COALEX REPORT 110

	Coalex Report 110

This is the Office of Surface Mining's library of COALEX Research Reports. COALEX is a database of mining and reclamation information, including the Surface Mining Law and regulations, maintained in LEXIS-NEXIS -- a commercial, on-line research service. These reports have been compiled under a cooperative agreement between the Office of Surface Mining and the Interstate Mining Compact Commission, which represents most U.S. coal producing states. The following report includes an analysis of a specific issue requested by a state regulatory authority with responsibility for carrying out the Surface Mining Law. Copies of the research reports and attachments are available to the public, upon request. For additional information, or to obtain copies of the listed attachments, contact Ron Tarquinio by phone at (202) 208-2882 or by e-mail at rtarquin@osmre.gov.

                   
COALEX STATE INQUIRY REPORT - 110
October 19, 1989

G. Milton McCarthy
Assistant Attorney General
Alabama Surface Mining Commission
P.O.B. 2390
Jasper, Alabama 35501

TOPIC: EXTENSION OF THE 90-DAY ABATEMENT PERIOD FOR "GOOD CAUSE SHOWN"

INQUIRY: 30 CFR Sec. 843.12(f) lists five specific circumstances under which an operator may be
entitled to an abatement period beyond 90 days for correcting a violation. 30 U.S.C. Sec.
521(a)(3) provides that an abatement period may be "subsequently extended for good cause
shown". Are the five specific circumstances which may justify an extension beyond 90 days
exclusive or can such extensions be granted on the basis of other "good cause shown"? Locate
any state or federal administrative or judicial decisions that may construe the regulations or any
legislative history or comments that may suggest an answer to the question posed.

SEARCH RESULTS: Research was conducted using the COALEX Library,  the state and federal
case law files and the Federal Register available on LEXIS, and an earlier State Inquiry Report.

Two Interior Office of Hearings and Appeals (OHA) decisions were identified which ruled on the
extension of the 90-day abatement period question. One district court case addresses the "for
good cause shown" language; however, no materials were identified which specifically discuss the
"for good cause shown" language in relation to the five specific extension circumstances
enumerated in 30 CFR Sec. 843.12(f).

OHA and federal cases, legislative history material, comments and Federal Register items and
STATE INQUIRY REPORT - 11 identified during the research are discussed below. Copies are
attached.

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

OHA DECISIONS
PINEVILLE PROPERTIES CORP. v OSMRE, 104 IBLA 258, IBLA 85-735 (September 13, 1988).
"Under section 521(a)(3) of SMCRA and 30 CFR 722.12(d) [and 30 CFR 823.12(c)], [the OSM
inspector] lacked authority to extend the abatement period beyond [90 days], in the absence of
circumstances warranting an extension as set forth in 30 CFR 722.12(e) [30 CFR 823.12(f)]."

"Upon expiration of the 90-day period, OSMRE properly issues a [Cessation Order] if the
permittee has taken no action to abate the violation."


UNIVERSAL COAL CO., 3 IBSMA 218, IBSMA 81-43 (July 28, 1981).
   The court concluded that SMCRA Sec. 521(a)(3) and 30 CFR 722.12(d) establish clearly that
the "total time for abatement...shall not exceed 90 days" and that OSM has no "authority to
extend the abatement period in a notice of violation beyond 90 days." 


OLD HOME MANOR, INC., 3 IBSMA 241, IBSMA 81-29 (August 13, 1981).
"Where OSM provides the maximum time allowable under 30 CFR 722.12(d) for the abatement of
a violation, an Administrative Law Judge may not effectively extend this time by granting
temporary relief from the abatement requirement."

"Under present regulations a permittee's inability to comply with a proper abatement requirement
cannot be the basis for extending the abatement period beyond 90 days."


FEDERAL COURT DECISIONS 
(Copies of these cases are included as part of STATE INQUIRY REPORT - 11)
IN RE: SURFACE MINING REGULATION LITIGATION, 456 F.Supp 1301 (D.D.C. August 24, 1978).
   The court determined that "[b]oth the House and Senate Reports support the Secretary's
interpretation of SMCRA Sec. 521(a)(3)." 

[NOTE: No passages from these reports were included in the ruling; however, an excerpt from S.
Rep. 95-128, 95th Cong., 1st Sess. 91 (May 10, 1977) is attached at the end of the case.] 

"In addition to being ambiguous on its face, reading the provision in question in accordance with
the statute as a whole, the court cannot accept plaintiffs' view" that the language of the provision
permitted extensions beyond the 90-day maximum period for abatement.
  

PENNSYLVANIA COAL MINING ASSOC. v WATT, 562 F.Supp 741 (M.D.Pa 1983).
   The court upheld the Secretary's determination that the Pennsylvania regulation which stated
that additional time beyond the 90 day abatement period may granted "for the achievement of
the standards of environmental protection" was too general.

"The federal regulation is quite specific and it can be seen that there is little if any room for
subjective determination. Five circumstances are outlined in which extensions may be considered
and we have no difficulty in concluding that Pennsylvania's broad regulation exceeded the scope
of the federal provision."


LEGISLATIVE HISTORY
STATE INQUIRY REPORT - 11 which discusses the legislative history is attached.


COMMENTS
Comments on the proposed permanent program regulations from industry and environmental
groups are attached.


FEDERAL REGISTER ENTRIES 
47 FR 35620 (AUGUST16, 1982) Final Rules and 46 FR 58464 (DECEMBER 1, 1981) Proposed
Rules.
   The revision of 30 CFR Sec. 843.12(d) "removes the mandatory issuance of a cessation order to
a permittee who fails to meet an interim abatement step imposed in a notice of violation."


46 FR 41702 (AUGUST 17, 1981) Final Rules and 46 FR 22902 (APRIL 22, 1981) Proposed Rules.
[NOTE: 46 FR 41701 is part of SIR -11]
"These revisions identify those limited circumstances where abatement times in excess of 90 days
will be permitted and set forth the conditions that will apply to these situations."


ATTACHMENTS
A.   PINEVILLE PROPERTIES CORP. v OSMRE, 104 IBLA 258, IBLA 85-735 (September 13,
     1988).
B.   UNIVERSAL COAL CO., 3 IBSMA 218, IBSMA 81-43 (July 28, 1981).
C.   OLD HOME MANOR, INC., 3 IBSMA 241, IBSMA 81-29 (August 13, 1981).
D.   STATE INQUIRY REPORT - 11 which includes:
     1.   Excerpts from hearing before Subcommittee on Public Lands and Resources of the
          Committee on Energy and Natural Resources, United States Senate (1977).
     2.   46 FR 41702 (AUGUST 17, 1981).
     3.   Excerpts from IN RE: SURFACE MINING REGULATION LITIGATION, 456 F.Supp.
          1301 (August 24, 1978) and S. Rep. 95-128, 95th Cong., 1st Sess. 91 (May 10,
          1977).
     4.   PENNSYLVANIA COAL MINING ASSOC. v WATT, 562 F.Supp 741 (M.D.Pa 1983).
E.   Comments on the proposed permanent program regulations.
F.   47 FR 35620 (AUGUST 16, 1982) Final Rules.
G.   46 FR 58464 (DECEMBER 1, 1981) Proposed Rules.
H.   46 FR 41702 (AUGUST 17, 1981) Final Rules 


Research conducted by: Joyce Zweben Scall

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