30 U.S.C. § 1269 — Release of performance bonds or deposits

Page 295 TITLE 30—MINERAL LANDS AND MINING § 1269 person, with interest at the rate of 6 percent, or at the prevailing Department of the Treasury rate, whichever is greater. Failure to forward the money to the Secretary within thirty days shall result in a waiver of all legal rights to con- test the violation or the amount of the penalty. (d) Civil action to recover civil penalties Civil penalties owed under this chapter, may be recovered in a civil action brought by the At- torney General at the request of the Secretary in any appropriate district court of the United States. (e) Willful violations Any person who willfully and knowingly vio- lates a condition of a permit issued pursuant to a Federal program, a Federal lands program or Federal enforcement pursuant to section 1252 of this title or during Federal enforcement of a State program pursuant to section 1271 of this title or fails or refuses to comply with any order issued under section 1271 or section 1276 of this title, or any order incorporated in a final deci- sion issued by the Secretary under this chapter, except an order incorporated in a decision issued under subsection (b) of this section or section 1294 of this title, shall, upon conviction, be pun- ished by a fine of not more than $10,000, or by imprisonment for not more than one year or both. (f) Corporate violations Whenever a corporate permittee violates a condition of a permit issued pursuant to a Fed- eral program, a Federal lands program or Fed- eral enforcement pursuant to section 1252 of this title or Federal enforcement of a State program pursuant to section 1271 of this title or fails or refuses to comply with any order issued under section 1271 of this title, or any order incor- porated in a final decision issued by the Sec- retary under this chapter except an order incor- porated in a decision issued under subsection (b) of this section or section 1293 of this title, any director, officer, or agent of such corporation who willfully and knowingly authorized, or- dered, or carried out such violation, failure, or refusal shall be subject to the same civil pen- alties, fines, and imprisonment that may be im- posed upon a person under subsections (a) and (e) of this section. (g) False statements, representations, or certifi- cations Whoever knowingly makes any false state- ment, representation, or certification, or know- ingly fails to make any statement, representa- tion, or certification in any application, record, report, plant, or other document filed or re- quired to be maintained pursuant to a Federal program or a Federal lands program or any order of decision issued by the Secretary under this chapter, shall, upon conviction, be punished by a fine of not more than $10,000, or by impris- onment for not more than one year or both. (h) Failure to correct violation Any operator who fails to correct a violation for which a citation has been issued under sec- tion 1271(a) of this title within the period per- mitted for its correction (which period shall not end until the entry of a final order by the Sec- retary, in the case of any review proceedings under section 1275 of this title initiated by the operator wherein the Secretary orders, after an expedited hearing, the suspension of the abate- ment requirements of the citation after deter- mining that the operator will suffer irreparable loss or damage from the application of those re- quirements, or until the entry of an order of the court, in the case of any review proceedings under section 1276 of this title initiated by the operator wherein the court orders the suspen- sion of the abatement requirements of the cita- tion), shall be assessed a civil penalty of not less than $750 for each day during which such failure or violation continues. (i) Effect on additional enforcement right or pro- cedure available under State law As a condition of approval of any State pro- gram submitted pursuant to section 1253 of this title, the civil and criminal penalty provisions thereof shall, at a minimum, incorporate pen- alties no less stringent than those set forth in this section, and shall contain the same or simi- lar procedural requirements relating thereto. Nothing herein shall be construed so as to elimi- nate any additional enforcement right or proce- dures which are available under State law to a State regulatory authority but which are not specifically enumerated herein. (Pub. L. 95–87, title V, § 518, Aug. 3, 1977, 91 Stat. 499.) § 1269. Release of performance bonds or deposits (a) Filing of request; submittal of copy of adver- tisement; notification by letter of intent to seek release The permittee may file a request with the reg- ulatory authority for the release of all or part of a performance bond or deposit. Within thirty days after any application for bond or deposit release has been filed with the regulatory au- thority, the operator shall submit a copy of an advertisement placed at least once a week for four successive weeks in a newspaper of general circulation in the locality of the surface coal mining operation. Such advertisement shall be considered part of any bond release application and shall contain a notification of the precise location of the land affected, the number of acres, the permit and the date approved, the amount of the bond filed and the portion sought to be released, and the type and appropriate dates of reclamation work performed, and a de- scription of the results achieved as they relate to the operator’s approved reclamation plan. In addition, as part of any bond release applica- tion, the applicant shall submit copies of letters which he has sent to adjoining property owners, local governmental bodies, planning agencies, and sewage and water treatment authorities, or water companies in the locality in which the surface coal mining and reclamation activities took place, notifying them of his intention to seek release from the bond. (b) Inspection and evaluation; notification of de- cision Upon receipt of the notification and request, the regulatory authority shall within thirty days conduct an inspection and evaluation of Page 296 TITLE 30—MINERAL LANDS AND MINING § 1269 the reclamation work involved. Such evaluation shall consider, among other things, the degree of difficulty to complete any remaining reclama- tion, whether pollution of surface and sub- surface water is occurring, the probability of continuance of future occurrence of such pollu- tion, and the estimated cost of abating such pol- lution. The regulatory authority shall notify the permittee in writing of its decision to release or not to release all or part of the performance bond or deposit within sixty days from the filing of the request, if no public hearing is held pursu- ant to subsection (f), and if there has been a pub- lic hearing held pursuant to subsection (f), with- in thirty days thereafter. (c) Requirements for release The regulatory authority may release in whole or in part said bond or deposit if the au- thority is satisfied the reclamation covered by the bond or deposit or portion thereof has been accomplished as required by this chapter accord- ing to the following schedule: (1) When the operator completes the back- filling, regrading, and drainage control of a bonded area in accordance with his approved reclamation plan, the release of 60 per centum of the bond or collateral for the applicable per- mit area. (2) After revegetation has been established on the regraded mined lands in accordance with the approved reclamation plan. When de- termining the amount of bond to be released after successful revegetation has been estab- lished, the regulatory authority shall retain that amount of bond for the revegetated area which would be sufficient for a third party to cover the cost of reestablishing revegetation and for the period specified for operator re- sponsibility in section 1265 of this title of rees- tablishing revegetation. No part of the bond or deposit shall be released under this paragraph so long as the lands to which the release would be applicable are contributing suspended sol- ids to streamflow or runoff outside the permit area in excess of the requirements set by sec- tion 1265(b)(10) of this title or until soil pro- ductivity for prime farm lands has returned to equivalent levels of yield as nonmined land of the same soil type in the surrounding area under equivalent management practices as de- termined from the soil survey performed pur- suant to section 1257(b)(16) of this title. Where a silt dam is to be retained as a permanent im- poundment pursuant to section 1265(b)(8) of this title, the portion of bond may be released under this paragraph so long as provisions for sound future maintenance by the operator or the landowner have been made with the regu- latory authority. (3) When the operator has completed suc- cessfully all surface coal mining and reclama- tion activities, the release of the remaining portion of the bond, but not before the expira- tion of the period specified for operator re- sponsibility in section 1265 of this title: Pro- vided, however, That no bond shall be fully re- leased until all reclamation requirements of this chapter are fully met. (d) Notice of disapproval If the regulatory authority disapproves the ap- plication for release of the bond or portion thereof, the authority shall notify the per- mittee, in writing, stating the reasons for dis- approval and recommending corrective actions necessary to secure said release and allowing op- portunity for a public hearing. (e) Notice to municipality When any application for total or partial bond release is filed with the regulatory authority, the regulatory authority shall notify the mu- nicipality in which a surface coal mining oper- ation is located by certified mail at least thirty days prior to the release of all or a portion of the bond. (f) Objections to release; hearing Any person with a valid legal interest which might be adversely affected by release of the bond or the responsible officer or head of any Federal, State, or local governmental agency which has jurisdiction by law or special exper- tise with respect to any environmental, social, or economic impact involved in the operation, or is authorized to develop and enforce environ- mental standards with respect to such oper- ations shall have the right to file written objec- tions to the proposed release from bond to the regulatory authority within thirty days after the last publication of the above notice. If writ- ten objections are filed, and a hearing requested, the regulatory authority shall inform all the in- terested parties, of the time and place of the hearing, and hold a public hearing in the local- ity of the surface coal mining operation pro- posed for bond release within thirty days of the request for such hearing. The date, time, and lo- cation of such public hearings shall be adver- tised by the regulatory authority in a newspaper of general circulation in the locality for two consecutive weeks, and shall hold a public hear- ing in the locality of the surface coal mining op- eration proposed for bond release or at the State capital at the option of the objector, within thirty days of the request for such hearing. (g) Informal conference Without prejudice to the rights of the objec- tors, the applicant, or the responsibilities of the regulatory authority pursuant to this section, the regulatory authority may establish an infor- mal conference as provided in section 1263 of this title to resolve such written objections. (h) Power of regulatory authority with respect to informal conference For the purpose of such hearing the regulatory authority shall have the authority and is hereby empowered to administer oaths, subpena wit- nesses, or written or printed materials, compel the attendance of witnesses, or production of the materials, and take evidence including but not limited to inspections of the land affected and other surface coal mining operations carried on by the applicant in the general vicinity. A verbatim record of each public hearing required by this chapter shall be made, and a transcript made available on the motion of any party or by order of the regulatory authority. (Pub. L. 95–87, title V, § 519, Aug. 3, 1977, 91 Stat. 501.) Page 297 TITLE 30—MINERAL LANDS AND MINING § 1271 § 1270. Citizens suits (a) Civil action to compel compliance with this chapter Except as provided in subsection (b) of this section, any person having an interest which is or may be adversely affected may commence a civil action on his own behalf to compel compli- ance with this chapter— (1) against the United States or any other governmental instrumentality or agency to the extent permitted by the eleventh amend- ment to the Constitution which is alleged to be in violation of the provisions of this chap- ter or of any rule, regulation, order or permit issued pursuant thereto, or against any other person who is alleged to be in violation of any rule, regulation, order or permit issued pursu- ant to this subchapter; or (2) against the Secretary or the appropriate State regulatory authority to the extent per- mitted by the eleventh amendment to the Constitution where there is alleged a failure of the Secretary or the appropriate State regu- latory authority to perform any act or duty under this chapter which is not discretionary with the Secretary or with the appropriate State regulatory authority. The district courts shall have jurisdiction, with- out regard to the amount in controversy or the citizenship of the parties. (b) Limitation on bringing of action No action may be commenced— (1) under subsection (a)(1) of this section— (A) prior to sixty days after the plaintiff has given notice in writing of the violation (i) to the Secretary, (ii) to the State in which the violation occurs, and (iii) to any alleged violator; or (B) if the Secretary or the State has com- menced and is diligently prosecuting a civil action in a court of the United States or a State to require compliance with the provi- sions of this chapter, or any rule, regulation, order, or permit issued pursuant to this chapter, but in any such action in a court of the United States any person may intervene as a matter of right; or (2) under subsection (a)(2) of this section prior to sixty days after the plaintiff has given notice in writing of such action to the Sec- retary, in such manner as the Secretary shall by regulation prescribe, or to the appropriate State regulatory authority, except that such action may be brought immediately after such notification in the case where the violation or order complained of constitutes an imminent threat to the health or safety of the plaintiff or would immediately affect a legal interest of the plaintiff. (c) Venue; intervention (1) Any action respecting a violation of this chapter or the regulations thereunder may be brought only in the judicial district in which the surface coal mining operation complained of is located. (2) In such action under this section, the Sec- retary, or the State regulatory authority, if not a party, may intervene as a matter of right. (d) Costs; filing of bonds The court, in issuing any final order in any ac- tion brought pursuant to subsection (a) of this section, may award costs of litigation (including attorney and expert witness fees) to any party, whenever the court determines such award is ap- propriate. The court may, if a temporary re- straining order or preliminary injunction is sought require the filing of a bond or equivalent security in accordance with the Federal Rules of Civil Procedure. (e) Effect on other enforcement methods Nothing in this section shall restrict any right which any person (or class of persons) may have under any statute or common law to seek en- forcement of any of the provisions of this chap- ter and the regulations thereunder, or to seek any other relief (including relief against the Secretary or the appropriate State regulatory authority). (f) Action for damages Any person who is injured in his person or property through the violation by any operator of any rule, regulation, order, or permit issued pursuant to this chapter may bring an action for damages (including reasonable attorney and ex- pert witness fees) only in the judicial district in which the surface coal mining operation com- plained of is located. Nothing in this subsection shall affect the rights established by or limits imposed under State Workmen’s Compensation laws. (Pub. L. 95–87, title V, § 520, Aug. 3, 1977, 91 Stat. 503.) Editorial Notes REFERENCES IN TEXT The Federal Rules of Civil Procedure, referred to in subsec. (d), are set out in the Appendix to Title 28, Ju- diciary and Judicial Procedure. § 1271. Enforcement (a) Notice of violation; Federal inspection; waiv- er of notification period; cessation order; af- firmative obligation on operator; suspension or revocation of permits; contents of notices and orders (1) Whenever, on the basis of any information available to him, including receipt of informa- tion from any person, the Secretary has reason to believe that any person is in violation of any requirement of this chapter or any permit condi- tion required by this chapter, the Secretary shall notify the State regulatory authority, if one exists, in the State in which such violation exists. If no such State authority exists or the State regulatory authority fails within ten days after notification to take appropriate action to cause said violation to be corrected or to show good cause for such failure and transmit notifi- cation of its action to the Secretary, the Sec- retary shall immediately order Federal inspec- tion of the surface coal mining operation at which the alleged violation is occurring unless the information available to the Secretary is a result of a previous Federal inspection of such surface coal mining operation. The ten-day noti- fication period shall be waived when the person