30 U.S.C. § 1275 — Review by Secretary

Page 302 TITLE 30—MINERAL LANDS AND MINING § 1274 (Pub. L. 95–87, title V, § 523, Aug. 3, 1977, 91 Stat. 510.) § 1274. Public agencies, public utilities, and pub- lic corporations Any agency, unit, or instrumentality of Fed- eral, State, or local government, including any publicly owned utility or publicly owned cor- poration of Federal, State, or local government, which proposes to engage in surface coal mining operations which are subject to the require- ments of this chapter shall comply with the pro- visions of this subchapter. (Pub. L. 95–87, title V, § 524, Aug. 3, 1977, 91 Stat. 511.) § 1275. Review by Secretary (a) Application for review of order or notice; in- vestigation; hearing; notice (1) A permittee issued a notice or order by the Secretary pursuant to the provisions of para- graphs (2) and (3) of subsection (a) of section 1271 of this title, or pursuant to a Federal program or the Federal lands program or any person hav- ing an interest which is or may be adversely af- fected by such notice or order or by any modi- fication, vacation, or termination of such notice or order, may apply to the Secretary for review of the notice or order within thirty days of re- ceipt thereof or within thirty days of its modi- fication, vacation, or termination. Upon receipt of such application, the Secretary shall cause such investigation to be made as he deems ap- propriate. Such investigation shall provide an opportunity for a public hearing, at the request of the applicant or the person having an interest which is or may be adversely affected, to enable the applicant or such person to present informa- tion relating to the issuance and continuance of such notice or order or the modification, vaca- tion, or termination thereof. The filing of an ap- plication for review under this subsection shall not operate as a stay of any order or notice. (2) The permittee and other interested persons shall be given written notice of the time and place of the hearing at least five days prior thereto. Any such hearing shall be of record and shall be subject to section 554 of title 5. (b) Findings of fact; issuance of decision Upon receiving the report of such investiga- tion, the Secretary shall make findings of fact, and shall issue a written decision, incorporating therein an order vacating, affirming, modifying, or terminating the notice or order, or the modi- fication, vacation, or termination of such notice or order complained of and incorporate his find- ings therein. Where the application for review concerns an order for cessation of surface coal mining and reclamation operations issued pur- suant to the provisions of paragraph (2) or (3) of subsection (a) of section 1271 of this title, the Secretary shall issue the written decision within thirty days of the receipt of the application for review, unless temporary relief has been granted by the Secretary pursuant to subsection (c) of this section or by the court pursuant to sub- section (c) of section 1276 of this title. (c) Temporary relief; issuance of order or deci- sion granting or denying relief Pending completion of the investigation and hearing required by this section, the applicant may file with the Secretary a written request that the Secretary grant temporary relief from any notice or order issued under section 1271 of this title, a Federal program or the Federal lands program together with a detailed state- ment giving reasons for granting such relief. The Secretary shall issue an order or decision granting or denying such relief expeditiously: Provided, That where the applicant requests re- lief from an order for cessation of coal mining and reclamation operations issued pursuant to paragraph (2) or (3) of subsection (a) of section 1271 of this title, the order or decision on such a request shall be issued within five days of its re- ceipt. The Secretary may grant such relief, under such conditions as he may prescribe, if— (1) a hearing has been held in the locality of the permit area on the request for temporary relief in which all parties were given an oppor- tunity to be heard; (2) the applicant shows that there is substan- tial likelihood that the findings of the Sec- retary will be favorable to him; and (3) such relief will not adversely affect the health or safety of the public or cause signifi- cant, imminent environmental harm to land, air, or water resources. (d) Notice and hearing with respect to section 1271 order to show cause Following the issuance of an order to show cause as to why a permit should not be sus- pended or revoked pursuant to section 1271 of this title, the Secretary shall hold a public hear- ing after giving written notice of the time, place, and date thereof. Any such hearing shall be of record and shall be subject to section 554 of title 5. Within sixty days following the public hearing, the Secretary shall issue and furnish to the permittee and all other parties to the hear- ing a written decision, and the reasons therefor, concerning suspension or revocation of the per- mit. If the Secretary revokes the permit, the permittee shall immediately cease surface coal mining operations on the permit area and shall complete reclamation within a period specified by the Secretary, or the Secretary shall declare as forfeited the performance bonds for the oper- ation. (e) Costs Whenever an order is issued under this section, or as a result of any administrative proceeding under this chapter, at the request of any person, a sum equal to the aggregate amount of all costs and expenses (including attorney fees) as deter- mined by the Secretary to have been reasonably incurred by such person for or in connection with his participation in such proceedings, in- cluding any judicial review of agency actions, may be assessed against either party as the court, resulting from judicial review or the Sec- retary, resulting from administrative pro- ceedings, deems proper. (Pub. L. 95–87, title V, § 525, Aug. 3, 1977, 91 Stat. 511.) Page 303 TITLE 30—MINERAL LANDS AND MINING § 1277 § 1276. Judicial review (a) Review by United States District Court; venue; filing of petition; time (1) Any action of the Secretary to approve or disapprove a State program or to prepare or pro- mulgate a Federal program pursuant to this chapter shall be subject to judicial review by the United States District Court for the District which includes the capital of the State whose program is at issue. Any action by the Secretary promulgating national rules or regulations in- cluding standards pursuant to sections 1251, 1265, 1266, and 1273 of this title shall be subject to ju- dicial review in the United States District Court for the District of Columbia Circuit. Any other action constituting rulemaking by the Sec- retary shall be subject to judicial review only by the United States District Court for the District in which the surface coal mining operation is lo- cated. Any action subject to judicial review under this subsection shall be affirmed unless the court concludes that such action is arbi- trary, capricious, or otherwise inconsistent with law. A petition for review of any action subject to judicial review under this subsection shall be filed in the appropriate Court within sixty days from the date of such action, or after such date if the petition is based solely on grounds arising after the sixtieth day. Any such petition may be made by any person who participated in the ad- ministrative proceedings and who is aggrieved by the action of the Secretary. (2) Any order or decision issued by the Sec- retary in a civil penalty proceeding or any other proceeding required to be conducted pursuant to section 554 of title 5 shall be subject to judicial review on or before 30 days from the date of such order or decision in accordance with subsection (b) of this section in the United States District Court for the district in which the surface coal mining operation is located. In the case of a pro- ceeding to review an order or decision issued by the Secretary under the penalty section of this chapter, the court shall have jurisdiction to enter an order requiring payment of any civil penalty assessment enforced by its judgment. This availability of review established in this subsection shall not be construed to limit the operations of rights established in section 1270 of this title. (b) Evidence; conclusiveness of findings; orders The court shall hear such petition or com- plaint solely on the record made before the Sec- retary. Except as provided in subsection (a), the findings of the Secretary if supported by sub- stantial evidence on the record considered as a whole, shall be conclusive. The court may af- firm, vacate, or modify any order or decision or may remand the proceedings to the Secretary for such further action as it may direct. (c) Temporary relief; prerequisites In the case of a proceeding to review any order or decision issued by the Secretary under this chapter, including an order or decision issued pursuant to subsection (c) or (d) of section 1275 of this title pertaining to any order issued under paragraph (2), (3), or (4) of subsection (a) of sec- tion 1271 of this title for cessation of coal min- ing and reclamation operations, the court may, under such conditions as it may prescribe, grant such temporary relief as it deems appropriate pending final determination of the proceedings if— (1) all parties to the proceedings have been notified and given an opportunity to be heard on a request for temporary relief; (2) the person requesting such relief shows that there is a substantial likelihood that he will prevail on the merits of the final deter- mination of the proceeding; and (3) such relief will not adversely affect the public health or safety or cause significant im- minent environmental harm to land, air, or water resources. (d) Stay of action, order, or decision of Secretary The commencement of a proceeding under this section shall not, unless specifically ordered by the court, operate as a stay of the action, order, or decision of the Secretary. (e) Action of State regulatory authority Action of the State regulatory authority pur- suant to an approved State program shall be subject to judicial review by a court of com- petent jurisdiction in accordance with State law, but the availability of such review shall not be construed to limit the operation of the rights established in section 1270 of this title except as provided therein. (Pub. L. 95–87, title V, § 526, Aug. 3, 1977, 91 Stat. 512.) § 1277. Special bituminous coal mines (a) Issuance of separate regulations; criteria The regulatory authority is authorized to issue separate regulations for those special bitu- minous coal surface mines located west of the 100th meridian west longitude which meet the following criteria: (1) the excavation of the specific mine pit takes place on the same relatively limited site for an extended period of time; (2) the excavation of the specific mine pit follows a coal seam having an inclination of fifteen degrees or more from the horizontal, and continues in the same area proceeding downward with lateral expansion of the pit necessary to maintain stability or as nec- essary to accommodate the orderly expansion of the total mining operation; (3) the excavation of the specific mine pit in- volves the mining of more than one coal seam and mining has been initiated on the deepest coal seam contemplated to be mined in the current operation; (4) the amount of material removed is large in proportion to the surface area disturbed; (5) there is no practicable alternative meth- od of mining the coal involved; (6) there is no practicable method to reclaim the land in the manner required by this chap- ter; and (7) the specific mine pit has been actually producing coal since January 1, 1972, in such manner as to meet the criteria set forth in this section, and, because of past duration of mining, is substantially committed to a mode of operation which warrants exceptions to some provisions of this subchapter.