Current through Register Vol. XLI, No. 24, June 14, 2024
Section 38-1-2 - Rules Applicable to Proceedings Initiated to Assess Civil Penalties2.1. Scope. a. The rules in this Section govern, and are applicable, to proceedings initiated by the Commissioner to assess civil penalties under Section 19, Article 1A, Chapter 22A of the Code. In addition to the rules contained in this Section, the general rules of practice before the Department contained in Section 1 and the rules relating to hearings held by the Department contained in Section 3 are also applicable to such proceedings.2.2. Assessment officer.a. Within thirty (30) days after the effective date of these regulations, the Commissioner shall designate and appoint the inspectors-at-large and their designees to act as Assessment Officer(s) for the Department of Energy, It shall be the duty of the Assessment Officer to review withdrawal orders and notices of violation, and prepare Notices of Assessment.2.3. Assessment review officer. a. Within thirty (30) days after the effective date of these regulations, the Commissioner shall designate and appoint a person or persons to act as Assessment Review Officer(s) for the Department of Energy. It shall be the duty of the Assessment Review Officer, upon request for a pre-hearing conference by an operator or miner who has been notified of a proposed civil penalty assessment pursuant to Section 19, Article 1A, Chapter 22A of the Code, to review the civil assessments, accept statements and documents from the party requesting the conference, and hold the requested pre-hearing conference pursuant to Section 2.8 of these rules.2.4. How initiated: notice of assessment.a. Upon the completion of any inspection of a coal mine, it shall be the duty of each mine inspector, or representative of the Department of Energy making said inspection, to deliver to the Assessment Officer a copy of each finding, order, or notice issued during said inspection or prior inspections, which has been abated by the operator or individual charged in said finding, order, or notice with a violation, or if not abated by the operator or individual, then delivery of each finding, order or notice shall be made within a reasonable time after the time for abatement has expired.b. Within thirty (30) days after receipt of a copy of a notice or order issued by a mine inspector or authorized representative of the Department of Energy during a mine inspection, the Assessment Officer shall prepare a Notice of Assessment and forward the same to an Assessment Review Officer for service upon the person or persons charged with the violation of the state coal mine health and safety law, in accordance with the provisions of Section 1 of these rules,c. Each Notice of Assessment shall contain;1. the name of the operator, miner or other person charged with a violation;2. the name and address of the mine inspector or representative of the Department of Energy discovering or witnessing the alleged violation and reporting the same to the Commissioner;3. the health or safety rule or regulation or law which the Assessment Officer believes has been violated;4. the time, date, location, and circumstances of the alleged violation;5. the amount of the proposed penalty;6. such other information as the Commissioner may require. Any of the above information may become part of the Notice of Assessment by attaching the same thereto.
2.5. Procedures for assessment of civil penalties. a. Within thirty (30) days after receipt of the Notice of Assessment, an Assessment Review Officer shall review the same and determine whether or not the proposed assessment should be recalculated using the guideline outlined in Section 19(a)(1), Article 1A, Chapter 22A of the Code.b. The Assessment Review Officer shall, within thirty (30) days after receipt of the Notice of Assessment, by certified mail, return receipt requested, serve upon the operator or miner charged (1) a copy of the Notice of Assessment, (2) a copy of the notice or order which is the basis for the Notice of Assessment, and (3) a written statement indicating to the person charged with a violation that a civil penalty may only be assessed after the person charged with a violation has been given an opportunity for a public hearing and the manner in which the person charged with a violation may request a hearing,c. The operator or miner shall have thirty (30) days from receipt of the Notice of Assessment to either (1) pay the penalty, (2) request, in writing, a conference with the Assessment Review Officer to provide information relating to the violation listed in the Notice of Assessment, or (3) request, in writing, a hearing on the violation in question pursuant to Section 3 of these rules. If the operator or miner does not exercise his right under this subsection within thirty (30) days of receipt of the Notice of Assessment, the Notice of Assessment will become a final Order of Assessment which will be due immediately and enforceable under Section 19, Article 1A, Chapter 22A of the Code.2.6. Payment of assessment. a. Upon receipt of the assessment by certified check or money order by the operator, miner or other person will close the case with respect to any civil penalties.b. Payment of the assessment should be sent to the Commissioner, Department of Energy, 1615 Washington Street, E., Charleston, West Virginia 25311. Checks should be made payable to the West Virginia Department of Energy.2.7. Conference. a. Upon receipt of a request for a conference, the Assessment Review Officer shall arrange for a timely conference convenient to all parties and the Assessment Review Officer.b. If the party or parties request a conference with the Assessment Review Officer, he may submit any additional information to the Assessment Review Officer which may be relevant to the fact of the violation or the amount of the penalty, Such information may be submitted prior to the conference and discussed during the conference. To expedite the conference, the Assessment Review Officer may contact the party or parties to discuss the case prior to such conference.c. At and/or subsequent to the conference, the Assessment Review Officer will consider all relevant information on the violation(s) in question presented by the party or parties and is authorized to decrease, increase or leave, the same amount of the assessed penalty on the basis of any new information presented to him. When the facts warrant a finding that no violation of the coal mine health and safety laws of this State occurred, a penalty will not be assessed and the subject notice of violation or order will be vacated,d. If the party or parties appear in person and the issues are resolved, they may, at this time, tender payment of the amount agreed upon and thereby dispose of the case, or they may have twenty (20) days within which to submit payment to the Commissioner of the amount agreed upon and thereby dispose of the case. All such agreements must be writing and signed by both parties. Failure to tender payment of the agreed amount within the twenty (20) day period will result in the agreed amount being entered as the final order of the Commissioner, enforceable under Section 19, Article1A, Chapter 22A of the Code if the agreed amount is the same or greater than the original assessed amount or if the agreed amount is less than the original amount, the agreed amount will be increased to the original assessed penalty, all at the discretion of the Assessment Review Officer.e. If all issues cannot be resolved during a conference, the party or parties may tender payment for those violations upon which an assessment amount has been agreed as provided in Section 2.7(d) of these rules. Violations not resolved will be the subject of notice of hearing to assess civil penalty provided for in Section 2.8 of these rules.2.8. Assessment of civil penalties - how initiated.a. A proceeding for the assessment of a civil penalty shall be initiated by the Assessment Review Officer by filing a Notice of Assessment Proceeding with the Commissioner and by serving a copy of the notice on the party against whom a penalty is sought. Such notices shall be prepared, filed and served within thirty (30) days, after (1) an operator, miner, person or persons request a hearing after receipt of a Notice of Assessment, or (27 the Assessment Review Officer and a party charged with a violation are unable to resolve all. issues concerning such violation during a conference as provided in Section 2.7 of these rules.b. The Notice of Assessment Proceeding shall include a list of the alleged violations for which a civil penalty is sought to be assessed. In addition, the Notice of Assessment pertaining to each alleged violation contained on such list shall be included with the Notice of Assessment Proceeding.c. Upon receipt of a Notice .of Assessment Proceeding, the Commissioner shall immediately appoint a Presiding Officer for all proceedings relating thereto.2.9. Answer. a. A party against whom a penalty is sought shall file an answer within twenty 920) days after service of a Notice of Assessment Proceeding with the Commissioner. Notice to the party charged must be given at the time.2.10. Contents of answer. All answers shall contain:
a. A short and plain statement of the reasons why each of the violations listed in the Notice of Assessment Proceeding are contested, including whether a violation occurred; andb. A request for a hearing, or an express waiver of the right to a hearing and a request for a formal consideration of the issues by the Presiding Officer.2.11. Summary disposition. a. Failure to answer. Where the party charged with a violation(s) fails to timely file an answer to the Notice of Assessment Proceeding, such party will be deemed to have waived his right to hearing, and the Notice of Assessment shall be forwarded to the Commissioner for entry as a final order.b. Failure to appear at hearing. When a person charged with a violation fails to appear at a hearing conducted under Section 3 of these rules, the Commissioner may dispose of the case or otherwise formally consider it in accordance with the provisions contained in Section 3 of these rules.2.12. Decisions and orders after hearing or formal consideration of the case.a. After the filing of an answer in a case, the Presiding Officer shall schedule and conduct a hearing regarding the case or otherwise formally consider it in accordance with the provisions contained in Section 3 of these rules.b. Where, after hearing or after submission of the case and consideration of the record as a whole or in the event a hearing is waived, the Presiding Officer finds that a violation of the coal mine health and safety laws of this State has occurred, he shall determine the amount of the penalty which is warranted in accordance with Section 19, Article 1A, Chapter 22A of the Code, and these rules, and incorporate in a decision concerning the violation findings of fact, conclusions of law and an order setting forth the amount of any penalty and a requirement that the penalty be paid. Each decision and order against an operator shall contain findings of fact on each of the following criteria: the operator's history of previous violations, the appropriateness of such penalty to the size of the business of the operator charged, the gravity of the alleged violation, and the demonstrated good faith of the operator charged in attempting to achieve rapid compliance after notification of the alleged violation.c. Where, after hearing or after submission of the case and consideration of the record as a whole in the event a hearing is waived, the Presiding Officer determines that no violation occurred, he shall incorporate in a decision concerning the violation findings of fact, conclusions of law and an order vacating the notice of violation or order and dismissing the proceeding to assess civil penalty.d. In proceedings where the Presiding Officer is not the Commissioner, the record in the case and the decision and order of the Presiding Officer shall be forwarded to the Commissioner for his review. The Commissioner shall approve, alter and approve or reject the decision and order of the Presiding Officer. In the event the Commissioner rejects the decision and order of the Presiding Officer, the Commissioner shall forthwith prepare a final decision and order to replace the decision and order rejected.e. A copy of all decisions and orders prepared by or approved by the Commissioner shall be served, by certified mail, upon all parties and, unless the decision and/or order otherwise provides, the decision and order so served shall become effective immediately following service unless a party makes application for rehearing or modification in accordance with Section 3.13 of these rules.