1. (a) Upon a finding that a pattern of violations exists under AS 27.21.240(f), the commissioner will issue the permittee a notice of violation· and an order described in AS 27.21.240(f) to show cause. For the purpose of AS 27.21.240(f) and this subsection,

   1. (1) a violation is caused willfully if the person who authorized, ordered or carried out an act or omission that resulted in either a violation or the failure to abate or correct a violation acted

      1. (A) intentionally, voluntarily, or consciously; and
      2. (B) with intentional disregard of or plain indifference to legal requirements;
   2. (2) a violation is unwarranted if the failure of the permittee to prevent the occurrence of a violation of a permit or a requirement of AS 27.21 or this chapter is due to indifference, lack of diligence, or lack of reasonable care, or if the failure to abate a violation of the permit or a requirement of AS 27.21 or this chapter is due to indifference, lack of diligence, or lack of reasonable care; the commissioner will attribute a violation by an operator on behalf of the permittee to the permittee unless the permittee establishes that the operator committed an act of deliberate sabotage.

2. (b) The commissioner 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 circumstances including

   1. (1) the number of violations, cited on more than one occasion, of the same or related requirements of AS 27.21, this chapter, or the permit;
   2. (2) the number of violations, cited on more than one occasion, of different requirements of AS 27.21, this chapter, or the permit; and
   3. (3) the extent to which the violations were unrelated departures from lawful conduct.
3. (c) The commissioner will promptly review the history of violations of any permittee cited for violations of the same or related requirements of AS 27.21, this chapter, or the permit during three or more inspections of the permit area within any 12-month period. If, after review, the commissioner determines that a pattern of violations exists or has existed, the commissioner will issue an order under (a) of this section.
4. (d) The commissioner may decline to issue a show cause order or vacate an outstanding show cause order if the commissioner finds, taking into account exceptional factors present in the particular case, that it would be demonstrably unjust to issue or fail to vacate the show cause order. The commissioner will fully explain and document the basis for this finding in the records of the case.
5. (e) After issuance of an order under this section and if the permittee requests a hearing under AS 27.21.240(f), the commissioner will provide notice in accordance with AS 27.21.240(g) and 11 AAC 90.907(d), including a brief statement of the procedure for any known interested persons to intervene in the public hearing.
6. (f) Following issuance of a show cause order and at the request of the person to whom the order was issued, the commissioner will hold a public hearing upon 30 days' written notice of the time, date, and place of the hearing to the permittee and any other persons who requested a hearing under AS 27.21.240(c). The hearing is subject to AS 44.62.330 - 44.62.630.
7. (g) Not later than 60 days after the hearing or issuance of the order to show cause, the commissioner will issue a written decision, order, and the reasons for both, in accordance with AS 27.21.240(g) concerning the suspension or revocation of the permit. If the commissioner suspends or revokes the permit, the permittee shall immediately cease operations and complete the reclamation as required under AS 27.21.240(g). Additionally, if the commissioner suspends the permit, the permittee shall complete all affirmative obligations to abate all conditions, practices, or violations as specified in the order.
8. (h) If a permittee fails to abate a violation contained in a notice of violation or a cessation order under AS 27.21.240(a) or (b) within the abatement period set in the notice or order or as subsequently extended, the commissioner will review the permittee's history of violations to determine whether a pattern of violations exists under this section and will issue an order to show cause if appropriate.

(Eff. 5/2/83, Register 84; am 7/7/2022, Register 243)