Parts 840.1 - 847.16
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Subchapter L Parts 840.1 - 847.16 |
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TITLE 30 -- MINERAL RESOURCES
CHAPTER VII -- OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT,
DEPARTMENT OF THE INTERIOR
SUBCHAPTER L -- PERMANENT PROGRAM INSPECTION AND ENFORCEMENT PROCEDURES
PART 840 -- STATE REGULATORY AUTHORITY: INSPECTION AND ENFORCEMENT
Sec.
840.1 Scope
840.10 Information collection
840.11 Inspections by State regulatory authority
840.12 Right of entry
840.13 Enforcement authority
840.14 Availability of records
840.15 Public participation
840.16 Compliance conference
AUTHORITY: Pub. L. 95-87, 30 U.S.C. 1201 et seq. , and Pub. L. 100-34, unless otherwise noted.
SOURCE: 47 FR 35633, Aug. 16, 1982, unless otherwise noted.
[For the list of Final Rules affecting these sections, as published in the Federal Register, see
"Regulation History - Changes to the Regulations Parts 700-890, 3/13/79 - 6/30/00".]
30 CFR Sec. 840.1 Scope.
This part sets forth the minimum requirements for the Secretary's approval of the provisions for inspection and
enforcement by a State of surface coal mining and reclamation operations and of coal exploration operations which
substantially disturb the natural land surface, where a State is the regulatory authority under an approved State
program.
30 CFR Sec. 840.10 Information collection.
(a) The collections of information contained in part 840 have been approved by the Office of Management and
Budget under 44 U.S.C. 3501 et seq. and assigned clearance number 1029-0051. The information is being collected
by States for use in assessing penalties as evidence in enforcement cases and as an inspection management record.
The obligation to respond is required to obtain a benefit in accordance with 30 U.S.C. 1201 et seq.
(b) Public reporting burden for this information is estimated to average 3.7 hours per response, including the time
for the reviewing instructions, searching existing data sources, gathering and maintaining the data needed and
completing and reviewing the collection of information. Send comments regarding this burden estimate or any other
aspect of this collection of information, including suggestions for reducing the burden, to the Information Collection
Clearance Officer, 1951 Constitution Ave, NW, Room 640, NC, Washington DC 20240; and the Office of
Management and Budget, Paperwork Reduction Project 1029-0051, Washington, DC 20503.
[59 FR 60883, Nov. 28, 1994]
30 CFR Sec. 840.11 Inspections by State regulatory authority.
(a) The State regulatory authority shall conduct an average of at least one partial inspection per month of each
active surface coal mining and reclamation operation under its jurisdiction, and shall conduct such partial inspections
of each inactive surface coal mining and reclamation operation under its jurisdiction as are necessary to ensure
effective enforcement of the approved State program. A partial inspection is an on-site or aerial review of a person's
compliance with some of the permit conditions and requirements imposed under an approved State program.
(b) The State regulatory authority shall conduct an average of at least one complete inspection per calendar quarter
of each active or inactive surface coal mining and reclamation operation under its jurisdiction. A complete inspection
is an on-site review of a person's compliance with all permit conditions and requirements imposed under the State
program, within the entire area disturbed or affected by the surface coal mining and reclamation operations.
( c) The State regulatory authority shall conduct such inspections of coal explorations as are necessary to ensure
compliance with the approved State program.
(d)(1) Aerial inspections shall be conducted in a manner which reasonably ensures the identification and
documentation of conditions at each surface coal mining and reclamation site inspected.
(2) Any potential violation observed during an aerial inspection shall be investigated on site within three days:
provided, that any indication of a condition, practice or violation constituting cause for the issuance of a cessation
order under section 521(a)(2) of the Act shall be investigated on site immediately, And provided further, That an on-
site investigation of a potential violation observed during an aerial inspection shall not be considered to be an
additional partial or complete inspection for the purposes of paragraphs (a) and (b) of this section.
(e) The inspections required under paragraphs (a), (b), ( c) and (d) of this section shall:
(1) Be carried out on an irregular basis, so as to monitor compliance at all operations, including those which
operate nights, weekends, or holidays;
(2) Occur without prior notice to the permittee or any agent or employee of such permittee, except for necessary
on-site meetings; and
(3) Include the prompt filing of inspection reports adequate to enforce the requirements of the approved State
program.
(f) For the purposes of this section, an inactive surface coal mining and reclamation operation is one for which:
(1) The State regulatory authority has secured from the permittee the written notice provided for under Sec.
816.131(b) or Sec. 817.131(b) of this chapter; or
(2) Reclamation Phase II as defined at Sec. 800.40 of this chapter has been completed and the liability of the
permittee has been reduced by the State regulatory authority in accordance with the State program.
(g) Abandoned site means a surface coal mining and reclamation operation for which the regulatory authority has
found in writing that.
(1) All surface and underground coal mining and reclamation activities at the site have ceased;
(2) The regulatory authority or the Office has issued at least one notice of violation or the initial program
equivalent, and either:
(i) Is unable to serve the notice despite diligent efforts to do so; or
(ii) The notice was served and has progressed to a failure-to-abate cessation order or the initial program
equivalent;
(3) The regulatory authority:
(i) Is taking action to ensure that the permittee and operator, and owners and controllers of the permittee and
operator, will be precluded from receiving future permits while violations continue at the site; and
(ii) Is taking action pursuant to section 518(e), 518(f), 521(a)(4) or 521( c) of the Act or their regulatory program
counterparts to ensure that abatement occurs or that there will not be a recurrence of the failure-to-abate, except
where after evaluating the circumstances it concludes that further enforcement offers little or no likelihood of
successfully compelling abatement or recovering any reclamation costs; and
(4) Where the site is, or was, permitted and bonded:
(i) The permit has either expired or been revoked; and
(ii) The regulatory authority has initiated and is diligently pursuing forfeiture of, or has forfeited, any available
performance bond.
(h) In lieu of the inspection frequency established in paragraphs (a) and (b) of this section, the regulatory authority
shall inspect each abandoned site on a set frequency commensurate with the public health and safety and
environmental considerations present at each specific site, but in no case shall the inspection frequency be set at less
than one complete inspection per calendar year.
(1) In selecting an alternate inspection frequency authorized under the paragraph above, the regulatory authority
shall first conduct a complete inspection of the abandoned site and provide public notice under paragraph (h)(2) of
this section. Following the inspection and public notice, the regulatory authority shall prepare and maintain for
public review a written finding justifying the alternative inspection frequency selected. This written finding shall
justify the new inspection frequency by affirmatively addressing in detail all of the following criteria:
(i) How the site meets each of the criteria under the definition of an abandoned site under paragraph (g) of this
section and thereby qualifies for a reduction in inspection frequency;
(ii) Whether, and to what extent, there exist on the site impoundments, earthen structures or other conditions that
pose, or may reasonably be expected to ripen into, imminent dangers to the health or safety of the public or
significant environmental harms to land, air, or water resources;
(iii) The extent to which existing impoundments or earthen structures were constructed and certified in accordance
with prudent engineering designs approved in the permit;
(iv) The degree to which erosion and sediment control is present and functioning;
(v) The extent to which the site is located near or above urbanized areas, communities, occupied dwellings,
schools and other public or commercial buildings and facilities;
(vi) The extent of reclamation completed prior to abandonment and the degree of stability of unreclaimed areas,
taking into consideration the physical characteristics of the land mined and the extent of settlement or revegetation
that has occurred naturally with them; and
(vii) Based on a review of the complete and partial inspection report record for the site during at least the last two
consecutive years, the rate at which adverse environmental or public health and safety conditions have and can be
expected to progressively deteriorate.
(2) The public notice and opportunity to comment required under paragraph (h)(1) of this section shall be
provided as follows:
(i) The regulatory authority shall place a notice in the newspaper with the broadest circulation in the locality of the
abandoned site providing the public with a 30-day period in which to submit written comments.
(ii) The public notice shall contain the permittee's name, the permit number, the precise location of the land
affected, the inspection frequency proposed, the general reasons for reducing the inspection frequency, the bond
status of the permit, the telephone number and address of the regulatory authority where written comments on the
reduced inspection frequency may be submitted, and the closing date of the comment period.
(Pub. L. 95-87, 30 U.S.C. 1201 et seq.)
[47 FR 35633, Aug. 16, 1983, as amended at 48 FR 44781, Sept. 30, 1983; 53 FR 24882, June 30, 1988; 56 FR
25039, June 3, 1991; 59 FR 60883, Nov. 28, 1994]
30 CFR Sec. 840.12 Right of entry.
(a) Within its jurisdiction, the State regulatory authority shall have authority that grants its representatives a right
of entry to, upon, and through any coal exploration or surface coal mining and reclamation operation without
advance notice upon presentation of appropriate credentials. No search warrant shall be required, except that a State
may provide for its use with respect to entry into a building.
(b) The State regulatory authority shall have authority that authorizes its representatives to inspect any monitoring
equipment or method of exploration or operation and to have access to and copy any records required under the
approved State program. This authority shall provide that the representatives may exercise such rights at reasonable
times, without advance notice, upon presentation of appropriate credentials. No search warrant shall be required,
except that a State may provide for its use with respect to entry into a building.
30 CFR Sec. 840.13 Enforcement authority.
(a) The civil and criminal penalty provisions of each State program shall contain penalties which are no less
stringent than those set forth in section 518 of the Act and shall be consistent with 30 CFR part 845.
(b) The enforcement provisions of each State program shall contain sanctions which are no less stringent than
those set forth in section 521 of the Act and shall be consistent with Secs. 843.11, 843.12, 843.13, and 843.23 and
subchapters G and J of this chapter.
( c) The procedural requirements of each State program relating to the penalties and sanctions mentioned in
paragraphs (a) and (b) of this section shall be the same as or similar to those provided in sections 518 and 521 of the
Act, respectively, and consistent with parts 843 and 845 and subchapters G and J of this chapter.
(d) Nothing in the Act or this part shall be construed as eliminating any additional enforcement rights or
procedures which are available under State law to a State regulatory authority, but which are not specifically
enumerated in sections 518 and 521 of the Act.
[47 FR 35633, Aug. 16, 1982; 59 FR 54356, Oct. 28, 1994]
30 CFR Sec. 840.14 Availability of records.
(a) Each State regulatory authority shall make available to the Director, upon request, copies of all documents
relating to applications for and approvals of existing, new, or revised coal exploration approvals or surface coal
mining and reclamation operations permits and all documents relating to inspection and enforcment actions.
(b) Copies of all records, reports, inspection materials, or information obtained by the regulatory authority shall be
made immediately available to the public in the area of mining until at least five years after expiration of the period
during which the subject operation is active or is covered by any portion of a reclamation bond so that they are
conveniently available to residents of that area, except --
(1) As otherwise provided by Federal law; and
(2) For information not required to be made available under Secs. 772.15 and 773.6(d) of this chapter or
paragraph (d) of this section.
( c) The State regulatory authority shall ensure compliance with paragraph (b) by either:
(1) Making copies of all records, reports, inspection materials, and other subject information available for public
inspection at a Federal, State or local government office in the county where the mining is occurring or proposed to
occur; or,
(2) At the regulatory authority's option and expense, providing copies of subject information promptly by mail at
the request of any resident of the area where the mining is occuring or is proposed to occur, Provided, That the
regulatory authority shall maintain for public inspection, at a Federal, State or local government office in the county
where the mining is occurring or proposed to occur, a description of the information available for mailing and the
procedure for obtaining such information.
(d) In order to protect preparation for hearings and enforcement proceedings, the Director and the State regulatory
authority may enter into agreements regarding procedures for the special handling of investigative and enforcement
reports and other such materials.
[47 FR 35633, Aug. 16, 1982, as amended at 48 FR 44781, Sept. 30, 1983; 65 FR 79582, 79670, Dec. 19, 2000]
[EFFECTIVE DATE NOTE: 65 FR 79582, 79670, Dec. 19, 2000, amended paragraph (b)(2), effective Jan. 18,
2001. ]
30 CFR Sec. 840.15 Public participation.
Each State program shall provide for public participation in enforcement of the State program consistent with that
provided by 30 CFR parts 842, 843 and 845 and 43 CFR part 4.
30 CFR Sec. 840.16 Compliance conference.
(a) The State program may provide for compliance conferences between a permittee and an authorized
representative of the regulatory authority as described in paragraphs (b) through (e) of this section.
(b) A permittee may request an on-site compliance conference with an authorized representative of the regulatory
authority to review the compliance status of any condition or practice proposed at any coal exploration or surface
coal mining and reclamation operation. Any such conference shall not constitute an inspection within the meaning of
section 517 of the Act and Sec. 840.11.
( c) The State regulatory authority may accept or refuse any request to conduct a compliance conference under
paragraph (b).
(d) The authorized representative at any compliance conference shall review such proposed conditions and
practices in order to advise whether any such condition or practice may become a violation of any requirement of the
Act, the approved State program, or any applicable permit or exploration approval.
(e) Neither the holding of a compliance conference under this section nor any opinion given by the authorized
representative at such a conference shall affect:
(1) Any rights or obligations of the regulatory authority or of the permittee with respect to any inspection, notice
of violation or cessation order, whether prior or subsequent to such compliance conference; or
(2) The validity of any notice of violation or cessation order issued with respect to any condition or practice
reviewed at the compliance conference.
SUBCHAPTER L -- PERMANENT PROGRAM INSPECTION AND ENFORCEMENT PROCEDURES
PART 842 -- FEDERAL INSPECTIONS AND MONITORING
Sec.
842.1 Scope
842.11 Federal inspections and monitoring
842.12 Requests for Federal inspections
842.13 Right of entry
842.14 Review of adequacy and completeness of inspections
842.15 Review of decision not to inspect or enforce
842.16 Availability of records
AUTHORITY: Pub. L. 95-87, 30 U.S.C. 1201 et seq. , and Pub. L. 100-34
SOURCE: 47 FR 35635, Aug. 16, 1982, unless otherwise noted.
[For the list of Final Rules affecting these sections, as published in the Federal Register, see
"Regulation History - Changes to the Regulations Parts 700-890, 3/13/79 - 6/30/00".]
30 CFR Sec. 842.1 Scope.
This part sets forth general procedures governing Federal inspections under the permanent regulatory program.
30 CFR Sec. 842.11 Federal inspections and monitoring.
(a) Authorized representatives of the Secretary shall conduct inspections of surface coal mining and reclamation
operations as necessary --
(1) To monitor and evaluate the administration of approved State programs. Such monitoring and evaluation
inspections shall be conducted jointly with the State regulatory authority where practical and where the State so
requests;
(2) To develop or enforce Federal programs and Federal lands programs;
(3) To enforce those requirements and permit conditions imposed under a State program not being enforced by a
State, under section 504(b) or section 521(b) of the Act, part 733 of this chapter, or as provided in this section; and
(4) To determine whether any notice of violation or cessation order issued during an inspection authorized under
this section has been complied with.
(b)(1) An authorized representative of the Secretary shall immediately conduct a Federal inspection:
(i) When the authorized representative has reason to believe on the basis of information available to him or her
(other than information resulting from a previous Federal inspection) that there exists a violation of the Act, this
chapter, the applicable program, or any condition of a permit or an exploration approval, or that there exists any
condition, practice, or violation which creates an imminent danger to the health or safety of the public or is causing
or could reasonably be expected to cause a significant, imminent environmental harm to land, air or water resources
and --
(ii)(A) There is no State regulatory authority or the Office is enforcing the State program under section 504(b) or
521(b) of the Act and part 733 of this chapter; or
(B)(1) The authorized representative has notified the state regulatory authority of the possible violation and more
than ten days have passed since notification and the State regulatory authority has failed to take appropriate action to
cause the violation to be corrected or to show good cause for such failure and to inform the authorized representative
of its response. After receiving a response from the State regulatory authority, before inspection, the authorized
representative shall determine in writing whether the standards for appropriate action or good cause for such failure
have been met. Failure by the State regulatory authority to respond within the ten days shall not prevent the
authorized representative from making the determination, and will constitute a waiver of the state regulatory
authority's right to request review under paragraph (b)(i)(iii) of this section.
(2) For purposes of this subchapter, an action or response by a State regulatory authority that is not arbitrary,
capricious, or an abuse of discretion under the state program shall be considered "appropriate action" to cause a
violation to be corrected or "good cause" for failure to do so.
(3) Appropriate action includes enforcement or other action authorized under the State program to cause the
violation to be corrected.
(4) Good cause includes: (i) Under the State program, the possible violation does not exist; (ii) the State
regulatory authority requires a reasonable and specified additional time to determine whether a violation of the State
program does exist; (iii) the State regulatory authority lacks jurisdiction under the State program over the possible
violation or operation; (iv) the State regulatory authority is precluded by an administrative or judicial order from an
administrative body or court of competent jurisdiction from acting on the possible violation, where that order is
based on the violation not existing or where the temporary relief standards of section 525( c) or 525( c) of the Act
have been met; or (v) with regard to abandoned sites as defined in Sec. 840.11(g) of this chapter, the State regulatory
authority is diligently pursuing or has exhausted all appropriate enforcement provisions of the State program.
( C) The person supplying the information supplies adequate proof that an imminent danger to the public health
and safety or a significant, imminent environmental harm to land, air or water resources exists and that the State
regulatory authority has failed to take appropriate action.
(iii)(A) The authorized representative shall immediately notify the state regulatory authority in writing when in
response to a ten-day notice the state regulatory authority fails to take appropriate action to cause a violation to be
corrected or to show good cause for such failure. If the State regulatory authority disagrees with the authorized
representative's written determination, it may file a request, in writing, for informal review of that written
determination by the Deputy Director. Such a request for informal review may be submitted to the appropriate
OSMRE field office or to the office of the Deputy Director in Washington, DC. The request must be received by
OSMRE within 5 days from receipt of OSMRE's written determination.
(B) Unless a cessation order is required under Sec. 843.11, or unless the state regulatory authority has failed to
respond to the ten-day notice, no Federal inspection action shall be taken or notice of violation issued regarding the
ten-day notice until the time to request informal review as provided in Sec. 842.11(b)(1)(iii)(A) has expired or, if
informal review has been requested, until the Deputy Director has completed such review.
( C) After reviewing the written determination of the authorized representative and the request for informal review
submitted by the State regulatory authority, the Deputy Director shall, within 15 days, render a decision on the
request for informal review. He shall affirm, reverse, or modify the written determination of the authorized
representative. Should the Deputy Director decide that the State regulatory authority did not take appropriate action
or show good cause, he shall immediately order a Federal inspection or reinspection. The Deputy Director shall
provide to the State regulatory authority and to the permittee a written explanation of his decision, and if the ten-day
notice resulted from a request for a Federal inspection under Sec. 842.12 of this part, he shall send written
notification of his decision to the person who made the request.
(2) An authorized representative shall have reason to believe that a violation, condition or practice exists if the
facts alleged by the informant would, if true, constitute a condition, practice or violation referred to in paragraph
(b)(1)(i) of this section.
( c) The Office, when acting as the regulatory authority under a Federal program or a Federal lands program and
when enforcing a State program, in whole or in part, pursuant to section 504(b) of section 521(b) of the Act and part
733 of this chapter, shall conduct inspections of all coal exploration and surface coal mining and reclamation
operations under its jurisdiction. The Office shall --
(1) With respect to active surface coal mining and reclamation operations:
(i) Conduct an average of at least one partial inspection per month of each active surface coal mining and
reclamation operation. A partial inspection is an on-site or aerial review of a person's compliance with some of the
permit requirements and conditions imposed under an applicable program.
(A) Aerial inspections shall be conducted in a manner which reasonably ensures the identification and
documentation of conditions at each surface coal mining and reclamation site inspected.
(B) Any potential violation observed during an aerial inspection shall be investigated on site within three calendar
days: Provided, That any indication of a condition, practice or violation constituting cause for issuance of a cessation
order under section 521(a)(2) shall be investigated on site immediately, And provided further, That an on-site
investigation of a potential violation observed during an aerial inspection shall not be considered to be an additional
partial or complete inspection for the purposes of paragraphs (a) and (b) of this section.
(ii) Conduct an average of at least one complete inspection per calendar quarter of each active surface coal mining
and reclamation operation. A complete inspection is an on-site review of a person's compliance with all permit
conditions and requirements imposed under the applicable program within the entire area disturbed or affected by
surface coal mining and reclamation operations.
(2) With respect to inactive surface coal mining and reclamation operations:
(i) Conduct an average of at least one complete inspection per calendar quarter of each inactive surface coal
mining and reclamation operation; and
(ii) Conduct such partial inspections of each inactive surface coal mining and reclamation operation as are
necessary to ensure effective enforcement of the regulatory program and the Act.
(iii) For purposes of this section, an inactive surface coal mining and reclamation operation is one for which --
(A) The Office has secured from the permittee the written notice provided for under Secs. 816.131(b) or
817.131(b) of this chapter; or,
(B) Reclamation Phase II as defined at Sec. 800.40 of this chapter has been completed.
(3) With respect to coal exploration operations, conduct such inspections as are necessary to ensure compliance
with the Act by those coal explorations which substantially disturb the natural land surface.
(d) The inspections required under paragraphs (a), (b), and ( c) of this section shall:
(1) Be carried out on an irregular basis, so as to monitor compliance at all operations, including those which
operate nights, weekends, or holidays;
(2) Occur without prior notice to the permittee or any agent or employee of such permittee, except for necessary
on-site meetings; and
(3) Include the prompt filing of inspection reports adequate to enforce the requirements of the applicable program.
(e) Abandoned site means a surface coal mining and reclamation operation for which the Office has found in
writing that:
(1) All surface and underground coal mining and reclamation activities at the site have ceased;
(2) The Office has issued at least one notice of violation or the initial program equivalent, and either:
(i) Is unable to serve the notice despite diligent efforts to do so; or
(ii) The notice was served and has progressed to a failure-to-abate cessation order or the initial program
equivalent;
(3) The Office:
(i) Is taking action to ensure that the permittee and operator, and owners and controllers of the permittee and
operator, will be precluded from receiving future permits while violations continue at the site; and
(ii) Is taking action pursuant to sections 518(e), 518(f), 521(a)(4) or 521( c) of the Act or their regulatory program
counterparts to ensure that abatement occurs or that there will not be a recurrence of the failure-to-abate, except
where after evaluating the circumstances it concludes that further enforcement offers little or no likelihood of
successfully compelling abatement or recovering any reclamation costs; and
(4) Where the site is, or was, permitted or bonded:
(i) The permit has either expired or been revoked; and
(ii) The Office has initiated and is diligently pursuing forfeiture of, or has forfeited, any available performance
bond.
(f) In lieu of the inspection frequency established in paragraph ( c) of this section, the office shall inspect each
abandoned site on a set frequency commensurate with the public health and safety and environmental considerations
present at each specific site, but in no case shall the inspection frequency be set at less than one complete inspection
per calendar-year.
(1) In selecting an alternate inspection frequency authorized under the paragraph above, the office shall first
conduct a complete inspection of the abandoned site and provide public notice under paragraph (f)(2) of this section.
Following the inspection and public notice, the office shall prepare and maintain for public review a written finding
justifying the alternative inspection frequency selected. This written finding shall justify the new inspection
frequency by affirmatively addressing in detail all of the following criteria:
(i) How the site meets each of the criteria under the definition of an abandoned site under paragraph (e) of this
section and thereby qualifies for a reduction inspection frequency;
(ii) Whether, and to what extent, there exist on the site impoundments, earthen structures or other conditions that
pose, or may reasonably be expected to ripen into, imminent dangers to the health or safety of the public or
significant environmental harms to land, air or water resources;
(iii) The extent to which existing impoundments or earthen structures were constructed and certified in accordance
with prudent engineering designs approved in the permit;
(iv) The degree to which erosion and sediment control is present and functioning;
(v) The extent to which the site is located near or above urbanized areas, communities, occupied dwellings,
schools and other public or commercial buildings and facilities;
(vi) The extent of reclamation completed prior to abandonment and the degree of stability of unreclaimed areas,
taking into consideration the physical characteristics of the land mined and the extent of settlement or revegetation
that has occurred naturally with time; and
(vii) Based on a review of the complete and partial inspection report record for the site during at least the last two
consecutive years, the rate at which adverse environmental or public health and safety conditions have and can be
expected to progressively deteriorate.
(2) The public notice and opportunity to comment required under paragraph (f)(1) of this section shall be provided
as follows:
(i) The office shall place a notice in the newspaper with the broadest circulation in the locality of the abandoned
site providing the public with a 30-day period in which to submit written comments.
(ii) The public notice shall contain the permittee's name, the permit number, the precise location of the land
affected, the inspection frequency proposed, the general reasons for reducing the inspection frequency, the bond
status of the permit, the telephone number and address of the office where written comments on the reduced
inspection frequency may be submitted, and the closing date of the comment period.
(Pub. L. 95-87, 30 U.S.C. 1201 et seq.)
[47 FR 35635, Aug. 16, 1982, as amended at 48 FR 44781, Sept. 30, 1983; 53 FR 24882, June 30, 1988; 53 FR
26744, July, 14, 1988; 59 FR 60883, Nov. 28, 1994]
30 CFR Sec. 842.12 Requests for Federal inspections.
(a) A person may request a Federal inspection under Sec. 842.11(b) by furnishing to an authorized representative
of the Secretary a signed, written statement (or an oral report followed by a signed, written statement) giving the
authorized representative reason to believe that a violation, condition or practice referred to in Sec. 842.11(b)(1)(i)
exists and that the State regulatory authority, if any, has been notified, in writing, of the existence of the violation,
condition or practice. The statement shall set forth a phone number and address where the person can be contacted.
(b) The identity of any person supplying information to the Office relating to a possible violation or imminent
danger or harm shall remain confidential with the Office, if requested by that person, unless that person elects to
accompany the inspector on the inspection, or unless disclosure is required under the Freedom of Information Act (5
U.S.C. 552) or other Federal law.
( c) If a Federal inspection is conducted as a result of information provided to the Office by a person as described
in paragraph (a) of this section, the person shall be notified as far in advance as practicable when the inspection is to
occur and shall be allowed to accompany the authorized representative of the Secretary during the inspection. Such
person has a right of entry to, upon and through the coal exploration or surface coal mining and reclamation
operation about which he or she supplied information, but only if he or she is in the presence of and is under the
control, direction and supervision of the authorized representative while on the mine property. Such right of entry
does not include a right to enter buildings without consent of the person in control of the building or without a search
warrant.
(d) Within ten days of the Federal inspection or, if there is no Federal inspection, within 15 days of receipt of the
person's written statement, the Office shall send the person the following.
(1) If a Federal inspection was made, a description of the enforcement action taken, which may consist of copies
of the Federal inspection report and all notices of violation and cessation orders issued as a result of the inspection,
or an explanation of why no enforcement action was taken;
(2) If no Federal inspection was conducted, an explanation of the reason why; and
(3) An explanation of the person's right, if any, to informal review of the action or inaction of the Office under
Sec. 842.15.
(e) The Office shall give copies of all materials in paragraphs (d)(1) and (d)(2) of this section within the time
limits specified in those paragraphs to the person alleged to be in violation, except that the name of the person
supplying information shall be removed unless disclosure of his or her identity is permitted under paragraph (b) of
this section.
30 CFR Sec. 842.13 Right of entry.
(a) Each authorized representative of the Secretary conducting a Federal inspection under Sec. 842.11:
(1) Shall have a right of entry to, upon, and through any coal exploration or surface coal mining and reclamation
operation without advance notice or a search warrant, upon presentation of appropriate credentials;
(2) May, at reasonable times and without delay, have access to and copy any records, and inspect any monitoring
equipment or method of exploration or operation required under the applicable program; and,
(3) Shall have a right to gather physical and photographic evidence to document conditions, practices or violations
at the site.
(b) No search warrant shall be required with respect to any activity under paragraph (a) of this section, except that
a search warrant may be required for entry into a building.
30 CFR Sec. 842.14 Review of adequacy and completeness of inspections.
Any person who is or may be adversely affected by a surface coal mining and reclamation operation or a coal
exploration operation may notify the Director or his or her designee in writing of any alleged failure on the part of
the Office to make adequate and complete or periodic Federal inspections. The notification shall include sufficient
information to create a reasonable belief that the regulations of this part are not being complied with and to
demonstrate that the person is or may be adversely affected. The Director or his or her designee shall within 15 days
of receipt of the notification determine whether adequate and complete or periodic inspections have been made. The
Director or his or her designee shall furnish the complainant with a written statement of the reasons for such
determination and the actions, if any, taken to remedy the noncompliance.
30 CFR Sec. 842.15 Review of decision not to inspect or enforce.
(a) Any person who is or may be adversely affected by a coal exploration or surface coal mining and reclamation
operation may ask the Director or his or her designee to review informally an authorized representative's decision not
to inspect or take appropriate enforcement action with respect to any violation alleged by that person in a request for
Federal inspection under Sec. 842.12. The request for review shall be in writing and include a statement of how the
person is or may be adversely affected and why the decision merits review.
(b) The Director or his or her designee shall conduct the review and inform the person, in writing, of the results of
the review within 30 days of his or her receipt of the request. The person alleged to be in violation shall also be given
a copy of the results of the review, except that the name of the person who is or may be adversely affected shall not
be disclosed unless confidentiality has been waived or disclosure is required under the Freedom of Information Act
or other Federal law.
( c) Informal review under this section shall not affect any right to formal review under section 525 of the Act or
to a citizen's suit under section 520 of the Act.
(d) Any determination made under paragraph (b) of this section shall constitute a decision of OSM within the
meaning of 43 CFR 4.1281 and shall contain a right of appeal to the Office of Hearings and Appeals in accordance
with 43 CFR part 4.
"Regulation History - Changes to the Regulations Parts 700-890, 3/13/79 - 6/30/00".]
30 CFR Sec. 843.1 Scope.
This part sets forth general rules regarding enforcement by the Office of the Act, this chapter, any Federal
program, the Federal lands program, State programs being enforced by the Office in whole or in part under section
504(b) or 521(b) of the Act and part 733 of this chapter and (in limited circumstances) under Sec. 842.11 or Sec.
842.12 of this chapter, and all conditions of permits and coal exploration approvals or permits imposed under any of
these programs, the Act, or this chapter.
30 CFR Sec. 843.5 Definitions.
As used in this part, the following terms have the specified meanings:
Unwarranted failure to comply means the failure of a permittee to prevent the occurrence of any violation of his or
her permit or any requirement of the Act due to indifference, lack of diligence, or lack of reasonable care, or the
failure to abate any violation of such permit of the Act due to indifference, lack of diligence, or lack of reasonable
care.
[47 FR 35637, Aug. 16, 1982; 65 FR 79582, 79670, Dec. 19, 2000]
[EFFECTIVE DATE NOTE: 65 FR 79582, 79670, Dec. 19, 2000, removed the definition of "Willful violation,"
effective Jan. 18, 2001.]
30 CFR Sec. 843.11 Cessation orders.
(a)(1) An authorized representative of the Secretary shall immediately order a cessation of surface coal mining and
reclamation operations or of the relevant portion thereof, if he or she finds, on the basis of any Federal inspection,
any condition or practice, or any violation of the Act, this chapter, any applicable program, or any condition of an
exploration approval or permit imposed under any such program, the Act, or this chapter which:
(i) Creates an imminent danger to the health or safety of the public; or
(ii) Is causing or can reasonably be expected to cause significant, imminent environmental harm to land, air, or
water resources.
(2) Surface coal mining operations conducted by any person without a valid surface coal mining permit constitute
a condition or practice which causes or can reasonably be expected to cause significant imminent environmental
harm to land, air, or water resources unless such operations:
(i) Are an integral, uninterrupted extension of previously permitted operations, and the person conducting such
operations has filed a timely and complete application for a permit to conduct such operations; or
(ii) Were conducted lawfully without a permit under the interim regulatory program because no permit has been
required for such operations by the State in which the operations were conducted.
(3) If the cessation ordered under paragraph (a)(1) of this section will not completely abate the imminent danger or
harm in the most expeditious manner physically possible, the authorized representative of the Secretary shall impose
affirmative obligations on the permittee to abate the imminent danger or significant environmental harm. The order
shall specify the time by which abatement shall be accomplished.
(b)(1) When a notice of violation has been issued under Sec. 843.12(a) and the permittee fails to abate the
violation within the abatement period fixed or subsequently extended by the authorized representative, the authorized
representative of the Secretary shall immediately order a cessation of coal exploration or surface coal mining and
reclamation operations, or of the portion relevant to the violation.
(2) A cessation order issued under this paragraph (b) shall require the permittee to take all steps the authorized
representative of the Secretary deems necessary to abate the violations covered by the order in the most expeditious
manner physically possible.
( c) A cessation order issued under paragraphs (a) or (b) of this section shall be in writing, signed by the
authorized representative who issues it, and shall set forth with reasonable specificity: (1) The nature of the
condition, practice or violation; (2) the remedial action or affirmative obligation required, if any, including interim
steps, if appropriate; (3) the time established for abatement, if appropriate; and (4) a reasonable description of the
portion of the coal exploration or surface coal mining and reclamation operation to which it applies. The order shall
remain in effect until the condition, practice or violation resulting in the issuance of the cessation order has been
abated or until vacated, modified or terminated in writing by an authorized representative of the Secretary, or until
the order expires pursuant to section 521(a)(5) of the Act and Sec. 843.15.
(d) Reclamation operations and other activities intended to protect public health and safety and the environment
shall continue during the period of any order unless otherwise provided in the order.
(e) An authorized representative of the Secretary may modify, terminate or vacate a cessation order for good
cause, and may extend the time for abatement if the failure to abate within the time previously set was not caused by
lack of diligence on the part of the permittee.
(f) An authorized representative of the Secretary shall terminate a cessation order by written notice to the
permittee when he or she determines that all conditions, practices or violations listed in the order have been abated.
Termination shall not affect the right of the Office to assess civil penalties for those violations under part 845 of this
chapter.
(g) Within 60 days after issuing a cessation order, OSM will notify in writing the permittee, the operator, and any
person who has been listed or identified by the applicant, permittee, or OSM as an owner or controller of the
operation, as defined in Sec. 701.5 of this chapter.
[47 FR 35637, Aug. 16, 1982, as amended at 54 FR 8992, Mar. 2, 1989; 54 FR 13823, Apr. 5, 1989; 62 FR 19450,
19461, Apr. 21, 1997; 65 FR 79582, 79670, Dec. 19, 2000]
[EFFECTIVE DATE NOTE: 65 FR 79582, 79670, Dec. 19, 2000, revised paragraph (g), effective Jan. 18, 2001.]
30 CFR Sec. 843.12 Notices of violation.
(a)(1) An authorized representative of the Secretary shall issue a notice of violation if, on the basis of a Federal
inspection carried out during the enforcement of a Federal program or Federal lands program or during Federal
enforcement of a State program under section 504(b) or 521(b) of the Act and part 733 of this chapter, he finds a
violation of the Act, this chapter, the applicable program or any condition of a permit or an exploration approval
imposed under such program, the Act, or this Chapter, which does not create an imminent danger or harm for which
a cessation order must be issued under Sec. 843.11.
(2) When, on the basis of any Federal inspection other than one described in paragraph (a)(1) of this section, an
authorized representative of the Secretary determines that there exists a violation of the Act, the State program, or
any condition of a permit or exploration approval required by the Act which does not create an imminent danger or
harm for which a cessation order must be issued under Sec. 843.11, the authorized representative shall give a written
report of the violation to the State and to the permittee so that appropriate action can be taken by the State. Where
the State fails within ten days after notification to take appropriate action to cause the violation to be corrected, or to
show good cause for such failure, subject to the procedures of Sec. 842.11(b)(1)(iii) of this chapter, the authorized
representative shall reinspect and, if the violation continues to exist, shall issue a notice of violation or cessation
order, as appropriate. No additional notification to the State by the Office is required before the issuance of a notice
of violation if previous notification was given under Sec. 842.11(b)(1)(ii)(B) of this chapter.
(b) A notice of violation issued under this section shall be in writing signed by the authorized representative who
issues it, and shall set forth with reasonable specificity:
(1) The nature of the violation;
(2) The remedial action required, which may include interim steps;
(3) A reasonable time for abatement, which may include time for accomplishment of interim steps; and
(4) A reasonable description of the portion of the coal exploration or surface coal mining and reclamation
operation to which it applies.
( c) An authorized representative of the Secretary may extend the time set for abatement or for accomplishment of
an interim step, if the failure to meet the time previously set was not caused by lack of diligence on the part of the
permittee. The total time for abatement under a notice of violation, including all extensions, shall not exceed 90 days
from the date of issuance, except upon a showing by the permittee that it is not feasible to abate the violation within
90 calendar days due to one or more of the circumstances in paragraph (f) of this section. An extended abatement
date pursuant to this section shall not be granted when the permittee's failure to abate within 90 days has been caused
by a lack of diligence or intentional delay by the permittee in completing the remedial action required.
(d)(1) If the permittee fails to meet the time set for abatement the authorized representative shall issue a cessation
order under Sec. 843.11(b).
(2) If the permittee fails to meet the time set for accomplishment of any interim step the authorized representative
may issue a cessation order under Sec. 843.11(b).
(e) An authorized representative of the Secretary shall terminate a notice of violation by written notice to the
permittee when he determines that all violations listed in the notice of violation have been abated. Termination shall
not affect the right of the Office to assess civil penalties for those violations under 30 CFR part 845.
(f) Circumstances which may qualify a surface coal mining operation for an abatement period of more than 90
days are:
(1) Where the permittee of an ongoing permitted operation has timely applied for and diligently pursued a permit
renewal or other necessary approval of designs or plans but such permit or approval has not been or will not be
issued within 90 days after a valid permit expires or is required, for reasons not within the control of the permittee;
(2) Where there is a valid judicial order precluding abatement within 90 days as to which the permittee has
diligently pursued all rights of appeal and as to which he or she has no other effective legal remedy;
(3) Where the permittee cannot abate within 90 days due to a labor strike;
(4) Where climatic conditions preclude abatement within 90 days, or where, due to climatic conditions, abatement
within 90 days clearly would cause more environmental harm than it would prevent; or
(5) Where abatement within 90 days requires action that would violate safety standards established by statute or
regulation under the Mine Safety and Health Act of 1977.
(g) Whenever an abatement time in excess of 90 days is permitted, interim abatement measures shall be imposed
to the extent necessary to minimize harm to the public or the environment.
(h) If any of the conditions in paragraph (f) of this section exists, the permittee may request the authorized
representative to grant an abatement period exceeding 90 days. The authorized representative shall not grant such an
abatement period without the concurrence of the Director or his or her designee and the abatement period granted
shall not exceed the shortest possible time necessary to abate the violation. The permittee shall have the burden of
establishing by clear and convincing proof that he or she is entitled to an extension under the provisions of Sec.
843.12( c) and (f). In determining whether or not to grant an abatement period exceeding 90 days the authorized
representative may consider any relevant written or oral information from the permittee or any other source. The
authorized representative shall promptly and fully document in the file his or her reasons for granting or denying the
request. The authorized representative's immediate supervisor shall review this document before concurring in or
disapproving the extended abatement date and shall promptly and fully document the reasons for his or her
concurrence or disapproval in the file.
(i) Any determination made under paragraph (h) of this section shall contain a right of appeal to the Office of
Hearings and Appeals in accordance with 43 CFR 4.1281 and the regulations at 43 CFR part 4.
(j) No extension granted under paragraph (h) of this section may exceed 90 days in length. Where the condition or
circumstance which prevented abatement within 90 days exists at the expiration of any such extension, the permittee
may request a further extension in accordance with the procedures of paragraph (h) of this section.
[47 FR 35637, Aug. 16, 1982, as amended at 53 FR 26744, July 14, 1988]
30 CFR Sec. 843.13 Suspension or revocation of permits: Pattern of violations.
(a)(1) The Director shall issue an order to a permittee requiring him or her to show cause why his or her permit
and right to mine under the Act should not be suspended or revoked, if the Director determines that a pattern of
violations of any requirements of the Act, this chapter, the applicable program, 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. The Director shall promptly file a copy of any order to show cause with the Office
of Hearings and Appeals and the State regulatory authority, if any.
(2) The Director may determine that a pattern of violations exists or has existed, based upon two or more Federal
inspections of the permit area within any 12-month period, after considering the circumstances, including:
(i) The number of violations, cited on more than one occasion, of the same or related requirements of the Act, this
chapter, the applicable program, or the permit;
(ii) 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
(iii) The extent to which the violations were isolated departures from lawful conduct.
(3) The Director shall promptly review the history of violations of any permittee who has been cited for violations
of the same or related requirements of the Act, this chapter, the applicable program, or the permit during three or
more Federal inspections of the permit area within any 12-month period. If, after such review, the Director
determines that a pattern of violations exists or has existed, he or she shall issue an order to show cause as provided
in paragraph (a)(1) of this section.
(4)(i) In determining the number of violations within any 12-month period, the Director shall consider only
violations issued as a result of a Federal inspection carried out--
(A) During enforcement of a Federal program or a Federal lands program;
(B) During the interim program and before the applicable State program was approved pursuant to section 502 or
504 of the Act; or
( C) During Federal enforcement of a State program in accordance with section 504(b) or 521(b) of the Act.
(ii) The Director may not consider violations issued as a result of inspections other than those mentioned in
paragraph (a)(4)(i) of this section in determining whether to exercise his or her discretion under paragraph (a)(2) of
this section, except as evidence of the willful or unwarranted nature of the permittee's failure to comply.
(b) If the permittee files an answer to the show cause order and requests a hearing under 43 CFR part 4, a public
hearing shall be provided as set forth in that part. The Office of Hearings and Appeals shall give thirty days written
notice of the date, time and place of the hearing to the Director, the permittee, the State regulatory authority, if any,
and any intervenor. Upon receipt of the notice, the Director shall publish it, if practicable, in a newspaper of general
circulation in the area of the surface coal mining and reclamation operations, and shall post it at the State or field
office closest to those operations.
( c) Within sixty days after the hearing, and within the time limits set forth in 43 CFR part 4, the Office of
Hearings and Appeals shall issue a written determination as to whether a pattern of violations exists and, if
appropriate, an order. If the Office of Hearings and Appeals revokes or suspends the permit and the permittee's right
to mine under the Act, the permittee shall immediately cease surface coal mining operations on the permit area and
shall:
(1) If the permit and the right to mine under the Act are revoked, complete reclamation within the time specified in
the order; or
(2) If the permit and the right to mine under the Act are suspended, complete all affirmative obligations to abate
all conditions, practices, or violations as specified in the order.
(d) Whenever 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 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 Sec. 845.15(b)(2) of this chapter.
30 CFR Sec. 843.14 Service of notices of violation, cessation orders, and show cause orders.
(a) A notice of violation, cessation order, or show cause order shall be served on the person to whom it is directed
or his or her designated agent promptly after issuance, as follows:
(1) By tendering a copy at the coal exploration or surface coal mining and reclamation operation to the designated
agent or to the individual who, based upon reasonable inquiry, appears to be in charge. If no such individual can be
located at the site, a copy may be tendered to any individual at the site who appears to be an employee or agent of the
person to whom the notice or order is issued. Service shall be complete upon tender of the notice or order and shall
not be deemed incomplete because of refusal to accept.
(2) As an alternative to paragraph (a)(1) of this section, service may be made by sending a copy of the notice or
order by certified mail or by hand to the permittee or his or her designated agent, or by any means consistent with the
rules governing service of a summons and complaint under rule 4 of the Federal Rules of Civil Procedure. Service
shall be complete upon tender of the notice or order or of the certified mail and shall not be deemed incomplete
because of refusal to accept.
(b) Designation by any person of an agent for service of notices and orders shall be made in writing to the
appropriate State or field office of the Office.
( c) The Office shall furnish copies of notices and orders to the State regulatory authority, if any, promptly after
their issuance. The Office may furnish copies to any person having an interest in the coal exploration, surface coal
mining and reclamation operation, or the permit area.
[47 FR 35637, Aug. 16, 1982, as amended at 56 FR 28445, June 20, 1991]
30 CFR Sec. 843.15 Informal public hearing.
(a) Except as provided in paragraphs (b) and ( c) of this section, a notice of violation or cessation order which
requires cessation of mining, expressly or by necessary implication, shall expire within 30 days after it is served
unless an informal public hearing has been held within that time. The hearing shall be held at or reasonably close to
the mine site so that it may be viewed during the hearing or at any other location acceptable to the Office and the
person to whom the notice or order was issued. The Office of Surface Mining office nearest to the mine site shall be
deemed to be reasonably close to the mine site unless a closer location is requested and agreed to by the Office.
Expiration of a notice or order shall not affect the Office's right to assess civil penalties with respect to the period
during which the notice or order was in effect. No hearing will be required where the condition, practice, or violation
in question has been abated or the hearing has been waived. For purposes of this section only, "mining" includes (1)
extracting coal from the earth or from coal waste piles and transporting it within or from the permit area, and (2) the
processing, cleaning, concentrating, preparing or loading of coal where such operations occur at a place other than at
a mine site.
(b) A notice of violation or cessation order shall not expire as provided in paragraph (a) of this section if the
informal public hearing has been waived, or if, with the consent of the person to whom the notice or order was
issued, the informal public hearing is held later than 30 days after the notice or order was served. For purposes of
this subsection:
(1) The informal public hearing will be deemed waived if the person to whom the notice or order was issued:
(i) Is informed, by written notice served in the manner provided in paragraph (b)(2) of this section, that he or she
will be deemed to have waived an informal public hearing unless he or she requests one within 30 days after service
of the notice; and
(ii) Fails to request an informal public hearing within that time.
(2) The written notice referred to in paragraph (b)(1)(i) of this section shall be delivered to such person by an
authorized representative or sent by certified mail to such person no later than 5 days after the notice or order is
served on such person.
(3) The person to whom the notice or order is issued shall be deemed to have consented to an extension of the time
for holding the informal public hearing if his or her request is received on or after the 21st day after service of the
notice or order. The extension of time shall be equal to the number of days elapsed after the 21st day.
( c) The Office shall give as much advance notice as is practicable of the time, place, and subject matter of the
informal public hearing to:
(1) The person to whom the notice or order was issued;
(2) Any person who filed a report which led to that notice or order; and
(3) The State regulatory authority, if any.
(d) The Office shall also post notice of the hearing at the State or field office closest to the mine site and, where
practicable, publish it in a newspaper of general circulation in the area of the mine.
(e) Section 554 of Title 5 of the United States Code, regarding requirements for formal adjudicatory hearings,
shall not govern informal public hearings. An informal public hearing shall be conducted by a representative of the
Office, who may accept oral or written arguments and any other relevant information from any person attending.
(f) Within five days after the close of the informal public hearing, the Office shall affirm, modify, or vacate the
notice or order in writing. The decision shall be sent to--
(1) The person to whom the notice or order was issued;
(2) Any person who filed a report which led to the notice or order; and
(3) The State regulatory authority, if any.
(g) The granting or waiver of an informal public hearing shall not affect the right of any person to formal review
under section 518(b), 521(a)(4), or 525 of the Act.
(h) The person conducting the hearing for the Office shall determine whether or not the mine site should be
viewed during the hearing. In making this determination the only consideration shall be whether a view of the mine
site will assist the person conducting the hearing in reviewing the appropriateness of the enforcement action or of the
required remedial action.
30 CFR Sec. 843.16 Formal review of citations.
(a) A person issued a notice of violation or cessation order under Sec. 843.11 or Sec. 843.12, or a person having
an interest which is or may be adversely affected by the issuance, modification, vacation or termination of a notice or
order, may request review of that action by filing an application for review and request for hearing under 43 CFR
part 4, within 30 days after receiving notice of the action.
(b) The filing of an application for review and request for a hearing under this Section shall not operate as a stay
of any notice or order, or of any modification, termination or vacation of either.
30 CFR Sec. 843.17 Failure to give notice and lack of information.
No notice of violation, cessation order, show cause order, or order revoking or suspending a permit may be
vacated for failure to give the notice to the State regulatory authority required under Sec. 842.11(b)(1)(ii)(B) of this
chapter or because it is subsequently determined that the Office did not have information sufficient, under Secs.
842.11(b)(1) and 842.11(b)(2) of this chapter, to justify an inspection.
30 CFR Sec. 843.18 Inability to comply.
(a) No cessation order or notice of violation issued under this part may be vacated because of inability to comply.
(b) Inability to comply may not be considered in determining whether a pattern of violations exists.
( c) Unless caused by lack of diligence, inability to comply may be considered only in mitigation of the amount of
civil penalty under part 845 of this chapter and of the duration of the suspension of a permit under Sec. 843.13( c).
30 CFR Sec. 843.20 Compliance conference.
(a) A permittee may request an on-site compliance conference with an authorized representative to review the
compliance status of any condition or practice proposed at any coal exploration or surface coal mining and
reclamation operation. Any such conference shall not constitute an inspection within the meaning of section 517 of
the Act and Sec. 842.11.
(b) The Office may accept or refuse any request to conduct a compliance conference under paragraph (a). Where
the Office accepts such a request, reasonable notice of the scheduled date and time of the compliance conference
shall be given to the permittee.
( c) The authorized representative at any compliance conference shall review such proposed conditions and
practices as the permittee may request in order to determine whether any such condition or practice may become a
violation of any requirement of the Act of any applicable permit or exploration approval.
(d) Neither the holding of a compliance conference under this section nor any opinion given by the authorized
representative at such a conference shall affect:
(1) Any rights or obligations of the Office or of the permittee with respect to any inspection, notice of violation or
cessation order, whether prior or subsequent to such conference; or
(2) The validity of any notice of violation or cessation order issued with respect to any condition or practice
reviewed at the compliance conference.
30 CFR Sec. 843.21 Procedures for improvidently issued State permits.
(a) Initial notice. If we, OSM, on the basis of any information available to us, including information submitted by
any person, have reason to believe that a State-issued permit meets the criteria for an improvidently issued permit
under Sec. 773.21 of this chapter, or the State regulatory program equivalent, and the State has failed to take
appropriate action on the permit under the State regulatory program equivalents of Secs. 773.21 through 773.23 of
this chapter, we must --
(1) Issue a notice, by certified mail, to the State, to you, the permittee, and to any person providing information
under paragraph (a) of this section. The notice will state in writing the reasons for our belief that your permit was
improvidently issued. The notice also will request the State to take appropriate action, as specified in paragraph (b)
of this section, within 10 days.
(2) Post the notice at our office closest to the permit area and on the AVS Office Internet home page (Internet
address: http://www.avs.osmre.gov).
(b) State response. Within 10 days after receiving notice under paragraph (a) of this section, the State must
demonstrate to us in writing that either --
(1) The permit does not meet the criteria of Sec. 773.21 of this chapter or the State regulatory program equivalent;
(2) The State is in compliance with the State regulatory program equivalents of Secs. 773.21 through 773.23 of
this chapter; or
(3) The State has good cause for not complying with the State regulatory program equivalents of Secs. 773.21
through 773.23 of this chapter. For purposes of this section, good cause has the same meaning as in Sec.
842.11(b)(1)(ii)(B)(4) of this chapter, except that good cause does not include the lack of State program equivalents
of Secs. 773.21 through 773.23 of this chapter.
( c) Notice of Federal inspection. If we find that the State has failed to make the demonstration required by
paragraph (b) of this section, we must initiate a Federal inspection under paragraph (d) of this section to determine if
your permit was improvidently issued under the criteria in Sec. 773.21 of this chapter or the State regulatory program
equivalent. We must also --
(1) Issue a notice to you and the State by certified mail. The notice will state in writing the reasons for our finding
under this section and our intention to initiate a Federal inspection.
(2) Post the notice at our office closest to the permit area and on the AVS Office Internet home page (Internet
address: http://www.avs.osmre.gov).
(3) Notify any person who provides information under paragraph (a) of this section that leads to a Federal
inspection that he or she may accompany the inspector on any inspection of the minesite.
(d) Federal inspection and written finding. No less than 10 days but no more than 30 days after providing notice
under paragraph ( c) of this section, we will conduct an inspection and make a written finding as to whether your
permit was improvidently issued under the criteria in Sec. 773.21 of this chapter. In making that finding, we will
consider all available information, including information submitted by you, the State, or any other person. We will
post that finding at our office closest to the permit area and on the AVS Office Internet home page (Internet address:
http://www.avs.osmre.gov). If we find that your permit was improvidently issued, we must issue a notice to you and
the State by certified mail. The notice will state in writing the reasons for our finding under this section.
(e) Federal enforcement. If we find that your permit was improvidently issued under paragraph (d) of this section,
we must --
(1) Issue a notice of violation to you or your agent consistent with Sec. 843.12(b) of this part and provide
opportunity for a public hearing under Secs. 843.15 and 843.16.
(2) Issue a cessation order to you or your agent consistent with Sec. 843.11( c), if a notice of violation issued
under paragraph (e)(1) is not remedied under paragraph (f) of this section within the abatement period, and provide
opportunity for a public hearing under Secs. 843.15 and 843.16.
(f) Remedies to notice of violation or cessation order. Upon receipt of information from any person concerning a
notice of violation or cessation order issued under paragraph (e) of this section, we will review the information and --
(1) Vacate the notice or order if it resulted from an erroneous conclusion under this section; or
(2) Terminate the notice or order if --
(i) The violation has been abated or corrected to the satisfaction of the agency with jurisdiction over the violation;
(ii) You or your operator no longer own or control the relevant operation;
(iii) The violation is the subject of a good faith administrative or judicial appeal (unless there is an initial judicial
decision affirming the violation, and that decision remains in force);
(iv) The violation is the subject of an abatement plan or payment schedule that is being met to the satisfaction of
the agency with jurisdiction over the violation; or
(v) You are pursuing a good faith challenge or administrative or judicial appeal of the relevant ownership or
control listing or finding (unless there is an initial judicial decision affirming the listing or finding, and that decision
remains in force).
(g) No civil penalty. We will not assess a civil penalty for a notice of violation issued under this section.
[54 FR 18463, Apr. 28, 1989; 62 FR 19450, 19461, Apr. 21, 1997; 65 FR 79582, 79670, Dec. 19, 2000]
[EFFECTIVE DATE NOTE: 65 FR 79582, 79670, Dec. 19, 2000, revised this section, effective Jan. 18, 2001.]
30 CFR Sec. 843.22 Enforcement actions at abandoned sites.
The Office may refrain from issuing a notice of violation or cessation order for a violation at an abandoned site, as
defined in Sec. 842.11(e) of this chapter, if abatement of the violation is required under any previously issued notice
or order.
[53 FR 24882, June 30, 1988]
30 CFR Sec. 843.25 Energy Policy Act enforcement in States with approved State programs.
(a) State-by-State determinations. By July 31, 1995, OSM will determine for each State with an approved State
regulatory program whether:
(1) Direct Federal enforcement of the Energy Policy Act and implementing Federal regulations will occur under
paragraph (b) of this section with respect to some or all surface coal mining operations in each State, or
(2) The procedures of Secs. 843.11 and 843.12(a)(2) will apply to State enforcement of the Energy Policy Act, or
(3) A combination of direct Federal enforcement and State enforcement will occur.
(4) Before making this determination, OSM will consult with each affected State and provide an opportunity for
public comment. OSM will publish its determination in the Federal Register.
(b) Interim Federal enforcement. (1) If OSM determines under paragraph (a) that direct Federal enforcement is
necessary, Secs. 817.41(j), 817.121( c)(2), and 817.121( c)(4) of this chapter will apply to each underground mining
operation subject to that determination that is conducted in a State with an approved State regulatory program.
(2) If OSM determines under paragraph (a) of this section that direct Federal enforcement is necessary, the
provisions of Sec. 843.12(a)(2) will not apply to direct Federal enforcement actions under this paragraph (b). When,
on the basis of any Federal inspection under this paragraph, an authorized representative determines that a violation
of Sec. 817.41(j) or Sec. 817.121( c)(2) exists, the authorized representative must issue a notice of violation or
cessation order, as appropriate.
(3) This paragraph (b) will remain effective in a State with an approved State regulatory program until the State
adopts, and OSM approves, under Part 732 of this chapter, provisions consistent with Secs. 817.41(j) and 817.121(
c)(2) of this chapter. After these provisions are approved, this paragraph will remain effective only for violations of
Secs. 817.41(j) and 817.121( c)(2) that are not regulated by the State regulatory authority.
[60 FR 16750, Mar. 31, 1995]
SUBCHAPTER L -- PERMANENT PROGRAM INSPECTION AND ENFORCEMENT PROCEDURES
PART 845 -- CIVIL PENALTIES
Sec.
845.1 Scope
845.2 Objective
845.11 How assessments are made
845.12 When penalty will be assessed
845.13 Point system for penalties
845.14 Determination of amount of penalty
845.15 Assessment of separate violations for each day
845.16 Waiver of use of formula to determine civil penalty
845.17 Procedures for assessment of civil penalties
845.18 Procedures for assessment conference
845.19 Request for hearing
845.20 Final assessment and payment of penalty
845.21 Use of civil penalties for reclamation
AUTHORITY: 30 U.S.C. 1201 et seq., Pub. L. 100-34, Pub. L. 100-202, Pub. L. 100-446, Pub. L. 101-410, and
Pub. L. 104-134.
SOURCE: 47 FR 35640, Aug. 16, 1982, unless otherwise noted.
[For the list of Final Rules affecting these sections, as published in the Federal Register, see
"Regulation History - Changes to the Regulations Parts 700-890, 3/13/79 - 6/30/00".]
30 CFR Sec. 845.1 Scope.
This part covers the assessment of civil penalties under section 518 of the Act with respect to cessation orders and
notices of violation issued under part 843 (Federal Enforcement), except for the assessment of individual civil
penalties under section 518(f), which is covered in part 846.
[53 FR 3675, Feb. 8, 1988]
30 CFR Sec. 845.2 Objective.
Civil penalties are assessed under section 518 of the Act and this part to deter violations and to ensure maximum
compliance with the terms and purposes of the Act on the part of the coal mining industry.
30 CFR Sec. 845.11 How assessments are made.
The Office shall review each notice of violation and cessation order in accordance with the assessment procedures
described in 30 CFR 845.12, 845.13, 845.14, 845.15, and 845.16 to determine whether a civil penalty will be
assessed, the amount of the penalty, and whether each day of a continuing violation will be deemed a separate
violation for purposes of the total penalty assessed.
30 CFR Sec. 845.12 When penalty will be assessed.
(a) The Office shall assess a penalty for each cessation order.
(b) The Office shall assess a penalty for each notice of violation, if the violation is assigned 31 points or more
under the point system described in 30 CFR 845.13.
( c) The Office may assess a penalty for each notice of violation assigned 30 points or less under the point system
described in 30 CFR 845.13. In determining whether to assess a penalty, the Office shall consider the factors listed in
30 CFR 845.13(b).
30 CFR Sec. 845.13 Point system for penalties.
(a) The Office shall use the point system described in this section to determine the amount of the penalty and, in
the case of notices of violation, whether a mandatory penalty should be assessed as provided in 30 CFR 845.12(b).
(b) Points shall be assigned as follows:
(1) History of previous violations. The Office shall assign up to 30 points based on the history of previous
violations. One point shall be assigned for each past violation contained in a notice of violation. Five points shall be
assigned for each violation (but not a condition or practice) contained in a cessation order. The history of previous
violations, for the purpose of assigning points, shall be determined and the points assigned with respect to a
particular coal exploration or surface coal mining operation. Points shall be assigned as follows:
(i) A violation shall not be counted, if the notice or order is the subject of pending administrative or judicial
review or if the time to request such review or to appeal any administrative or judicial decision has not expired, and
thereafter it shall be counted for only one year.
(ii) No violation for which the notice or order has been vacated shall be counted; and
(iii) Each violation shall be counted without regard to whether it led to a civil penalty assessment.
(2) Seriousness. The Office shall assign up to 30 points based on the seriousness of the violation, as follows:
(i) Probability of occurrence. The Office shall assign up to 15 points based on the probability of the occurrence of
the event which a violated standard is designed to prevent. Points shall be assessed according to the following
schedule:
______________________________________________________________________________
Probability of Occurrence Points
None 0
Insignificant 1-4
Unlikely 5-9
Likely 10-14
Occurred 15
______________________________________________________________________________
(ii) Extent of potential or actual damage. The Office shall assign up to 15 points, based on the extent of the
potential or actual damage, in terms of area and impact on the public or environment, as follows:
(A) If the damage or impact which the violated standard is designed to prevent would remain within the coal
exploration or permit area, the Office shall assign zero to seven points, depending on the duration and extent of the
damage or impact.
(B) If the damage or impact which the violated standard is designed to prevent would extend outside the coal
exploration or permit area, the Office shall assign eight to fifteen points, depending on the duration and extent of the
damage or impact
(iii) Alternative. In the case of a violation of an administrative requirement, such as a requirement to keep records,
the Office shall, in lieu of paragraphs (b)(2) (i) and (ii), assign up to 15 points for seriousness, based upon the extent
to which enforcement is obstructed by the violation.
(3) Negligence. (i) The Office shall assign up to 25 points based on the degree of fault of the person to whom the
notice or order was issued in causing or failing to correct the violation, condition, or practice which led to the notice
or order, either through act or omission. Points shall be assessed as follows:
(A) A violation which occurs through no negligence shall be assigned no penalty points for negligence;
(B) A violation which is caused by negligence shall be assigned 12 points or less, depending on the degree of
negligence;
( C) A violation which occurs through a greater degree of fault than negligence shall be assigned 13 to 25 points,
depending on the degree of fault.
(ii) In determining the degree of negligence involved in a violation and the number of points to be assigned, the
following definitions apply:
(A) No negligence means an inadvertent violation which was unavoidable by the exercise of reasonable care.
(B) Negligence means the failure of a permittee to prevent the occurrence of any violation of his or her permit or
any requirement of the Act or this Chapter due to indifference, lack or diligence, or lack of reasonable care, or the
failure to abate any violation of such permit or the Act due to indifference, lack of diligence, or lack of reasonable
care.
( C) A greater degree of fault than negligence means reckless, knowing, or intentional conduct.
(iii) In calculating points to be assigned for negligence, the acts of all persons working on the coal exploration or
surface coal mining and reclamation site shall be attributed to the person to whom the notice or order was issued,
unless that person establishes that they were acts of deliberate sabotage.
(4) Good faith in attempting to achieve compliance.
(i) The Office shall add points based on the degree of good faith of the person to whom the notice or order was
issued in attempting to achieve rapid compliance after notification of the violation. Points shall be assigned as
follows:
______________________________________________________________________________
Degree of good faith Points
Rapid compliance - 1 to - 10.
Normal compliance 0.
______________________________________________________________________________
(ii) The following definitions shall apply under paragraph (b)(4)(i) of this section:
(A) Rapid compliance means that the person to whom the notice or order was issued took extraordinary measures
to abate the violation in the shortest possible time and that abatement was achieved before the time set for abatement.
(B) Normal compliance means the person to whom the notice or order was issued abated the violation within the
time given for abatement.
(iii) If the consideration of this criterion is impractical because of the length of the abatement period, the
assessment may be made without considering this criterion and may be reassessed after the violation has been abated.
30 CFR Sec. 845.14 Determination of amount of penalty.
The Office shall determine the amount of any civil penalty by converting the total number of points assigned under
30 CFR 845.13 to a dollar amount, according to the following schedule:
______________________________________________________________________________
Points Dollars
1 22
2 44
3 66
4 88
5 110
6 132
7 154
8 176
9 198
10 220
11 242
12 264
13 286
14 308
15 330
16 352
17 374
18 396
19 418
20 440
21 462
22 484
23 506
24 528
25 550
26 660
27 770
28 880
29 990
30 1,100
31 1,210
32 1,320
33 1,430
34 1,540
35 1,650
36 1,760
37 1,870
38 1,980
39 2,090
40 2,200
41 2,310
42 2,420
43 2,530
44 2,640
45 2,750
46 2,860
47 2,970
48 3,080
49 3,190
50 3,300
51 3,410
52 3,520
53 3,630
54 3,740
55 3,850
56 3,960
57 4,070
58 4,180
59 4,290
60 4,400
61 4,510
62 4,620
63 4,730
64 4,840
65 4,950
66 5,060
67 5,170
68 5,280
69 5,390
70 5,500
______________________________________________________________________________
[47 FR 35640, Aug. 16, 1982; 62 FR 63276, Nov. 28, 1997]
30 CFR Sec. 845.15 Assessment of separate violations for each day.
(a) The Office may assess separately a civil penalty for each day from the date of issuance of the notice of
violation or cessation order to the date set for abatement of the violation. In determining whether to make such an
assessment, the Office shall consider the factors listed in 30 CFR 845.13 and may consider the extent to which the
person to whom the notice or order was issued gained any economic benefit as a result of a failure to comply. For
any violation which continues for two or more days and which is assigned more than 70 points under Sec. 845.13(b),
the Office shall assess a penalty for a minimum of two separate days.
(b) In addition to the civil penalty provided for in paragraph (a), whenever a violation contained in a notice of
violation or cessation order has not been abated within the abatement period set in the notice or order or as
subsequently extended pursuant to section 521(a) of the Act, a civil penalty of not less than $825 shall be assessed
for each day during which such failure to abate continues, except that:
(1)(i) If suspension of the abatement requirements of the notice or order is ordered in a temporary relief
proceeding under section 525( c) of the Act, after a determination that the person to whom the notice or order was
issued will suffer irreparable loss or damage from the application of the requirements, the period permitted for
abatement shall not end until the date on which the Office of Hearings and Appeals issues a final order with respect
to the violation in question; and
(ii) If the person to whom the notice or order was issued initiates review proceedings under section 526 of the Act
with respect to the violation, in which the obligations to abate are suspended by the court pursuant to section 526( c)
of the Act, the daily assessment of a penalty shall not be made for any period before entry of a final order by the
court;
(2) Such penalty for the failure to abate the violation shall not be assessed for more than 30 days for each such
violation. If the permittee has not abated the violation within the 30-day period, the Office shall take appropriate
action pursuant to section 518(e), 518(f), 521(a)(4), or 521( c) of the Act within 30 days to ensure that abatement
occurs or to ensure that there will not be a reoccurrence of the failure to abate.
[47 FR 35640, Aug. 16, 1982; 62 FR 63274, 63277, Nov. 28, 1997]
30 CFR Sec. 845.16 Waiver of use of formula to determine civil penalty.
(a) The Director, upon his own initiative or upon written request received within 15 days of issuance of a notice of
violation or a cessation order, may waive the use of the formula contained in 30 CFR 845.13 to set the civil penalty,
if he or she determines that, taking into account exceptional factors present in the particular case, the penalty is
demonstrably unjust. However, the Director shall not waive the use of the formula or reduce the proposed assessment
on the basis of an argument that a reduction in the proposed penalty could be used to abate violations of the Act, this
chapter, any applicable program, or any condition of any permit or exploration approval. The basis for every waiver
shall be fully explained and documented in the records of the case.
(b) If the Director waives the use of the formula, he or she shall use the criteria set forth in 30 CFR 845.13(b) to
determine the appropriate penalty. When the Director has elected to waive the use of the formula, he or she shall give
a written explanation of the basis for the assessment made to the person to whom the notice or order was issued.
30 CFR Sec. 845.17 Procedures for assessment of civil penalties.
(a) Within 15 days of service of a notice or order, the person to whom it was issued may submit written
information about the violation to the Office and to the inspector who issued the notice of violation or cessation
order. The Office shall consider any information so submitted in determining the facts surrounding the violation and
the amount of the penalty.
(b) The Office shall serve a copy of the proposed assessment and of the work sheet showing the computation of
the proposed assessment on the person to whom the notice or order was issued, by certified mail, or by any
alternative means consistent with the rules governing service of a summons or complaint under rule 4 of the Federal
Rules of Civil Procedure, within 30 days of the issuance of the notice or order.
(1) If a copy of the proposed assessment and work sheet or the certified mail is tendered at the address of that
person required under 30 CFR 816.11, or at any address at which that person is in fact located, and he or she refuses
to accept delivery of or to collect such documents, the requirements of this paragraph shall be deemed to have been
complied with upon such tender.
(2) Failure by the Office to serve any proposed assessment within 30 days shall not be grounds for dismissal of all
or part of such assessment unless the person against whom the proposed penalty has been assessed--
(i) Proves actual prejudice as a result of the delay; and,
(ii) Makes a timely objection to the delay. An objection shall be timely only if made in the normal course of
administrative review.
( c) Unless a conference has been requested, the Office shall review and reassess any penalty if necessary to
consider facts which were not reasonably available on the date of issuance of the proposed assessment because of the
length of the abatement period. The Office shall serve a copy of any such reassessment and of the worksheet showing
the computation of the reassessment in the manner provided in paragraph (b), within 30 days after the date the
violation is abated.
[47 FR 35640, Aug. 16, 1982, as amended at 56 FR 28446, June 20, 1991]
30 CFR Sec. 845.18 Procedures for assessment conference.
(a) The Office 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 30 days from the date
the proposed assessment or reassessment is received.
(b)(1) The Office shall assign a conference officer to hold the assessment conference. The assessment conference
shall not be governed by section 554 of title 5 of the United States Code, regarding requirements for formal
adjudicatory hearings. The assessment conference shall be held within 60 days from the date the conference request
is received or the end of the abatement period, whichever is later: Provided, That a failure by the Office to hold such
conference within 60 days shall not be grounds for dismissal of all or part of an assessment unless the person against
whom the proposed penalty has been assessed proves actual prejudice as a result of the delay.
(2) The Office shall post notice of the time and place of the conference at the State or 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 conference officer shall consider all relevant information on the violation. Within 30 days after the
conference is held, the conference officer shall either:
(i) Settle the issues, in which case a settlement agreement shall be prepared and signed by the conference officer
on behalf of the Office and by the person assessed; or
(ii) Affirm, raise, lower, or vacate the penalty.
(4) An increase or reduction of a proposed civil penalty assessment of more than 25 percent and more than $500
shall not be final and binding on the Secretary, until approved by the Director or his or her designee.
( c) The conference officer shall promptly serve the person assessed with a notice of his or her action in the
manner provided in 30 CFR 845.17(b) and shall include a worksheet if the penalty has been raised or lowered. The
reasons for the conference officer's action shall be fully documented in the file.
(d)(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.
(2) If full payment of the amount specified in the settlement agreement is not received by the Office within 30 days
after the date of signing, the Office may enforce the agreement or rescind it and proceed according to paragraph
(b)(3)(ii) within 30 days from the date of the rescission.
(e) The conference officer may terminate the conference when he or she 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 sections 518, 521(a)(4), and 525 of 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.
[47 FR 35640, Aug. 16, 1982, as amended at 53 FR 3675, Feb. 8, 1988; 56 FR 10063, Mar. 8, 1991]
30 CFR Sec. 845.19 Request for hearing.
(a) The person charged with the violation may contest the proposed penalty or the fact of the violation by
submitting a petition and an amount equal to the proposed penalty or, if a conference has been held, the reassessed or
affirmed penalty to the Office of Hearings and Appeals (to be held in escrow as provided in paragraph (b) of this
section) within 30 days from receipt of the proposed assessment or reassessment or 30 days from the date of service
of the conference officer's action, whichever is later. The fact of the violation may not be contested if it has been
decided in a review proceeding commenced under 30 CFR 843.16.
(b) The Office of Hearings and Appeals shall transfer all funds submitted under paragraph (a) of this section to the
Office, which shall hold them in escrow pending completion of the administrative and judicial review process, at
which time it shall disburse them as provided in 30 CFR 845.20.
[47 FR 35640, Aug. 16, 1982, as amended at 56 FR 10063, Mar. 8, 1991]
30 CFR Sec. 845.20 Final assessment and payment of penalty.
(a) If the person to whom a notice of violation or cessation order is issued fails to request a hearing as provided in
Sec. 845.19, the proposed assessment shall become a final order of the Secretary and the penalty assessed shall
become due and payable upon expiration of the time allowed to request a hearing.
(b) If any party requests judicial review of a final order of the Secretary, the proposed penalty shall continue to be
held in escrow until completion of the review. Otherwise, subject to paragraph ( c) of this section, the escrowed
funds shall be transferred to the Office in payment of the penalty, and the escrow shall end.
( c) If the final decision in the administrative and judicial review results in an order reducing or eliminating the
proposed penalty assessed under this part, the Office shall within 30 days of receipt of the order refund to the person
assessed all or part of the escrowed amount, with interest from the date of payment into escrow to the date of the
refund at the rate of 6 percent or at the prevailing Department of the Treasury rate, whichever is greater.
(d) If the review results in an order increasing the penalty, the person to whom the notice or order was issued shall
pay the difference to the Office within 15 days after the order is mailed to such person.
30 CFR 845.21
Sec. 845.21 Use of civil penalties for reclamation.
(a) To the extent authorized in the applicable annual appropriations act or other relevant statute, the Director of
OSMRE may utilize money collected by the United States pursuant to the assessment of civil penalties under section
518 of the Act for reclamation of lands adversely affected by coal mining practices after August 3, 1977, until such
funds are expended.
(b) The Director may allocate funds at his discretion for reclamation projects on lands within any State or on
Federal lands or Indian lands based on the following priorities:
(1) Emergency projects as defined in Sec. 870.5 of this chapter;
(2) Reclamation projects which qualify as priority 1 under section 403 of the Act;
(3) Reclamation Projects which qualify as priority 2 under section 403 of the Act; and
(4) Reclamation of Federal bond forfeiture sites.
( c) Notwithstanding paragraph (b) of this section, at his discretion, the Director may allocate funds for any other
reclamation project which constitutes a danger to the environment or to the public health and safety.
[53 FR 16017, May 4, 1988, as amended at 54 FR 19342, May 4, 1989]
SUBCHAPTER L -- PERMANENT PROGRAM INSPECTION AND ENFORCEMENT PROCEDURES
PART 846 -- INDIVIDUAL CIVIL PENALTIES
Sec.
846.1 Scope
846.12 When an individual civil penalty may be assessed
846.14 Amount of individual civil penalty
846.17 Procedure for assessment of individual civil penalty
846.18 Payment of penalty
AUTHORITY: 30 U.S.C. 1201 et seq., Pub. L. 100-34, Pub. L. 101-410, and Pub. L. 104-134
SOURCE: 53 FR 3675, Feb. 8, 1988, unless otherwise noted.
[For the list of Final Rules affecting these sections, as published in the Federal Register, see
"Regulation History - Changes to the Regulations Parts 700-890, 3/13/79 - 6/30/00".]
30 CFR Sec. 846.1 Scope.
This part covers the assessment of individual civil penalties under section 518(f) of the Act.
30 CFR Sec. 846.12 When an individual civil penalty may be assessed.
(a) Except as provided in paragraph (b) of this section, the Office may assess an individual civil penalty against
any corporate director, officer or agent of a corporate permittee who knowingly and willfully authorized, ordered or
carried out a violation, failure or refusal.
(b) The Office shall not assess an individual civil penalty in situations resulting from a permit violation by a
corporate permittee until a cessation order has been issued by the Office to the corporate permittee for the violation,
and the cessation order has remained unabated for 30 days.
30 CFR Sec. 846.14 Amount of individual civil penalty.
(a) In determining the amount of an individual civil penalty assessed under Sec. 846.12, the Office shall consider
the criteria specified in section 518(a) of the Act, including:
(1) The individual's history of authorizing, ordering or carrying out previous violations, failures or refusals at the
particular surface coal mining operation;
(2) The seriousness of the violation, failure or refusal (as indicated by the extent of damage and/or the cost of
reclamation), including any irreparable harm to the environment and any hazard to the health or safety of the public;
and
(3) The demonstrated good faith of the individual charged in attempting to achieve rapid compliance after notice
of the violation, failure or refusal.
(b) The penalty shall not exceed $5,500 for each violation. Each day of a continuing violation may be deemed a
separate violation and the Office may assess a separate individual civil penalty for each day the violation, failure or
refusal continues, from the date of service of the underlying notice of violation, cessation order or other order
incorporated in a final decision issued by the Secretary, until abatement or compliance is achieved.
[53 FR 3675, Feb. 8, 1988; 62 FR 63274, 63277, Nov. 28, 1997]
30 CFR Sec. 846.17 Procedure for assessment of individual civil penalty.
(a) Notice. The Office shall serve on each individual to be assessed an individual civil penalty a notice of
proposed individual civil penalty assessment, including a narrative explanation of the reasons for the penalty, the
amount to be assessed, and a copy of any underlying notice of violation and cessation order.
(b) Final order and opportunity for review. The notice of proposed individual civil penalty assessment shall
become a final order of the Secretary 30 days after service upon the individual unless:
(1) The individual files within 30 days of service of the notice of proposed individual civil penalty assessment a
petition for review with the Hearings Division, Office of Hearings and Appeals, U.S. Department of the Interior,
4015 Wilson Boulevard, Arlington, Virginia 22203 (Phone: 703-235-3800), in accordance with 43 CFR 4.1300 et
seq.; or
(2) The Office and the individual or responsible corporate permittee agree within 30 days of service of the notice
of proposed individual civil penalty assessment to a schedule or plan for the abatement or correction of the violation,
failure or refusal.
( c) Service. For purposes of this section, service shall be performed on the individual to be assessed an individual
civil penalty, by certified mail, or by any alternative means consistent with the rules governing service of a summons
and complaint under rule 4 of the Federal Rules of Civil Procedure. Service shall be complete upon tender of the
notice of proposed assessment and included information or of the certified mail and shall not be deemed incomplete
because of refusal to accept.
[53 FR 3675, Feb. 8, 1988, as amended at 56 FR 28446, June 20, 1991]
30 CFR Sec. 846.18 Payment of penalty.
(a) No abatement or appeal. If a notice of proposed individual civil penalty assessment becomes a final order in
the absence of a petition for review or abatement agreement, the penalty shall be due upon issuance of the final
order.
(b) Appeal. If an individual named in a notice of proposed individual civil penalty assessment files a petition for
review in accordance with 43 CFR 4.1300 et seq., the penalty shall be due upon issuance of a final administrative
order affirming, increasing or decreasing the proposed penalty.
( c) Abatement agreement. Where the Office and the corporate permittee or individual have agreed in writing on a
plan for the abatement of or compliance with the unabated order, an individual named in a notice of proposed
individual civil penalty assessment may postpone payment until receiving either a final order from the Office stating
that the penalty is due on the date of such final order, or written notice that abatement or compliance is satisfactory
and the penalty has been withdrawn.
(d) Delinquent payment. Following the expiration of 30 days after the issuance of a final order assessing an
individual civil penalty, any delinquent penalty shall be subject to interest at the rate established quarterly by the
U.S. Department of the Treasury for use in applying late charges on late payments to the Federal Government,
pursuant to Treasury Financial Manual 6-8020.20. The Treasury current value of funds rate is published by the
Fiscal Service in the notices section of the FEDERAL REGISTER. Interest on unpaid penalties will run from the
date payment first was due until the date of payment. Failure to pay overdue penalties may result in one or more of
the actions specified in Secs. 870.15 (e)(1) through (e)(5) of this chapter. Delinquent penalties are subject to late
payment penalties specified in Sec. 870.15(f) of this chapter and processing and handling charges specified in Sec.
870.15(g) of this chapter.
SUBCHAPTER L -- PERMANENT PROGRAM INSPECTION AND ENFORCEMENT PROCEDURES
PART 847 -- ALTERNATIVE ENFORCEMENT
Sec.
847.1 Scope
847.2 General provisions
847.11 Criminal penalties
847.16 Civil actions for relief
AUTHORITY: 30 U.S.C. 1201 et seq.
SOURCE: 65 FR 79671, Dec. 19, 2000, unless otherwise noted.
[For the list of Final Rules affecting these sections, as published in the Federal Register, see
"Regulation History - Changes to the Regulations Parts 700-890, 3/13/79 - 6/30/00".]
30 CFR Sec. 847.1 Scope.
This part governs the use of measures provided in sections 518(e), 518(g) and 521( c) of the Act for criminal
penalties and civil actions to compel compliance with provisions of the Act.
[EFFECTIVE DATE NOTE: 65 FR 79582, 79671, Dec. 19, 2000, added Part 847, effective Jan. 18, 2001.]
30 CFR Sec. 847.2 General provisions.
(a) Whenever a court of competent jurisdiction enters a judgment against or convicts a person under these
provisions, we must update AVS to reflect the judgment or conviction.
(b) The existence of a performance bond or bond forfeiture cannot be used as the sole basis for determining that
an alternative enforcement action is unwarranted.
( c) Each State regulatory program must include provisions for civil actions and criminal penalties that are no less
stringent than those in this part and include the same or similar procedural requirements.
(d) Nothing in this part eliminates or limits any additional enforcement rights or procedures available under
Federal or State law.
[EFFECTIVE DATE NOTE: 65 FR 79582, 79671, Dec. 19, 2000, added Part 847, effective Jan. 18, 2001.]
30 CFR Sec. 847.11 Criminal penalties.
Under sections 518(e) and (g) of the Act, we, the regulatory authority, will request the Attorney General to pursue
criminal penalties against any person who --
(a) Willfully and knowingly violates a condition of the permit;
(b) Willfully and knowingly fails or refuses to comply with --
(1) Any order issued under section 521 or 526 of the Act; or
(2) Any order incorporated into a final decision issued by the Secretary under the Act (except for those orders
specifically excluded under section 518(e) of the Act); or
( c) Knowingly makes any false statement, representation, or certification, or knowingly fails to make any
statement, representation, or certification in any application, record, report, plan, or other document filed or required
to be maintained under the regulatory program or any order or decision issued by the Secretary under the Act.
[EFFECTIVE DATE NOTE: 65 FR 79582, 79671, Dec. 19, 2000, added Part 847, effective Jan. 18, 2001.]
30 CFR Sec. 847.16 Civil actions for relief.
(a) Under section 521( c) of the Act, we, the regulatory authority, will request the Attorney General to institute a
civil action for relief whenever you, the permittee, or your agent --
(1) Violate or fail or refuse to comply with any order or decision that we issue under the Act or regulatory
program;
(2) Interfere with, hinder, or delay us in carrying out the provisions of the Act or its implementing regulations;
(3) Refuse to admit our authorized representatives onto the site of a surface coal mining and reclamation
operation;
(4) Refuse to allow our authorized representatives to inspect a surface coal mining and reclamation operation;
(5) Refuse to furnish any information or report that we request under the Act or regulatory program; or
(6) Refuse to allow access to, or copying of, those records that we determine necessary to carry out the provisions
of the Act and its implementing regulations.
(b) A civil action for relief includes a permanent or temporary injunction, restraining order, or any other
appropriate order by a district court of the United States for the district in which the surface coal mining and
reclamation operation is located or in which you have your principal office.
( c) Temporary restraining orders will be issued in accordance with Rule 65 of the Federal Rules of Civil
Procedure, as amended.
(d) Any relief the court grants to enforce an order under paragraph (b) of this section will continue in effect until
completion or final termination of all proceedings for review of that order under the Act or its implementing
regulations unless, beforehand, the district court granting the relief sets aside or modifies the order.
[EFFECTIVE DATE NOTE: 65 FR 79582, 79671, Dec. 19, 2000, added Part 847, effective Jan. 18, 2001.]
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