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within 30 days of such notice or order being modified, va-
cated or terminated.
(B) Any person who is subject to a penalty assessed
under section 218, section 219(c), or section 247 may
apply to the Secretary concerned for review of the assess-
ment within 30 days of notification of such penalty.
(C) Any person having an interest which is or may
be adversely affected by a decision made by the Secretary
or the Secretary of Agriculture under section 213, 214,
215, 216, 219, or 244(a)(3) may apply to such Secretary
for review of the decision within 30 days after it is made.
(2) The Secretary concerned shall provide an oppor-
tunity for a public hearing at the request of any party
to the proceeding as specified in paragraph (1). The filing
of an application for review under this subsection shall not
operate as a stay of any order or notice issued under sec-
tion 247.
(3) For any review proceeding under this subsection,
the Secretary concerned shall make findings of fact and
shall issue a written decision incorporating therein an
order vacating, affirming, modifying or terminating the
notice, order or decision, or with respect to an assessment,
the amount of penalty that is warranted. Where the appli-
cation for review concerns a cessation order issued under
section 247, the Secretary concerned shall issue the writ-
123
ten decision within 30 days of the receipt of the applica-
tion for review or within 30 days after the conclusion of
any hearing referred to in paragraph (2), whichever is
later, unless temporary relief has been granted by the Sec-
retary concerned under paragraph (4).
(4) Pending completion of any review proceedings
under this subsection, the applicant may file with the Sec-
retary, or for National Forest System lands the Secretary
of Agriculture, a written request that the Secretary grant
temporary relief from any order issued under section 247
together with a detailed statement giving reasons for such
relief. The Secretary concerned shall expeditiously issue
an order or decision granting or denying such relief. The
Secretary concerned may grant such relief under such con-
ditions as he may prescribe only if such relief shall not
adversely affect the health or safety of the public or cause
significant, imminent environmental harm to land, air or
water resources.
(5) The availability of review under this subsection
shall not be construed to limit the operation of rights
under section 245.
(b) JUDICIAL REVIEW.—(1) Any final action by the
Secretaries of the Interior and Agriculture in promulgat-
ing regulations to implement this title, or any other final
actions constituting rulemaking to implement this title,
124
shall be subject to judicial review only in the United States
Court of Appeals for the District of Columbia. Any action
subject to judicial review under this subsection shall be
affirmed unless the court concludes that such action is ar-
bitrary, capricious, or otherwise inconsistent with law. A
petition for review of any action subject to judicial review
under this subsection shall be filed within 60 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 com-
mented or otherwise participated in the rulemaking or any
person who may be adversely affected by the action of the
Secretaries.
(2) Final agency action under this title, including
such final action on those matters described under sub-
section (a), shall be subject to judicial review in accord-
ance with paragraph (4) and pursuant to section 1391 of
title 28 of the United States Code on or before 60 days
from the date of such final action. Any action subject to
judicial review under this subsection shall be affirmed un-
less the court concludes that such action is arbitrary, ca-
pricious, or otherwise inconsistent with law.
(3) The availability of judicial review established in
this subsection shall not be construed to limit the oper-
125
ations of rights under section 245 (relating to citizens
suits).
(4) The court shall hear any petition or complaint
filed under this subsection solely on the record made be-
fore the Secretary or Secretaries concerned. The court
may affirm or vacate any order or decision or may remand
the proceedings to the Secretary or Secretaries for such
further action as it may direct.
(5) 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 or Secretaries concerned.
(c) COSTS.—Whenever a proceeding occurs under
subsection (a) or (b), at the request of any person, a sum
equal to the aggregate amount of all costs and expenses
(including attorney fees) as determined by the Secretary
or Secretaries concerned or the court to have been reason-
ably incurred by such person for or in connection with par-
ticipation in such proceedings, including any judicial re-
view of the proceeding, may be assessed against either
party as the court, in the case of judicial review, or the
Secretary or Secretaries concerned in the case of adminis-
trative proceedings, deems proper if it is determined that
such party prevailed in whole or in part, achieving some
success on the merits, and that such party made a sub-
126
stantial contribution to a full and fair determination of
the issues.
SEC. 247. ENFORCEMENT.
(a) ORDERS.—(1) If the Secretary, or for National
Forest System lands the Secretary of Agriculture, or an
authorized representative of such Secretary, determines
that any person is in violation of any surface management
or monitoring requirement, such Secretary or authorized
representative shall issue to such person a notice of viola-
tion describing the violation and the corrective measures
to be taken. The Secretary concerned, or the authorized
representative of such Secretary, shall provide such person
with a period of time not to exceed 30 days to abate the
violation. Such period of time may be extended by the Sec-
retary concerned upon a showing of good cause by such
person. If, upon the expiration of time provided for such
abatement, the Secretary concerned, or the authorized
representative of such Secretary, finds that the violation
has not been abated he shall immediately order a cessation
of all mineral activities or the portion thereof relevant to
the violation.
(2) If the Secretary concerned, or the authorized rep-
resentative of the Secretary concerned, determines that
any condition or practice exists, or that any person is in
violation of any surface management or monitoring re-
127
quirement, and such condition, practice or violation is
causing, or can reasonably be expected to cause—
(A) an imminent danger to the health or safety
of the public; or
(B) significant, imminent environmental harm
to land, air, water, fish or wildlife resources;
such Secretary or authorized representative shall imme-
diately order a cessation of mineral activities or the por-
tion thereof relevant to the condition, practice or violation.
(3)(A) A cessation order pursuant to paragraphs (1)
or (2) shall remain in effect until such Secretary, or au-
thorized representative, determines that the condition,
practice or violation has been abated, or until modified,
vacated or terminated by the Secretary or authorized rep-
resentative. In any such order, the Secretary or authorized
representative shall determine the steps necessary to abate
the violation in the most expeditious manner possible and
shall include the necessary measures in the order. The
Secretary concerned shall require appropriate financial as-
surances to ensure that the abatement obligations are met.
(B) Any notice or order issued pursuant to para-
graphs (1) or (2) may be modified, vacated or terminated
by the Secretary concerned or an authorized representa-
tive of such Secretary. Any person to whom any such no-
128
tice or order is issued shall be entitled to a hearing on
the record.
(4) If, after 30 days of the date of the order referred
to in paragraph (3)(A) the required abatement has not
occurred the Secretary concerned shall take such alter-
native enforcement action against the claimholder or oper-
ator (or any person who controls the claimholder or opera-
tor) as will most likely bring about abatement in the most
expeditious manner possible. Such alternative enforcement
action may include, but is not necessarily limited to, seek-
ing appropriate injunctive relief to bring about abatement.
Nothing in this paragraph shall preclude the Secretary,
or for National Forest System lands the Secretary of Agri-
culture, from taking alternative enforcement action prior
to the expiration of 30 days.
(5) If a claimholder or operator (or any person who
controls the claimholder or operator) fails to abate a viola-
tion or defaults on the terms of the permit, the Secretary,
or for National Forest System lands the Secretary of Agri-
culture, shall forfeit the financial assurance for the plan
as necessary to ensure abatement and reclamation under
this title. The Secretary concerned may prescribe condi-
tions under which a surety may perform reclamation in
accordance with the approved plan in lieu of forfeiture.