Subchapter H. ENFORCEMENT AND INSPECTION
GENERAL PROVISIONS Sec.
86.211. Enforcement—general.
86.212. Federal minimum enforcement action.
86.213. Other Departmental orders.
INSPECTION
86.214. Inspection—general.
86.215. Citizen inspection.
Cross References This subchapter cited in 25 Pa. Code § 86.136 (relating to coal exploration compliance duties).
GENERAL PROVISIONS
§ 86.211. Enforcement—general.
(a) Violations, once identified by a State Inspector or other appropriate State official, shall be cited and shall be corrected in a reasonable time, prescribed by the Department, not to exceed 90 calendar days, except upon a showing by the operator that it is not feasible to abate the violation within 90 calendar days due to one or more of the circumstances described in subsection (b). An extended abatement date under this section will not be granted when the operator’s failure to abate within 90 days has been caused by a lack of diligence or intentional delay by the operator in completing the remedial action requested, nor will an extension be granted for financial or economic reasons.
(b) Circumstances which may qualify a surface coal mining operation for an abatement period of more than 90 days are limited to the following:
(1) If the Department has required the operator of an existing operation to apply to the Department for a permit renewal or other necessary approval of designs or plans, and if the operator has submitted necessary materials to the Department in an expeditious manner, but the Department is unable, through no fault of the operator to issue the permit or approval 90 days from the date of submission of required documentation.
(2) If climatic conditions preclude abatement within 90 days, or if, due to climatic conditions, abatement within 90 days clearly does one or more of the following:
(i) Causes more environmental harm than it would prevent.
(ii) Requires action that would violate Federal or State mine health or safety laws.
(3) If there is a valid judicial order precluding abatement within 90 days as to which the permittee has diligently pursued rights of appeal and as to which the permittee has no other effective legal remedy.
(4) If the permittee cannot abate within 90 days due to a labor strike, except for a violation that is causing or has the potential to cause off permit impacts such as environmental harm to air, water or land resources or danger to the public health or safety.
(c) When an abatement in excess of 90 days is permitted, interim abatement measures shall be imposed to the extent necessary to minimize harm to the public or the environment.
(d) If one or more of the conditions in subsection (b) exist, the operator may request the Department to grant an abatement period exceeding 90 days. The abatement period granted will not exceed the shortest possible time necessary to abate the violation. The operator has the burden of establishing by clear and convincing proof that he is entitled to an extension under this section. In determining whether or not to grant an abatement period exceeding 90 days, the Department may consider relevant written information from the operator or other sources.
Source The provisions of this § 86.211 adopted December 19, 1980, 10 Pa.B. 4789, effective July 31, 1982, 12 Pa.B. 2382; amended July 30, 1982, 12 Pa.B. 2473, effective July 31, 1982, 12 Pa.B. 2382; amended February 17, 1984, 14 Pa.B. 524, effective August 4, 1984, 14 Pa.B. 2860; corrected March 30, 1984, 14 Pa.B. 1084, effective August 4, 1984, 14 Pa.B. 2860; amended June 15, 1990, 20 Pa.B. 3383, effective July 27, 1991, 21 Pa.B. 3316; amended June 17, 2011, effective June 18, 2011, 41 Pa.B. 3084. Immediately preceding text appears at serial pages (206736) to (206737).
Cross References This section cited in 25 Pa. Code § 86.159 (relating to self-bonding).
§ 86.212. Federal minimum enforcement action.
(a) As required by section 521 of the Surface Mining Control and Reclamation Act (30 U.S.C.A. § 1271) and 30 CFR 840.13 and 843.11 (relating to enforcement authority; and cessation orders), the Department will issue a cessation order, or take other appropriate enforcement action to accomplish cessation, if the Department determines that a condition, practice or violation exists which meets one or more of the following:
(1) Creates an imminent danger to the health of the public.
(2) Is causing, or in the opinion of the Department can reasonably be expected to cause, significant, imminent harm to land, air or water resources.
(3) Will not be abated within an abatement period specified in a Department order.
(b) The requirements that the Department issue cessation orders in those circumstances specified in subsection (a) does not limit the Department’s discretionary authority to issue cessation orders, or to modify the Commonwealth’s criteria for the issuance of cessation orders in other cases. The requirement placed on the Department to issue cessation orders under this section does not limit the availability of other remedies at law or in equity. When cessation of the operator does not in itself abate the violation, the cessation order shall impose affirmative obligations to abate the violation condition or practice.
(c) Within 30 days after a cessation order is issued under this subsection, or under the Federal regulations, except when a stay of the cessation order is granted and remains in effect, the permittee shall submit one of the following concurrent to the date of issuance of the cessation order:
(1) New information needed to correct or update the information previously submitted under § 86.62 (relating to identification of interests).
(2) If there are no changes, updates or corrections to the information required under § 86.62, only a statement indicating that no change has occurred in the information previously submitted.
(3) If not previously submitted, the information required from a permit applicant by § 86.62.
(d) Within 60 days after issuing a cessation order, the Department will notify, in writing, a person who has been identified under § 86.62 and subsection (c) as owning or controlling the permittee, that the cessation order was issued and that the person has been identified as an owner or controller responsible for the correction of the violation.
Source The provisions of this § 86.212 adopted December 19, 1980, 10 Pa.B. 4789, effective July 31, 1982, 12 Pa.B. 2382; amended July 30, 1982, 12 Pa.B. 2473, effective July 31, 1982, 12 Pa.B. 2382; amended June 25, 1993, effective June 26, 1993, 23 Pa.B. 3075. Immediately preceding text appears at serial page (158808).
Cross References This section cited in 25 Pa. Code § 86.62 (relating to identification of interests).
§ 86.213. Other Departmental orders.
The Department may issue other orders as are necessary to aid in the enforcement of the acts or the regulations promulgated pursuant thereto. The orders include, but are not limited to, orders modifying, suspending or revoking permits and licenses.
Source The provisions of this § 86.213 adopted December 19, 1980, 10 Pa.B. 4789, effective July 31, 1982, 12 Pa.B. 2382; amended July 30, 1982, 12 Pa.B. 2473, effective July 31, 1982, 12 Pa.B. 2382.
INSPECTION
§ 86.214. Inspection—general.
Whenever a Department inspection determines that there is a violation of the acts, the regulations promulgated pursuant thereto, permit or Departmental approval, the Department will notify the alleged violator either by copy of the inspection report, notice of violation or through Department order or other enforcement document. The failure, however, of the Department to issue a notice of a violation may not be interpreted to be evidence of the absence of a violation. The notices, documents or records shall be available for public inspection at the appropriate Department district office.
Source The provisions of this § 86.214 adopted December 19, 1980, 10 Pa.B. 4789, effective July 31, 1982, 12 Pa.B. 2382; amended July 30, 1982, 12 Pa.B. 2473, effective July 31, 1982, 12 Pa.B. 2382.
§ 86.215. Citizen inspection.
(a) A citizen may request an inspection of a coal mining activity by submitting to the Department a signed, written statement—or an oral report followed by a signed, written statement—giving the Department reason to believe that a violation of the acts or regulations promulgated thereunder exists. This written statement shall include a phone number and address where the citizen can be contacted.
(b) The identity of a person supplying information to the Department relating to a possible violation shall remain confidential, if requested by that person, unless the person elects to accompany the inspector on the inspection, or unless disclosure is otherwise required by law.
(c) When an inspection is conducted as a result of information provided to the Department, the citizen shall be notified as far in advance as practicable when the inspection is to occur and the citizen shall be allowed to accompany the Department inspector during the inspection.
(d) As soon as practicable after an inspection is made under this section, or, if there is no inspection, as soon as practicable after making the decision not to inspect, the Department will send the citizen the following:
(1) If an inspection was made, a description of the enforcement action taken, which may consist of a copy of the inspection report, or an explanation of why no enforcement action was taken.
(2) If no inspection was conducted, an explanation of the citizen’s rights, if any, to review the Department’s action.
(e) The Department will give copies of all materials sent to the citizen under subsection (d) 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 otherwise permitted by this section.
Source The provisions of this § 86.215 adopted December 19, 1980, 10 Pa.B. 4789, effective July 31, 1982, 12 Pa.B. 2382; amended July 30, 1982, 12 Pa.B. 2473, effective July 31, 1982, 12 Pa.B. 2382.
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