FEDERAL REGISTER: 45 FR 67500 (October 10, 1980)

DEPARTMENT OF THE INTERIOR 
AGENCY: Office of Surface Mining Reclamation ad Enforcement (OSM)

30 CFR Part 722 
Interim Regulatory Program  

ACTION: Final rules.  

SUMMARY: The Office of Surface Mining (OSM) proposed rules on July 1, 1980 (45 FR 44326), to clarify OSM's
authority to impose administrative sanctions against permittees found to be in violation of any requirement of the
Surface Mining Control and Reclamation Act of 1977 (Act) or the regulations promulgated thereunder and in effect
during the interim regulatory program.  The Office requested written comments and requested interested persons to
testify at a public hearing held in Washington, D.C. on July 22, 1980.  These final rules are the result of all
comments received.

EFFECTIVE DATE: November 10, 1980.  

FOR FURTHER INFORMATION CONTACT: Neil Stoloff, OSM, U.S. Department of the Interior, Washington,
D.C. 20240, (202) 343-4352.  

SUPPLEMENTARY INFORMATION:  

BACKGROUND  

     These revisions amend OSM's interim program regulations, which implement sections 521(a)(2) and (3) of
the Act, to make clear OSM's authority to take enforcement action against any permittee who has violated or is
violating "any requirement of this Act," 30 USC 1271.  Prior to this rulemaking, the regulations required issuance of
a cessation order in every instance where OSM finds "conditions or practices, or violations of applicable
performance standards which create an imminent danger to the health and safety of the public" (30 CFR 722.11), and
the issuance of a notice of violation in every instance where the agency finds a violation "which is not covered by
Sec. 722.11" (30 CFR 722.12).  

     The Interior Board of Surface Mining Appeals (Board) construed Secs. 722.11 and 722.12 in Eastover
Mining Co. v. OSM (Eastover), 2 IBSMA 70 (May 16, 1980).  The Board ruled that these two sections must be
construed in relation to one another; thus, the word "violations" in Sec. 722.12 referred to "violations of applicable
performance standards" as set out in Sec. 722.11.  In Eastover, an inspector issued a notice of violation to a
permittee when she was prohibited from taking photographs of an apparent violation at the site, due to an alleged
company policy limiting picture-taking to company employees.  She subsequently issued a cessation order to the
company when it failed to abate the violation [interference with a Federal inspection] within the 24-hour abatement
period set in the notice of violation.  By virtue of its construction of Secs. 722.11 and 722.12, the Board held in
Eastover that interference with a Federal inspection, which is not a "performance standard" violation, is not
administratively sanctionable.  The Board's holding implies that OSM's authority to issue notices of violation and
cessation orders may be limited to those instances where OSM  finds violations of applicable performance standards. 
Other requirements and obligations of operators, not governed by performance standards, would be outside the scope
of OSM's enforcement authority.  

     Since, as noted above, sections 521(a)(2) and (3) of the Act mandate the taking of enforcement action
whenever an inspector finds a permittee in violation of "any requirement of this Act," 30 USC 1271, OSM believes
the intent of Congress to be that the administrative sanctions and procedures of the Act apply more broadly than is
implied in Eastover. This is reflected in 30 CFR 843.11 and 843.12, which are the permanent program regulations
implementing sections 521(a)(2) and (3) of the Act, and which were published at 44 FR 15458-59 (March 13, 1979). 
Sections 843.11 and 843.12 make clear OSM's authority to take enforcement action against a permittee whenever
OSM finds any violation of requirements of the Act or applicable regulations.  OSM is amending the language
"violations of applicable performances standards" (30 CFR 722.11(a) and (b)), and "a violation which is not covered
by Sec. 722.11 of this part" (30 CFR 722.12(a)) to read, in all instances, "a violation of any requirement of the Act,
or any requirement of this Chapter applicable during the interim regulatory program."  

     It should be noted that the rules as promulgated here differ from those proposed at 45 FR 44326 (July 1,
1980) in that OSM is revising 30 CFR 722.11(b) in addition to 30 CFR 722.11(a) and 722.12(a).  The phrase
"violation of applicable performance standards" from 30 CFR 722.11(b) is revised to read "violations of any
requirement of the Act, or any requirement of this Chapter applicable during the interim regulatory program."
Furthermore, minor typographical errors have been corrected.  These additional revisions simply ensure that the
regulations will remain internally consistent.  

     In the preamble to the proposed rules, OSM requested written and oral comments from all interested
persons, Although no person submitted oral comments, those written comments received and the dispositions of each
are described below.  

COMMENTS ON THE PROPOSED RULES  

1.  Several comments were received which fully supported OSM's decision to clarify its enforcement authority for
non-performance standard violations.  These commenters generally asserted that OSM has no alternative but to fulfill
the congressional mandate contained in sections 521(a)(2) and (3) of the Act, and that these amendments to the
agency's regulations accomplish this.  

2.  One commenter objected to the proposed amendments on the grounds that OSM has authority to impose
administrative sanctions only where there is a violation of a performance standard.  The commenter argued that
section 521(a)(3) of the Act provides that an inspection must take place before a notice of violation can be issued by
OSM.  Where an inspection is prevented, the commenter argued, an administrative sanction is not proper because
section 521(c) of the Act provides OSM with a civil remedy for immediate relief in the case of interference wit' an
inspection.  Another commenter similarly noted that section 704 of the Act provides OSM with an appropriate
criminal remedy in the case of interference with a Federal inspection.  

     OSM disagrees with these comments.  As was pointed out in the preamble to the proposed rules, 45 FR
44326, Congress, through sections 521(a)(2) and (3) of the Act, required OSM to take enforcement action when it
finds a violation of any requirement of the Act.  The phrase "any requirement" comprehends more than violations
directly related to performance standards. Interference with an inspection need not totally prevent that inspection
from taking place, but may only hamper a certain aspect of the inspection (e.g., as in Eastover, the gathering of
photographic evidence) from peacefully proceeding. A notice of violation in such an instance can be deemed to have
its basis in an inspection accomplished to the fullest degree possible.  While the Act does provide OSM with
criminal and civil relief from interference with an inspection, such provisions do not conflict with the congressional
mandate that OSM issue a citation when it finds any violation of the Act or regulations.  The proposed amendments
are complementary to, and do not supersede, the civil and criminal remedies contained in sections 521(c) and 704 of
the Act.  

{67501} 
3.  One commenter suggested that OSM take this opportunity to specifically detail all obligations and standards to be
met by coal mine operators.  The commenter pointed out that, by seeming to broaden the discretionary authority of
its inspectors, OSM would antagonize and alienate the coal mining industry.  The commenter additionally expressed
concern that the proposed amendments would engender abuse of discretion by inspectors.  

     OSM disagrees with these comments.  The scope of activities which take place at an active minesite is so
broad that to delineate the specific obligations of operators with regard to each type of activity at every moment of
operation would be an impossible undertaking.  OSM believes that te decision as to appropriate enforcement action
must be left to the reasoned judgment of the Secretary's authorized representative.  OSM inspectors are hired on the
basis of their professional education and experience, and are further trained by the agency to exercise their best
professional judgment in enforcing the specific standards and environmental concerns addressed in the Act and the
regulations. Since these amendments serve to clarify, rather than to widen or otherwise change, the ways in which
OSM may implement the enforcement authority granted it in sections 521(a)(2) and (3) of the Act, OSM has no
reason to anticipate that the adoption of these rules will encourage inspectors to abuse the discretion they have
necessarily been given for the effective performance of their duties.  

     The Department of the Interior has determined that this document is not a significant rule and does not
require a Regulatory Analysis under Executive Order 12044 and 43 CFR Part 14.  

     Section 501(a) of the Surface Mining Reclamation and Control Act of 1977 exempts this action from the
Environmental Impact Statement requirement of the National Environmental Policy Act of 1969.  

DRAFTING INFORMATION  

     These regulations were drafted primarily by Neil Stoloff, Enforcement Specialist, Division of Enforcement.  

Dated: October 6, 1980.  
Joan M. Davenport, Assistant Secretary, Energy and Minerals.  

Accordingly, Secs. 722.11(a) and (b), and 722.12(a) of 30 CFR are revised to read as follows:  

(Secs. 201, 501, and 502, Pub. L. 95-87, 91 Stat. 445 (30 U.S.C. 1201))  

Sec. 722.11 Imminent dangers and harms.  

(a) If an authorized representative of the Secretary finds conditions or practices, or violations of any requirement of
the Act, or any requirement of this Chapter applicable during the interim regulatory program, which create an
imminent danger to the health or safety of the public, the authorized representative shall immediately order a
cessation of surface coal mining and reclamation operations or that portion of the operation relevant to the condition,
practice, or violation.  

(b) If an authorized representative of the Secretary finds conditions or practices, or violations of any requirement of
the Act, or any requirement of this Chapter applicable during the interim regulatory program, which are causing, or
can reasonably be expected to cause, significant, imminent environmental harm to land, air, or water resources, the
authorized representative shall immediately order a cessation of surface coal mining and reclamation operations or
that portion of the operation relevant to the condition, practice, or violation.  

Sec. 722.12 Non-imminent dangers or harms.  

(a) If an authorized representative of the Secretary finds conditions or practices, or violations of any requirement of
the Act, or of any requirement of this Chapter applicable during the interim regulatory program, but such violations
do not create an imminent danger to the health or safety of the public, or are not causing and cannot reasonably be
expected to cause significant, imminent environmental harm to land, air, or water resources, the authorized
representative shall issue a notice of violation fixing a reasonable time for abatement.  

[FR Doc. 80-31768 Filed 10-9-80; 8:45 am]  
BILLING CODE 4310-05-M