimize harm to the public or the environment.

(H) If any of the conditions in subsection (7)(F) of this rule exists, the permittee may request the authorized representative to grant an abatement period exceeding ninety (90) days. The authorized representative shall not grant this abatement period without the concurrence of the director or his/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 s/he is entitled to an extension under the provisions of subsections (7)(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 document, promptly and fully, in the file his/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 document, promptly and fully, the reasons for his/her concurrence or disapproval in the file.

(I) Any determination made under subsection (7)(H) of this rule shall contain a right of appeal to the Land Reclamation Commission within thirty (30) days of receipt of the written decision.

(J) No extension granted under subsection (7)(H) of this rule may exceed ninety (90) days in length. Where the condition or circumstance which prevented abatement within ninety (90) days exists at the expiration of any such extension, the permittee may request a further extension in accordance with the procedures of subsection (7)(H) of this rule.

(8) Revocation of Permits. Permits shall be revoked as stated in 10 CSR 40-7.031.

(9) Services of Notices of Violations and Cessation Orders.

(A) A notice of violation or cessation order shall be served on the person to whom it is directed or his/her designated agent promptly after issuance, as follows:

1. By tendering a copy at the coal exploration or surface coal mining and reclamation operation to the designated agent or to the individual who, based upon reasonable inquiry by the authorized representative, appears to be in charge of the coal exploration or surface coal mining and reclamation operation referred to in the notice or order. If no such individual can be located at the site, a copy may be tendered to any individual at the site who appears to be an employee or agent of the person to whom the notice or order is issued. Service shall be complete upon tender of the notice or order and shall not be deemed incomplete because of refusal to accept; or

2. As an alternative to paragraph (9)(A)1., service may be made by sending a copy of the notice or order by certified mail or by hand to the person to whom it is issued or his/her designated agent. Service shall be complete upon tender of the notice or order or of the mail and shall not be deemed incomplete because of refusal to accept.

(B) A show cause order may be served on the person to whom it is issued in either manner provided in paragraph (9)(A)2.

(C) Designation by any person of an agent for service of notices and orders shall be made in writing to the director.

(D) The director shall furnish copies of notices and orders to the director of the region promptly after their issuance. The director may furnish copies to any person having an interest in the coal exploration or surface coal mining and reclamation operation, such as the owner of the fee, a corporate officer of the permittee, or the bonding company.

(10) Formal Review of Citations.

(A) A person issued a notice of violation or cessation order under sections (6) and (7) of this rule, or a person having an interest which is or may be adversely affected by the issuance, modification, vacation, or termination of a notice or order, may request review of that action by filing an application for review and request for hearing with the commission, under this rule within thirty (30) days after receiving notice of the action.

(B) The filing of an application for review and request for a hearing under this section shall not operate as a stay of any notice or order, or of any modification, termination, or vacation of either.

(11) Failure to Give Notice and Lack of Information. No notice of violation, cessation order, show cause order, or order revoking or suspending a permit may be vacated for failure to give notice to the director of the region and to the director, or because it is subsequently determined that the commission or director did not have information sufficient to justify an inspection.

(12) Inability to Comply.

(A) No cessation order or notice of violation issued under this section may be vacated because of inability to comply.

(B) Inability to comply may not be considered in determining whether a pattern of violations exists.

(C) Unless caused by lack of diligence, inability to comply may be considered only in mitigation of the amount of civil penalty under 10 CSR 40-8.040 and of the duration of the suspension of a permit under 10 CSR 40-7.031.

(13) Injunctive Relief.

(A) The commission or director 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 circuit court of the county in which the surface coal mining and reclamation operation or coal exploration is located or in which the operator has his/her principal office, whenever this operator or his/her agent-

1. Violates or fails or refuses to comply with any final order or decision by the commission or director or any authorized representative;

2. Interferes with, hinders, or delays the commission, the director or its authorized representative in carrying out the provisions of this law;

3. Refuses to admit the commission members, the director or any authorized representatives to the mine or refuses to permit inspection of the mine;

4. Refuses to furnish any information or report requested by the commission or director;

5. Refuses to permit access to, or copying of, records as the commission or director determines necessary;

6. Refuses to permit inspection of monitoring equipment; or

7. Mines or disturbs any land without a permit.

(B) For purposes of this section, a final order or decision under paragraph (13)(A)1. of this rule shall include any order or decision of the commission, the director or any authorized representative or hearing officer, even if it is subject to further administrative or judicial review, so long as the order or decision determines the rights or obligations of an operator, or if legal consequences may flow from a violation of, failure to comply with, or refusal to comply with the terms of the order or decision.

(14) The rules of discovery that apply in any civil court action shall apply to hearings held before the commission. All decisions with regard to the scope and manner of discovery assigned to the court in a civil action shall be performed by the commission or hearing officer in administrative proceedings held pursuant to this law and its rules.

(15) Intervention.

(A) Any person, including the Office of Surface Mining, may petition for leave to intervene at any stage of an administrative proceeding under the regulatory program.

(B) A petitioner for leave to intervene shall incorporate in the petition a statement setting forth the interest of the petitioner and, where required, a showing of why his/her interest is or may be adversely affected.

(C) The commission shall grant intervention where the petitioner-

1. Had a statutory right to initiate the proceeding in which s/he wishes to intervene; or

2. Has an interest which is or may be adversely affected by the outcome of the proceeding.

(D) If neither paragraph (15)(C)1. nor 2. of this rule apply, the commission shall consider the following in determining whether intervention is appropriate:

1. The nature of the issues;

2. The adequacy of representation of petitioner's interest which is provided by the existing parties to the proceedings;

3. The ability of the petitioner to present relevant evidence and argument; and

4. The effect of the intervention on the commission's implementation of its statutory mandate.

(E) Any person, including the Office of Surface Mining, granted leave to intervene in a proceeding may participate in a proceeding as a full party or, if desired, in a capacity less than that of a full party. If an intervenor wishes to participate in a limited capacity, the extent and the terms of the participation shall be at the discretion of the commission.

(16) Petitions for Award of Costs and Expenses Under Section 444.895.5, RSMo.

(A) Who May File. Any person may file a petition for award of costs and expenses including attorneys' fees reasonably incurred as a result of that person's participation in any administrative proceeding under the law which results in a final order being issued by the commission.

(B) Where to File-Time for Filing. The petition for an award of costs and expenses including attorneys' fees must be filed with the commission within forty-five (45) days of receipt of this order. Failure to make a timely filing of the petition may constitute a waiver of the right to this award.

(C) Contents of Petition. A petition filed under this section 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:

1. An affidavit setting forth in detail all costs and expenses including attorneys' fees reasonably incurred for, or in connection with, the person's participation in the proceeding;

2. Receipts or other evidence of these costs and expenses; and

3. Where attorneys' fees are claimed, evidence concerning the hours expended on the case, the customary commercial rate of payment for these services in the area and the experience, reputation, and ability of the individual or individuals performing the services.

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

(E) Who May Receive an Award. Appropriate costs and expenses including attorneys' fees may be awarded to-

1. Any person from the permittee, if the person initiates any administrative proceedings reviewing enforcement actions, upon a finding that a violation of the regulatory program or permit has occurred, or that an imminent hazard existed, or to any person who participates in an enforcement proceeding where such a finding is made if the commission determines that the person made a substantial contribution to the full and fair determination of the issue;

2. Any person other than a permittee or his/her representative from the state, if the person initiates or participates in any proceeding under the law upon a finding that the person made a substantial contribution to a full and fair determination of the issues;

3. A permittee from the state when the permittee demonstrates that the commission or the director issued an order of cessation, 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;

4. A permittee from any person where the permittee demonstrates that the person initiated a proceeding under section 444.895, RSMo, or participated in a proceeding in bad faith for the purpose of harassing or embarrassing the permittee; or

5. The state where it demonstrates that any person applied for review pursuant to section 444.895, RSMo, or that any party participated in a proceeding in bad faith and for the purpose of harassing or embarrassing the state.

(F) Awards. An award under these sections may include all costs and expenses, including attorneys' fees and expert witness fees, reasonably incurred as a result of initiation, participation in a proceeding under the law, or both.

(17) Informal Public Hearing.

(A) Except as provided in subsections (17)(B) and (C), a notice of violation or cessation order which requires cessation of mining, expressly, or by necessary implication, shall expire within thirty (30) days after it is served unless an informal public hearing has been held within that time. The hearing shall be held at or reasonably close to, the mine site so that it may be viewed during the hearing. The county courthouse nearest to the mine site shall be deemed to be reasonably close to the mine site unless a closer location is requested and agreed to by the director or commission. Expiration of a notice or order shall not affect the director's or commission's right to assess civil penalties for the violations mentioned in the notice or order under 10 CSR 40-8.040 (civil penalties). For the purposes of this section, mining means extracting coal from the earth or coal waste piles and transporting it within or from the permit area.

(B) A notice of violation or cessation order shall not expire as provided in subsection (17)(A) of this rule, if the condition, practice, or violation in question has been abated, if the informal public hearing has been waived, or if, with the consent of the person to whom the notice or order was issued, the informal public hearing is held later than thirty (30) days after the notice or order was served. For purposes of this section-

1. The informal public hearing will be deemed waived if the person to whom the notice or order was issued-

A. Is informed, by written notice served in the manner provided in paragraph (17)(B)2. of this rule, that s/he will be deemed to have waived an informal public hearing unless s/he requests one within thirty (30) days' service of the notice or order; and

B. Fails to request an informal public hearing within that time;

2. The written notice referred to in sub-paragraph (17)(B)1.A. of this rule shall be included with the notice of violation or cessation order; and

3. The person to whom the notice or order is issued shall be deemed to have consented to an extension of the time for holding the informal public hearing if his/her request is received on or after the twenty-first day after service of the notice or order. The extension of time shall be equal to the number of days elapsed after the twenty-first day.

(C) The director shall give as much advance notice as is practicable of the time, place and subject matter of the informal public hearing to-

1. The person to whom the notice or order was issued;

2. Any person who filed a report which led to that notice or order; and

3. The office of the director of the region.

(D) The director also shall post notice of the hearing at the county courthouse closest to the mine site and publish it, where practicable, in a newspaper of general circulation in the area of the mine.

(E) An informal public hearing shall be conducted by the director or commission who may accept oral or written arguments and any other relevant information from any person attending.

(F) Within fifteen (15) days after the close of the informal public hearing, the commission shall affirm, modify, or vacate the notice or order in writing. The decision shall be sent to-

1. The person to whom the notice or order was issued;

2. Any person who filed a report which led to the notice or order; and

3. The office of the director of the region.

(G) The granting or waiver of an informal public hearing shall not affect the right of any person to formal review under sections 444.870.2, 444.885.1, and 444.895, RSMo. At the formal review proceedings, no evidence as to statements made or evidence produced at an informal public hearing shall be introduced as evidence or to impeach a witness.

(H) The person conducting the hearing for the commission shall determine whether or not the site should be viewed during the hearing. In making this determination, the only consideration shall be whether a view of the mine site will assist the person conducting the hearing in reviewing the appropriateness of the enforcement action or of the required remedial action.

(18) Delinquency in Reclamation.

(A) If the director determines that a permittee has failed to complete reclamation within the time limits specified in 10 CSR 40-3.120(8) or 10 CSR 40-3.270(8), s/he shall issue a notice of delinquent reclamation to the permittee.

(B) The notice of delinquent reclamation shall be in writing, shall be signed by the director and shall set forth with reasonable specificity-

1. The nature of the delinquency;

2. The remedial action required, which may include interim steps; and

3. A reasonable time for abatement, which may include time for accomplishment of interim steps.

(C) The commission or director may extend the time set for abatement in accordance with the criteria set forth in subsection (7)(F). Except as set out in 10 CSR 40-7.031(2)(A) 2., the total time for abatement of a notice of delinquent reclamation, including all extensions described under subsection (7)(F), shall not exceed-

1. One hundred eighty (180) days from the date of issuance if the notice of delinquent reclamation is issued for failure to comply with the requirements of 10 CSR 40-3.120(8)(A) 1., 2. or 4., or 10 CSR 40-3.270(8)(A) 1., 2. or 4.;

2. One (1) year from the date of issuance if the notice of delinquent reclamation is issued for failure to comply with the requirements of 10 CSR 40-3.120(8)(A) 3., 5., 6., 7., or 8., or 10 CSR 40-3.270(8)(A) 3., 5., 6., 7., or 8.; and

3. If the notice of delinquent reclamation is issued for failure to comply with the requirements of 10 CSR 40-3.120(8)(A) 1., 2., or 4., or 10 CSR 40-3.270(8)(A) 1., 2., or 4., the director, until the notice of delinquent reclamation is abated, shall report to the commission on a monthly basis the status of the abatement work.

(D) A notice of delinquent reclamation shall be served on the permittee or his/her designated agent promptly after issuance as follows:

1. By tendering a copy at the surface coal mining and reclamation operation to the designated agent or to the individual who, based upon reasonable inquiry by the authorized representative, appears to be in charge of the coal exploration or surface coal mining and reclamation operation referred to in the notice. Service shall be completed upon tender of the notice and shall not be deemed incomplete because of refusal to accept; or

2. As an alternative to paragraph (18)(D)1. of this rule, service may be made by sending a copy of the notice by certified mail to the permittee or his/her designated agent. Service shall be complete upon tender of the notice by mail and shall not be deemed incomplete because of refusal to accept.

(E) A person issued a notice of delinquent reclamation under this section, or a person having an interest which is or may be adversely affected by the issuance, modification, vacation, or termination of a notice of delinquent reclamation, may request a formal hearing before the commission within thirty (30) days after receiving notice of the action.

1. The filing of an application for review and request for a hearing shall not constitute a stay of any notice or of any modification, termination, or vacation of the stay.

2. A hearing shall be conducted by the commission within one hundred twenty (120) days of the receipt of the request for a hearing, except that the hearing shall be conducted within thirty (30) days of the receipt of the request, if so requested in the application. Within forty-five (45) days after the close of the hearing, the commission shall affirm, modify, or vacate the notice of delinquent reclamation.

(F) If a permittee fails to complete remedial action by the date(s) established by the director, the director shall file with the commission a complaint for revocation of the permit, as set out in 10 CSR 40-7.031(2).

(G) In addition to penalties pursuant to 10 CSR 40-8.040, a penalty of twenty-five cents (25¢) per ton of coal sold, shipped, or otherwise disposed of during the delinquency period may be imposed upon the permittee if the director determines that the delinquency was caused by a lack of diligence by the permittee. The delinquency period shall begin at the time of the issuance of the notice of delinquent reclamation and shall end when the remedial action is completed or when the time set for abatement of the delinquent reclamation expires, whichever comes first.

1. If the director determines that a penalty, as specified in this subsection, should be imposed, s/he, within thirty (30) days after the end of the delinquency period, shall send a notice to the permittee or his/her designated agent proposing the amount of the penalty. If the notice of delinquent reclamation is issued for failure to comply with the requirements of 10 CSR 40-3.120(8)(A) 1., 2., or 4., or 10 CSR 40-3.270(8)(A) 1., 2., or 4., the director shall propose the maximum penalty that may be imposed pursuant to this subsection. The permittee or designated agent shall have thirty (30) days after receipt of the notice to request a hearing before the commission to contest the penalty.

2. The penalty shall be paid within thirty (30) days after receipt of notice of the proposed penalty or within thirty (30) days after the commission's decision on a contested penalty, whichever comes last. The penalty shall be credited to the Coal Mine Land Reclamation Fund.

(H) In addition to the penalty described in subsection (18)(G), the commission may require a permittee who has been issued a notice of delinquent reclamation to submit additional bonding. The additional bonding shall be of an amount sufficient to cover the extra liability to the reclamation fund represented by the delinquency and shall remain in effect for a minimum of one (1) year.

10 CSR 40-8.030

AUTHORITY: section 444.810, RSMo 2000.* Original rule filed Oct. 12, 1979, effective Feb. 11 , 1980. Amended: Filed April 14, 1980, effective Aug. 11 , 1980. Amended: Filed May 12, 1980, effective 9/12/1980. Amended: Filed Dec. 10, 1980, effective April 11 , 1981. Amended: Filed Aug. 13, 1982, effective Nov. 11 , 1982. Amended: Filed Dec. 9, 1982, effective April 11 , 1983. Amended: Filed June 3, 1985, effective 10/28/1985. Amended: Filed June 27, 1986, effective 10/27/1986. Amended: Filed Aug. 4, 1987, effective 11/23/1987. Amended: Filed July 3, 1990, effective 11/30/1990. Amended: Filed May 15, 1992, effective 1/15/1993. Amended: Filed Sept. 15, 1994, effective 4/30/1995. Amended: Filed March 21, 2000, effective 10/30/2000. Amended: Filed July 15, 2013, effective 1/30/2014.

*Original authority: 444.810, RSMo 1979, amended 1983, 1993, 1995.