Natural Resources, Oil, Gas and Mining; Coal

Rule R645-403

Alternative Enforcement

Notice of Proposed Rule

(New Rule)

DAR File No.: 36001
Filed: 03/30/2012 10:19:31 AM

RULE ANALYSIS

Purpose of the rule or reason for the change:

This rule establishes alternative enforcement provisions beyond notices of violation and cessation orders regarding coal mining operations who willfully and knowingly violate or refuse to comply. This rule follows statutory authority as well as 30 CFR 847. This rule is prepared at the request of the Office of Surface Mining to be as effective as federal regulation, in order to retain state primacy.

Summary of the rule or change:

This rule establishes alternative enforcement provisions beyond notices of violation and cessation orders regarding coal mining operations who willfully and knowingly violate or refuse to comply, including pursuit of criminal penalties or civil actions. This rule is in accordance with Office of Surface Mining regulations at 30 CFR 847.

State statutory or constitutional authorization for this rule:

• Section 40-10-20
• Section 40-10-22
• Section 40-10-23

Anticipated cost or savings to:

the state budget:

There are no anticipated costs or savings to the state budget as statutory provisions pertaining to this rule already existed. Occasions where a coal mining permittee knowingly or willfully violates a permit or refuses to comply and criminal penalties or civil actions are to be pursued are also expected to be very rare. Therefore, no measurable impact is expected to the state cost.

local governments:

No local government costs or savings are anticipated. Local government is not impacted by this rule.

small businesses:

There are no anticipated costs or savings to small businesses because coal mining in Utah normally is not conducted by a small business.

persons other than small businesses, businesses, or local governmental entities:

Persons other than small businesses, businesses, or local government entities are not anticipated to incur costs or savings. These regulations impact the Division and coal mining companies in Utah.

Compliance costs for affected persons:

Coal mine operators within Utah are regulated via the R645 rules, under the statutory authority of Title 40, Chapter 10. Since coal mining permittees were already subject to the statutory provisions concerning alternative enforcement methods identified in this rule, no new costs for such parties are expected from this rule. If Utah did not have state primacy, coal mining companies would need to comply with relevant federal regulations at 30 CFR 847.

Comments by the department head on the fiscal impact the rule may have on businesses:

No new fiscal impacts upon businesses are expected from this rule.

Michael Styler, Executive Director

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Natural Resources
Oil, Gas and Mining; CoalRoom 1210
1594 W NORTH TEMPLE
SALT LAKE CITY, UT 84116-3154

Direct questions regarding this rule to:

• Steve Schneider at the above address, by phone at 801-538-5328, by FAX at 801-359-3940, or by Internet E-mail at [email protected]

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

05/15/2012

Interested persons may attend a public hearing regarding this rule:

• 04/25/2012 09:00 AM, Sevier County Admin. Bldg, 250 N Main St, Richfield, UT

This rule may become effective on:

05/23/2012

Authorized by:

John Baza, Director

R645. Natural Resources; Oil, Gas and Mining; Coal.

R645-403. Alternative Enforcement.

R645-403-100. Provisions for Criminal Penalties and Civil Actions.

110. The rules in R645-403 provide guidance to exercise the authority set forth in UCA 40-10-20(4) through 40-10-20(7), 40-10-22(2), and 40-10-23.

111. Whenever a court of competent jurisdiction enters a judgment against or convicts a person under these provisions, the Division must update AVS to reflect the judgment or conviction.

112. The existence of a performance bond or bond forfeiture cannot be used as the sole basis for determining that an alternative enforcement action is unwarranted.

113. Nothing in R645-403 eliminates or limits any additional enforcement rights or procedures available under federal or state law.

120. Under UCA 40-10-20(5) and 40-10-20(7), the Division may request the Utah Attorney General to pursue criminal penalties against any person who:

120.100. Willfully and knowingly violates a condition of the permit;

120.200. Willfully and knowingly fails or refuses to comply with any notice, order or judicial review under R645-400-300, except as described in UCA 40-10-20(5); or

120.300. Knowingly makes any false statement, representation, or certification, or knowingly fails to make any statement, representation, or certification in any application, record, report, plan, or other document filed or required to be maintained under the regulatory program or any order or decision issued by the Division or Board under UCA 40-10-20 through 40-10-22.

121. Criminal proceedings instigated under the authority of R645-403-120 must commence within five years of the date of the alleged violation.

130. Under UCA 40-10-20(4) and 40-10-22(2)(a), the Division may request the Utah Attorney General to pursue civil action against a permittee, or permittee's agent, who:

130.100. Violates or fails or refuses to comply with any order or decision issued by the Division or the Board;

130.200. Interferes with, hinders, or delays the Division or its authorized representatives in carrying out the provisions of the Act or its implementing rules;

130.300. Refuses to admit the Division's authorized representatives onto the site of a coal mining and reclamation operation;

130.400. Refuses to allow the Division's authorized representatives to inspect a coal mining and reclamation operation;

130.500. Refuses to furnish any information or report that the Division requests in furtherance of the provisions of the Act or the regulatory program; or

130.600. Refuses to allow access to, or copying of, those records that the Division determines necessary to carry out the provisions of the Act and its implementing rules.

131. A civil action for relief includes a permanent or temporary injunction, restraining order, or any other appropriate order by a state district court for the district in which the coal mining and reclamation operation is located or in which the permittee of the operation has their principal office.

132. Temporary restraining orders will be issued in accordance with Rule 65A of the Utah Rules of Civil Procedure, as amended.

133. Any relief the court grants to enforce an order under R645-403-131 will continue in effect until completion or final termination of all proceedings for review of that order under the Act or its implementing rules unless, beforehand, the Utah Supreme Court or district court granting the relief on review grants a stay of enforcement or sets aside or modifies the order.

 

KEY: reclamation, coal mines, enforcement

Date of Enactment or Last Substantive Amendment: 2012

Authorizing, and Implemented or Interpreted Law: 40-10-20, 40-10-22, 40-10-23