R645.  Natural Resources; Oil, Gas and Mining; Coal.
R645-401.  Inspection and Enforcement:  Civil Penalties.
R645-401-100.  Information on Civil Penalties.
	110.  Objectives.  Civil penalties are assessed under UCA 40-10-20 of the State Program and R645-401 to deter violations and to ensure maximum compliance with the terms and purposes of the State Program on the part of the coal mining industry.
	120.  How Assessments Are Made.  The Division will appoint an assessment officer to review each notice of violation and cessation order in accordance with the assessment procedures described in R645-401 to determine whether a civil penalty will be assessed, the amount of the penalty, and whether each day of a continuing violation will be deemed a separate violation for purposes of the total penalty assessed.

R645-401-200.  When Penalty Will Be Assessed.
	210.  The assessment officer will assess a penalty for each cessation order.
	220.  The assessment officer will assess a penalty for each notice of violation, if the violation is assigned 51 points or more under the point system described in R645-401-300 and R645-401-400.
	230.  The assessment officer may assess a penalty for each notice of violation assigned 50 points or less under the point system described in R645-401-300 and R645-401-400.  In determining whether to assess a penalty, the assessment officer will consider the factors listed in R645-401-310.

R645-401-300.  Point System for Penalties.
	310.  Amount of Penalty.  In determining the amount of the penalty, if any, to be assessed, consideration will be given to:
	311.  The operator's history of previous violations at the particular coal mining and reclamation operation, regardless of whether any led to a civil penalty assessment.  Special consideration will be given to violations contained in or leading to a cessation order.  However, a violation will not be considered if the notice or order containing the violation meets the conditions described in R645-401-321.100 or R645-401-321.200.
	312.  The seriousness of the violation based on the likelihood and extent of the potential or actual impact on the public or environment, both within and outside the permit or exploration area.
	313.  The degree of fault of the operator in causing or failing to correct the violation, either through act or omission.  Such degree will range from inadvertent action causing an event which was unavoidable by the exercise of reasonable care to reckless, knowing or intentional conduct.
	314.  The operator's demonstrated good faith, by considering whether he took extraordinary measures to abate the violation in the shortest possible time, or merely abated the violation within the time given for abatement.  Consideration will also be given to whether the operator gained any economic benefit as a result of a failure to comply.
	320.  Assessment of Points.
	321.  History of Previous Violations.  The assessment officer will assign up to 25 points based on the history of previous violations.  One point will be assigned for each past violation contained in a notice of violation.  Five points may be assigned for each violation contained in a cessation order.  The history of previous violations, for the purpose of assigning points, will be determined and the points assigned with respect to the particular coal exploration or coal mining and reclamation operation.  Points will be assigned as follows:
	321.100.  A violation will 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, or to appeal any administrative or judicial decision has not expired, and thereafter, it will be counted for only one year;
	321.200.  No violation for which the notice or order has been vacated will be counted; and
	321.300.  Each violation will be counted without regard to whether it led to a civil penalty assessment.
	322.  Seriousness.  The assessment officer will assign up to 45 points based on the seriousness of the violation as follows:
	322.100.  Probability of occurrence.  The assessment officer will assign up to 20 points based on the probability of the occurrence of the event which a violated standard is designed to prevent.  Points will be assessed according to the following schedule:

	TABLE

              PROBABILITY OF
                OCCURRENCE             POINTS

              None                      0
              Insignificant             1 -  4
              Unlikely                  5 -  9
              Likely                   10 - 19
              Occurred                      20
	
	322.200.  Extent of potential or actual damage.  The assessment officer will assign up to 25 points, based on the extent of the potential or actual damage to the public health and safety or the environment, in terms of duration, area and impact of such damage.
	322.300.  Alternative to R645-401-322.100 and R645-401-322.200 for an Administrative Hindrance Violation.  In the case of a violation of an administrative requirement, such as a requirement to keep records, the assessment officer will, in lieu of R645-401-322.100 and R645-401-322.200, assign up to 25 points for seriousness, based upon the extent to which enforcement is hindered by the violation.
	323.  Degree of Fault.
	323.100.  The assessment officer will assign up to 30 points based on the degree of fault of the permittee in causing or failing to correct the violation, condition, or practice which led to the notice or order, either through act or omission.  Points will be assessed as follows:
	323.110.  A violation which occurs through no fault of the operator, or by inadvertence which was unavoidable by the exercise of reasonable care, will be assigned no penalty points for degree of fault;
	323.120.  A violation which is caused by fault of the operator will be assigned 15 points or less, depending on the degree of fault; Fault means the failure of a permittee to prevent the occurrence of any violation of his or her permit or any requirement of the State Program due to indifference, lack of diligence, or lack of reasonable care, or the failure to abate any violation of such permit or the State Program due to indifference, lack of diligence, or lack of reasonable care; and
	323.130.  A violation which occurs through a greater degree of fault, meaning reckless, knowing or intentional conduct will be assigned 16 to 30 points, depending on the degree of fault.
	323.200.  In calculating points to be assigned for degree of fault, the acts of all persons working on the coal exploration or coal mining and reclamation operation site will be attributed to the permittee, unless that permittee establishes that they were acts of deliberate sabotage.
	324.  Good Faith in Attempting to Achieve Compliance.  The assessment officer will subtract points based on the degree of good faith of the permittee.  Points will be assigned as follows:
	324.100.  Easy Abatement Situation.  An easy abatement situation is one in which the operator has on-site the resources necessary to achieve compliance of the violated standard within the permit area.

	TABLE

           DEGREE OF GOOD FAITH           POINTS

           Immediate Compliance         -11 to -20
           Rapid Compliance             - 1 to -10
           Normal Compliance              0
	
	324.200.  Difficult Abatement Situation.  A difficult abatement situation is one which requires submission of plans prior to physical activity to achieve compliance, or the permittee does not have the resources at hand to achieve compliance of the violated standard.

	TABLE

           DEGREE OF GOOD FAITH           POINTS

           Rapid Compliance             -11 to -20
           Normal Compliance            - 1 to -10
           Extended Compliance            0
	
	325.  Definition of Compliance.
	325.100  Immediate Compliance requires evidence that the violation has been abated immediately (which is a question of fact) following issuance of the notice of violation.
	325.200.  Rapid Compliance requires evidence that the permittee used diligence to abate the violation.
	325.300.  Normal Compliance means that the operator complied within the abatement period required under the notice of violation or by the violated standards.
	325.400.  Extended Compliance means that the permittee took minimal actions for abatement to stay within the limits of the notice of violation or the violated standard; or that the plan submitted for abatement was incomplete.
	326.  The Effect on the Operator's Ability to Continue in Business.  Initially, it will be presumed that the operator's ability to continue in business will not be affected by the order of assessment.  The operator may submit to the assessment officer information concerning the operator's financial status to show that payment of the civil penalty will affect the permittee's ability to continue in business.  A reduction of the penalty or a special payment plan may be ordered if the information provided by the operator demonstrates that the civil penalty will substantially reduce the likelihood of the permittee's ability to continue in business or will create undue hardship on the permittee's operation.
	330.  Determination of Amount of Penalty.  The assessment officer will determine the amount of any civil penalty converting the total number of points assigned under R645-401-320 to a dollar amount, according to the following schedule:

	TABLE

Points         Dollars
1                 22
2                 44
3                 66
4                 88
5                110
6                132
7                154
8                176
9                198
10               220
11               242
12               264
13               286
14               308
15               330
16               352
17               374
18               396
19               418
20               440
21               462
22               484
23               506
24               528
25               550
26               660
27               770
28               880
29               990
30             1,100
31             1,210
32             1,320
33             1,430
34             1,540
35             1,650
36             1,760
37             1,870
38             1,980
39             2,090
40             2,200
41             2,310
42             2,420
43             2,530
44             2,640
45             2,750
46             2,860
47             2,970
48             3,080
49             3,190
50             3,300
51             3,410
52             3,520
53             3,630
54             3,740
55             3,850
56             3,960
57             4,070
58             4,180
59             4,290
60             4,400
61             4,510
62             4,620
63             4,730
64             4,840
	
R645-401-400.  Assessment of Separate Violations for Each Day.
	410.  The assessment officer 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 assessment officer will consider the factors listed in R645-401-300 and may consider the extent to which the permittee gained any economic benefit as a result of a failure to comply.  For any violation which continues for two or more days, and which is assigned more than 64 points under R645-401-320, the assessment officer will assess a civil penalty for a minimum of two separate days.
	420.  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, a civil penalty of not less than $750.00 will be assessed for each day during which such failure continues, except that, if the permittee initiates review proceedings with respect to the violation, the abatement period will be extended as follows:
	421.  If suspension of the abatement requirements of the notice or order is ordered in a temporary relief proceeding under the State Program, after determination that the permittee will suffer irreparable loss or damage from the application of the requirements, the extended period permitted for abatement will not end until the date on which the board issues a final order; and
	422.  If the permittee initiates review proceedings under the State Program with respect to the violation, in which the obligations to abate are suspended by the court pursuant to the State Program, the daily assessment of a penalty will not be made for any period before entry of a final order by the court.
	430.  Such penalty for the failure to abate the violation will not be assessed for more than 30 days for each violation.  If the permittee has not abated the violation within the 30-day period, the Division will within 30 days appeal such noncompliance to the Board for resolution under Subsections 40-10-20(5), 40-10-20(6), 40-10-22(1)(d), or 40-10-22(2) of the Act, or by other appropriate means.

R645-401-500.  Waiver of Use of Formula to Determine Civil Penalty.
	510.  The assessment officer upon his or her own initiative or upon written request received by the Division within 15 days of receipt of a notice of violation or a cessation order, may waive the use of the formula contained in R645-401-330 to set the civil penalty, if they determine that, taking into account exceptional factors present in the particular case, the penalty is demonstrably unjust.  However, the assessment officer will 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 State Program or any condition of any permit or exploration approval.  The basis for every waiver will be fully explained and documented in the records of the case.
	520.  If the assessment officer waives the use of the formula, he or she will use the criteria set forth in R645-401-320 to determine the appropriate penalty.  When the assessment officer has elected to waive the use of the formula, he or she will give a written explanation of the basis for the assessment made to the permittee.

R645-401-600.  Procedures for Assessment of Civil Penalties - Proposed Assessment.
	610.  Within 15 days of service of a notice or order, the permittee may submit written information about the violation to the assessment officer at the Division offices.  The assessment officer will consider any information so submitted in determining the facts surrounding the violation and the amount of the penalty.
	620.  The assessment officer will serve a copy of the proposed assessment and of the worksheet showing the computation of the proposed assessment on the permittee, by certified mail, within 30 days of the issuance of the notice or order.
	621.  If the mail is tendered at the address of that permittee set forth in the sign required under R645-301-521.200 or at any address at which that permittee is in fact located, and he or she refuses to accept delivery of or to collect such mail, the requirements of R645-401-620 will be deemed to have been complied with upon such tender.
	622.  Failure by the Division to serve any proposed assessment within 30 days will not be grounds for dismissal of all or any part of such assessment unless the permittee:
	622.100.  Proves actual prejudice as a result of the delay; and
	622.200.  Makes a timely objection to the delay.
	630.  Unless an assessment conference has been requested, the assessment officer will 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 assessment officer will serve a copy of any such reassessment and of the worksheet showing the computation of the reassessment in the manner provided in R645-401-620, within 30 days after the date the violation is abated.

R645-401-700.  Procedures for Informal Assessment Conference.
	710.  The Division will arrange for a conference to review the fact of the violation and/or the proposed assessment or reassessment, upon written request of the permittee, if the request is received within 30 days from the date the proposed assessment or reassessment is received by the violator.
	720.  Informal Assessment Conference Scheduling and Findings.
	721.  The Division will assign an assessment conference officer to hold assessment conferences.  The assessment conference will be informal.  The assessment conference will be held within 60 days from the date of issuance of the proposed assessment or the end of the abatement period, whichever is later.  PROVIDED:  That a failure by the Division to hold such a conference within 60 days will not be grounds for dismissal of all or part of an assessment unless the permittee proves actual prejudice as a result of the delay.
	722.  The Division will post notice of the time and place of the conference at all Division offices at least five days before the conference.  Any person will have a right to attend and participate in the conference.
	723.  The assessment conference officer will consider all relevant information on the violation.  Within 30 days after the conference is held, the conference officer will either:
	723.100.  Settle the issues, in which case a settlement agreement will be prepared and signed by the assessment conference officer on behalf of the Division and by the permittee; or
	723.200.  Affirm, raise, lower, or vacate the penalty.
	730.  The assessment conference officer will promptly serve the permittee with a notice of his or her action in the manner provided in R645-401-620, and will include a worksheet if the penalty has been raised or lowered.  The reasons for the conference officer's action will be fully documented in the file.
	740.  Informal Conference Settlement Agreement.
	741.  If a settlement agreement is entered into, the permittee 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 will contain a clause to this effect.
	742.  If full payment of the amount specified in the settlement agreement is not received by the Division within 30 days after the date of signing, the Division may enforce the agreement or rescind it and proceed according to R645-401-723.200 within 30 days from the date of the rescission.
	750.  The assessment conference officer may terminate the conference when he or she determines that the issues cannot be resolved or that the permittee is not diligently working toward resolution of the issues.
	760.  At formal review proceedings before the Board, no evidence as to statements made or evidence produced by one party at an assessment conference will be introduced as evidence by another party or to impeach a witness.

R645-401-800.  Requests for Formal Hearing.
	810.  A permittee charged with a violation may contest the proposed penalty or the fact of the violation by submitting (a) a petition to the Board and (b) 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 R645-401-820) within 30 days of receipt of the proposed assessment or reassessment, or 30 days from the date of service of the conference officer's action, whichever is later, but in every case, the penalty must be escrowed prior to commencement of the formal hearing.
	820.  The Division will transfer all funds submitted under R645-401-810 to an escrow fund pending completion of the administrative and judicial review process, at which time it will disburse them as provided in R645-401-920 or R645-401-930.
	830.  Formal review of the violation fact or penalty will be conducted by the Board under the provisions of the procedural rules of the Board (R641 Rules).  The fact of the violation may not be contested if the fact has been finally decided before the Board under R645-400-360.

R645-401-900.  Final Assessment and Payment of Penalty.
	910.  If the permittee fails to request a hearing as provided in R645-401-810, the proposed assessment will become a final order of the Division and the penalty assessed will become due and payable upon expiration of the time allowed to request a hearing and upon the Division fulfilling its responsibilities under UCA 40-10-20(3)(e).
	920.  If any party requests judicial review of a final order of the Board the proposed penalty will be held in escrow until completion of the review.  Otherwise, subject to R645-401-930, the escrowed funds will be transferred to the Division in payment of the penalty, and the escrow will end.
	930.  If the final decision of the administrative and judicial review results in an order reducing or eliminating the proposed penalty assessed under R645-401, the Division will within 30 days of receipt of the order refund to the permittee all or part of the escrowed amount, with interest from the date of payment into escrow to the date of the refund at the legal rate applicable as provided in section 15-1-1, UCA.
	940.  If the review results in an order increasing the penalty, the permittee will pay the difference to the Division within 15 days after the order is received by such permittee.

KEY:  reclamation, coal mines
Date of Enactment or Last Substantive Amendment:  February 6, 2004
Notice of Continuation:  January 24, 2018
Authorizing, and Implemented or Interpreted Law:  40-10-1 et seq.