# COMAR Title 26 — Department of the Environment

## Subtitle 20 — Surface Coal Mining and Reclamation Under Federally Approved Program

### Chapter 31 — Inspection and Enforcement

**Authority:** Environment Article, §15-503, Annotated Code of Maryland

**Administrative History:** Effective date:

**Administrative History:** Regulations .01—.11 were previously codified as COMAR 08.13.09.40A—K, respectively. Recodification occurred in April, 1993. For a history of these regulations before April, 1993, see "Administrative History of COMAR 08.13.09 before April, 1993" which follows COMAR 26.20.01.

**Administrative History:** Chapter recodified from COMAR 08.20.31 to COMAR 26.20.31, June 1996

**Administrative History:** Regulation .02 amended effective July 8, 2002 (29:13 Md. R. 993)

#### Regulation .01 General.

*COMAR 26.20.31.01*

A. Failure to comply with the requirements of the Regulatory Program, or any condition of a permit or prospecting approval, may result in both civil and criminal penalties pursuant to Environment Article, §§15-520 and 15-521, Annotated Code of Maryland. Further, an operator may be enjoined by the circuit court in the county where the operation is located to enforce compliance with the Regulatory Program, permit, or prospecting approval. In those cases when an operator persistently or repeatedly fails to comply with the Regulatory Program, permit, or prospecting approval, a permit or approval may be revoked by the Bureau, and all bonds forfeited.

B. In general, sanctions will be imposed upon the person licensed to operate under Environment Article, §15-504, Annotated Code of Maryland, to whom the applicable permit has been issued which is in violation. However, any officer, director, employee, contractor, or agent of a corporation who willfully and knowingly participates in a violation under the Regulatory Program, permit, or prospecting approval may be subject to all penalty provisions.

C. Any actions to be performed by the Bureau may, unless otherwise noted, be performed by any authorized employee of the Bureau.

D. The Bureau may require the operator to establish and maintain any records reasonably required to show that the operation is being conducted in compliance with these regulations and all permit conditions.

#### Regulation .02 Inspections.

*COMAR 26.20.31.02*

A. The Bureau shall conduct an average of one partial inspection per month of each active surface mining and reclamation operation, and shall conduct as many partial inspections of each inactive surface mining and reclamation operation as necessary to ensure effective enforcement of the Regulatory Program. A partial inspection is an on-site or aerial review for compliance with some of the permit conditions and requirements of the Regulatory Program.

B. The Bureau shall conduct an average of at least one complete inspection per calendar quarter of each active or inactive surface mining and reclamation operation. A complete inspection is an on-site review for compliance with all permit conditions and requirements of the Regulatory Program.

C. Prospecting operations shall be periodically inspected for compliance with all conditions and requirements of the Regulatory Program and the prospecting approval.

D. Aerial inspections shall be conducted in a manner which reasonably ensures the identification and documentation of conditions of each surface mining and reclamation operation inspected.

E. A potential violation observed during an aerial inspection shall be investigated on-site within 3 days, except that any indication of a condition, practice, or violation constituting cause for issuance of a cessation order shall be investigated on-site within 1 day. The on-site investigation of a potential violation observed during an aerial inspection is not considered to be an additional partial or complete inspection.

F. Inspections shall be carried out on an irregular basis and without prior notice. Within 2 weeks of the completion of each inspection, a written report shall be filed at the Bureau containing any findings made, and whether any notice of violation or cessation order was issued as a result of the inspection.

G. For the purposes of this regulation, an inactive surface mining and reclamation operation is one for which:

  (1) The Bureau has received from the permittee the written notice provided for under COMAR 26.20.05.03F; or

  (2) Reclamation Phase II as defined in COMAR 26.20.14.08F(2) has been completed.

H. A surface coal mining and reclamation operation is an abandoned site if the Bureau finds in writing that:

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

  (2) At least one notice of violation has been issued, and the notice:

    (a) Could not be served in accordance with Regulation .08 of this chapter; or

    (b) Was served and has progressed to a failure-to-abate cessation order;

  (3) Action is being taken to ensure that the permittee and operator, and owners and controllers of the permittee and operator, will not receive future permits while the violations continue at the site;

  (4) Action is being taken in accordance with the requirements of the Regulatory Program to ensure that abatement occurs or that the failure-to-abate will not recur, except if after evaluating the circumstances it is concluded that further enforcement offers little or no likelihood of successfully compelling abatement or recovering any reclamation costs; and

  (5) Where the site is, or was, permitted and bonded, the permit has either expired or been revoked, and the Bureau has initiated and is diligently pursuing forfeiture of, or has forfeited, any available performance bond.

I. Instead of the inspection frequency required in §§A and B of this regulation, the Bureau shall inspect each abandoned site on a set frequency commensurate with the public health and safety and environmental considerations present at each specific site. However, the inspection frequency may not be less than one complete inspection per calendar year.

J. The Bureau shall conduct a complete inspection of the abandoned site and provide the public notice required under §K of this regulation in order to select an alternative inspection frequency under §I of this regulation. Following the inspection and public notice, the Bureau shall prepare and maintain for public review a written finding that justifies the selected alternative inspection frequency. The written finding shall justify the new inspection frequency by addressing in detail all of the following criteria:

  (1) How the site meets each of the criteria under the definition of abandoned site under §H of this regulation and thereby qualifies for a reduction in inspection frequency;

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

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

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

  (5) 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;

  (6) 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 them; and

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

K. Public Notice.

  (1) The Bureau shall place a notice in the newspaper with the broadest circulation in the area of the abandoned site providing the public with a 30-day period to submit written comments concerning the alternative inspection frequency.

  (2) The public notice shall contain the:

    (a) Permittee's name and permit number;

    (b) Precise location of the land affected;

    (c) Inspection frequency proposed;

    (d) General reasons for reducing the inspection frequency;

    (e) Bond status of the permit;

    (f) Telephone number and address of the Bureau where written comments may be submitted; and

    (g) Closing date of the comment period.

#### Regulation .03 Right of Entry.

*COMAR 26.20.31.03*

A. The Bureau may enter on and inspect any strip mining and reclamation operation or prospecting operation to determine compliance with the requirements of the Regulatory Program, or condition of a permit or prospecting approval. The entry and inspection may occur at reasonable times and upon presentation of appropriate credentials. A search warrant is not required, except when entry into a building is a necessary aspect of the inspection.

B. The Bureau shall be permitted access to any records related to any activities conducted pursuant to the Regulatory Program, permit or prospecting approval, and shall have the right to inspect and copy these records.

#### Regulation .04 Availability of Enforcement Records.

*COMAR 26.20.31.04*

A. Unless expressly noted in this regulation, all information related to the enforcement of the Regulatory Program and conditions of permits and prospecting approvals shall be open to inspection by the general public for at least 5 years after expiration of the period during which a surface mining and reclamation operation is active or is covered by any portion of a performance bond required by COMAR 26.20.14.

B. Records shall be accessible at the office of the Bureau during normal working hours. The Bureau shall have the right to refuse access when not requested at least 24 hours in advance, provided that, at the time of refusal, a substitute appointment is arranged for the immediate future. Records may not be removed from the office of the Bureau. Copying shall be permitted at fees to be determined by the Bureau.

#### Regulation .05 Public Participation.

*COMAR 26.20.31.05*

A. Any person may request that the Bureau inspect any strip mining and reclamation operation or prospecting operation by furnishing a signed written statement which shows reason to believe that a violation of the Regulatory Program, permit condition, or prospecting approval is occurring. The statement shall contain the phone number and address where the person can be reached during normal business hours.

B. If the Bureau determines that the information supplied provides reason to believe that a violation is occurring, the Bureau shall conduct an inspection. Before conducting the inspection, the Bureau shall notify the complainant of the complainant's right to be present during the inspection. Any person who accompanies an inspector under this regulation shall agree, in writing, to at all times remain in the presence of the inspector and under his control, direction, and supervision while on the permit site.

C. Regardless of whether the person accompanies the inspector, he or she shall be provided, within 10 days of the inspection, a written description of the enforcement action taken (which may include copies of the inspection report and any notices or orders issued). Likewise, if the Bureau determines not to inspect the permit area, the person shall be provided, within 15 days of receipt of his statement under §A of this regulation, a written explanation of the reason no inspection was conducted. The Bureau shall also inform the person of the person's right to review of the Bureau's action or inaction in regard to the complaint filed. Copies of all material shall be provided to the person alleged to be in violation of the Regulatory Program, permit condition, or prospecting approval, except that the name of the requestor shall be kept confidential if this protection was obtained under §D of this regulation and has been maintained.

D. If requested in the original signed statement required in §A of this regulation, and if the person elects not to accompany the inspector under §B of this regulation, the identity of the person supplying information to the Bureau shall be kept confidential to the extent permitted under Maryland law.

E. If, as the result of an inspection requested under §A of this regulation, the Bureau issues a notice or order to the operator, the requestor shall be permitted to participate in any enforcement proceedings or appeals in the same manner as if the requestor were a person “adversely affected” by the violation.

F. A person who is or may be adversely affected by a surface mining and reclamation operation or prospecting operation may notify the Director, in writing, of any alleged failure on the part of the Bureau to make adequate and complete or periodic inspections of the operation. The notification shall include sufficient information to create a reasonable belief that regulations pertaining to inspections are not being complied with, and to demonstrate that the person is or may be adversely affected. The Director shall determine within 15 days of receipt of the notification whether adequate and complete or periodic inspections have been made. The Director shall notify the complainant, in writing, of the reasons for the determination and the actions, if any, taken to remedy the noncompliance.

G. In those instances where an authorized representative of the Director of the Bureau decides not to inspect an operation or fails to issue a notice or order as a result of an inspection requested under §A of this regulation, the requestor may seek informal review by the Director. The request for review shall be in writing, include a statement of how the person is or may be adversely affected by the alleged violation, and state why the decision merits review. The Director shall conduct a review and inform the person of the Director's decision in writing within 30 days of receipt of the request. The operator shall also be sent a copy of the Director's decision, except that the name of the requestor shall be kept confidential if this protection was initially obtained under §D of this regulation and has been maintained. Any person adversely affected by the Director's decision may obtain an adjudicatory hearing under COMAR 26.20.34, and shall bear the burden of proof as to existence of the alleged violation at the permit site.

#### Regulation .06 Notices of Violation.

*COMAR 26.20.31.06*

A. The Bureau shall issue a notice of violation, whenever an operation is found to be in violation of the Regulatory Program or any condition of a permit or a prospecting approval, and the violation is not of a nature to require the issuance of a cessation order.

B. A notice of violation shall be in writing, signed by the authorized representative who issues it, and shall set forth:

  (1) The nature of the violation;

  (2) A description of its location on the surface coal mining and reclamation or prospecting operation; and

  (3) An order stating the remedial measures to be accomplished and establishing a reasonable time for abatement, which may include a time for accomplishment of interim steps.

C. The Bureau may extend the time set for abatement or for the accomplishment of an interim step. The total time for abatement, including all extensions, may not exceed 90 days from the date of issuance, except upon request and a showing by the permittee that it is not feasible to abate the violation within 90 calendar days due to one or more of the circumstances in §D of this regulation. An extended abatement time may not be granted when the permittee's failure to abate within 90 days has been caused by a lack of diligence or intentional delay by the permittee in completing the remedial measures.

D. Circumstances which may qualify a surface coal mining operation for an abatement period of more than 90 days are when:

  (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 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 90 days as to which the permittee has diligently pursued all rights of appeal and as to which there is no other effective legal remedy;

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

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

  (5) Abatement within 90 days requires action that would violate established mine safety standards under Maryland law or the Mine Safety and Health Act of 1977, or regulations under those statutes.

E. Whenever an abatement time in excess of 90 days is granted, interim abatement measures shall be imposed to the extent necessary to minimize harm to the public or the environment.

F. Extension.

  (1) If any of the conditions in §D of this regulation exists, the permittee may request the Bureau to grant an abatement period exceeding 90 days.

  (2) The Bureau may not grant an extension to the abatement period without the approval of the Director, and the abatement period granted may not exceed the shortest possible time necessary to abate the violation.

  (3) The permittee shall have the burden of establishing clear and convincing proof, in writing, that he is entitled to an extension under §D of this regulation.

  (4) The Director shall document the reasons for granting or denying the request.

  (5) The Director's written decision shall contain the right to appeal in accordance with this chapter.

G. An extension granted under § F of this regulation may not exceed 90 days in length. If the condition or circumstance still exists at the expiration of any extension, the permittee may request a further extension in accordance with this chapter.

H. The Bureau may modify or vacate a notice of violation for good cause.

I. The Bureau shall terminate a notice of violation, in writing, when it determines that all violations listed in the notice of violation have been abated. Termination does not affect the right of the Bureau to assess a civil penalty for the violations.

#### Regulation .07 Cessation Orders.

*COMAR 26.20.31.07*

A. The Bureau shall issue a cessation order whenever it is determined that an operation is not in compliance with the requirements of the Regulatory Program, the permit, or the prospecting approval, and that the noncompliance:

  (1) Involves mining operations being conducted without a permit or license, outside of a permit area, or in excess of an established open acre limit;

  (2) Creates an imminent danger to the health or safety of the public; or

  (3) Is causing or can reasonably be expected to cause significant, imminent environmental harm.

B. The Bureau shall issue a cessation order whenever an operator has failed to meet the time set for abatement or for the accomplishment of an interim step specified in a notice of violation.

C. The Bureau may issue a cessation order whenever it is determined that an operation is in violation of the Regulatory Program, the permit, or other prospecting approval, and that the violation involves discharges to the waters of the State in violation of applicable effluent limitations, or when continued operation in the area of the violation would contribute to an additional or more serious violation. The Bureau may also issue a cessation order for repeated violations of the Regulatory Program or permit condition in conjunction with issuance of a show cause order leading to possible revocation of the permit under COMAR 26.20.33.

D. A cessation order shall be in writing, signed by the authorized representative who issues it, and shall set forth:

  (1) The nature of the violation;

  (2) A description of its location on the prospecting or surface coal mining and reclamation operation;

  (3) An order stating the remedial measures to be accomplished and establishing a time for abatement, which may include a time for accomplishment of any interim steps; and

  (4) A description of the portion of the operation to which the cessation order applies.

E. Upon issuance of a cessation order, the operator shall immediately cease and desist all prospecting or strip mining operations within the entire area or the portion specified in the order, and shall devote full attention to abatement of the violation or violations and achieving compliance with the order as expeditiously as possible, provided that reclamation and water treatment operations shall continue during the period of the cessation order.

F. If full compliance with a cessation order will not completely abate an imminent danger or harm in the most expeditious manner physically possible, the Bureau shall impose affirmative obligations on the operator to abate the violation, including use of existing or additional personnel or equipment.

G. A cessation order shall remain in effect until the violation has been abated and until the order has been vacated, modified, or terminated in writing by the Bureau.

H. The Bureau may modify, terminate, or vacate a cessation order for good cause, and may extend the time for abatement when the operator is diligently attempting to comply.

I. The Bureau shall terminate a cessation order in writing when it determines that all violations listed in the order have been abated and that the operation is in compliance with the Regulatory Program, and conditions of the permit or prospecting approval. Termination of the order does not affect the right of the Bureau to assess a civil penalty for the violation or violations.

J. Within 60 days after issuance of a cessation order under §§A(2) and (3) and B of this regulation, the Bureau shall notify in writing any person who has been identified under COMAR 26.20.05.03I and 26.20.02.03D and E as owning or controlling the permittee, that the cessation order was issued and that the person has been identified as an owner or controller.

#### Regulation .08 Service of Notices and Orders.

*COMAR 26.20.31.08*

In most instances, notices of violation and cessation orders will be issued by a Bureau inspector immediately upon discovery of conditions warranting the action. The inspector will first attempt to serve the operator at the site of the violation. If the operator is not available, the inspector may serve any individual at the site who appears to be an employee or agent of the permit holder or operator. In all cases, service shall be complete upon tender of a notice or order, and is not deemed incomplete because of refusal to accept delivery. Service may also be effected by mailing a copy of the notice or order in writing, and by certified mail, to the last address the permittee has filed with the Bureau. Service on a person conducting an unpermitted operation may also be effected by certified mail. Service in this manner is complete upon mailing, and not considered incomplete because of refusal to accept delivery.

#### Regulation .09 Informal Review.

*COMAR 26.20.31.09*

A. Within 10 days of issuance of any notice of violation or cessation order, an operator may request an enforcement conference at the mine site or the Bureau to review the grounds of the notice or order. The conference shall be informal in nature, and presided over by the Director of the Bureau or the Director's designee. The conference shall be held within 30 days of receipt of request.

B. The purpose of an enforcement conference is to determine whether any question exists regarding the violation cited by the Bureau as underlying the notice or order. The operator should be prepared to discuss the situation at the mine site, and present any evidence indicating that the Bureau should exercise its authority to modify, terminate, or vacate the notice or order.

C. If a notice or order requires cessation of mining, the Bureau shall hold an enforcement conference within 30 days of the issuance of the notice or order. However, the conference need not be held if waived by the operator or if the violation is abated within this time.

D. If a notice or order requires cessation of mining, the Bureau shall notify the operator, in writing, that an enforcement conference will be held within 30 days of the service of the notice or order. The notice shall:

  (1) Be delivered to the operator at the time the notice or order is served, or sent by certified mail to the operator not later than 5 days after the notice or order is served;

  (2) Inform the operator that the enforcement conference shall be considered to have been waived unless the Bureau is notified that the operator will attend the conference within 30 days after the service of the notice or order; and

  (3) Inform the operator that an extension of time for holding the conference shall be considered to have been consented to if the notification under §D(2) of this regulation is received by the Bureau on or after 21 days after the service of the notice or order.

E. The extension of time consented to under §D(3) of this regulation shall equal the number of days elapsed after 21 days after service of the notice or order.

F. The Bureau shall give as much advance notice as is practicable of the time, place, and subject matter of the enforcement conference to the operator and any person who filed a report which led to the notice or order being reviewed.

G. The Bureau shall post notice of the enforcement conference at the office of the Bureau, and publish it, when practicable, in a newspaper of general circulation in the area of the mine.

H. The Bureau shall notify the operator and any person who filed a report which led to the notice or order, in writing, of its decision to affirm, modify, or vacate the notice or order within 5 days from the conclusion of any enforcement conference.

I. The granting or waiver of an enforcement conference does not affect the right of any person to formal review in accordance with this chapter.

J. The person conducting the conference shall determine whether the mine site should be viewed during the conference. In making this determination, the only consideration is whether a view of the mine site will assist in reviewing the appropriateness of the enforcement action or of the required remedial action.

#### Regulation .10 Formal Review.

*COMAR 26.20.31.10*

A. Within 30 days of issuance of any notice of violation or cessation order, or within 10 days from receipt of the Bureau's decision after an enforcement conference, whichever is later, an operator may request a hearing by the Department to review the notice or order. Formal review may also be requested by any person having an interest which is or may be adversely affected by a notice of violation or cessation order, or by any modification, vacation, or termination of any notice or order, provided that the request shall be submitted within 30 days of the action. All requests shall be submitted to the Bureau, in writing and signed by the requestor, and shall contain:

  (1) The full name and address of the person requesting the hearing and a telephone number where he can be reached during normal business hours;

  (2) The name, address, and telephone number of any attorney representing the requestor, or a statement that he intends to represent himself;

  (3) A detailed description of the grounds for the request, including the interests of the requestor which are or may be adversely affected by the decision of the Bureau;

  (4) A statement of the specific relief desired;

  (5) A general outline of the evidence to be presented in support of the desired relief at the hearing, including the names and addresses of all witnesses expected to be called by the requestor.

B. Formal review hearings shall be conducted in accordance with COMAR 26.20.34. The Bureau shall have the burden of proof as to the validity of the notice or order, or modification, termination, or vacation of it.

C. The filing of a hearing request does not operate as a stay of any notice or order, or other action for which review is requested. The requestor for a hearing may file with the hearing officer a written request that the hearing officer grant temporary relief from any notice or order, together with a detailed statement of the reasons for granting the relief. The hearing officer shall issue a decision granting or denying the temporary relief as expeditiously as possible. The hearing officer may grant temporary relief, under those conditions considered appropriate, pending final determination of the proceeding, if:

  (1) All parties to the proceeding have been notified and given an opportunity to be heard on a request for temporary relief;

  (2) The person requesting temporary relief shows that there is a substantial likelihood that he will prevail on the merits of the final determination of the proceeding;

  (3) The relief will not adversely affect the public health or safety, or cause significant imminent environmental harm to land, air, or water resources; and

  (4) The relief sought is not the issuance of a permit where a permit has been denied, in whole or in part, by the Bureau.

D. Inability to comply with a notice or order is not grounds for vacation or termination.

#### Regulation .11 Intervention.

*COMAR 26.20.31.11*

A. Any person, including the Secretary of the United States Department of Interior, may petition for leave to intervene at any stage of an administrative proceeding under this subtitle.

B. A petitioner for leave to intervene shall incorporate in the petition a statement setting forth the interest of the petitioner and a showing of why the petitioner's interest is or may be adversely affected.

C. Intervention shall be granted if the petitioner:

  (1) Had a statutory right to initiate the proceeding in which the petitioner wishes to intervene; or

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

D. If neither §C(1) nor (2) of this regulation applies, the following shall be considered 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 proceeding;

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

  (4) The effect of intervention on the Department's implementation of its statutory mandate.

E. Any person granted leave to intervene in a proceeding may participate in this proceeding as a full party or, if desired, in a capacity less than that of a full party. If the intervenor wishes to participate in a limited capacity, the extent and terms of the participation shall be in the discretion of the Department.