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Alaska Statutes.

Title 27. Mining

Chapter 21. Alaska Surface Coal Mining Control and Reclamation Act

Section 240. Enforcement.

AS 27.21.240. Enforcement.

(a) If, on the basis of an inspection under AS 27.21.230 , the commissioner determines that a person or a person's operation is in violation of this chapter or a term of a permit and that the violation creates an imminent danger to the health or safety of the public or is causing or can reasonably be expected to cause significant, imminent, environmental harm to land, air, or water resources, the commissioner shall immediately issue a notice of violation and order a cessation of the person's surface coal mining operation or the portion of the operation relating to the violation. The cessation order remains in effect until the commissioner determines that the violation has been abated, or until modified, vacated, or terminated under (d) or (h) of this section. If the commissioner finds that the ordered cessation of the operation, or a portion of the operation, will not completely abate the imminent danger to the health or safety of the public or the significant, imminent, environmental harm to land, air, or water resources, the commissioner shall, in addition to the cessation order, impose affirmative obligations on the operator to take the steps the commissioner considers necessary to abate the imminent danger or significant environmental harm.

(b) If, on the basis of an inspection, the commissioner determines that a person or a person's operation is in violation of this chapter or a term of a permit and that the violation does not create an imminent danger to the health or safety of the public and is not causing and cannot reasonably be expected to cause significant, imminent, environmental harm to land, air, or water resources, the commissioner shall issue a notice of violation to the permittee setting a reasonable time, which may not exceed 90 days from the date the notice is issued, for the abatement of the violation. However, the commissioner may, for good cause, extend the time for the abatement of the violation. If, at the end of the time allowed for abatement of the violation, the commissioner finds, in writing, that the violation has not been abated, the commissioner shall order a cessation of the person's surface coal mining operation or the portion of the operation relating to the violation. The cessation order remains in effect until the commissioner determines that the violation has been abated or until it is modified, vacated, or terminated under (d) or (h) of this section. The commissioner shall determine the steps necessary to abate the violation in the most expeditious manner possible and shall include the necessary measures in the cessation order issued under this section.

(c) A person who is or may be adversely affected by a notice of violation or cessation order issued under (a) or (b) of this section, or by a modification, vacation, or termination of the notice or order, may apply to the commissioner for review of the notice or order within 60 days after receipt of the notice or order by the operator or permittee or within 60 days after the modification, vacation, or termination of the notice or order. On receipt of the application, the commissioner shall provide for an investigation and an investigation report, as the commissioner considers appropriate. At the request of the applicant or another person who is or may be adversely affected, the commissioner shall provide for a public hearing to enable the applicant to present information relating to the notice or order or the modification, vacation, or termination of the notice or order. The filing of an application for review under this subsection may not operate as a stay of the order or notice. The commissioner shall give the applicant and other interested persons written notice of the time and place of the hearing at least five days before the hearing. The Administrative Procedure Act (AS 44.62) applies to a hearing under this subsection except as provided by regulations adopted under this chapter.

(d) After any review under (c) of this section, the commissioner shall issue a written decision that includes findings of fact and an order vacating, affirming, modifying, or terminating the notice or order. If the application for review under (c) of this section relates to a cessation order issued under (a) or (b) of this section, the commissioner shall issue the written decision within 30 days after receipt of the application for review unless the commissioner grants a request for temporary relief under (e) of this section.

(e) An applicant for review under (c) of this section may file with the commissioner a written request for temporary relief from a notice or order issued under (a) or (b) of this section before completion of the review of the notice or order. The written request must include a detailed statement of the reasons in support of the request. The commissioner shall expeditiously issue an order granting or denying the temporary relief. If the applicant requests temporary relief from a cessation order issued under (a) or (b) of this section, the commissioner shall issue an order granting or denying the temporary relief within 10 days after the commissioner receives the written request. The commissioner may grant the temporary relief under this subsection only

(1) after the commissioner holds a hearing in the locality of the permit area on the request for temporary relief in which the parties have an opportunity to be heard;

(2) if the applicant shows that there is substantial likelihood that the findings of the commissioner under (d) of this section will be favorable to the applicant; and

(3) if the temporary relief will not adversely affect the health or safety of the public or cause significant, imminent, environmental harm to land, air, or water resources.

(f) If, on the basis of an inspection, the commissioner has reason to believe that a pattern of violations of this chapter or of a term of a permit exists or has existed, and if the commissioner finds that the violations are caused by the unwarranted failure of the permittee to comply with the requirements or that the violations were wilfully caused by the permittee, the commissioner shall issue a notice of violation and an order to the permittee to, within a specified time period, show cause why the permit should not be suspended or revoked. The order to show cause must include notice to the permittee that a hearing may be requested within 30 days.

(g) If the permittee requests a hearing under (f) of this section, the commissioner shall inform the permittee and other known interested persons of the time, place, and date of the hearing. AS 44.62 (Administrative Procedure Act) applies to a hearing under this subsection except as provided by regulations adopted under this chapter. Within 60 days following the hearing or following the order to show cause if no hearing is requested, the commissioner shall issue and furnish to the permittee and all other parties to the hearing a written decision, order, and the reasons for both, concerning the suspension or revocation of the permit. If the commissioner suspends or revokes the permit, the permittee shall immediately cease the surface coal mining operation on the permit area and shall complete the reclamation of the permit area within the time specified by the commissioner. If the permittee fails to complete the reclamation, the commissioner shall declare the performance bonds for the operation forfeited.

(h) A notice or order issued under this section shall state with reasonable specificity the nature of the violation, the abatement required, the period of time established for abatement, and a reasonable description of the portion of the operation to which the notice or order applies. Each notice or order issued under this section must be given promptly to the alleged violator at the mine site unless the alleged violator has appointed an agent, in which case the agent may be served. A notice or order issued under this section may be modified, vacated, or terminated by the commissioner. A cessation order issued under (a) or (b) of this section expires not more than 30 days after the alleged violator receives actual notice of the order unless an informal conference is held as provided in regulations adopted under this chapter or unless the right to such a conference is waived by the alleged violator. The commissioner shall hold the conference at a location that allows the permit area to be viewed during the conference. The commissioner shall issue a written order affirming, modifying, vacating, or terminating the cessation order within five days of the conference. The holding of a conference or the waiver of it does not prejudice any other rights to administrative or judicial review provided under this chapter nor does it operate as a stay of a notice or order.

(i) Whenever an order is issued under this chapter, the commissioner may, in the commissioner's discretion, assess any party for the costs and attorney fees reasonably incurred by another party in connection with the order.

(j) The commissioner may request the attorney general to institute a civil action for relief, including a permanent or temporary injunction, restraining order, or other appropriate order, if a person

(1) violates an order or notice issued by the commissioner under this chapter;

(2) interferes with the commissioner carrying out the provisions of this chapter;

(3) unlawfully refuses to admit the commissioner into an operation;

(4) unlawfully refuses to permit inspection of an operation by the commissioner;

(5) fails to furnish information or a report requested by the commissioner under regulations adopted under this chapter; or

(6) refuses to permit access to or copying of records by the commissioner that the commissioner determines are reasonably necessary to carry out the provisions of this chapter.

(k) An action under (j) of this section shall be brought in the superior court in the judicial district in which the greater portion of the operation is located or in the judicial district in which the greater portion of the operation is located or in the judicial district where the operator's principal office is located. The superior court has jurisdiction to grant appropriate relief under (j) of this section. Relief granted by a superior court for a situation described in (j)(1) of this section continues in effect until the completion of proceedings for review of the notice or order under this section unless before that time the superior court modifies or sets aside the notice or order.

(l) In the case of a judicial proceeding to review an order or decision issued by the commissioner under this chapter, the court may, under conditions it may prescribe, grant the temporary relief it considers appropriate pending final determination of the proceedings if

(1) all parties to the proceedings have been notified and given an opportunity to be heard on a request for temporary relief;

(2) the person requesting the relief shows that there is a substantial likelihood that the person will prevail on the merits of the final determination of the proceeding; and

(3) the relief will not adversely affect the public health or safety or cause significant imminent environmental harm to land, air, or water resources.

(m) The commencement of a judicial proceeding to review an order or decision of the commissioner does not, unless specifically ordered by the court, operate as a stay of the action, order, or decision of the commissioner.

(n) The fact that action of the commissioner is subject to judicial review in accordance with other provisions of state law may not be construed to limit the operation of the rights established in AS 27.21.950 except as provided in that section.

Note to HTML Version:

This version of the Alaska Statutes is current through December, 2004. The Alaska Statutes were automatically converted to HTML from a plain text format. Every effort has been made to ensure their accuracy, but this can not be guaranteed. If it is critical that the precise terms of the Alaska Statutes be known, it is recommended that more formal sources be consulted. For statutes adopted after the effective date of these statutes, see, Alaska State Legislature If any errors are found, please e-mail Touch N' Go systems at E-mail. We hope you find this information useful.

Last modified 9/3/2005