W. Va. Code R. § 38-3-16

Current through Register Vol. XLI, No. 24, June 14, 2024

Section 38-3-16 - Inspection and Enforcement

16.1. Inspection Frequencies. -- The Secretary shall inspect each active operation at least once every calendar quarter. Operations with approved inactive status shall be inspected at least once every six (6) months. More inspections may be conducted as necessary to ensure compliance.

16.2. Compliance Conference. -- A permittee may request an on-site compliance conference to review the status of any condition or practice at any quarrying or reclamation operation. Any compliance conference shall not constitute an inspection within the meaning of W. Va. Code § 22-4-24 and this section. The Secretary may accept or refuse any request to conduct a compliance conference. If accepted, an authorized representative of the Secretary shall conduct the compliance conference and shall review conditions and/or practices at the operation in order to advise whether any conditions and/or practices has a potential to become a violation of the Act, this rule or any applicable permit condition. Neither the holding of a compliance conference or any opinion given by the authorized representative of the Secretary at a conference shall affect:

16.2.a. Any rights or obligations of the Secretary or the permittee with respect to any enforcement action, whether prior or subsequent to the compliance conference; or

16.2.b. The validity of any enforcement action taken with respect to any condition or practice reviewed at the compliance conference.

16.3. Notice of non-compliances. -- When, on the basis of an inspection carried out pursuant to subsection 16.1 of this section, the Secretary determines that a quarrying or reclamation operation is in violation of any of the requirements of the Act, this rule, or the terms and conditions of the permit, a notice of non-compliance may be issued. Each day of noncompliance constitutes a separate violation.

16.3.a. Notice Procedures. -- A notice of non-compliance shall be in writing signed by the Secretary and shall set forth with reasonable specificity:

16.3.a.1. The nature of the violation;

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

16.3.a.3. A reasonable time for abatement, which may include time for accomplishment of interim steps, but in no case shall the initial abatement period be in excess of thirty (30) days; and

16.3.a.4. A reasonable description of the portion of the quarrying or reclamation operation to which it applies.

16.3.b. Extension of Abatement Period -- The Secretary may extend the time set for abatement or for accomplishment of an interim step if the failure to meet the time previously set was not caused by lack of diligence on the part of the operator.

16.3.c. Termination -- The Secretary shall terminate a notice of non-compliance by written notice to the permittee when he or she determines that all violations listed in the notice of non-compliance have been abated. Notices of non-compliance shall not be terminated or vacated because of the operator's inability to comply with the terms of abatement.

16.4. Cessation Order for Failure to Abate -- The Secretary may issue a Cessation Order suspending the permit or portion of the permit for failure of the operator to abate a notice of non-compliance within the time specified.

16.5. Cessation Order for Imminent and Substantial Harm -- The Secretary may issue a Cessation Order whenever he or she finds that an ongoing operation is causing or is likely to cause imminent and substantial harm to the environment, public safety or public health.

16.6. Cessation of Operations -- Any cessation order issued by the Secretary, shall order the operation or a portion of the operation to cease and shall remain in effect until the non-compliance has been abated or until modified, vacated, or terminated by the Secretary or the Surface Mine Board or by a court.

16.7. Remedial Measures -- In any cessation order, the Secretary shall determine the appropriate remedial measures to be taken to abate the violation in the most expeditious manner possible and shall set forth these measures, and the time by which abatement shall be accomplished in the order.

16.8. Consent Agreement. -- When the permittee demonstrates that sufficient resources are available to him or her to abate the violation(s), the Secretary may enter into a consent agreement.

16.9. Quarrying Without a Permit -- Quarrying operations conducted by any person without a valid permit constitutes a condition or practice which causes or can reasonably be expected to cause imminent and substantial harm to the environment, public safety, or public health.

16.10. Permittee Responsibility. -- Violations by any persons conducting quarrying operations on behalf of the permittee shall be attributed to the permittee, unless the permittee establishes that they were acts of deliberate sabotage.

16.11. Civil Penalty Determinations.

16.11.a. Violation Assessments. -- The Secretary shall review each notice of non-compliance or order, and determine whether or not a civil penalty will be assessed and the amount of the penalty. The Secretary for each notice of non-compliance or order may assess a separate civil penalty for each day of the violation, beginning with the date of issuance of a notice of non-compliance or order to the date of abatement of the violation. In determining whether or not to assess a separate daily civil penalty and determine the amount of the civil penalty, the Secretary shall consider those factors specified in W. Va. Code § 22-4-24(e), and subsection 16.13 of this rule, and may consider the extent to which the operator may have gained any economic benefit as a result of a failure to comply. Any notice of non-compliance which continued unabated for two (2) or more days after the initial abatement period, and received a civil penalty assessment of three thousand five hundred dollars ($3,500) or more, shall be assessed the penalty amount for a minimum of two (2) separate days. The determination as to whether or not to assess a civil penalty, if the amount is less than one thousand dollars ($1,000), will be at the discretion of the Secretary. Notices of non-compliance with a seriousness rating of four (4) or greater shall be assessed regardless of the amount. Termination of a notice of non-compliance shall not affect the right of the Secretary to assess a civil penalty for those violations.

16.12. Procedure for Assessing Civil Penalties.

16.12.a. Assessment Officer -- Duties. For the purposes of this section, the assessment officer shall not determine the proposed penalty assessment until such time as the Secretary has caused an inspection of the violation to be conducted, and the findings of that inspection are submitted to the assessment officer in writing. The Secretary must conduct the inspection of the violation within the first fifteen (15) days after the notice or order was served. The assessment officer may continue conferences, conduct investigations, and interview witnesses as necessary.

16.12.b. Determination of Civil Penalty Amounts. -- Civil penalty amounts for notices of non-compliance or order shall be determined in accordance with the factors specified in W. Va. Code § 22-4-24(e), and the numerical point system in subsection 16.13 of this section. Within fifteen (15) days of service of a notice of non-compliance or order, the person to whom it was issued may submit written information about the violation to the Secretary, and to the inspector who issued the notice of non-compliance or order.

16.12.c. Notice of Assessment. -- The Secretary shall provide a copy of the proposed assessment and the accompanying worksheet to the operator by certified mail within thirty (30) days of the date of the issuance of a notice or order. If the mail is tendered at the address of the person set forth in the permit application, or at any address at which that person is in fact located, and he or she refuses to accept delivery of or to collect such mail, the requirements of this paragraph shall be deemed to have been complied with upon such tender. Failure by the Secretary to serve any proposed assessment within thirty (30) days shall not be grounds for dismissal of all or part of such assessment, unless the person against whom the proposed penalty has been assessed proves actual prejudice as a result of the delay and makes a timely objection to the delay. An objection shall be timely only if made in the normal course of administrative review. The operator may, within twenty (20) days of receipt of notice of assessment, request an informal assessment conference to allow the Assessment Officer to consider the fact of violation and the amount of penalty. The Secretary shall also give notice including any worksheet, in person or by certified mail, to the operator of any penalty adjustment as a result of an informal conference within thirty (30) days following the date of the conference. The reasons for reassessment shall be documented in the file by the assessment officer. The Secretary shall consider any information submitted by the Secretary, the operator or any affected party in determining the facts surrounding the violation, and the amount of the penalty. Unless a conference has been requested, the Secretary shall review and if necessary reassess any penalty considering facts which were not reasonably available on the date of issuance of the proposed assessment because of the length of the abatement period. The Secretary shall serve a copy of any such reassessment and of the worksheet showing the computation of the reassessment within thirty (30) days after the date the violation is abated.

16.12.d. Notice of Informal Assessment Conference. - The operator shall be notified of the time and place of the informal assessment conference at least five days prior to the conference date. The time and place of an informal assessment conference shall be posted at the nearest Department of Environmental Protection regional office to the operation. Any person shall have the right to attend and participate in the conference. Any person, other than the operator and Department of Environmental Protection representatives, may submit in writing at the time of the conference a request to present evidence concerning the violation(s) being conferenced. Such request shall be granted by the assessment officer if it is determined that the person or persons have been affected by the violation. Should problems arise due to scheduling, the assessment officer may continue the conference to a later time and/or date as the assessment officer deems necessary to honor other scheduled conferences.

16.12.e. Informal Conference. -- An informal conference on the assessment or reassessment must be scheduled within sixty (60) days of the receipt of a request from the affected operator. Failure to hold an informal conference in the time limits specified in this subsection will not be considered as grounds for dismissal of the assessment, unless the operator proves actual prejudice and makes timely objection to the delay. The assessment officer shall consider all relevant information on the violation, including information which may be provided by the Secretary, the operator or any affected party. Within thirty (30) days after the conference is held the assessment officer shall either:

16.12.e.1. Vacate the non-compliance and penalty;

16.12.e.2. Settle the issue, in which case a settlement agreement shall be prepared and signed by the assessment officer on behalf of the Secretary and by the person assessed;

16.12.e.3. Affirm, raise, lower, or vacate the penalty; or

16.12.e.4. Terminate the conference when it is determined that the issues cannot be resolved or that the person assessed is not diligently working toward resolution of the issues

16.12.f. Settlement Agreement. -- If a settlement agreement is entered into, the person assessed will be deemed to have waived all rights to further review of the non-compliance or penalty in question, except as otherwise expressly provided for in the settlement agreement. The settlement agreement shall contain a clause to this effect. If full payment of the amount specified in the settlement agreement is not received by the Secretary within the time period specified in the agreement, the Secretary may enforce the agreement or rescind it and affirm, raise, lower or vacate the penalty within thirty (30) days from the date of the rescission.

16.12.g. Rules of Evidence. -- At formal review proceedings pursuant to W. Va. Code § 22-4-25, no evidence as to any statement made by one party at a conference shall be introduced as evidence by another party, or may be used to impeach a witness.

16.12.h. Escrow. -- If a person requests an administrative or judicial review of a proposed assessment, the proposed penalty assessment shall continue to be held in escrow until completion of the administrative or judicial review.

16.12.i. Penalty Adjustment. -- When an administrative or judicial review of a civil penalty order results in an order increasing the penalty, the person to whom the notice or order was issued shall pay the amount of the increase within thirty (30) days after the order is received.

16.12.j. Mitigation. -- Unless caused by lack of diligence, inability to comply may be considered in mitigation of the amount of civil penalty.

16.12.k. In Kind Assessment. - The Secretary may accept in kind assessment by reclamation of an abandoned quarry site in lieu of cash payment of civil administrative penalties. The site to be reclaimed shall be approved by the Secretary. The cost of reclamation must be determined by the Secretary to equal or exceed the amount of civil penalty owed. If the cost of reclamation is less that the amount of civil penalties owed, the balance shall be collected pursuant to W. Va. Code § 22-4-24.

16.13. Assessment Rates.

16.13.a. History of Violations. -- History of previous violations is an accounting of all notices of non-compliance and orders that were written on the subject operation in the previous twelve (12) months. Notices of non-compliance and orders which were withdrawn or vacated shall not be included in the accounting. The dollar amount to be assessed shall be determined by multiplying the number of non-compliances by a factor of one hundred (100).

16.13.b. Seriousness of the Violation.

1-2 Violation is of an administrative nature resulting in no harm or danger to the environment or public; or the standard is violated to such a minor degree that environmental harm or public danger will not result.

3-4 Violation results in potential or actual harm or danger remaining in the permit area; or in the case where the impact extends beyond the permit area; can be demonstrated that potential danger or harm or will not result.

5-6 Violation extends beyond the permit area and results in a minor degree of potential or actual harm or impact on the public.

7-8 Violation can reasonably be expected to result in an imminent and substantial harm to the environment public safety or public health. A violation which initially has a seriousness rating of seven (7) or higher is one which must be a cessation order, as set forth in subdivision 16.5 of this rule.

9-10 Violation extends beyond the permit area and results in a significant degree of environmental harm or danger to the public.

Rating

Dollar

Amount

100

200

400

600

900

Rating

Dollar

Amount

1200

1600

2100

2700

3500

16.13.c. Operator Negligence.

0 This violation is considered beyond the control of the operator or his employees, and no negligence can be attributed to this violation.

1-2 This violation was a result of an oversight on the part of the operator, and may have been avoided if more conscientious effort and/or reasonable care were given.

3-4 This violation was obvious, and/or no action was taken by the operator to prevent the problem.

5-6 The operator failed to adequately respond to previous written instructions of the inspector to prevent this event.

7-8 The operator had been officially notified, in writing, of this problem, and did not make any effort at correcting the problem.

Rating

Dollar

Amount

100

225

350

475

Rating

Dollar

Amount

600

725

875

1000

16.13.d. Operator's Good Faith.

Good faith percentage shall not include a history of non-compliances in the amount. Good faith percentage shall be rounded to the nearest dollar amount.

0 Operator failed to take appropriate remedial action. Notice of non-compliance has been modified to a cessation order.

1-2 Operator took prompt, but insufficient remedial action to fully abate the violation within the required abatement period. Abatement period was extended for just cause. Remedial action was completed prior to the end of the extended abatement period.

3-4 Operator took prompt remedial action and worked diligently to abate the violation. Conditions beyond the operator's control prevented full abatement, and required that the abatement period be extended for just cause. Abatement of the violation was accomplished before the end of the extended abatement period.

5-6 Operator initiated remedial action immediately and expended all reasonable efforts to abate the violation. Violation was abated before the end of the original abatement period.

7-8 Operator was already taking remedial action at the time the violation was noted, and expended exemplary effort in abating the violation before the end of the original abatement period.

Rating	0	1	2	3	4
%	0%	5%	10%	15%	20%

Rating	5	6	7	8
%	25%	30%	35%	40%

16.13.e. Determination of Penalty Amount.

Seriousness of Violations $_________

Operator Negligence + $_________

Subtotal $_________

Less Good Faith % - $_________

Sub Total $_________

History of Violations + $_________

Total $_________

W. Va. Code R. § 38-3-16