# Title 69 — Public Service Commission

## Article 69-05.2 — Surface Coal Mining and Reclamation Operations

## Chapter 69-05.2-28 — Inspection and Enforcement

of Adequacy and Completeness of Inspections
Vacation - Termination - Notice to Owners and Controllers
Vacation - Termination
Comply
Violations
Cause
Each Day
### § 69-05.2-28-01. Inspection and enforcement - Requests for inspections.

1. A person may request an inspection of a surface coal mining and reclamation operation by
filing a signed, written statement, or making an oral report followed by filing a signed, written
statement, which gives the commission reason to believe that any requirement of North
Dakota Century Code chapter 38-14.1, this article, or any permit condition, has not been
complied with, and including the person's telephone number and address.
2. The identity of any person supplying information to the commission relating to a possible
violation or imminent danger or harm will remain confidential, if requested by that person,
unless that person elects to accompany the inspector on the inspection, or unless disclosure
is required by a court.
3. The commission will notify the person of when the inspection is to occur as far in advance of
the inspection as possible. The person may accompany the inspector on the inspection. The
person has a right of entry to, upon, and through the operation, but only in the presence of
and under the control, direction, and supervision of the inspector.
4. Within ten days of the inspection, or, if there is no inspection, within fifteen days of receipt of
the person's written statement, the commission will send the person the following by certified
mail:
a. 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.
b. If no inspection was conducted, an explanation of the reason.
c. An explanation of the person's right, if any, to informal review of the action or inaction of
the commission.
5. The commission will give copies of all materials in subsection 4 within the time limits specified
in that subsection to the permittee or operator alleged to be in violation, except that the name
of the citizen will be removed unless disclosure is permitted under subsection 2.
History: Effective August 1, 1980; amended effective May 1, 1990.
General Authority: NDCC 38-14.1-03
Law Implemented: NDCC 38-14.1-27, 38-14.1-28
### § 69-05.2-28-02. Inspection and enforcement - Review of decision not to inspect or enforce -

Review of adequacy and completeness of inspections.
1. Any person who is or may be adversely affected by a surface coal mining and reclamation
operation may ask the commission to informally review a decision not to inspect or take
appropriate enforcement action with respect to any violation alleged by that person in a filing
under section 69-05.2-28-01.
a. The request must 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 request must be made within thirty days of the date the person received the
materials required by subsection 4 of section 69-05.2-28-01.
2. The commission will conduct the review and inform the person, in writing, of the results within
thirty days of the commission's receipt of the request. The permittee or operator alleged to be
in violation will also be given a copy of the results, except that the name of the person will not
be disclosed unless confidentiality has been waived.
3. Informal review under this section does not affect any right to formal review under North
Dakota Century Code section 38-14.1-30, or to a citizen's suit under North Dakota Century
Code section 38-14.1-40.
4. Any person who is or may be adversely affected by a surface coal mining and reclamation
operation may notify the commission in writing of any alleged failure on the part of the
commission to make adequate and complete or periodic inspections.
a. The notification must include sufficient information to create a reasonable belief that the
requirements are not being complied with and to demonstrate that the person is or may
be adversely affected.
b. The commission will, within fifteen days of receipt of the notification, determine whether
the requirements are being complied with, and if not, will immediately order an inspection
to remedy the noncompliance.
c. The commission will furnish the complainant with a written statement of the reasons for
the determination and any actions taken to remedy the noncompliance.
History: Effective August 1, 1980; amended effective May 1, 1990.
General Authority: NDCC 38-14.1-03
Law Implemented: NDCC 38-14.1-03

### § 69-05.2-28-03. Inspection and enforcement - Cessation order - Affirmative relief -

Modification - Vacation - Termination - Notice to owners and controllers.
1. If a cessation ordered under subdivision a of subsection 1 of North Dakota Century Code
section 38-14.1-28 will not completely abate the imminent danger or harm as quickly as
possible, the commission or its authorized representative will impose affirmative obligations on
the operator or permittee to abate the condition, practice, or violation. The cessation order will
specify the timetable for abatement and any interim steps. The cessation order may also
require the use of existing or additional personnel and equipment.
2. Reclamation operations and related activities must continue while a cessation order is in force
unless otherwise provided in the order.
3. The commission or its authorized representative may modify, terminate, or vacate a cessation
order for good cause and may extend the time for abatement if failure to abate was not
caused by lack of diligence by the permittee or operator.
4. The commission or its authorized representative will terminate a cessation order by written
notice when all conditions, practices, or violations listed in the order are abated.
5. Termination of a cessation order does not affect the commission's right to assess civil
penalties for the violation, condition, or practice for which the order was issued.
6. Surface coal mining operations conducted without a valid 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 the operations are an integral,
uninterrupted extension of previously permitted operations, and the person conducting them
has filed a timely and complete permit application.
7. Within sixty days after issuing a cessation order, the commission will notify in writing any
person identified under subsection 3 of section 69-05.2-10-05 and subdivisions e and f of
subsection 1 of section 69-05.2-06-01 as owning or controlling the permittee, that the
cessation order was issued and that the person has been identified as an owner or controller.
History: Effective August 1, 1980; amended effective May 1, 1990; May 1,1992; July 1, 1995.
General Authority: NDCC 38-14.1-03
Law Implemented: NDCC 38-14.1-28
### § 69-05.2-28-04. Inspection and enforcement - Cessation order - Informal minesite hearing.

1. A notice of violation which requires cessation of mining either expressly or by necessary
implication or any cessation order issued under subsection 1 of North Dakota Century Code
section 38-14.1-28 will expire within thirty days of actual notice to the operator or permittee
unless an informal public minesite hearing is held within that time. An informal public minesite
hearing will be automatically scheduled by the commission and held within thirty days of the
issuance of the cessation order unless the hearing is waived, in writing, by the operator or
permittee.
2. The informal public minesite hearing will be held at or reasonably close to the minesite in
order to allow viewings of the site during the hearing, or at any other location acceptable to the
commission and the operator or permittee.
3. A notice of violation or cessation order will not expire as provided in subsection 1, if the
condition, practice, or violation in question has been abated or if the informal public minesite
hearing has been waived.

4. The commission will give as much advance notice as is practicable of the time, place, and
subject of the informal public minesite hearing to:
a. The operator or permittee; and
b. Any person who filed a report which led to the issuance of that notice of violation or
cessation order.
5. The commission will post notice of the hearing in its offices and publish notice, where
practicable, in the official county newspaper of each county where the operation is located and
in other daily newspapers of general circulation in the area of the mine.
6. An informal public minesite hearing is not a formal hearing under North Dakota Century Code
section 38-14.1-30. The hearing will be conducted by a representative of the commission
other than the person who initiated the notice of violation or cessation order, who may accept
oral or written arguments and any other relevant information from any person attending.
7. Within five days after the close of the informal public minesite hearing, the commission or its
authorized representative will affirm, modify, or vacate the notice of violation or cessation
order in writing. The decision will be sent to the persons identified in subsection 4.
8. Procedures of this section do not affect the right of any operator or permittee to a formal
hearing under North Dakota Century Code section 38-14.1-30. A request for a formal hearing
must be made within the time prescribed in that section to preserve the right to formal
administrative review of the notice or order. However, there is no right to request review of the
commission's decision on an informal public minesite hearing.
History: Effective August 1, 1980; amended effective May 1, 1990.
General Authority: NDCC 38-14.1-03
Law Implemented: NDCC 38-14.1-28
### § 69-05.2-28-05. Inspection and enforcement - Notice of violation - Remedial measures -

Modification - Vacation - Termination.
1. A notice of violation issued under subdivision b of subsection 1 of North Dakota Century Code
section 38-14.1-28 may include any remedial action required, interim steps, if appropriate, and
the time for accomplishment of any interim steps.
2. The commission or its authorized representative may modify, vacate, or terminate a notice of
violation for good cause.
3. The commission or its authorized representative will terminate a notice of violation by written
notice when all violations listed in the notice are abated.
4. Termination of a notice of violation does not affect the commission's right to assess civil
penalties for the violation for which the notice was issued.
History: Effective August 1, 1980; amended effective May 1, 1990.
General Authority: NDCC 38-14.1-03
Law Implemented: NDCC 38-14.1-28
### § 69-05.2-28-06. Inspection and enforcement - Notice of violation - Extension of abatement

period.
The commission or its authorized representative may extend the time for abatement or for
accomplishment of an interim step, if the failure to meet the time previously set was not caused by lack

of diligence on the part of the permittee or operator. The total time for abatement may not exceed ninety
days from the date of issuance.
History: Effective August 1, 1980; amended effective May 1, 1990.
General Authority: NDCC 38-14.1-03
Law Implemented: NDCC 38-14.1-28
### § 69-05.2-28-07. Inspection and enforcement - Cessation order or notice of violation - Inability

to comply.
1. Inability to comply will not be considered grounds for vacating a cessation order or notice of
violation.
2. Inability to comply may not be considered in determining whether a pattern of violations exists.
3. Unless caused by lack of diligence, inability to comply may be considered only in mitigation of
the amount of civil penalty and of the duration of permit suspension.
History: Effective August 1, 1980; amended effective May 1, 1990.
General Authority: NDCC 38-14.1-03
Law Implemented: NDCC 38-14.1-28, 38-14.1-30, 38-14.1-32
### § 69-05.2-28-08. Inspection and enforcement - Suspension or revocation of permits - Pattern

of violations.
1. The commission may determine that a pattern of violations exists or has existed, based on two
or more inspections within any twelve-month period, after considering the circumstances,
including:
a. The number of violations, cited on more than one occasion, of the same or related
requirements of North Dakota Century Code chapter 38-14.1, this article, or the
conditions of the permit;
b. The number of violations, cited on more than one occasion, of different requirements of
North Dakota Century Code chapter 38-14.1, this article, or the conditions of the permit;
or
c. The extent to which the violations were isolated departures from lawful conduct.
2. The commission will determine that a pattern of violations exists, if it finds that there were
violations of the same or related requirements of North Dakota Century Code chapter 38-14.1,
this article, or the permit conditions during three or more inspections within any twelve-month
period.
3. Violations by any person or operator conducting surface coal mining operations on behalf of
the permittee will be attributed to the permittee, unless the permittee establishes that the
violations were acts of deliberate sabotage.
4. Whenever a permittee fails to abate a violation within the abatement period set or
subsequently extended, the commission will review the permittee's history of violations to
determine if a pattern of violations exists under this section, and issue an order to show cause
as appropriate under subdivision c of subsection 1 of North Dakota Century Code section
38-14.1-28.
History: Effective August 1, 1980; amended effective May 1, 1990.
General Authority: NDCC 38-14.1-03
Law Implemented: NDCC 38-14.1-28

### § 69-05.2-28-09. Inspection and enforcement - Suspension or revocation of permits - Orders to

show cause.
1. The commission may decline to issue an order to show cause, or may vacate an outstanding
order to show cause, if the commission finds that, taking into account exceptional factors
present, it would be demonstrably unjust to issue or to fail to vacate the order to show cause.
The basis for this finding must be fully explained and documented in the records of the case.
2. Following the public hearing on an order to show cause, the commission may issue an order
suspending a permit.
a. The order for permit suspension may be for a fixed or an indefinite term and include
conditions for reinstatement.
b. A permit may be reinstated upon completion of a fixed term, provided the permittee
demonstrates compliance with any conditions for reinstatement. If the permittee has not
complied with the conditions, the commission may extend the suspension for an
additional fixed term, suspend the permit indefinitely, or institute proceedings for
revocation.
c. If a permit has been indefinitely suspended, the permittee may request reinstatement at
any time. The commission may reinstate the permit, provided the permittee demonstrates
compliance with any conditions for reinstatement.
d. The commission may, at any time and on its own motion, reinstate a permit that has been
indefinitely suspended, or, institute proceedings for revocation.
e. Permit suspension shall not result in bond forfeiture unless the permit is subsequently
revoked.
f. Reclamation operations, except as specified by the commission, must continue during
suspension. However, all mining operations within the permit area must cease until the
permit is reinstated.
3. If proceedings for permit revocation are instituted, the commission will issue an order to show
cause why the permit should not be revoked under subdivision c of subsection 1 of North
Dakota Century Code section 38-14.1-28. An opportunity for a hearing on the order to show
cause will be provided under subsection 2 of North Dakota Century Code section 38-14.1-30.
History: Effective August 1, 1980; amended effective May 1, 1990.
General Authority: NDCC 38-14.1-03
Law Implemented: NDCC 38-14.1-28, 38-14.1-30
### § 69-05.2-28-10. Inspection and enforcement - Minesite hearing on requests for temporary

relief.
A minesite hearing will be held on all requests for temporary relief filed under subsection 4 of North
Dakota Century Code section 38-14.1-30 before relief may be granted. Temporary relief will not be
granted if the provisions of subdivisions b and c of subsection 4 of North Dakota Century Code section
location other than at the minesite.
History: Effective August 1, 1980; amended effective May 1, 1990.
General Authority: NDCC 38-14.1-03
Law Implemented: NDCC 38-14.1-30

### § 69-05.2-28-11. Inspection and enforcement - Inspections and monitoring - Filing

requirements.
1. Copies of all records, reports, inspection materials, or information required by subsection 5 of
North Dakota Century Code section 38-14.1-27 prepared by the commission, operator, or
permittee must be promptly filed by the preparer in the county auditor's office where the
operations occur.
2. Copies of all records, reports, inspection materials, or information obtained by the commission
will be made immediately available to the public until at least five years after final bond
release, except for information exempt from disclosure under subsection 3 of North Dakota
Century Code section 38-14.1-13.
History: Effective August 1, 1980; amended effective May 1, 1990.
General Authority: NDCC 38-14.1-27
Law Implemented: NDCC 38-14.1-27
### § 69-05.2-28-12. Inspection and enforcement - Determination of amount of civil penalty -

Factors.
In determining the amount of any civil penalty assessed under subsection 1 of North Dakota
Century Code section 38-14.1-32, the commission will consider the following:
1. History of previous violations. The commission may assess a civil penalty of up to three
thousand five hundred dollars per day based on the history of previous violations by the
operator or permittee at the particular operation.
a. If a violation is under review or if the time for review has not yet expired, the violation will
not be considered.
b. No violation for which the notice of violation or cessation order has been vacated is
considered.
c. Each violation is considered without regard to whether it led to a civil penalty.
2. Seriousness. The commission may assess a civil penalty of up to three thousand five
hundred dollars per day based on the seriousness of the violation, including any irreparable
harm to the environment and any hazard to public health or safety. The commission will
consider:
a. The probability of the occurrence of the event which a violated standard is designed to
prevent.
b. The extent of the potential or actual damage, in terms of area and impact on the public or
environment.
c. The extent to which enforcement is obstructed by the violation.
d. The actual or potential duration of the damage or the impact on the public or the
environment.
3. Negligence. The commission may assess a civil penalty of up to three thousand dollars per
day based on the degree of fault of the operator or permittee in causing or failing to correct the
violation, condition, or practice which led to the notice or order, either through act or omission.
a. A violation which occurs through no negligence, or, an inadvertent violation that was
unavoidable by the exercise of reasonable care, is not considered.

b. A civil penalty of up to one thousand five hundred dollars per day may be assessed for a
violation caused by negligence, or the failure of an operator or permittee to prevent the
occurrence of any violation of his permit or any requirement of North Dakota Century
Code chapter 38-14.1 or this article, due to indifference, lack of diligence, or lack of
reasonable care, or the failure to abate the violation due to indifference, lack of diligence,
or lack of reasonable care.
c. A civil penalty of up to three thousand dollars per day may be assessed for a violation
which occurs through a greater degree of fault than negligence, or through reckless,
knowing, or intentional conduct.
4. Good faith in attempting to achieve compliance. The commission may deduct up to one
thousand dollars per day from the total civil penalty assessed based on the demonstrated
good faith of the operator or permittee charged in attempting to achieve rapid compliance after
notification of the violation.
a. "Rapid compliance" means that the operator or permittee took extraordinary measures to
abate the violation in the shortest possible time and that abatement was achieved before
the time set for abatement.
b. No deduction will be made for normal compliance, which is abatement of the violation
within the time set for abatement.
History: Effective August 1, 1980; amended effective May 1, 1990.
General Authority: NDCC 38-14.1-03
Law Implemented: NDCC 38-14.1-32
### § 69-05.2-28-13. Inspection and enforcement - Civil penalty - Assessment of separate

violations for each day.
Whenever a violation has not been abated within the period set, a civil penalty of not less than
seven hundred fifty dollars will be assessed for each day of the failure, except that if the operator or
permittee initiates review proceedings with respect to the violation, the abatement period will be
extended as follows:
1. If suspension of the abatement requirements of the notice or order is ordered in a temporary
relief proceeding under subsection 4 of North Dakota Century Code section 38-14.1-30, after
a determination that the operator or permittee will suffer irreparable loss or damage from the
application of the requirements, the period permitted for abatement will not end until the date
on which the commission issues a final order; and
2. If the operator or permittee initiates review proceedings under North Dakota Century Code
section 38-14.1-35 with respect to the violation, in which the obligations to abate are
suspended by the court, the daily assessment of a penalty will not be made for any period
before entry of a final order by the court.
History: Effective August 1, 1980; amended effective May 1, 1990.
General Authority: NDCC 38-14.1-03
Law Implemented: NDCC 38-14.1-30, 38-14.1-32, 38-14.1-35
### § 69-05.2-28-14. Inspection and enforcement - Civil penalty - Escrow account and bond

procedure.
1. Upon receipt of a timely request for a formal hearing by an operator or permittee under
subsection 1 of North Dakota Century Code section 38-14.1-30, the commission will inform
the operator or permittee, by certified mail, of the proposed amount of any civil penalty which
may be assessed by the commission.

2. The operator or permittee shall then either pay the amount of the proposed penalty in full
within thirty days and withdraw the request for a formal hearing, forward the amount of the
proposed penalty to the commission within thirty days to be held in escrow pending a final
commission decision on the violation and the amount of the penalty, or post a bond within
thirty days with the commission payable to the state in the amount of the proposed penalty
pending a final commission decision on the violation and the amount of the penalty.
3. If the operator or permittee requests review of a final commission decision under North Dakota
Century Code section 38-14.1-35, the amount of the proposed penalty must continue to be
held in escrow, or the bond must remain in full force and effect, until completion of review.
4. Except as provided in subsection 5, if the operator or permittee does not request review of a
final commission decision under North Dakota Century Code section 38-14.1-35, the following
procedures apply:
a. If the amount of the proposed penalty had been forwarded to the commission to be held
in escrow, the escrow must end and the escrowed funds transferred to the commission in
payment of the penalty; or
b. If a bond has been posted, the operator or permittee shall pay the amount of the penalty
within thirty days after the assessment is mailed or the bond shall be forfeited.
5. If the final commission decision, or of the court on review, results in a reduction or an
elimination of the amount of the proposed penalty, the commission will either refund all or part
of the escrowed amount, with interest at the legal rate from the date of payment into escrow to
the date of refund, or release all or part of the bond.
6. If the operator or permittee had previously forwarded the amount of the proposed penalty to
the commission to be held in escrow and if the final decision of the commission results in an
increase in the amount of the penalty, the operator or permittee shall pay the difference within
thirty days after the assessment is mailed, unless judicial review is requested.
7. If the operator or permittee has failed to file a timely request for a formal hearing under
subsection 1 of North Dakota Century Code section 38-14.1-30, the amount of any civil
penalty will be incorporated in a final order of the commission as provided in subdivision b of
subsection 1 of North Dakota Century Code section 38-14.1-29. The order will require the
operator or permittee to pay the civil penalty within thirty days after the order is mailed.
History: Effective August 1, 1980; amended effective May 1, 1990.
General Authority: NDCC 38-14.1-03
Law Implemented: NDCC 38-14.1-29, 38-14.1-30
### § 69-05.2-28-15. Inspection and enforcement - Surface owner interference.

The surface owner is prohibited from interfering with reclamation procedures as long as the
procedures form a part of a commission-approved reclamation plan.
History: Effective August 1, 1980; amended effective May 1, 1990.
General Authority: NDCC 38-14.1-03
Law Implemented: NDCC 38-14.1-03
### § 69-05.2-28-16. Inspection and enforcement - Individual civil penalty - Notice.

Where appropriate, the commission may assess an individual civil penalty under subsection 6 of
North Dakota Century Code section 38-14.1-32. The commission will serve notice, consistent with
rule 4 of the North Dakota Rules of Civil Procedure for service of a summons and complaint, on each
person to be assessed an individual civil penalty. The notice will include an explanation of the reasons

for the penalty, the amount to be assessed, a copy of any underlying notice of violation and cessation
order, and an opportunity for formal hearing under North Dakota Century Code section 38-14.1-30.
History: Effective May 1, 1992.
General Authority: NDCC 38-14.1-03
Law Implemented: NDCC 38-14.1-32
### § 69-05.2-28-17. Inspection and enforcement - Individual civil penalty - Opportunity for review.

The notice of proposed individual civil penalty assessment issued by the commission will become
final thirty days after service unless:
1. The individual requests a formal hearing under North Dakota Century Code section
38-14.1-30; or
2. The commission and the individual or responsible corporate permittee agree within thirty days
to a schedule or plan for the abatement or correction of the violation, failure, or refusal.
History: Effective May 1, 1992.
General Authority: NDCC 38-14.1-03
Law Implemented: NDCC 38-14.1-32
### § 69-05.2-28-18. Inspection and enforcement - Individual civil penalty - Payment.

1. If a notice of proposed individual civil penalty assessment becomes final in the absence of a
request for formal hearing or abatement agreement, the penalty is due upon issuance of the
final order.
2. If an individual named in a notice of proposed individual civil penalty assessment requests a
formal hearing under North Dakota Century Code section 38-14.1-30, the penalty is due upon
a final order affirming, increasing, or decreasing the proposed penalty.
3. Where the commission and corporate permittee or individual have agreed in writing on a plan
for the abatement of or compliance with the unabated order, an individual named in the notice
may postpone payment until receiving either a final order or written notice that abatement or
compliance is satisfactory and the penalty has been withdrawn.
History: Effective May 1, 1992.
General Authority: NDCC 38-14.1-03
Law Implemented: NDCC 38-14.1-32
### § 69-05.2-28-19. Inspection and enforcement - Inspection of inactive surface coal mining

operations.
The commission will conduct an average of at least one complete inspection per calendar quarter
of each inactive surface coal mining operation. Partial inspections of inactive mines will be conducted
as deemed necessary. For the purposes of this section, an inactive surface coal mining operation is
one for which:
1. Surface coal mining operations have permanently ceased and all disturbed areas have been
reclaimed and vegetation has been established in accordance with the approved reclamation
plan and the lands are not contributing suspended solids to streamflow or runoff outside the
permit area in excess of the requirements set by section 69-05.2-16-04; or
2. The commission has granted partial bond release for the disturbed areas pursuant to
subsection 7 of section 69-05.2-12-12.
History: Effective May 1, 1999.

General Authority: NDCC 38-14.1-03
Law Implemented: NDCC 38-14.1-27
