OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

Search conducted by: Joyce Zweben Scall Page 1 of 4

COALEX STATE INQUIRY REPORT - 273

January 1994

Caroleen Carman

Assistant Chief Counsel

Oklahoma Department of Mines

4040 N. Lincoln, Suite 107

Oklahoma City, Oklahoma 73105

TOPIC: TEMPORARY CESSATION OF OPERATIONS

INQUIRY: What time frame constitutes a "temporary" cessation? An operator 

"temporarily" ceased mining part of his permitted area, claiming that he was awaiting 

technology that would allow him to mine the wet area and meet the reclamation 

requirements. Is there any material that discusses when a temporary cessation 

becomes a permanent cessation, requiring proper reclamation? 

SEARCH RESULTS: COALEX and LEXIS were used to research information on 30 

CFR 816.131 (Temporary cessation of operations) and 816.132 (Permanent cessation 

of operations). No information on what constitutes "temporary" cessation was found in 

the legislative history, Interior administrative decisions or state/federal cases. A 1987 

OSM Directive was retrieved that states when temporary cessation of operations 

terminates. Federal rules proposed in November, 1991 to establish time frames and 

termination of temporary cessation are instructive; however, they were withdrawn in 

October, 1992. Two Interior administrative decisions were identified that rule on a 

related issue: an operator's use of "best technology currently available" defense for his 

inability to comply with required regulations. 

Materials listed below are attached.

OSM DIRECTIVE

OSM DIRECTIVE, Subject No. INE-22, Transmittal No. 332, "Temporary Cessation 

of Operations" (Issued May 8, 1987).

3.b. Policy/Procedures.

...

"(2) Temporary cessation of operations shall terminate upon either the resumption of 

surface coal mining operations; the failure of the permittee to submit an application for 

permit renewal within at least 120 days before expiration of the existing permit; or upon 
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expiration of any maximum time periods which may be imposed under the applicable 

regulatory program."

REGULATORY HISTORY OF 816.131 AND 816.132

43 FR 17835 (APRIL 26, 1978). Advance notice of proposed rulemaking.

Attached for background.

44 FR 14902 (MARCH 13, 1979). Permanent program final preamble -- Final rule. 

816.131 and 816.132 Cessation of operations. 

"Several commenters suggested revising Section 816.131(b) by defining the temporary 

cessation of operations in terms of time (planned vs. unplanned) as well as deletion of 

the statement of activities that will continue during a temporary cessation. The adverse 

environmental effects from an operation during temporary cessation of operation would 

be essentially the same regardless of the fact that the cessation was planned or 

unplanned. However, due to the nature of surface mining, adverse weather, labor 

disputes, and the coal market itself, temporary cessation of mining is relatively common. 

Many of these temporary cessations are brief, often a week or less. To eliminate 

relatively unproductive paperwork, which would be both time-consuming and expensive 

and would place a large burden on the regulatory authority the phrase 'for a period of 30 

days or more or as soon as it is known that a temporary cessation will extend beyond 

30 days' was added to 816.131(b). OSM believes that in most cases regulatory 

authorities may find it difficult to respond to conditions in a meaningful way in less than 

30 days. The plan which must be provided will assure that environmental protection 

measures necessary under the permit will continue or that appropriate alternative 

measures have been brought to the regulator authority's attention. This will facilitate 

meaningful evaluation of the closure measure and permit their modification if 

necessary."

56 FR 60012 (NOVEMBER 26, 1991). Proposed rule. Temporary cessation of 

operations.

OSM proposed rules that would require a permittee to submit an application to the 

regulatory authority for approval before temporarily ceasing surface or underground coal 

mining operations for a period of more than 30 days. These proposed rules detailed that 

application requirements and procedures.

Background

...

"In promulgating the existing rules, OSM recognized that temporary cessation of 

operations is relatively common and is sometimes necessary due to the nature of the 

coal mining business and the coal market itself. Moreover, section 515(b)(1) of the Act 

requires surface coal mining and reclamation operations to be conducted 'so as to 
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maximize the utilization and conservation of the solid fuel resource being recovered so 

that reaffecting the land in the future through surface coal mining may be minimized.' 

Under this performance standard if an operator cannot comply with a mining and 

reclamation schedule for legitimate business reasons, it would make no sense to 

require the closing and reclamation of the uncompleted mining operation when closing 

would economically preclude future recovery of remaining coal reserves or would 

require substantial redisturbance of reclaimed land in order to reopen operations. While 

these views have not changed, OSM believes that the existing rules need to be revised 

to prevent potential misapplication or abuse.

...

"(6) The existing regulations do not provide for periodic review of those operations in 

temporary cessation status. The average term that an operation is in temporary 

cessation is 2.3 years, but can range up to five years or more. There currently is no 

assurance that once an operation enters temporary cessation status, it remains 

qualified for that status. Without some periodic review to validate the justification for 

continued temporary cessation, the potential exists for reclamation to be delayed 

indefinitely for reasons unrelated to legitimate business needs. This would violate the 

requirement at 30 CFR 816.100/817.100 that reclamation efforts proceed as 

contemporaneously as practicable with mining operations.

"(7) The existing rules do not specify under what conditions temporary cessation will 

terminate and thus, reinstate the operator's obligation to resume mining and reclamation 

operations to completion.

Proposed 816.131(f)/817.131(f) established conditions for the terminating the approved 

cessation of operations: (1) resumption of surface or underground mining activities; (2) 

failure of a permittee to submit an application for temporary cessation ; (3) after periodic 

review of temporary cessation status, particularly when that status extends beyond the 

midterm permit review or the permit renewal period; and (4) failure of the permittee to 

submit an application for permit renewal at least 120 days prior to expiration of the 

existing permit term.

57 FR 4085 (FEBRUARY 3, 1991). Correction.

Included for background. 

57 FR 47431 (OCTOBER 16, 1992). Withdrawal of proposed rules.

The proposed rules were withdrawn as a result of "reviews conducted under the 

President's Guidelines for Reducing the Burden of Government Regulations."

OSM COMMENTS ON STATE PROGRAM AMENDMENTS

PENNSYLVANIA: 56 FR 24687 (MAY 31, 1991).
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OSM approved Pennsylvania's amendment which stated "that temporary cessation of 

operations shall not exceed 90 days, unless the regulatory authority approves a longer 

period not to exceed 180 days or unless the regulatory authority approves a longer 

period for reasons of seasonal shutdown or labor strike."

WEST VIRGINIA: 56 FR 50256 (OCTOBER 4, 1991). 

OSM approved a revision which provided that "the 3-year limitation on inactive status for 

surface mines shall not apply to preparation plants or load-out facilities".

IOWA: 56 FR 56578 (NOVEMBER 6, 1991).

Iowa's proposed rule established "the length of time that a mine may temporarily cease 

operations before it must permanently cease operations. The Federal regulation does 

not provide such a timeframe thus allowing the States to use their discretion to set a 

reasonable limit."

INTERIOR DECISIONS RE: "BEST TECHNOLOGY CURRENTLY AVAILABLE"

ALPINE CONSTRUCTION CO. v OSM, 114 IBLA 232, IBLA 88-527 (1990). Alpine 

Construction Co. v OSM, Docket No. TU 7-55-R (1988).

The Board upheld the NOV issued to the operator who admitted the existence of 

"deteriorating conditions" but "sought to excuse its failure to comply based on its use of 

the best technology currently available in the face of severe weather conditions which 

assertedly prevented compliance."

ATTACHMENTS

A. OSM DIRECTIVE, Subject No. INE-22, Transmittal No. 332, "Temporary 

Cessation of Operations" (Issued May 8, 1987). 

B. 43 FR 17835 (APRIL 26, 1978). Advance notice of proposed rulemaking. 

C. 44 FR 14902 (MARCH 13, 1979). Permanent program final preamble -- Final 

rule. 816.131 and 816.132 Cessation of operations. 

D. 56 FR 60012 (NOVEMBER 26, 1991). Proposed rule. Temporary cessation of 

operations. 

E. 57 FR 4085 (FEBRUARY 3, 1991). Correction. 

F. 57 FR 47431 (OCTOBER 16, 1992). Withdrawal of proposed rules. 

G. PENNSYLVANIA: 56 FR 24687 (MAY 31, 1991). 

H. WEST VIRGINIA: 56 FR 50256 (OCTOBER 4, 1991). 

I. IOWA: 56 FR 56578 (NOVEMBER 6, 1991). 

J. ALPINE CONSTRUCTION CO. v OSM, 114 IBLA 232, IBLA 88-527 (1990). 

K. ALPINE CONSTRUCTION CO. V OSM, Docket No. TU 7-55-R (1988).