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it <br />Bob Hagen <br />2 - <br />May 1, 1987 <br />2. That I did not read that section of the law as being that <br />restrictive, With respect to the issue, the essence of the law is <br />that "such cessation order shall remain in effect until the Secretary <br />or his authorized representative ... modified, vacated, or terminated <br />.,. [the cessation orders] ... pursuant to subparagraph (a)(5) ..." <br />of section 521. The pertinent sentence in 521(a)(5) states, "Any <br />notice or order issued pursuant to this section may be modified, <br />vacated or terminated by the Secretary or his authorized <br />representative." I could not find in SMCRA any restrictive language <br />as to when the Secretary can or cannot vacate a C.O.. The <br />regulations a 30CFR 843.11 adds a little more on this subject under <br />(e) which states that, the Secretary may ... vacate a cessation <br />order for good cause ..." Further, 30CFR 843.17 identifies the <br />specific instances where a C. O, cannot be vacated: a) For failure to <br />give notice and lack of information; and b) for an inability to <br />comply. These are the only two instances which restrict the <br />Secretary from vacating a C.O.. <br />3. The question I put to Mr. Kunz was; is the Secretary precluded under <br />SMCRA and the Federal Regulations from vacating a C.O. for reasons <br />other than the two restrictions identified in 30 CFR 843.17? If so, <br />what are those legal restrictions? I advised Mr. Kunz that Stewart <br />Sanderson had been consulted on the matter by AFO Staff. <br />At this time I do not have a formal response on that question. Thus, one <br />reason I am writing this letter is to ask you to obtain a formal response to <br />those questions, <br />For the remaining purpose of this letter, the discussion of policy, I will <br />presume that the Secretary is not precluded from vacating a C.O. for reasons <br />other than the two restrictions. With respect to the State/Federal <br />relationship under SMCRA, it seems that it would be good policy to provide for <br />state enforcement action to supplant a Federal C.O.. Normally the conditions <br />under which a Federal C.O. are written, there is no opportunity at the instant <br />of the Federal inspection, unless it is a joint inspection, for state <br />enforcement because conditions of imminent environmental harm or imminent <br />danger to the health or safety of the public exist. Prompt action is <br />reouired. However, after the Federal C.O. has been issued, caused the <br />cessation of operations and prevented the harm, it may be appropriate for the <br />state program to be used to process the enforcement action. Resolution of the <br />matter may involve coordination of enforcement and permitting procedures which <br />is not easily done when the enforcement is in the Federal system and the <br />permitting is in the state system. In such cases if the state was able, in <br />terms of authority and evidence, and willing to issue a comparable state <br />enforcement action, then the Secretary ought to vacate the C. O. to provide for <br />smooth processing and resolution of the matter. <br />Further, this response by the Secretary would strengthen the concept of state <br />primacy where the state has a demonstrated ability an willingness to carry out <br />the enforcement. The state program as approved by the Secretary is "no less <br />stringent" and "as effective as" the Federal program. Therefore, the <br />Secretary loses nothing by providing for processing under the state system. <br />In addition, there is a benefit because all matters pertaining to the <br />