VIRGINIA ADMINISTRATIVE CODE TITLE 4. CONSERVATION AND NATURAL RESOURCES AGENCY NO. 25. DEPARTMENT OF MINES, MINERALS AND ENERGY CHAPTER 130 . COAL SURFACE MINING RECLAMATION REGULATIONS (Current as of October 31, 2000) Subchapter VL. Permanent Program Inspection and Enforcement Procedures Part 840 Inspection and Enforcement--General Sec. 4 VAC 25-130-840.11. Inspections by the division. 4 VAC 25-130-840.12. Right of entry. 4 VAC 25-130-840.14. Availability of records. 4 VAC 25-130-840.16. Compliance conference. 4 VAC 25-130-840.11. Inspections by the division. {{ 30 CFR 840.11 }} (a) The division shall conduct an average of at least one partial inspection per month of each active surface coal mining and reclamation operation under its jurisdiction, and shall conduct such partial inspections of each inactive surface coal mining and reclamation operation under its jurisdiction as are necessary to ensure effective enforcement of the Act and this chapter. A partial inspection is an on-site or aerial review of a permittee's compliance with some of the permit conditions and requirements imposed under the Act and this chapter. (b) The division shall conduct an average of at least one complete inspection per calendar quarter of each active or inactive surface coal mining and reclamation operation under its jurisdiction. A complete inspection is an on-site review of a permittee's compliance with all permit conditions and requirements imposed under the Act and this chapter, within the entire area disturbed or affected by the surface coal mining and reclamation operations. ( c) The division shall conduct such inspections of coal explorations as are necessary to ensure compliance with the Act and this chapter. (d)(1) Aerial inspections shall be conducted in a manner which reasonably ensures the identification and documentation of conditions at each surface coal mining and reclamation site inspected. (2) Any potential violation observed during an aerial inspection shall be investigated on site within three days; provided, that any indication of a condition, practice or violation constituting cause for the issuance of a cessation order under  45.1-245 of the Act shall be investigated on site immediately, and provided further, that an on-site investigation of a potential violation observed during an aerial inspection shall not be considered to be an additional partial or complete inspection for the purposes of paragraphs (a) and (b) of this section. (e) The inspections required under paragraphs (a), (b), ( c) and (d) of this section shall: (1) Be carried out on an irregular basis, so as to monitor compliance at all operations, including those which operate nights, weekends, or holidays; (2) Occur without prior notice to the permittee or any agent or employee of such permittee, except for necessary on-site meetings; and (3) Include the prompt filing of inspection reports adequate to enforce the requirements of the Act and this chapter. (f) For the purposes of this section, an inactive surface coal mining and reclamation operation is one for which: (1) The division has secured from the permittee the written notice provided for under 4 VAC 25- 130-816.131(b) or 4 VAC 25-130-817.131(b); or (2) Reclamation has been completed to the level established in 4 VAC 25-130-800.40 as Phase II. (g) Abandoned site means a surface coal mining and reclamation operation for which the division has found in writing that: (1) All surface and underground coal mining and reclamation activities at the site have ceased; (2) The division has issued at least one notice of violation or the interim program equivalent, and either: (i) Is unable to serve the notice despite diligent efforts to do so; or (ii) The notice was served and has progressed to a failure-to-abate cessation order or the interim program equivalent; (3) The division: (i) Is taking action to ensure that the permittee and operator, and owners and controllers of the permittee and operator, will be precluded from receiving future permits while violations continue at the site; and (ii) Is taking action pursuant to  45.1-245 C, 45.1-245 E, 45.1-246 E, or  45.1-246 F of the Act to ensure that abatement occurs or that there will not be a recurrence of the failure-to-abate, except where after evaluating the circumstances it concludes that further enforcement offers little or no likelihood of successfully compelling abatement or recovering any reclamation costs; and (4) Where the site is, or was, permitted or bonded: (i) The permit has either expired or been revoked, or permit revocation proceedings have been initiated and are being pursued diligently; and (ii) The division has initiated and is diligently pursuing forfeiture of, or has forfeited, the any available performance bond. (h) In lieu of the inspection frequency established in paragraphs (a) and (b) of this section, the division shall inspect each abandoned site on a set frequency commensurate with the public health and safety and environmental consideration present at each specific site, but in no case shall the inspection frequency be set at less than one complete inspection per calendar year. (1) In selecting an alternate inspection frequency authorized under the paragraph above, the division shall first conduct a complete inspection of the abandoned site and provide public notice under paragraph (h)(2) of this section. Following the inspection and public notice, the division shall prepare and maintain for public review a written finding justifying the alternative inspection frequency selected. This written finding shall justify the new inspection frequency by affirmatively addressing in detail all of the following criteria: (i) How the site meets each of the criteria under the definition of an abandoned site under paragraph (g) of this section and thereby qualifies for a reduction in inspection frequency; (ii) Whether, and to what extent, there exists on the site impoundments, earthen structures or other conditions that pose, or may reasonably be expected to ripen into, imminent dangers to the health or safety of the public or significant environmental harms to land, air, or water resources; (iii) The extent to which existing impoundments or earthen structures were constructed and certified in accordance with prudent engineering designs approved in the permit; (iv) The degree to which erosion and sediment control is present and functioning; (v) 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; (vi) 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 (vii) Based on a review of the complete and partial inspection report record for the site during at least two consecutive years, the rate at which adverse environmental or public health and safety conditions have and can be expected to progressively deteriorate. (2) The public notice and opportunity to comment required under paragraph (h)(1) of this section shall be provided as follows: (i) The division shall place a notice in the newspaper with the broadest circulation in the locality of the abandoned mine site providing the public with a 30-day period in which to submit written comments. (ii) The public notice shall contain the permittee's name, the permit number, the precise location of the land affected, the inspection frequency proposed, the general reasons for reducing the inspection frequency, the bond status of the permit, the telephone number and address of the regulatory authority where written comments on the reduced inspection frequency may be submitted, and the closing date of the comment period. Effect of Amendment The January 6, 1999 amendment revised subsections (f), (g), and (h), relating to inspection frequencies on inactive and abandoned surface coal mines, to be consistent with 30 CFR 840.11. 4 VAC 25-130-840.12. Right of entry. {{ 30 CFR 840.12 }} (a) Representatives of the Director are authorized to enter upon and through any coal exploration or surface coal mining and reclamation operation without advance notice upon presentation of appropriate credentials. No search warrant shall be required, except that entry into buildings shall be conducted only upon consent of the permittee or by search warrant. (b) Representatives of the Director are authorized to inspect any monitoring equipment or method of exploration or operation, and to have access to and copy any records required under the Act or this chapter. Representatives of the Director may exercise these rights at reasonable times, without advance notice, upon presentation of appropriate credentials. No search warrant shall be required, except that entry into buildings shall be conducted only upon consent of the permittee or by search warrant. 4 VAC 25-130-840.14. Availability of records. {{ 30 CFR 840.14}} (a) The division shall make available to the OSM, upon request, copies of all documents relating to applications for and approvals of existing, new, or revised coal exploration approvals or surface coal mining and reclamation operation permits and all documents relating to inspection and enforcement actions. (b) Copies of all records, reports, inspection materials, or information obtained by the division shall be made immediately and conveniently available to the public in the area of mining until at least five years after expiration of the period during which the subject operation is active or is covered by any portion of a reclamation bond, except- (1) As otherwise provided by State law; and (2) For information not required to be made available under 4 VAC 25-130-772.15 and 4 VAC 25- 130-773.13(d) or Paragraph (d) of this section. ( c) The division shall ensure compliance with Paragraph (b) by either: (1) Making copies of all records, reports, inspection materials, and other subject information available for public inspection at a Federal, State or local government office in the county where the mining is occurring or proposed to occur; or, (2) At the division's option in accordance with the Virginia Freedom of Information Act (Chapter 21 ( 2.1-340 et seq.) of Title 2.1 of the Code of Virginia), providing copies of subject information promptly by mail at the request of any resident of the area where the mining is occurring or is proposed to occur, provided, that the division shall maintain for public inspection, at a Federal, State or local government office in the county where the mining is occurring or proposed to occur, a description of the information available for mailing and the procedure for obtaining such information. A list of government offices where information may be inspected can be obtained on request by contacting the division's Big Stone Gap office. (d) In order to protect preparation for hearings and enforcement proceedings, the OSM and the division may enter into agreements regarding procedures for the special handling of investigative and enforcement reports and other such materials. 4 VAC 25-130-840.16. Compliance conference. {{ 30 CFR 840.16 }} (a) A permittee may request an on-site compliance conference with an authorized representative of the Director to review the compliance status of any condition or practice proposed at any coal exploration or surface coal mining and reclamation operation. Any such conference shall not constitute an inspection within the meaning of Section 45.1-244 of the Act and 4 VAC 25-130-840.11. (b) The division may accept or refuse any request to conduct a compliance conference under Paragraph (a). ( c) The authorized representative at any compliance conference shall review such proposed conditions and practices in order to advise whether any such condition or practice may become a violation of any requirement of the Act, this chapter, or any applicable permit or exploration approval. (d) Neither the holding of a compliance conference under this section nor any opinion given by the authorized representative at such a conference shall affect: (1) Any rights or obligations of the division or of the permittee with respect to any inspection, notice of violation or cessation order, whether prior or subsequent to such compliance conference; or (2) The validity of any notice of violation or cessation order issued with respect to any condition or practice reviewed at the compliance conference. VIRGINIA ADMINISTRATIVE CODE TITLE 4. CONSERVATION AND NATURAL RESOURCES AGENCY NO. 25. DEPARTMENT OF MINES, MINERALS AND ENERGY CHAPTER 130 . COAL SURFACE MINING RECLAMATION REGULATIONS (Current as of October 31, 2000) Subchapter VL. Permanent Program Inspection and Enforcement Procedures Part 842 Inspections Sec. 4 VAC 25-130-842.11. Immediate inspections. 4 VAC 25-130-842.12. Citizens' requests for inspections. 4 VAC 25-130-842.14. Review of adequacy and completeness of inspections. 4 VAC 25-130-842.15. Review of decision not to inspect or enforce. 4 VAC 25-130-842.11. Immediate inspections. {{ 30 CFR 842.11 }} (a) An authorized representative of the Director shall immediately conduct an inspection when the authorized representative has reason to believe on the basis of information available to him that there exists a violation of the Act, this chapter, or any condition of a permit or an exploration approval, or that there exists any condition, practice, or violation which creates an imminent danger to the health or safety of the public or is causing or could reasonably be expected to cause a significant, imminent environmental harm to land, air, or water resources. (b) An authorized representative shall have reason to believe that a violation, condition or practice exists if the facts alleged by the informant would, if true, constitute a condition, practice or violation referred to in Paragraph (a). 4 VAC 25-130-842.12. Citizens' requests for inspections. {{ 30 CFR 842.12 }} (a) A person may request an inspection under 4 VAC 25-130-842.11(a), by furnishing to an authorized representative of the Director a signed, written statement (or an oral report followed by a signed, written statement) giving the authorized representative reason to believe that a violation, condition or practice referred to in 4 VAC 25-130-842.11(a) exists and setting forth a phone number and address where the person can be contacted. (b) The identity of any person supplying information to the division relating to a possible violation or imminent danger or harm shall remain confidential with the division, if requested by that person, unless that person elects to accompany the inspector on the inspection, or unless disclosure is required under the Virginia Freedom of Information Act (Chapter 21 ( 2.1-340 et seq.) of Title 2.1 of the Code of Virginia). ( c) If an inspection is conducted as a result of information provided to the division by a person as described in Paragraph (a) of this section, the person shall be notified as far in advance as practicable when the inspection is to occur and shall be allowed to accompany the authorized representative of the Director during the inspection. It shall be the responsibility of the person to provide any or all safety equipment needed to accompany the division's inspector during the mine site inspection. Such person has a right of entry to, upon and through the coal exploration or surface coal mining and reclamation operation about which he supplied information, but only if he is in the presence of and is under the control, direction, and supervision of the authorized representative while on the mine property. Such right of entry does not include a right to enter buildings without consent of the person in control of the building or without a search warrant. (d) Within 10 days of the inspection or, if there is no inspection, within 15 days of receipt of the person's written statement, the division shall send the person the following: (1) If an inspection was made, a description of the enforcement action taken, which may consist of copies of the inspection report and all notices of violation and cessation orders issued as a result of the inspection, or an explanation of why no enforcement action was taken; (2) If no inspection was conducted, an explanation of the reason why; and (3) An explanation of the person's right, if any, to informal review of the action or inaction of the division under 4 VAC 25-130-842.15. (e) The division shall give copies of all materials in Paragraphs (d)(1) and (d)(2) of this section within the time limits specified in those Paragraphs to the person alleged to be in violation, except that the name of the person supplying information shall be removed unless disclosure of the person's identity is permitted under Paragraph (b) of this section. 4 VAC 25-130-842.14. Review of adequacy and completeness of inspections. {{ 30 CFR 842.14 }} Any person who is or may be adversely affected by a surface coal mining and reclamation operation or a coal exploration operation may notify the division in writing of any alleged failure on the part of the division to make adequate and complete or periodic inspections as provided in 4 VAC 25-130-840.11 and 4 VAC 25-130-842.11. The notification shall include sufficient information to create a reasonable belief that 4 VAC 25-130-840.11 and 4 VAC 25-130-842.11 are not being complied with and to demonstrate that the person is or may be adversely affected. The division shall within 30 days of receipt of the notification determine whether 4 VAC 25-130-840.11 and 4 VAC 25-130-842.11 are being complied with, and if not, shall immediately order an inspection to remedy the noncompliance. The division shall furnish the complainant with a written statement of the reasons for such determination and the actions, if any, taken to remedy the noncompliance. 4 VAC 25-130-842.15. Review of decision not to inspect or enforce. {{ 30 CFR 842.15 }} (a) Any person who is or may be adversely affected by a coal exploration or surface coal mining and reclamation operation may ask the division to review informally an authorized representative's decision not to inspect or take appropriate enforcement action with respect to any violation alleged by that person in a request for inspection under 4 VAC 25-130-842.12. The request for review shall be in writing and include a statement of how the person is or may be adversely affected and why the decision merits review. (b) The division shall conduct the review and inform the person, in writing, of the results of the review within 30 days of receipt of the request. The person alleged to be in violation shall also be given a copy of the results of the review, except that the name of the person who is or may be adversely affected shall not be disclosed unless confidentiality has been waived or disclosure is required under the Virginia Freedom of Information Act (Chapter 21 ( 2.1-340 et seq.) of Title 2.1 of the Code of Virginia). ( c) Informal review under this section shall not affect any right to formal review under Section 45.1-249 of the Act or to a citizen's suit under Section 45.1-246.1 of the Act. (d) Any person who requested a review of a decision not to inspect or enforce under this section and who is or may be adversely affected by any determination made under Subsection (b) of this section may request review of that determination by filing an application for formal review and request for hearing under the Virginia Administrative Process Act, Chapter 1.1:1 ( 9-6.14:1 et seq.) of Title 9 of the Code of Virginia. VIRGINIA ADMINISTRATIVE CODE TITLE 4. CONSERVATION AND NATURAL RESOURCES AGENCY NO. 25. DEPARTMENT OF MINES, MINERALS AND ENERGY CHAPTER 130 . COAL SURFACE MINING RECLAMATION REGULATIONS (Current as of October 31, 2000) Subchapter VL. Permanent Program Inspection and Enforcement Procedures Part 843 Enforcement Procedures Sec. 4 VAC 25-130-843.11. Cessation orders. 4 VAC 25-130-843.12. Notices of violation. 4 VAC 25-130-843.13. Suspension or revocation of permits; pattern of violations. 4 VAC 25-130-843.14. Service of notices of violation, cessation orders, and show cause orders. 4 VAC 25-130-843.15. Informal public hearing. 4 VAC 25-130-843.16. Formal review of citations. 4 VAC 25-130-843.18. Inability to comply. 4 VAC 25-130-843.11. Cessation orders. {{ 30 CFR 843.11 }} (a)(1) An authorized representative of the Director shall immediately order a cessation of a coal exploration or a surface coal mining and reclamation operation or of the relevant portion thereof, if the representative finds, on the basis of any inspection, any condition or practice, or any violation of the Act, this chapter, or any condition of a permit or an exploration approval imposed under the Act, or this chapter which: (i) Creates an imminent danger to the health or safety of the public; or (ii) Is causing or can reasonably be expected to cause significant, imminent environmental harm to land, air, or water resources. (2) Surface coal mining operations conducted by any person without a valid surface coal mining permit constitute a condition or practice which causes or can reasonably be expected to cause significant, imminent environmental harm to land, air, or water resources, unless such operations: (i) Are an integral, uninterrupted extension of previously permitted operations, and the person conducting such operations has filed a timely and complete application for a permit to conduct such operations; or (ii) Were conducted lawfully without a permit under this chapter because no permit under this chapter has been required for such operations by the division. (3) If the cessation ordered under Paragraph (a)(1) of this section will not completely abate the imminent danger or harm in the most expeditious manner physically possible, the authorized representative of the Director shall impose affirmative obligations on the permittee to abate the imminent danger or significant environmental harm. The order shall specify the time by which abatement shall be accomplished. (b)(1) When a notice of violation has been issued under 4 VAC 25-130-843.12(a) and the permittee fails to abate the violation within the abatement period fixed or subsequently extended by the authorized representative, the authorized representative of the Director shall immediately order a cessation of coal exploration or surface coal mining and reclamation operations, or of the portion relevant to the violation. (2) A cessation order issued under this Paragraph (b) shall require the permittee to take all steps the authorized representative of the Director deems necessary to abate the violations covered by the order in the most expeditious manner physically possible. ( c) A cessation order issued under Paragraphs (a) or (b) of this section shall be in writing, signed by the authorized representative who issues it, and shall set forth with reasonable specificity: (1) The nature of the condition, practice or violation; (2) the remedial action or affirmative obligation required, if any, including interim steps, if appropriate; (3) the time established for abatement, including a schedule for meeting any interim steps, if appropriate; and (4) a reasonable description of the portion of the coal exploration or surface coal mining and reclamation operation to which it applies. The order shall remain in effect until the condition, practice or violation resulting in the issuance of the cessation order has been abated or until vacated, modified or terminated in writing by an authorized representative of the Director, or until the order expires pursuant to Section 45.1-245(D) of the Act and 4 VAC 25-130-843.15. (d) Reclamation operations and other activities intended to protect public health and safety and the environment shall continue during the period of any order unless otherwise provided in the order. (e) An authorized representative of the Director may modify, terminate or vacate a cessation order for good cause, and may extend the time for abatement if the failure to abate within the time previously set was not caused by the permittee's lack of diligence. (f) An authorized representative of the Director shall terminate a cessation order by written notice to the permittee when the representative determines that all conditions, practices or violations listed in the order have been abated. Termination shall not affect the right of the division to assess civil penalties under Part 845 of this chapter for those violations. (g) Within 60 days after issuing a cessation order, the division shall notify in writing any person who has been identified under 4 VAC 25-130-773.17(h) and 4 VAC 25-130-778.13( c) and (d) as owning or controlling the permittee, that the cessation order was issued and that the person has been identified as an owner or controller. 4 VAC 25-130-843.12. Notices of violation. {{ 30 CFR 843.12 }} (a) An authorized representative of the Director shall issue a notice of violation if, on the basis of an inspection pursuant to Section 45.1-244 of the Act, the representative finds a violation of the Act, this chapter, or any condition of a permit or an exploration approval imposed under the Act, or this chapter, which does not create an imminent danger or harm for which a cessation order must be issued under 4 VAC 25-130-843.11. (b) A notice of violation issued under this section shall be in writing, signed by the authorized representative who issues it, and shall set forth with reasonable specificity: (1) The nature of the violation; (2) The remedial action required, which may include interim steps; (3) A reasonable time for abatement, which may include time for accomplishment of interim steps; and (4) A reasonable description of the portion of the coal exploration or surface coal mining and reclamation operation to which it applies. ( c) An authorized representative of the Director 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 the permittee's lack of diligence. The total time for abatement under a notice of violation, including all extensions, shall not exceed 90 days from the date of issuance, except upon 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 Paragraph (f) of this section. An extended abatement date pursuant to this section shall 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 action required. (d)(1) If the permittee fails to meet the time set for abatement, the authorized representative shall issue a cessation order under 4 VAC 25-130-843.11(b). (2) If the permittee fails to meet the time set for accomplishment of any interim step the authorized representative may issue a cessation order under 4 VAC 25-130-843.11(b). (e) An authorized representative of the Director shall terminate a notice of violation by written notice to the permittee when the representative determines that all violations listed in the notice of violation have been abated. Termination shall not affect the right of the division to assess civil penalties under Part 845 for those violations. (f) Circumstances which may qualify a coal exploration or a surface coal mining operation for an abatement period of more than 90 days are: (1) Where the permittee of an on-going permitted operation has timely applied for and diligently pursued a permit renewal or other necessary approval of designs or plans but such 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) Where there is a valid judicial or administrative order precluding abatement within 90 days as to which the permittee has diligently pursued all rights of appeal and as to which the permittee has no other effective legal remedy; (3) Where the permittee cannot abate within 90 days due to a labor strike; (4) Where climatic conditions preclude abatement within 90 days, or where, due to climatic conditions, abatement within 90 days clearly would cause more environmental harm than it would prevent; or (5) Where abatement within 90 days requires action that would violate safety standards established by statute or regulation under the Mine Safety and Health Act of 1977. (g) Whenever an abatement time 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. (h) If any of the conditions in Paragraph (f) of this section exists, the permittee may request the authorized representative to grant an abatement period exceeding 90 days. The authorized representative shall not grant such an abatement period without the concurrence of the Director and the abatement period granted shall not exceed the shortest possible time necessary to abate the violation. The permittee shall have the burden of establishing by clear and convincing proof that he is entitled to an extension under the provisions of 4 VAC 25-130-843.12( c) and (f). In determining whether or not to grant an abatement period exceeding 90 days the authorized representative may consider any relevant written or oral information from the permittee or any other source. The authorized representative shall promptly and fully document in the file his reasons for granting or denying the request. The authorized representative's immediate supervisor shall review this document before concurring in or disapproving the extended abatement date and shall promptly and fully document the reasons for his concurrence or disapproval in the file. (i) No extension granted under Paragraph (h) of this section may exceed 90 days in length. Where the condition or circumstance which prevented abatement within 90 days exists at the expiration of any such extension, the permittee may request a further extension in accordance with the procedures of Paragraph (h) of this section. (j) Any determination made under Subsection (h) of this section shall be subject to formal review pursuant to the provisions of the Virginia Administrative Process Act section 9-6.14:1 et seq. of the Code of Virginia. 4 VAC 25-130-843.13. Suspension or revocation of permits; pattern of violations. {{ 30 CFR 843.13 }} (a)(1) The Director shall issue a show cause order to a permittee requiring justification as to why his permit and right to mine under the Act should not be suspended or revoked, if the Director determines that a pattern of violations of any requirements of the Act, this chapter, or any permit condition required by the Act exists or has existed, and that the violations were caused by the permittee's willful or unwarranted failure to comply with those requirements or conditions, or if the permittee failed to pay the final civil penalty assessment as required by 4 VAC 25-130-845.20. Violations by any person conducting surface coal mining operations on behalf of the permittee shall be attributed to the permittee, unless the permittee establishes that they were acts of deliberate sabotage. (2) The Director may determine that a pattern of violations exists or has existed based upon two or more inspections of the permit area within any 12-month period, after considering the circumstances, including: (i) The number of violations, cited on more than one occasion, of the same or related requirements of the Act, this chapter, or the permit; (ii) The number of violations, cited on more than one occasion, of different requirements of the Act, this chapter, or the permit; and (iii) The extent to which the violations were isolated departures from lawful conduct. (3) The Director shall promptly review the history of violations of any permittee who has been cited for violations of the same or related requirements of the Act, this chapter, or the permit during three or more inspections of the permit area within any 12-month period. If, after such review, the Director determines that a pattern of violations exists or has existed, he shall issue a show cause order as provided in Paragraph (a)(1) of this section. (4)(i) In determining the number of violations within any 12-month period, the Director shall consider only violations issued as a result of an inspection carried out pursuant to 4 VAC 25-130-840.11, 4 VAC 25-130-842.11 and 4 VAC 25-130-842.12. (ii) The Director may not consider violations issued as a result of inspections other than those mentioned in Paragraph (a)(4)(i) of this section in determining whether to exercise his discretion under Paragraph (a)(2) of this section, except as evidence of the "willful" or "unwarranted" nature of the permittee's failure to comply. (5) Whenever a permittee fails to abate a violation contained in a notice of violation or cessation order within the abatement period set in the notice or order or as subsequently extended, the division shall review the permittee's history of violations to determine whether a pattern of violations exists pursuant to this section, and shall issue a show cause order as appropriate pursuant to 4 VAC 25-130-845.15(b)(2). (b) The permittee shall have 15 days from receipt of the show cause order to file an answer and request a formal public hearing in writing. The Director shall give thirty days written notice of the date, time and place of the hearing to the permittee, and any intervenor. The public hearing shall be conducted in accordance with section 9-6.14:12 of the Virginia Administrative Process Act. The Director shall publish the notice, if practicable, in a newspaper of general circulation in the area of the surface coal mining and reclamation operations, and shall post it at the division's Big Stone Gap office. ( c) Within 30 days after the hearing, the Hearing Officer shall issue a written decision as to whether a pattern of violations exists, and, if appropriate, an order. The decision and order shall be final, subject to the review and reconsideration by the Director or his designee provided in Paragraph (e) below. If the decision and order revoke or suspend the permit and the permittee's right to mine under the Act, the permittee shall immediately cease surface coal mining operations on the permit area and shall: (1) If the permit and right to mine under the Act are revoked, complete reclamation within the time specified in the order; or (2) If the permit and the right to mine under the Act are suspended, complete all affirmative obligations to abate all conditions, practices or violations, as specified in the order. (d) Within 14 days after the issuance of a decision or order, the permittee, or any person who participated in the hearing and who has an interest which is or may be adversely affected by the Hearing Officer's decision may appeal to the Director, or his designee (who shall not be the same person who issued the show cause order) for review of the record and reconsideration of the Hearing Officer's decision. The Director or his designee may also, on his own motion, with notice to the parties, made within 14 days of the Hearing Officer's decision, review the record and reconsider the Hearing Officer's decision. No further evidence will be allowed in connection with such review and reconsideration but the Director or his designee may hear further arguments, and may also after considering the record, remand any case for further hearing if he considers such action necessary to develop the facts. Within 30 days of the appeal or motion for review and reconsideration, the Director or his designee shall complete his review of the Hearing Officer's decision and issue a final decision thereon. (e) All requests for hearing before a Hearing Officer, or appeals for review and reconsideration, made under this section, and all notices of appeal for judicial review of a Hearing Officer's final decision or a final decision on review and reconsideration, shall be filed with the division Director, Division of Mined Land Reclamation, P.O. Drawer 900, Big Stone Gap, Virginia 24219. (f) Any person who owns or controls or has owned or controlled any operations on which the permit has been revoked pursuant to this section may apply for reinstatement pursuant to 4 VAC 25-130-800.52. 4 VAC 25-130-843.14. Service of notices of violation, cessation orders, and show cause orders. {{ 30 CFR 843.14 }} (a) A notice of violation, cessation order, or show cause order shall be served on the person to whom it is directed or his designated agent promptly after issuance, as follows: (1) By tendering a copy at the coal exploration or surface coal mining and reclamation operation to the designated agent or to the individual who, based upon reasonable inquiry, appears to be in charge. If no such individual can be located at the site, a copy may be tendered to any individual at the site who appears to be an employee or agent of the person to whom the notice or order is issued. Service shall be complete upon tender of the notice or order and shall not be deemed incomplete because of refusal to accept. (2) As an alternative to paragraph (a)(1) of this section, service may be made by sending a copy of the notice or order by certified mail or by hand to the permittee or his designated agent, or by any means consistent with the rules of the Supreme Court of Virginia governing service of a summons and complaint. Service shall be complete upon tender of the notice or order or of the certified mail and shall not be deemed incomplete because of refusal to accept. (b) The permittee may designate, in writing to the division, the person who may accept service of any notice or order. ( c) The division may furnish copies of notices and orders to any person having an interest in the coal exploration, surface coal mining and reclamation operation, or the permit area, such as the surface and mineral owner, corporate officer of the permittee or entity conducting coal exploration, or the bonding company. Effect of Amendment The January 6, 1999 amendment inserted ", or by any means consistent with the rules of the Supreme Court of Virginia governing service of a summons and complaint" in the first sentence of paragraph (a)(2), and inserted "certified" in the second sentence of (a)(2). 4 VAC 25-130-843.15. Informal public hearing. {{ 30 CFR 843.15 }} (a) A notice of violation or cessation order which requires cessation of mining, expressly or by necessary implication, shall expire within 30 days after it is served unless an informal public hearing is held or if the notice or order is terminated prior to the hearing. Expiration of a notice or order shall not affect the division's right to assess civil penalties for the violations as set forth in Part 845. For purposes of this section, mining includes (1) extracting coal from the earth or coal waste piles and transporting it within or from the permit area, and (2) the processing, cleaning, concentrating, preparing or loading of coal where such operations occur at a place other than at a mine site. (b) A person issued a notice of violation or cessation order pursuant to this Part may request, in writing within 15 days from service of the notice or order, an informal public hearing to review the issuance of the notice or order. The written request must be submitted to the division's Big Stone Gap Office. ( c) The division shall conduct the informal hearing within 30 days from receipt of the hearing request pursuant to 9-6.14:11 of the Virginia Administrative Process Act. The division shall give as much advance notice as is practicable of the time, place, and subject matter of the informal public hearing to: (1) The person to whom the notice or order was issued; and (2) Any person who filed a report which led to that notice or order. (d) The division shall also post notice of the hearing at its Big Stone Gap office and, where practicable, publish it in a newspaper of general circulation in the area of the mine. (e) An informal public hearing shall be conducted by a representative of the division, who may accept oral or written arguments and any other relevant information from any person attending. (f) Within five days after the close of the informal public hearing, the division shall affirm, modify, or vacate the notice or order in writing. The decision shall be sent to- (1) The person to whom the notice or order was issued; and (2) Any person who filed a report which led to the notice or order. (g) The granting of an informal public hearing shall not affect the right of any person to formal review under Section 45.1-249 of the Act. (h) The person conducting the hearing for the division shall determine whether or not the mine site should be viewed during the hearing. In making this determination the only consideration shall be whether a view of the mine site will assist the person conducting the hearing in reviewing the appropriateness of the enforcement action or of the required remedial action. 4 VAC 25-130-843.16. Formal review of citations. {{ 30 CFR 843.16 }} (a) A person issued a notice of violation or cessation order under 4 VAC 25-130-843.11 or 4 VAC 25-130- 843.12, or a person having an interest which is or may be adversely affected by the issuance, modification, vacation, or termination of a notice or order may request review of that action by filing an application for formal review and request for hearing, under  45.1-249 of the Act, within 30 days after receiving notice of the action. A person may also request formal review of the decision rendered under 4 VAC 25-130-843.15, if the request is submitted within 15 days of receipt of the informal public hearing decision. (b) The filing of an application for review and request for a hearing under this section shall not operate as a stay of any notice or order, or of any modification, termination, or vacation of either. ( c) Hearings under Subsection (a) of this section shall be conducted by a Hearing Officer appointed by the Director. Within 30 days after the close of the record, the Hearing Officer shall issue a written decision affirming, modifying, terminating, or vacating the notice or order. The decision shall be final, subject to the review and reconsideration by the Director or his designee provided in Subsection (d) below. (d) Within 14 days after the issuance of a decision the permittee, or any person who participated in the hearing and who has an interest which is or may be adversely affected by the Hearing Officer's decision, may appeal to the Director or his designee for review of the record and reconsideration of the Hearing Officer's decision. The Director or his designee may also, on his own motion, with notice to the parties, made within 14 days of the Hearing Officer's decision, review the record and reconsider the Hearing Officer's decision. No further evidence will be allowed in connection with such review and reconsideration but the Director or his designee may hear further arguments and may also, after considering the record remand any case for further hearing if he considers such action necessary to develop the facts. Within 30 days of the appeal or motion for review and reconsideration, the Director or his designee shall complete his review of the Hearing Officer's decision and issue a final decision thereon. (e) All requests for hearing before a Hearing Officer, or appeals for review and reconsideration, made under this section, and all notices of appeal for judicial review of a Hearing Officer's final decision, or a final decision on review and reconsideration, shall be filed with the division Director, Division of Mined Land Reclamation, P.O. Drawer 900, Big Stone Gap, Virginia 24219. 4 VAC 25-130-843.18. Inability to comply. {{ 30 CFR 843.18 }} (a) No cessation order or notice of violation issued under this Part may be vacated because of inability to comply. (b) Inability to comply may not be considered in determining whether a pattern of violations exists. ( c) Unless caused by lack of diligence, inability to comply may be considered only in mitigation of the amount of civil penalty under Part 845 and of the duration of the suspension of a permit under 4 VAC 25- 130-843.13( c). VIRGINIA ADMINISTRATIVE CODE TITLE 4. CONSERVATION AND NATURAL RESOURCES AGENCY NO. 25. DEPARTMENT OF MINES, MINERALS AND ENERGY CHAPTER 130 . COAL SURFACE MINING RECLAMATION REGULATIONS (Current as of October 31, 2000) Subchapter VL. Permanent Program Inspection and Enforcement Procedures Part 845 Civil Penalties Sec. 4 VAC 25-130-845.2. Objective. 4 VAC 25-130-845.11. Assessment determination. 4 VAC 25-130-845.12. When a penalty will be assessed. 4 VAC 25-130-845.13. Point system. 4 VAC 25-130-845.15. Assessment of separate violations for each day. 4 VAC 25-130-845.16. Waiver of use of formula to determine civil penalty. 4 VAC 25-130-845.17. Procedures for assessment of civil penalties. 4 VAC 25-130-845.18. Procedures for assessment conference. 4 VAC 25-130-845.19. Request for hearing. 4 VAC 25-130-845.20. Final assessment and payment of penalty. 4 VAC 25-130-845.2. Objective. {{ 30 CFR 845.2 }} Civil penalties are assessed under  45.1-246 of the Act and this Part to deter violations and to ensure maximum compliance with the terms and purposes of the Act on the part of the coal mining industry. 4 VAC 25-130-845.11. Assessment determination. {{ 30 CFR 845.11 }} The division shall review each notice of violation and cessation order in accordance with the assessment procedures described in 4 VAC 25-130-845.12, 4 VAC 25-130-845.13, 4 VAC 25-130-845.15, and 4 VAC 25-130-845.16 to determine whether a civil penalty will be assessed, the amount of the penalty, and whether each day of continuing violation will be deemed a separate violation for purposes of the total penalty assessed. 4 VAC 25-130-845.12. When a penalty will be assessed. {{ 30 CFR 845.12 }} (a) The division shall assess a penalty for each cessation order. (b) The division may assess a penalty for each notice of violation. In determining whether to assess a penalty, the division shall consider the seriousness of the violation, the permittee's previous history of violations, the degree of negligence, and the permittee's good faith in attempting to achieve rapid compliance after notification of the violation, as described in 4 VAC 25-130-845.13. 4 VAC 25-130-845.13. Point system. {{ 30 CFR 845.13 }} The division shall use the point system described in this section to determine the amount of the penalty. (a) Seriousness. The division shall assign up to 10 points based on the seriousness of the violation in accordance with the following. Points: 0 No actual or potential damage to the environment or threat to public health and safety. 1-2 Slight actual or potential damage to the environment and no actual or potential threat to public health and safety; also violations of administrative requirements which can be quickly corrected and which do not obstruct enforcement by the division. 3-4 Moderately significant actual or potential damage to the environment which can be corrected promptly; also actual or potential minor hazard to the public health and safety; also violations of administrative requirements which can be corrected after some delay, and which tend to hamper or obstruct enforcement by the division. 5-6 Moderately significant actual or potential damage to the environment which can be corrected only after a substantial effort or period of time; also actual or potential moderately significant hazard to the public health and safety. 7-8 Substantial actual or potential damage to the environment which can be corrected only after a substantial effort or period of time; also extremely serious potential damage to the environment; also substantial actual or potential damage to the public health and safety. 9-10 Extremely serious actual damage to the environment; also extreme actual or potential hazards to the public health and safety. (b) Negligence. (1) The division shall assign up to six points based on the degree of fault of the person to whom the notice or order was issued in causing or failing to correct the violation, condition, or practice which led to the notice or order, either through act or omission. Points shall be assessed as follows: (A) A violation which occurs through no negligence shall be assigned no penalty points for negligence; (B) A violation which is caused by negligence shall be assigned three points or less, depending on the degree of negligence; ( C) A violation which occurs through a greater degree of fault than negligence shall be assigned four to six points, depending on the degree of fault. (2) In determining the degree of negligence, involved in a violation and the number of points to be assigned, the following definitions apply: (A) No negligence means an inadvertent violation which was unavoidable by the exercise of reasonable care. (B) Negligence means the failure of a permittee to prevent the occurrence of any violation of the permit or any requirement of the Act or this chapter due to indifference, lack of diligence, or lack of reasonable care, or the failure to abate any violation of such permit or the Act due to indifference, lack of diligence, or lack of reasonable care. ( C) A greater degree of fault than negligence means reckless, knowing, or intentional conduct. (3) In calculating points to be assigned for negligence, the acts of all persons working on the coal exploration or surface coal mining and reclamation site shall be attributed to the person to whom the notice or order was issued, unless that person establishes that they were acts of deliberate sabotage. ( c) Credit for good faith in attempting to achieve compliance. (1) The division shall deduct from the total points assigned under Subsections (b) and ( c) points based on the demonstrated good faith of the permittee in attempting to achieve rapid compliance after notification of the violation. Points shall be deducted as follows: (i) three to four points shall be deducted when the permittee to whom the notice or order was issued took extraordinary measures to abate the violation in the shortest possible time and that abatement was achieved before the time set for abatement. (ii) one to two points shall be deducted when the permittee to whom the notice or order was issued took prompt and diligent efforts to promptly abate the violation and that abatement was achieved before the time set for abatement. (2) If the consideration of this criterion is impractical because of the length of the abatement period, the calculation of points may be made without considering this criterion and may be re-calculated after the violation has been abated. (d) Determination of base penalty. The division shall determine the base amount of any civil penalty by converting the total number of points calculated under Subsections (b), ( c), and (d) of this section to a dollar amount, according to the following schedule: Points Dollars Points Dollars 1 50 9 1050 2 100 10 1350 3 175 11 1700 4 250 12 2050 5 325 13 2400 6 400 14 2750 7 475 15 3100 8 750 16 3500 (e) Credit and additional penalties for previous history. (1) The division shall reduce the base penalty determined under Subsection (d) by 10% if the permittee has had no violations cited by the division within the preceding 12-month period. (2) The division shall add to the base penalty determined under Subsection (d) additional sums for the permittee's previous history of violations as follows: (i) Twenty dollars for each violation contained in a notice of violation, up to 10 of such violations; (ii) Fifty dollars for each violation contained in a notice of violation, in excess of 10 violations; (iii) One hundred dollars for each violation contained in a cessation order. (3) A violation shall not be counted if the notice or order is the subject of pending administrative or judicial review or if the time to request such review has not expired, and thereafter it shall be counted for only one year; provided however, that a violation which is subject to administrative or judicial review, or for which the time to request such review has not expired, shall not be disregarded for the purpose of obtaining a 10% reduction pursuant to Subsection (e)(1), unless such administrative or judicial review results in the vacation of the penalty. (4) No violation for which the notice or order has been vacated shall be counted. (5) Each violation shall be counted without regard to whether it led to a civil penalty assessment. (f) The maximum penalty which the division may assess under this section for each cessation order or notice of violation shall be $5,000. As provided in 4 VAC 25-130-845.15, each day of continuing violation may be deemed a separate violation for the purpose of assessing penalties. 4 VAC 25-130-845.15. Assessment of separate violations for each day. {{ 30 CFR 845.15 }} (a) The division may assess separately a civil penalty for each day from the date of issuance of the notice of violation or cessation order to the date set for abatement of the violation. In determining whether to make such an assessment, the division shall consider the factors listed in 4 VAC 25-130-845.13 and may consider the extent to which the person to whom the notice or order was issued gained any economic benefit as a result of a failure to comply. For any violation which continues for two or more days and which has been assigned a penalty of $5,000 under 4 VAC 25-130-845.13, the division shall assess a penalty for a minimum of two separate days. (b) In addition to the civil penalty provided for in Paragraph (a), whenever a violation contained in a notice of violation or cessation order has not been abated within the abatement period set in the notice or order or as subsequently extended pursuant to  45.1-245B of the Act, a civil penalty of not less than $750 shall be assessed for each day during which such failure to abate continues, except that: (1)(i) If suspension of the abatement requirements of the notice or order is ordered in a temporary relief proceeding under  45.1-249C of the Act, after a determination that the person to whom the notice or order was issued will suffer irreparable loss or damage from the application of the requirements, the period permitted for abatement shall not end until the date on which the Director or his authorized representative issues a final order with respect to the violation in question; and (ii) If the person to whom the notice or order was issued initiates review proceedings under  45.1-251B of the Act with respect to the violation, in which the obligations to abate are suspended by the court pursuant to  45.1-251B of the Act, the daily assessment of a penalty shall not be made for any period before entry of a final order by the court; (2) Such penalty for the failure to abate the violation shall not be assessed for more than 30 days for each such violation. If the permittee has not abated the violation within the 30 day period, the division shall take appropriate action pursuant to  45.1-245 and 45.1-246 of the Act within 30 days to ensure that abatement occurs or to ensure that there will not be a reoccurrence of the failure to abate. 4 VAC 25-130-845.16. Waiver of use of formula to determine civil penalty. {{ 30 CFR 845.16 }} (a) The Director or his designee, upon his own initiative or upon written request received within 15 days of issuance of a notice of violation or a cessation order, may waive the use of the formula contained in 4 VAC 25-130-845.13 to set the civil penalty, if he determines that, taking into account exceptional factors present in the particular case, the penalty is demonstrably unjust. However, the Director or his designee shall not waive the use of the formula or reduce the proposed assessment on the basis of an argument that a reduction in the proposed penalty could be used to abate violations of the Act, this chapter, or any condition of any permit or exploration approval. The basis for every waiver shall be fully explained and documented in the records of the case. (b) If the Director or his designee waives the use of the formula, he shall use the criteria set forth in 4 VAC 25-130-845.13 to determine the appropriate penalty. When the Director or his designee has elected to waive the use of the formula, he shall give a written explanation of the basis for the assessment made to the person to whom the notice or order was issued. 4 VAC 25-130-845.17. Procedures for assessment of civil penalties. (a) Within 15 days of service of a notice or order, the person to whom it was issued may submit written information about the violation to the division and to the inspector who issued the notice of violation or cessation order. The division shall consider any information so submitted in determining the facts surrounding the violation and the amount of the penalty. (b) The division shall serve a copy of the proposed assessment and the computation of the proposed assessment on the person to whom the notice or order was issued, by certified mail, or by any means consistent with the Rules of the Supreme Court of Virginia governing service of a summons or complaint, within 30 days of the issuance of the notice or order. (1) If the mail is tendered at the address of that person set forth in the sign required under 4 VAC 25-130-816.11 or 4 VAC 25-130-817.11, or at any address at which that person is in fact located, and the person refuses to accept delivery of or to collect such documents, the requirements of this paragraph shall be deemed to have been complied with upon such tender. It is the permittee's responsibility to ensure the division has his current address. (2) Failure by the division to serve any proposed assessment within 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-- (i) Proves actual prejudice as a result of the delay; and (ii) Makes a timely objection to the delay. An objection shall be timely only if made in the normal course of administrative review. ( c) Unless a conference has been requested, the division shall review and reassess any penalty if necessary to consider facts which were not reasonably available on the date of issuance of the proposed assessment because of the length of the abatement period. The division shall serve a copy of any such reassessment in the manner provided in paragraph (b), within 30 days after the date the violation is abated. Effect of Amendment The January 6, 1999 amendment inserted ", or by any means consistent with the Rules of the Supreme Court of Virginia governing service of a summons or complaint," in subsection (b); changed "such mail" to "such documents" in the first sentence of paragraph (b)(1); and added paragraph (b)(2). 4 VAC 25-130-845.18. Procedures for assessment conference. (a) The division shall arrange for a conference to review the proposed assessment or reassessment, upon written request of the person to whom notice or order was issued, if the request is received within 30 days from the date the proposed assessment or reassessment is served. (b)(1) The division shall assign a conference officer to hold the assessment conference. The assessment conference shall be conducted as an informal proceeding in accordance with 9-6.14:11 of the Code of Virginia. The assessment conference shall be held within 60 days from the date the conference request is received or the end of the abatement period, whichever is later. Provided that a failure by the division to hold such conference within 60 days shall not be grounds for dismissal of all or part of an assessment unless the person against whom the proposed penalty has been assessed proves actual prejudice as a result of the delay. (2) The division shall post notice of the time and place of the conference at the division's office in Big Stone Gap or field office located closest to the mine at least five days before the conference. Any person shall have a right to attend and participate in the conference. (3) The conference officer shall consider all relevant information on the violation. Within 30 days after the conference is held, the conference officer shall either: (i) Settle the issue, in which case a settlement agreement shall be prepared and signed by the division and by the person assessed; or (ii) Affirm, raise, lower, or vacate the penalty. (4) An increase or reduction of a proposed civil penalty assessment of more than 25% and more than $500 shall not be final and binding on the division, until approved by the director or his designee. ( c) The division shall promptly serve the person assessed with a notice of the conference decision in the manner provided in 4 VAC 25-130-845.17(b) and shall include a worksheet if the penalty has been raised or lowered. The reasons for the conference officer's action shall be fully documented in the file. (d)(1) If a settlement agreement is entered into, the person assessed will be deemed to have waived all rights to further review of the violation or penalty in question, except as otherwise expressly provided for in the settlement agreement. The settlement agreement shall contain a clause to this effect. (2) If full payment of the amount specified in the settlement agreement is not received by the division within 30 days after that date of signing, the division may enforce the agreement or rescind it and proceed according to paragraph (b)(3)(ii) with 30 days from the date of the rescission. (e) The conference officer may terminate the conference if it is determined that the issues cannot be resolved or that the person assessed is not diligently working toward resolution of the issues. (f) At any formal review proceedings under  45.1-245 C, 45.1-246 and 45.1-249 of the Act, no evidence as to statements made or evidence produced by one party at a conference shall be introduced as evidence by another party or to impeach a witness. Effect of Amendment The January 6, 1999 amendment revised this section to be substantively identical to 30 CFR 845.18. 4 VAC 25-130-845.19. Request for hearing. {{ 30 CFR 845.16 }} (a) The person charged with the violation may contest the proposed penalty or the fact of the violation by submitting a petition and an amount equal to the proposed penalty or, if a conference has been held, the reassessed or affirmed penalty to the division (to be held in escrow as provided in paragraph (b) of this section) within 30 days from receipt of the proposed assessment or reassessment or 30 days from the date of service of the assessment conference decision, whichever is later. The fact of the violation may not be contested if it has been decided in a review proceeding commenced under 4 VAC 25-130-843.16. (b) The division shall transfer all funds submitted under paragraph (a) to the State Treasurer's Office which shall hold them in escrow pending completion of the administrative and judicial review process, at which time it shall disburse them as provided in 4 VAC 25-130-845.20. ( c) The hearing requested pursuant to a petition filed under paragraph (a) of this section shall be conducted as a formal hearing in accordance with the provisions of 9-6.14:12 of the Code of Virginia. The hearing officer shall cause an accurate verbatim record of the hearing to be made. The division may charge the reasonable cost of preparing such record to any party to the hearing who requests a copy of the record. Effect of Amendment The January 6, 1999 amendment changed "or 15 days" to "or 30 days" in the first sentence of subsection (a). 4 VAC 25-130-845.20. Final assessment and payment of penalty. {{ 30 CFR 845.20 }} (a) If the person to whom a notice of violation or cessation order is issued fails to request a hearing as provided in 4 VAC 25-130-845.19, the proposed assessment shall become a final order of the Director and the penalty assessed shall become due and payable upon expiration of the time allowed to request a hearing. (b) If any party requests judicial review of a final order of the Director, the proposed penalty shall continue to be held in escrow until completion of the review. Otherwise, subject to Paragraph ( c) of this section, the escrowed funds shall be transferred to the State Treasurer's Office in payment of the penalty, and the escrow shall end. ( c) If the final decision in the administrative and judicial review results in an order reducing or eliminating the proposed penalty assessed under this Part, the division shall within 30 days of receipt of the order refund to the person assessed all or part of the escrowed amount, with accrued interest from the date of payment into escrow to the date of the refund. (d) If the review results in an order increasing the penalty, the person to whom the notice or order was issued shall pay the difference to the division within 15 days after the order is mailed to such person. (e) Failure to submit the penalty amount to the division shall result in the issuance of a show cause order pursuant to 4 VAC 25-130-843.13. VIRGINIA ADMINISTRATIVE CODE TITLE 4. CONSERVATION AND NATURAL RESOURCES AGENCY NO. 25. DEPARTMENT OF MINES, MINERALS AND ENERGY CHAPTER 130 . COAL SURFACE MINING RECLAMATION REGULATIONS (Current as of October 31, 2000) Subchapter VL. Permanent Program Inspection and Enforcement Procedures Part 846 Individual Civil Penalties {{ 30 CFR Part 846 }} Sec. 4 VAC 25-130-846.2. Definitions. 4 VAC 25-130-846.12. When an individual civil penalty may be assessed. 4 VAC 25-130-846.14. Amount of the individual civil penalty. 4 VAC 25-130-846.17. Assessment of an individual civil penalty. 4 VAC 25-130-846.18. Penalty payment. 4 VAC 25-130-846.2. Definitions. {{ 30 CFR 846.5 }} For purposes of this Part: "Knowingly" means that an individual knew or had reason to know in authorizing, ordering or carrying out an act or omission on the part of a corporate permittee that such act or omission constituted a violation, failure or refusal. "Violation, failure or refusal" means: (1) A violation of a condition of the permit issued pursuant to the Act and the regulations promulgated thereunder; or, (2) A failure or refusal to comply with any order issued under  45.1-245 of the Act, or any order incorporated in a decision issued by the Director under the Act, except an order in corporated in a decision issued under  45.1-246(B) of the Act. "Willfully" means that an individual acted (1) either intentionally, voluntarily or consciously, and (2) with intentional disregard or plain indifference to legal requirements in authorizing, ordering or carrying out a corporate permittee's action or omission that constituted a violation, failure, or refusal. 4 VAC 25-130-846.12. When an individual civil penalty may be assessed. {{ 30 CFR 846.12 }} (a) Except as provided in Paragraph (b) of this section, the division may assess an individual civil penalty against any corporate director, officer or agent of a corporate permittee who knowingly and willfully authorized, ordered or carried out a violation, failure, or refusal. (b) The division shall not assess an individual civil penalty in situations resulting from a permit violation by a corporate permittee until a cessation order has been issued by the division to the corporate permittee for the violation, and the cessation order has remained unabated for 30 days. 4 VAC 25-130-846.14. Amount of the individual civil penalty. {{ 30 CFR 846.14 }} (a) In determining the amount of an individual civil penalty, the division shall consider the criteria specified in  45.1-246(A) of the Act, including: (1) The individual's history of authorizing, ordering or carrying out previous violations, failures or refusals at the particular surface coal mining operation; (2) The seriousness of the violation, failure or refusal (as indicated by the extent of damage and/or the cost of reclamation), including any irreparable harm to the environment and any hazard to the health or safety of the public; and, (3) The demonstrated good faith of the individual charged in attempting to achieve rapid compliance after notice of the violation, failure or refusal. (b) The penalty shall not exceed $5,000 for each violation. Each day of a continuing violation may be deemed a separate violation and the division may assess a separate individual civil penalty for each day the violation, failure or refusal continues, from the date of service of the underlying notice of violation, cessation order or other order incorporated in a final decision issued by the Director, until abatement or compliance is achieved. 4 VAC 25-130-846.17. Assessment of an individual civil penalty. {{ 30 CFR 846.17 }} (a) Notice. The division shall serve, by certified mail, each individual to be assessed a penalty under this Part a notice of proposed individual civil penalty assessment, including a narrative explanation of the reasons for the penalty, the amount to be assessed, and a copy of any underlying notice of violation and cessation order. (b) Final order and opportunity for review. The notice of proposed individual civil penalty assessment shall become a final order of the director 30 days after service upon the individual, unless: (1) The individual submits a written request for formal review of the penalty to the division within 30 days of service of the notice of proposed individual civil penalty assessment; or (2) The division and the individual or responsible corporate permittee agree within 30 days of service of the notice of proposed individual civil penalty to a schedule or plan for the abatement or correction of the violation, failure or refusal. ( c) Service. For purposes of this section, service shall be performed on the individual to be assessed an individual civil penalty, by certified mail, or by any alternative means consistent with the Rules of the Supreme Court of Virginia governing service of a summons and complaint. Service shall be complete upon tender of the notice of proposed assessment and included information or of the certified mail and shall not be deemed incomplete because of refusal to accept. Effect of Amendment The January 6, 1999 amendment replaced former paragraph (b)(3), relating to service, with subsection ( c), to provide that service is to be made consistent with the Rules of the Supreme Court of Virginia. 4 VAC 25-130-846.18. Penalty payment. {{ 30 CFR 846.18 }} (a) If a notice of proposed individual civil penalty assessment becomes a final order in the absence of a request for formal review or an abatement agreement, the penalty shall be due upon issuance of the final order. (b) If an individual named in the notice of proposed individual civil penalty assessment timely requests formal review under 4 VAC 25-130-846.17(b)(1), the penalty shall be due upon issuance of the final administrative order affirming, increasing or decreasing the proposed penalty. ( c) Abatement agreement. Where the division and corporate permittee or individual have agreed in writing on a plan for the abatement of or compliance with the unabated order, the individual named in the notice may postpone payment of the penalty until receiving either: (1) A final order from the division stating that the penalty is due (whereupon, payment must be submitted within 30 days); or, (2) A written notice from the division stating that abatement or compliance has been satisfactorily accomplished and the penalty has been withdrawn. VIRGINIA ADMINISTRATIVE CODE TITLE 4. CONSERVATION AND NATURAL RESOURCES AGENCY NO. 25. DEPARTMENT OF MINES, MINERALS AND ENERGY CHAPTER 130 . COAL SURFACE MINING RECLAMATION REGULATIONS (Current as of October 31, 2000) Subchapter VL. Permanent Program Inspection and Enforcement Procedures Part 850 Training, Examination, and Certification of Blasters Sec. 4 VAC 25-130-850.1. Scope. 4 VAC 25-130-850.5. Definition. 4 VAC 25-130-850.12. Effective date. 4 VAC 25-130-850.13. Training. 4 VAC 25-130-850.14. Examination. 4 VAC 25-130-850.15. Certification. 4 VAC 25-130-850.1. Scope. {{ 30 CFR 850.1 }} This Part establishes the procedures for training, examination and certification of persons engaged in or directly responsible for the use of explosives in surface coal mining operations (as defined in 4 VAC 25- 130-700.5). 4 VAC 25-130-850.5. Definition. {{ 30 CFR 850.5 }} As used in this Part, "Blaster" means a person directly responsible for the use of explosives in surface coal mining operations who is certified under this Part. 4 VAC 25-130-850.12. Effective date. Not later than 12 months following the approval by the Secretary of this Subchapter, all blasting operations shall be conducted under the direction of a certified blaster. Before that time, all such blasting operations shall be conducted by competent, experienced persons who understand the hazards involved, and who are certified by the Division of Mines (DM). 4 VAC 25-130-850.13. Training. {{ 30 CFR 850.13 }} (a) Persons seeking to become certified as blasters may receive training by contacting the DM office in Big Stone Gap. The training includes, but is not limited to, the technical aspects of blasting operations and State and Federal laws governing the storage, transportation, and use of explosives; and (b) Persons who are not certified and who are assigned to a blasting crew or assist in the use of explosives shall receive direction and on-the-job training from a blaster. ( c) The DM course shall provide training and discuss practical applications of: (1) Explosives, including: (i) Selection of the type of explosive to be used; (ii) Determination of the properties of explosives which will produce desired results at an acceptable level of risk; and (iii) Handling, transportation, and storage; (2) Blast designs, including: (i) Geologic and topographic considerations; (ii) Design of a blast hole, with critical dimensions; (iii) Pattern design, field layout, and timing of blast holes; and (iv) Field applications; (3) Loading blast holes, including priming and boostering; (4) Initiation systems and blasting machines; (5) Blasting vibrations, airblasts and flyrock, including: (i) Monitoring techniques, and (ii) Methods to control adverse affects; (6) Secondary blasting applications; (7) Current Federal and State rules applicable to the use of explosives; (8) Blast records; (9) Schedules; (10) Preblasting surveys, including: (i) Availability, (ii) Coverage, and (iii) Use of in-blast designs; (11) Blast plan requirements; (12) Certification and training; (13) Signs, warning signals, and site control; (14) Unpredictable hazards, including: (i) Lightning, (ii) Stray currents, (iii) Radio waves, and (iv) Misfires. 4 VAC 25-130-850.14. Examination. {{ 30 CFR 850.14 }} (a) The division shall insure that candidates for blaster certification are examined by reviewing and verifying: (1) The person has passed the DM written examination covering blasting practices, transportation and storage of explosives, DM rules and regulations, and blast controls; and (2) The person has also passed the division's Blaster's Coal Surface Mining Endorsement Test covering Part 850, 4 VAC 25-130-816.61 through 4 VAC 25-130-816.68 and 4 VAC 25-130-817.61 through 4 VAC 25-130-817.68; and (3) The person must file an application and furnish proof of experience to the DM's Board of Mine Examiners. The minimum experience shall be at least one year of practical blasting field experience. (b) Applicants for blasters certification shall be examined, by both the division and DM at a minimum, in the topics set forth in 4 VAC 25-130-850.13( c). 4 VAC 25-130-850.15. Certification. {{ 30 CFR 850.15 }} (a) The division shall issue the blaster's coal surface mining endorsement for a period of five years to those candidates examined and found to be competent and has met the requirements as described in 4 VAC 25-130-850.13 and 4 VAC 25-130-850.14. (b) Suspension and revocation: (1) The division, when practicable, following written notice and opportunity for a hearing may, and upon a finding of willful conduct by the DM Board of Mine Examiners, shall suspend or revoke the blaster's coal surface mining endorsement certification during the term of the certification or take other necessary action for any of the following reasons: (i) Non-compliance with any blasting related order issued by the division or DM; (ii) Unlawful use in the work place of, or current addiction to, alcohol, narcotics, or other dangerous drugs; (iii) Violation of any provision of the State or Federal explosives laws or regulations; (iv) Providing false information or a misrepresentation to obtain certification. (2) If advance notice and opportunity for a hearing cannot be provided, an opportunity for a hearing shall be provided as soon as practical following the suspension, revocation, or other adverse action. ( c) Recertification. Any person certified as a blaster must be recertified every five years by: (1) Presenting written proof that the individual has worked in a capacity which demonstrates the blaster's competency during two of the last three years immediately preceding the expiration date; or (2) Retaking the division's endorsement exam and achieving the required score on the exam. Anyone who fails to achieve the required score on the exam must take or retake the training prior to retaking both the division's and DM's exam. (d) Protection of certification. Certified blasters shall take every reasonable precaution to protect their certificates from loss, theft, or unauthorized duplication. Any such occurrence shall be reported immediately to the division. (e) Conditions: (1) A blaster shall immediately exhibit upon request his or her certificate to any authorized representative of the division, DM, or the Office of Surface Mining. (2) Blaster's certification shall not be assigned or transferred. (3) Blasters shall not delegate their responsibility to any individual who is not a certified blaster. (f) Petitions for recertification. An individual whose certification has been revoked may petition the DMLR for recertification. The DMLR shall not accept a petition for recertification any sooner than one year from the effective date of revocation. Such petitions shall show valid reasons why the division should consider the request for recertification. The division may require retesting prior to recertification. (g) Appeals procedures. Appeals for review of certification including suspension and revocation decisions shall be made to the DMLR. Appeals not resolved by the DMLR may be heard pursuant to the provisions for administrative and judicial review under Chapter 19 ( 45.1-2.26 et seq.) of Title 45.1 of the Code of Virginia.