Laserfiche WebLink
<br />IBIA 85-723 <br />cannot issue an NOV in a state r~t:id: has acquired primacy over its permanent <br />regulatory program. Appellant nett maintains that the State of Alabama took <br />appropriate action in responding to OSMRE's 10-day notice. Implicit in the <br />State's response, Dora asserts, is the firdiry that all of appellant's recla- <br />mation responsibilities had been met. Finally, appellant contends that the <br />point frequency mettnd used by OSMRE in inepeeti~ Dora's minesite is not <br />auttnrizei by the regu]ations, has not been shown t4 be superior to the vis- <br />ual irepeetion method employed by the State, and was not correctly carried <br />out acwrding to OSMRE's stated Lrocedure. <br />(1] Similar arguments regatdirg O6t4tE's authority m act in states <br />with primacy have been addressed t7y this Board in prior appeals. In Office <br />of Surface Mining Reclamation and Enforcenent v. Calvert and harsh Coal Co., <br />JJ LDL/1 lOL, 1aJ \1J01 / / l.{lG PALV {{01V lJ {Q\. W{"a\L. LVVOL{.O V1L Vy{. OLLLVLb.a{G{{V <br />authority over surface miniry even though a state, like Alaba®a, is exercisirg <br />the primary regulatory authority. As support for this holding, the Board <br />cited section 521(a) of SMCRA, 30 U.S.C. S 1271(a) (1982), wt-ich states in <br />part: <br />(a)(1) Whenever, on the tgsis of any infoffiation available to <br />him, * * * the Secretary has reason m believe that any person <br />is in violation of any requirement of this Act or any pe mnit con- <br />dition required by this Act, the Secretary shall notify the State <br />regulatozy authority, if one exists, in the State in which such <br />violation exists. If ra such State authority exists or the State <br />regulatory authority fails within ten days after notification m <br />take appropriate action to cause said violation to be corrected <br />or do stew good cause for such failure and transmit ratification <br />of its action m the Secretary, the Secretary shall immediately <br />order Federal inspection of the surface coal mining cescation at <br />Which the alleged violation is occurring * * *. <br />Upon firdirt~ that a state has failed to take appropriate action ~ cause a <br />violation to be corrected, or to show good cause for suds failure, OSMRE is <br />directed by 30 CFR 843.12(a)(2) 3/ to issue a ratite of violation or cessa- <br />tion order. Bannock Coal Co. v. Office of Surface Mining Reclamation and <br />Enforcement, 93 IBLA 225, 234 (1986). Review of this regulation is proper <br />only in the [hlited States District Court for the District of Columbia Circuit <br />30 U.S.C. S 1276(a)(1) (1982); Calvert and Marsh, supra at 191. We hold the <br />Secretary's authority to issue an NOV in this case is clearly set forth in <br />case ]aw and regulations, and appellant's argument m the contrary must be <br />rejected. <br />f This regulation states in part: <br />"Where the State fails within ten days after notification m take <br />appropriate action t4 cause the violation to be corrected, or to show good <br />cause for such failure, the authorized representative shall reirepad and, <br />if the violation continues to exist, shall issue a notice of violation or <br />cessation ozder, as ~propriate." <br />Re inspect ion was perforn~ed by Prebeck using the visual inspection <br />method (TY. 38). <br />100 IBLA 302 <br />