17.24.1206 NOTICES, ORDERS OF ABATEMENT, AND CESSATION ORDERS: ISSUANCE AND SERVICE
(1) The department shall issue a cessation order for each violation, condition, or practice that creates an imminent danger to the health or safety of the public or is causing or can reasonably be expected to cause significant and imminent environmental harm to land, air, or water resources, for failure to comply with an order of abatement, and for conducting mining operations or prospecting without a permit. Within 60 days after issuance of a cessation order, the department shall notify, in writing, any person who has been identified pursuant to ARM 17.24.303(1) (g) and (1) (h) , and 17.24.413(1) (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. The department shall issue a notice of noncompliance for other violations.
(2) A notice of noncompliance, notice of violation, penalty order, or cessation order must be served upon the person to whom it is directed or his designated agent promptly after issuance by:
(a) tendering a copy of the notice or order at the operation to a designated agent, to the individual in charge of the operation or, if the designated agent or person in charge cannot be located at the operation, to any agent or employee at the operation;
(b) sending a copy of the notice or order by certified mail to the permittee or his designated agent; or
(c) hand delivery of a copy of the notice or order to the permittee or his designated agent. Designation of an agent other than the agent named in the permit application for service of process may be made by filing with the department a written designation signed by the former designated agent;
(d) service is complete upon tender of the document and is not incomplete because of refusal to accept.
(3) Whenever an abatement order has been complied with, the department shall inspect or review the abatement, and, if the abatement is satisfactorily completed, shall terminate the order of abatement. The termination must be issued onsite at the time of the inspection.
(4) Filing of an application for review does not operate as a stay of any order.
(5) (a) Except as provided in (5) (b) (ii) , an abatement order must specify compliance within a reasonable period of time, not exceeding 90 days.
(b) The department may impose an abatement period of more than 90 days whenever:
(i) the permittee of an ongoing 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;
(ii) a valid judicial order as to which the permittee has diligently pursued all rights of appeal and as to which he has no other effective legal remedy precludes abatement within 90 days;
(iii) the permittee cannot abate within 90 days due to a labor strike;
(iv) climatic conditions preclude abatement within 90 days, or due to climatic conditions, abatement within 90 days clearly would cause more environmental harm than it would prevent; or
(v) 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; and
(vi) the failure to abate has not been caused by a lack of diligence or intentional delay by the permittee.
(c) Whenever an abatement time in excess of 90 days is permitted, the department shall impose interim abatement measures to the extent necessary to minimize harm to the public or the environment.
(d) Whenever any of the conditions in (5) (b) exist, the permittee may request extension of the abatement period beyond 90 days. The department may not grant an extension for more time than is necessary for abatement. The permittee has the burden of establishing by clear and convincing proof that he is entitled to an extension. In determining whether or not to grant an abatement period exceeding 90 days, the department may consider any relevant written or oral information from the permittee or any other source. The department shall promptly and fully document in the file its reasons for granting or denying the request. The department's decision on an application for extension beyond 90 days is subject to hearing if a hearing is requested by a person with an interest that is or may be adversely affected; such a request must be submitted in writing to the Board of Environmental Review within 30 days of notice of the department's decision on the application. The hearing must be a contested case hearing in accordance with 82-4-206 , MCA.
(e) An extension granted under this section must not 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.
History: 82-4-204, MCA; IMP, 82-4-251, MCA; NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1984 MAR p. 442, Eff. 3/16/84; AMD, 1989 MAR p. 30, Eff. 1/13/89; AMD, 1995 MAR p. 30, Eff. 1/13/95; TRANS, from DSL, 1996 MAR p. 3042; AMD, 2004 MAR p. 2548, Eff. 10/22/04; AMD, 2006 MAR p. 1139, Eff. 5/5/06.