Chapter 33. Permit Suspension, Revocation, and Bond Forfeiture

Any permit issued under the Regulatory Program may be revoked upon a determination by the Bureau that a permittee has persistently or repeatedly failed to comply with the requirements of the Regulatory Program, or has failed to produce coal or remove overburden on the permit site for a period in excess of 6 months.

If the Director determines that a permittee has persistently or repeatedly failed to comply with any requirements of the Regulatory Program, or that the permittee has not produced coal or removed overburden on the permit site for more than 6 months, the Director shall issue an order which requires the permittee to show cause why the permit should not be revoked and the bonds forfeited, and shall give the permittee 30 days in which to request an adjudicatory hearing.

Violations by a person conducting surface coal mining and reclamation operations on behalf of the permittee shall be attributed to the permittee unless the permittee proves that they were acts of deliberate sabotage.

The Director may determine that a permittee has persistently failed to comply with the requirements of the Regulatory Program if, on two or more occasions within a 12-month period, a permittee has failed to meet the requirements of a:

In making a determination under §A of this regulation, the Director may consider mitigating circumstances, including the severity of departure of a violation from the requirements of the Regulatory Program.

The Director shall determine that a permittee has persistently failed to comply with the requirements of the Regulatory Program if, within a 12-month period, a permittee has failed to meet the requirements of a cessation order issued under COMAR 26.20.31.07B within 30 days from the date the cessation order was issued.

The Director may review the history of violations of a permittee who, within a 12-month period, has been issued on:

The Director shall review the history of violations of a permittee who, within a 12-month period, has been issued on three or more occasions:

After the review in §§A and B of this regulation, the Director shall determine whether a permittee has repeatedly failed to comply with the requirements of the Regulatory Program.

If, after a review of the history of any permit, the Director determines that a persistent or repeated failure to comply under Regulation .02 or .03 of this chapter exists or has existed, or that the permittee has not produced coal or removed overburden on the permit site for more than 6 months, the Director shall issue a show cause order as required by Regulation .01B of this chapter.

The Director may decline to issue a show cause order if he finds that, taking into account exceptional factors present in the particular case, it would be demonstrably unjust to issue the order. The basis for this finding shall be documented, in writing, and may include a determination that the violations were not the result of willful or unwarranted failure to comply on the part of the permittee.

A show cause order issued by the Director shall be in writing and sent by certified mail to the permittee. The order shall contain a:

If the permittee requests a hearing, the Bureau shall give 30 days written notice of the date, time, and place of the hearing to the permittee and all interested parties. If practicable, the Bureau shall publish notice of the hearing in a newspaper of general circulation in the area of the permit and shall post the notice at the Bureau's office.

Show cause hearings to revoke a permit and forfeit the bonds shall be held in accordance with COMAR 26.20.34. The Bureau shall have the burden of going forward to establish a prima facie case for revocation of a permit and forfeiture of the bonds. The ultimate burden of persuasion that a permit should not be revoked and the bonds should not be forfeited shall rest with the permittee. The show cause order shall be made part of the hearing record, provided that the Bureau makes available a witness, subject to cross-examination on the reasons contained in the order for initiating revocation and bond forfeiture proceedings.

The existence of a show cause proceeding does not relieve the permittee from the permittee's responsibilities under the permit and the Regulatory Program. Failure to abate any continuing violation, or to manage the site properly, may subject the permittee to civil penalties and will be a significant factor in any decision to seek further prosecution.

If, at any time before a final decision in a permit revocation and bond forfeiture proceeding, the permittee demonstrates that the permittee is making good faith efforts to bring the operation into compliance and submits a schedule acceptable to the Bureau for bringing the operation into complete compliance, the parties may request the hearing officer to order the temporary suspension of the permit, instead of revocation and forfeiture.

Suspension of a permit shall be accepted by the permittee in a written agreement in which the permittee stipulates to:

Suspensions may be lifted by the Director, in writing, based upon a finding that the operation has been returned to compliance with all requirements of the Regulatory Program. Lifting of suspension will result in reactivation of the permit.

If the permittee fails to comply with any reclamation or compliance schedule set forth in a stipulation agreement, the Director shall immediately notify the permittee, in writing, and by certified mail, that the permit is revoked and the bonds or other collateral covering the permit are forfeited.

If the right of appeal is not exercised within the appeal deadline, or if the final decision upon appeal is to revoke the permit and forfeit the bond, the Director shall, in writing, and by certified mail, notify the former permittee and the surety, if applicable, that all bonds are forfeited and shall make claim for payment. The notice and claim shall advise that payment may be avoided if the former permittee or another person with a financial interest in the permit begins reclamation activities and continuously reclaims the site in accordance with a compliance schedule which meets the conditions of the Regulatory Program.

Completion of reclamation work by a third party, instead of forfeiture, does not entitle that party to receipt of any collateral held by the Bureau. In all instances, the Bureau shall return collateral to the former permit holder in the same manner as if the permit had not been revoked, and may not become involved in private arrangements between the former permit holder and a third party.

In all cases, the total bond amount or other collateral held on a permit shall be forfeited, regardless of the actual amount of reclamation work required at the site. The Director shall pay all forfeited bond funds into the Bituminous Coal Open-Pit Mining Reclamation Fund.

Show cause orders and any notices required by this chapter shall be served on the permittee at the address shown on the permit, or on the operator's license.

Service shall be made by sending a copy of the order or notice by certified mail. Service shall be complete upon mailing and may not be deemed incomplete because of refusal to accept.