(a) Pattern of violations.
  (1) Except as provided in subsection (b) of this section, the Director of the Surface Mining and Reclamation Division shall issue an order to a permittee requiring the permittee to show cause why the permit and right to mine under the Act should not be suspended or revoked if the Director of the Surface Mining and Reclamation Division determines that a pattern of violations of any requirements of the Act, this chapter (relating to Coal Mining Regulations), or any permit condition required by the Act exists or has existed, and that the violations were caused by the permittee willfully or through unwarranted failure to comply with those requirements or conditions. 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 of the Surface Mining and Reclamation Division may determine that a pattern of violations exists or has existed, based on two or more inspections of the permit area within any 12-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 the Act, this chapter (relating to Coal Mining Regulations), or the permit;
    (B) the number of violations, cited on more than one occasion, of different requirements of the Act, this chapter, the applicable program, or the permit; and
    (C) the extent to which the violations were isolated departures from lawful conduct.
  (3) The Director of the Surface Mining and Reclamation Division shall determine that a pattern of violations exists, if the Director finds that there were 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.
(b) Discretion of the Division Director. The Director of the Surface Mining and Reclamation Division may decline to issue a show cause order, or may vacate an outstanding show cause order, if the Director of the Surface Mining and Reclamation Division finds that, taking into account exceptional factors present in the particular case, it would be demonstrably unjust to issue or to fail to vacate the show cause order. The basis for this finding shall be fully explained and documented in the records of the case.
(c) Public notice requirements. At the same time as the issuance of the order, the Director of the Surface Mining and Reclamation Division shall:
  (1) if practicable, publish notice of the order, including a brief statement of the procedure for intervention in the proceeding, in a newspaper of general circulation in the area of the surface coal mining and reclamation operations; and
  (2) post the notice at the district or field office closest to the area of the surface coal mining and reclamation operations.
(d) Public hearing. Following issuance of a show cause order, the Commission shall hold a public hearing after appropriate written notice of the time, date and place of the hearing. The hearing shall be of record and subject to the APA.
(e) Determination after hearing. Within 60 days after the hearing, the Commission shall issue a written determination as to whether a pattern of violations exists and, if appropriate, an order. If the permit and the permittee's right to mine are revoked or suspended, the permittee shall immediately cease surface coal mining operations on the permit area and shall:
  (1) if revoked, complete reclamation within the time frame specified in the order; or
  (2) if suspended, complete all affirmative obligations to abate all conditions, practices or violations as specified in the order.
(f) Failure to abate. When 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 Director of the Surface Mining and Reclamation Division shall review the permittee's history of violations to determine whether a pattern of violations exists pursuant to this section, and shall issue an order to show cause as appropriate pursuant to §12.680 of this title (relating to Service of Notices of Violation, Cessation Orders, and Show Cause Orders).

Source Note: The provisions of this §12.679 adopted to be effective April 7, 1997, 22 TexReg 3093; amended to be effective December 28, 2020, 45 TexReg 9503