SECTION 12.692. Procedures for Assessment Conference

(a) The Commission shall arrange for a conference to review the proposed assessment or reassessment, upon written request of the person to whom the notice or order was issued, if the request is received within 15 days from the date the proposed assessment or reassessment is mailed.

(b) Assessment conference procedures shall be as follows:

(1) the Commission shall assign an examiner to hold the assessment conference. The assessment conference shall be held within 60 days from the date of issuance of the proposed assessment or the end of the abatement period, whichever is later;

(2) the Commission shall post notice of the time and place of the conference at the field office closest to the mine at least 5 days before the conference. Any person shall have a right to attend and participate in the conference;

(3) the examiner shall consider all relevant information on the violation. Within 30 days after the conference is held, the examiner shall either:

(A) settle the issues, in which case a settlement agreement shall be prepared and signed by the examiner on behalf of the Commission and by the person assessed; or

(B) affirm, raise, lower, or vacate the penalty; and

(4) an increase or reduction of a proposed civil penalty assessment of more than 25% and more than $500.00 shall not be final and binding on the Commission until approved by the Director of the Surface Mining and Reclamation Division.

(c) The examiner shall promptly serve the person assessed with a notice of his or her action and shall include a worksheet if the penalty has been raised or lowered. The reasons for the examiner's action shall be fully documented in the file.

(d) The form of settlement agreements shall include the following:

(1) if a settlement agreement is entered into, the person assessed will be deemed to have waived all rights to further review of the violation or penalty in question, except as otherwise expressly provided for in the settlement agreement. The settlement agreement shall contain a clause to this effect; and

(2) if full payment of the amount specified in the settlement agreement is not received by the Commission within 30 days after the date of signing, the Commission may enforce the agreement or rescind it and proceed according to subsection (b)(3)(B) of this section within 30 days from the date of the rescission.

(e) The examiner may terminate the conference when he determines that the issues cannot be resolved or that the person assessed is not diligently working toward resolution of the issues.

(f) At formal review proceedings under the Act, no evidence as to statements made or evidence produced by one party at a conference shall be introduced as evidence by another party or to impeach a witness.

Source Note: The provisions of this §12.692 adopted to be effective April 7, 1997, 22 TexReg 3093.