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Mr. Robert Hagen - 3 - June 5, 1987 In this case, La Plata Coal was abating the violations of a previously permitted operation and had filed a complete application fora permit. The operation was being observed by State inspectors. Conditions or practices which cause or can be reasonably be expected to cause significant environmental harm did not exist. The basis for the cessation order, as reflected in the OSM inspection report, pertained to construction, the upgrading of structures and activity improving the safety of the site; the latter being conducted under the advisory orders from the Mine Safety and Health Administration. The only observations pertaining to effects upon land, air or water resources pertained to the remedial activity La Plata Coal was taking to correct the Sunbelt violations. Given this, it seems that the appropriate response by OSM in this case could have been different. Prior to taking any enforcement action, the Division could have been consulted and given an opportunity to join OSM at the site. Based on the consultation and Division response, OSM could then have decided whether it was appropriate to take further action. If it did believe that violations existed, including mining without a permit, it should have issued ten-day-notice (TDN) to the Division since the conditions or practices requiring a cessation order did not exist. The Division would have then had to respond to a 7DN and judge whether La Plata Coal was in violation of the law. Can OSM Vacate A Cessation Order When The State Elects To Supplant It With An rcemen This issue has been addressed previously in a letter dated May 1, 1987 from Fred Banta to you (see attached letter). The larger discussion on this issue will not be reiterated here. Essentially, it is our opinion that the Secretary is not precluded from vacating a cessation order if the State elects to supplant the Federal cessation order. In cases such as this it makes good sense for the OSM to withdraw from the action because of the need for coordinated action between the permitting and enforcement systems. OSM would then have an appropriate oversight role. The Division has offered this alternative to OSM, but has met resistance. Given this resistance, the Division has not taken enforcement action because of the unnecessary burden it would place on La Plata Coal and the Division. La Plata Coal is currently working toward bringing an abandoned mine into compliance. It would be unduly burdensome to force it into two enforcement systems with the potential for two different abatement scenarios, double fines and other duplicative efforts. As such, the Division has been working with La Plata Coal to abate the Federal cessation order. Should OSM Coordinate Its Enforcement Activity With The State? Even if OSM found that it correctly issued the cessation order and cannot vacate it, it should coordinate with the Division on matters of abatement and procedure. It cannot act independently, as it has done in this case, because the remedial actions and abatements it has required imposes obligations upon the Division as well as the operator. To proceed without consultation leads to confusion, incorrect application of State policy and law, and waste of time and resources.