30 U.S.C. § 1271 — Enforcement

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 Page 298 TITLE 30—MINERAL LANDS AND MINING § 1271 informing the Secretary provides adequate proof that an imminent danger of significant environ- mental harm exists and that the State has failed to take appropriate action. When the Federal in- spection results from information provided to the Secretary by any person, the Secretary shall notify such person when the Federal inspection is proposed to be carried out and such person shall be allowed to accompany the inspector during the inspection. (2) When, on the basis of any Federal inspec- tion, the Secretary or his authorized representa- tive determines that any condition or practices exist, or that any permittee is in violation of any requirement of this chapter or any permit condition required by this chapter, which condi- tion, practice, or violation also creates an immi- nent danger to the health or safety of the public, or is causing, or can reasonably be expected to cause significant, imminent environmental harm to land, air, or water resources, the Sec- retary or his authorized representative shall im- mediately order a cessation of surface coal min- ing and reclamation operations or the portion thereof relevant to the condition, practice, or violation. Such cessation order shall remain in effect until the Secretary or his authorized rep- resentative determines that the condition, prac- tice, or violation has been abated, or until modi- fied, vacated, or terminated by the Secretary or his authorized representative pursuant to para- graph (5) of this subsection. Where the Secretary finds that the ordered cessation of surface coal mining and reclamation operations, or any por- tion thereof, will not completely abate the im- minent danger to health or safety of the public or the significant imminent environmental harm to land, air, or water resources, the Sec- retary shall, in addition to the cessation order, impose affirmative obligations on the operator requiring him to take whatever steps the Sec- retary deems necessary to abate the imminent danger or the significant environmental harm. (3) When, on the basis of a Federal inspection which is carried out during the enforcement of a Federal program or a Federal lands program, Federal inspection pursuant to section 1252, or section 1254(b) of this title, or during Federal en- forcement of a State program in accordance with subsection (b) of this section, the Secretary or his authorized representative determines that any permittee is in violation of any requirement of this chapter or any permit condition required by this chapter; but such violation does not cre- ate an imminent danger to the health or safety of the public, or cannot be reasonably expected to cause significant, imminent environmental harm to land, air, or water resources, the Sec- retary or authorized representative shall issue a notice to the permittee or his agent fixing a rea- sonable time but not more than ninety days for the abatement of the violation and providing op- portunity for public hearing. If, upon expiration of the period of time as originally fixed or subsequently extended, for good cause shown and upon the written finding of the Secretary or his authorized representa- tive, the Secretary or his authorized representa- tive finds that the violation has not been abated, he shall immediately order a cessation of surface coal mining and reclamation oper- ations or the portion thereof relevant to the vio- lation. Such cessation order shall remain in ef- fect until the Secretary or his authorized rep- resentative determines that the violation has been abated, or until modified, vacated, or ter- minated by the Secretary or his authorized rep- resentative pursuant to paragraph (5) of this subsection. In the order of cessation issued by the Secretary under this subsection, the Sec- retary shall determine the steps necessary to abate the violation in the most expeditious manner possible, and shall include the necessary measures in the order. (4) When, on the basis of a Federal inspection which is carried out during the enforcement of a Federal program or a Federal lands program, Federal inspection pursuant to section 1252 or section 1254 of this title or during Federal en- forcement of a State program in accordance with subsection (b) of this section, the Secretary or his authorized representative determines that a pattern of violations of any requirements of this chapter or any permit conditions required by this chapter exists or has existed, and if the Secretary or his authorized representative also find that such violations are caused by the un- warranted failure of the permittee to comply with any requirements of this chapter or any permit conditions, or that such violations are willfully caused by the permittee, the Secretary or his authorized representative shall forthwith issue an order to the permittee to show cause as to why the permit should not be suspended or re- voked and shall provide opportunity for a public hearing. If a hearing is requested the Secretary shall inform all interested parties of the time and place of the hearing. Upon the permittee’s failure to show cause as to why the permit should not be suspended or revoked, the Sec- retary or his authorized representative shall forthwith suspend or revoke the permit. (5) Notices and orders issued pursuant to this section shall set forth with reasonable speci- ficity the nature of the violation and the reme- dial action required, the period of time estab- lished for abatement, and a reasonable descrip- tion of the portion of the surface coal mining and reclamation operation to which the notice or order applies. Each notice or order issued under this section shall be given promptly to the permittee or his agent by the Secretary or his authorized representative who issues such notice or order, and all such notices and orders shall be in writing and shall be signed by such authorized representatives. Any notice or order issued pursuant to this section may be modified, vacated, or terminated by the Secretary or his authorized representative. A copy of any such order or notice shall be sent to the State regu- latory authority in the State in which the viola- tion occurs: Provided, That any notice or order issued pursuant to this section which requires cessation of mining by the operator shall expire within thirty days of actual notice to the oper- ator unless a public hearing is held at the site or within such reasonable proximity to the site that any viewings of the site can be conducted during the course of public hearing. Page 299 TITLE 30—MINERAL LANDS AND MINING § 1272 1 So in original. Probably should be ‘‘subsection’’. (b) Inadequate State enforcement; notice and hearing Whenever on the basis of information avail- able to him, the Secretary has reason to believe that violations of all or any part of an approved State program result from a failure of the State to enforce such State program or any part there- of effectively, he shall after public notice and notice to the State, hold a hearing thereon in the State within thirty days of such notice. If as a result of said hearing the Secretary finds that there are violations and such violations result from a failure of the State to enforce all or any part of the State program effectively, and if he further finds that the State has not adequately demonstrated its capability and intent to en- force such State program, he shall give public notice of such finding. During the period begin- ning with such public notice and ending when such State satisfies the Secretary that it will enforce this chapter, the Secretary shall en- force, in the manner provided by this chapter, any permit condition required under this chap- ter, shall issue new or revised permits in accord- ance with requirements of this chapter, and may issue such notices and orders as are necessary for compliance therewith: Provided, That in the case of a State permittee who has met his obli- gations under such permit and who did not will- fully secure the issuance of such permit through fraud or collusion, the Secretary shall give the permittee a reasonable time to conform ongoing surface mining and reclamation to the require- ments of this chapter before suspending or re- voking the State permit. (c) Civil action for relief The Secretary may request the Attorney Gen- eral to institute a civil action for relief, includ- ing a permanent or temporary injunction, re- straining order, or any other appropriate order in the district court of the United States for the district in which the surface coal mining and reclamation operation is located or in which the permittee thereof has his principal office, when- ever such permittee or his agent (A) violates or fails or refuses to comply with any order or deci- sion issued by the Secretary under this chapter, or (B) interferes with, hinders, or delays the Secretary or his authorized representatives in carrying out the provisions of this chapter, or (C) refuses to admit such authorized representa- tive to the mine, or (D) refuses to permit inspec- tion of the mine by such authorized representa- tive, or (E) refuses to furnish any information or report requested by the Secretary in furtherance of the provisions of this chapter, or (F) refuses to permit access to, and copying of, such records as the Secretary determines necessary in car- rying out the provisions of this chapter. Such court shall have jurisdiction to provide such re- lief as may be appropriate. Temporary restrain- ing orders shall be issued in accordance with rule 65 of the Federal Rules of Civil Procedure, as amended. Any relief granted by the court to enforce an order under clause (A) of this sec- tion 1 shall continue in effect until the comple- tion or final termination of all proceedings for review of such order under this subchapter, un- less, prior thereto, the district court granting such relief sets it aside or modifies it. (d) Sanctions; effect on additional enforcement rights under State law As a condition of approval of any State pro- gram submitted pursuant to section 1253 of this title, the enforcement provisions thereof shall, at a minimum, incorporate sanctions no less stringent than those set forth in this section, and shall contain the same or similar procedural requirements relating thereto. Nothing herein shall be construed so as to eliminate any addi- tional enforcement rights or procedures which are available under State law to a State regu- latory authority but which are not specifically enumerated herein. (Pub. L. 95–87, title V, § 521, Aug. 3, 1977, 91 Stat. 504.) Editorial Notes REFERENCES IN TEXT Rule 65 of the Federal Rules of Civil Procedure, re- ferred to in subsec. (c), is set out in the Appendix to Title 28, Judiciary and Judicial Procedure. § 1272. Designating areas unsuitable for surface coal mining (a) Establishment of State planning process; standards; State process requirements; inte- gration with present and future land use planning and regulation processes; savings provisions (1) To be eligible to assume primary regu- latory authority pursuant to section 1253 of this title, each State shall establish a planning proc- ess enabling objective decisions based upon com- petent and scientifically sound data and infor- mation as to which, if any, land areas of a State are unsuitable for all or certain types of surface coal mining operations pursuant to the stand- ards set forth in paragraphs (2) and (3) of this subsection but such designation shall not pre- vent the mineral exploration pursuant to the chapter of any area so designated. (2) Upon petition pursuant to subsection (c) of this section, the State regulatory authority shall designate an area as unsuitable for all or certain types of surface coal mining operations if the State regulatory authority determines that reclamation pursuant to the requirements of this chapter is not technologically and eco- nomically feasible. (3) Upon petition pursuant to subsection (c) of this section, a surface area may be designated unsuitable for certain types of surface coal min- ing operations if such operations will— (A) be incompatible with existing State or local land use plans or programs; or (B) affect fragile or historic lands in which such operations could result in significant damage to important historic, cultural, sci- entific, and esthetic values and natural sys- tems; or (C) affect renewable resource lands in which such operations could result in a substantial loss or reduction of long-range productivity of water supply or of food or fiber products, and such lands to include aquifers and aquifer re- charge areas; or