UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


NATL MINING ASSN

v.

DOI


97-5202a

D.C. Cir. 1999


*	*	*


Karen LeCraft Henderson, Circuit Judge: Section 510(c)  of the Surface
Mining Control and Reclamation Act of 1977  (SMCRA) requires a surface
mining permit applicant to file  "a schedule listing any and all
notices of violations of this  chapter and any law, rule, or
regulation of the United States,  or of any department or agency in
the United States pertain- ing to air or water environmental
protection incurred by the  applicant in connection with any surface
coal mining operation  during the three-year period prior to the date
of application."  30 U.S.C. s 1260(c). The section further provides
that  "[w]here the schedule or other information available to the 
regulatory authority indicates that any surface coal mining  operation
owned or controlled by the applicant is currently in  violation of
this chapter or such other laws referred to this  subsection [sic],
the permit shall not be issued until the  applicant submits proof that
such violation has been corrected  or is in the process of being
corrected to the satisfaction of  the regulatory authority,
department, or agency which has  jurisdiction over such violation."
Id. To implement section  510(c) the Office of Surface Mining,
Reclamation and Enforce- ment, United States Department of the
Interior, (OSM) pro- mulgated three final rules: the Ownership and
Control Rule,  53 Fed. Reg. 38,868 (1988); the Permit Information


Fed. Reg. 18,438 (1989). In consolidated district court ac- tions the
National Mining Association (NMA) challenged all  three final rules
and the district court granted summary  judgment to OSM in each
action. See National Wildlife  Fed'n v. Babbitt, Nos. 88cv3117,
88cv3464, 88cv3470 (D.D.C.  filed Aug. 31, 1995); National Wildlife
Fed'n v. Babbitt, Nos.  89cv1130, 89cv1167 (D.D.C. filed Aug. 31,
1995); National  Wildlife Fed'n v. Babbitt, Nos. 89cv1751, 89cv1811
(D.D.C.  filed Aug. 31, 1995). In NMA v. United States Dep't of 
Interior, 105 F.3d 691 (D.C. Cir. 1997), (NMA I) this court  reversed
the district court, holding that the Ownership and  Control Rule's
broad construction of the statute--that OSM  could block permits based
on ongoing environmental viola- tions by "upstream" owners or
controllers of the permit  applicant--"conflicts with the plain
meaning of section  510(c)," 105 F.3d at 693, which authorizes denial
of a permit  based on violations only of "downstream" operations, that
is,  ones that are "owned or controlled by the applicant," 30  U.S.C.
s 1260(c). We further concluded that, "because the  permit-information
rule and the permit-rescission rule are  centered on the Ownership and
Control Rule, they too must  fall." 105 F.3d at 693. Finding the
ownership and control  defect so fundamental to OSM's permit blocking
regime, the  court vacated all three rules in toto, without reaching
NMA's  objections to other aspects of the rules.


In response to the decision in NMA I, OSM issued an  Interim Final
Rule, 62 Fed. Reg. 19,450 (1997), (IFR), which  largely reenacts the
provisions of the three vacated rules but  without the offending
"upstream" provisions.1 NMA chal- lenged the new IFR in the district
court by moving for  enforcement of the NMA I mandate in the
consolidated  actions and by filing a separate action, No. 97cv01418,
to  independently challenge the IFR. In each case NMA raised  many of
the objections we found it unnecessary to reach in  NMA I. The
district court denied the motions for enforce-




__________

n 1 OSM has since proposed new permit rules. See 63 Fed. Reg.  70,580
(Dec. 21, 1998) (proposed rules); 64 Fed. Reg. 23,811 (May 4,  1999)
(reopening and extending comment period to May 10, 1999).


ment, dismissed the consolidated actions and granted sum- mary judgment
in the newly filed IFR action, rejecting each  of NMA's challenges.
Reviewing the IFR de novo, as we  must, see National Coal Ass'n v.
Lujan, 979 F.2d 1548, 1553  (D.C. Cir. 1992), we reverse the district
court's summary  judgment in No. 97cv01418, challenging the IFR.
Because  our review of that action disposes of the issues raised in 
Appeal Nos. 97-5202, 97-5203, 97-5204 (from the mandate  enforcement
denials in Nos. 88cv03464, et al.), we dismiss  those appeals as
moot.2 We now address seriatim NMA's  various objections to the


I. "Ownership and Control"


NMA asserts that the IFR reaches more broadly down- stream than the
statute permits in two respects.


First, NMA contends the IFR authorizes permit-blocking  based on an
applicant's ownership and control not only of a  violating
"operation," as the statute explicitly directs, but also  of other
entities that in turn own or control a violating  operation. NMA is
correct that the IFR authorizes permit- blocking based on apparently
limitless downstream violations.  See 30 C.F.R. s 773.15(b)(1) ("Based
on a review of all  reasonably available information concerning




__________

n 2 In an order filed August 20, 1997, denying NMA's motion to  recall
and enforce the mandate in NMA I, we stated: "[A]ny  challenges
appellant wishes to raise concerning the revised regula- tions should
be presented in the first instance in the form of a new  complaint."
Accordingly, we resolve NMA's challenges in its appeal  from the
summary judgment in No. 97cv01418, the action NMA  filed (on June 20,
1997) specifically to challenge the IFR.


3 We do not address NMA's due process arguments which are  addressed to
OSM's 1994 procedural rules, see 43 C.F.R. ss 4.1370- 4.1377. The 1994
rules were not challenged below but were con- tested in a separate
action, No. 88cv3464, an appeal from which is  pending in this court.
See NMA v. Department of Interior, No.  96-5274 (D.C. Cir. filed Sept.
11, 1996). NMA has represented that  it "would not oppose deferring
consideration" of due process to the  other appeal. Reply Br. at 20.


involving either the applicant or any person owned or con- trolled by
the applicant, ... the regulatory authority may not  issue the permit
if any surface coal mining and reclamation  operation owned or
controlled by the applicant is currently in  violation....") (emphasis
added); id. s 773.20 (authorizing  regulatory agency to rescind permit
"[w]hen the regulatory  authority finds that the permit was
improvidently issued"  under 30 C.F.R. s 773.15(b)(1)). The statute
itself, however,  requires not that the violating operation be
directly owned by  the applicant but that it be either "owned or
controlled by the  applicant." 30 U.S.C. s 1260(c) (emphasis added).
OSM has  construed this language to include a downstream operation 
controlled, albeit not owned, by the applicant through owner- ship and
control of intermediary entities. This view is consis- tent with, if
not mandated by, the statutory language which,  as noted, applies to
any violating operations "controlled by  the applicant," not only
those directly owned by him. Ac- cordingly, the agency's construction
must be upheld. See  National Coal Ass'n v. Lujan, 979 F.2d 1548, 1555
(D.C. Cir.  1992) ("We must defer to [OSM's] interpretation of 
[SMCRA's] 'same penalties' provision unless the agency's  reading is
contrary to the statute's instruction, or is unrea- sonable.") (citing
Chevron U.S.A., Inc. v. Natural Resources  Defense Council, Inc., 467


Second, NMA asserts the IFR oversteps OSM's statutory  authority
insofar as it allows permit blocking based on a  violation by an
entity that the applicant formerly owned or  controlled but does no
longer. On this we agree. The  statute expressly authorizes
permit-blocking "when an opera- tion owned or controlled is currently
in violation" of environ- mental laws. 30 U.S.C. s 1260(c). The
legislative history  indicates, as the statutory language suggests,
that the Con- gress intended to authorize a permit block only when an 
applicant, through ownership or control, is in violation at the  time
of application. See S. Rep. No. 85-128 at 79 ("This  subsection
prohibits issuance of a mining permit if the appli- cation indicated
the applicant to be in violation of the act or a  wide range of other
environmental requirements.") (emphasis  added). For violations of an


controlled" but no longer does, and for which it therefore  lacks power
to effect abatement, the Congress authorized  permit-blocking only if
there is "a demonstrated pattern of  willful violations of this
chapter of such nature and duration  with such resulting irreparable
damage to the environment as  to indicate an intent not to comply with
the provisions of this  chapter." 30 U.S.C. s 1260(c). Thus, to the
extent the IFR  authorizes permit-blocks based on past ownership and
control  without such a pattern,4 it contravenes the statute and
cannot  be upheld.


NMA also challenges the IFR's rebuttable presumptions of  ownership or
control set forth in 30 C.F.R. s 773.5(b). IFR  section 773.5(b)
"presumes" ownership or control from certain  relationships between
the applicant and a downstream entity  "unless a person can
demonstrate that the person subject to  the presumption does not in
fact have the authority directly  or indirectly to determine the
manner in which the relevant  surface coal mining operation is
conducted." Under subsec- tions (1) to (6) of section 773.5(b) the
rebuttable presumption  applies to a person who (1) is an officer or
director of a  company, (2) operates a surface coal mining operation,
(3)  controls the assets of an entity, (4) is general partner in a 
partnership, (5) owns 10 to 50 per cent of an entity or (6)  owns or
controls the coal to be mined (through lease, sublease  or other
contract) and has either the right to receive the coal  after mining
or the authority to determine the manner in  which the surface coal
mining operation is controlled.5 NMA  contends that the presumptions




__________

n 4 The IFR does not explicitly authorize such a block but OSM has  so
applied it at least once. See Virginia Iron, Coal & Coke Co. v. 
Babbitt, C.A. No. 95-0227 (W.D. Va filed Apr. 4, 1995) (dismissing 
for unripeness).


5 The presumptions have been omitted from OSM's new proposed  rules.
See 63 Fed. Reg. at 70,583-84 ("The current presumptions  that
ownership or control exists would be replaced with a require- ment
that the regulatory authority make a finding of actual owner- ship or


(5) are invalid. We agree as to subsections (1) and (5) but not  as to
subsections (3) and (4).6


In reviewing regulatory presumptions we must defer to the  agency's
judgment, see Atchison, Topeka & Santa Fe Ry. v.  ICC, 580 F.2d 623,
629 (D.C. Cir. 1978), but "an evidentiary  presumption is 'only
permissible if there is a sound and  rational connection between the
proved and inferred facts,  and when proof of one fact renders the
existence of another  fact so probable that it is sensible and
timesaving to assume  the truth of [the inferred] fact ... until the
adversary dis- proves it,' " NMA v. Babbitt, No. 98-5320, slip op. at
8-9  (D.C. Cir. Apr. 27, 1999) (quoting Secretary of Labor v. 
Keystone Chem. Co., 151 F.3d 1096, 1100-01 (D.C. Cir. 1998)  (internal
quotations omitted) (alterations in original)). " 'If  there is an
alternate explanation for the evidence that is also  reasonably
likely, then the presumption is irrational.' " Id. at  9 (quoting
Keystone Chem. Co., 151 F.3d at 1101). The  presumptions enumerated in
subsections (1) and (5) fail this  test because the relationships
identified in them do not suffi- ciently indicate ownership or




__________

n 6 Because NMA has not specifically challenged the presumptions  in
subsections (2) and (6), we do not decide their validity.


7 SM points out that SMCRA itself requires that several of the  same
relationships be identified in a mining permit application. See  30
U.S.C. s 1257(b)(4) ("The permit application ... shall contain,  among
other things-- ... if the applicant is a partnership, corpora- tion,
association, or other business entity, the following where 
applicable: the names and addresses of every officer, partner, 
director, or person performing a function similar to a director, of 
the applicant, together with the name and address of any person 
owning, of record 10 per centum or more of any class of voting  stock
of the applicant and a list of all names under which the  applicant,
partner, or principal shareholder previously operated a  surface
mining operation within the United States within the five- year period
preceding the date of submission of the applica- tion...."). The
statute requires this, however, only for entities  upstream from the
applicant, not for downstream entities whose  ownership or control may
disqualify an applicant. In any event, to 


director does not by itself enable an entity to control the  company or
its operations, as subsection (1) presumes. See  American Law
Institute, Principles of Corporate Governance:  Analysis and
Recommendations s 1.08(a)(c) (Proposed Final  Draft 1992) ("A person
is not in control of a business organi- zation solely because the
person is a director or principal  manager of the organization");
Louis Loss & Joel Seligman,  Securities Regulation 1724 & n.46 (3d ed.
1990) ("[A] person's  being an officer or director does not create any
presumption  of control.") (emphasis in original); Burgess v. Premier
Corp.,  727 F.2d 826, 832 (9th Cir. 1984) ("A director 'is not
automati- cally liable as a controlling person. There must be some 
showing of actual participation in the corporation's operation  or
some influence before the consequences of control may be  imposed.' ")
(interpreting section 10(b) of the Securities Ex- change Act of 1934,
15 U.S.C. s 78j; quoting Herm v. Staf- ford, 663 F.2d 669, 684 (6th
Cir. 1981); citing Cameron v.  Outdoor Resorts of Am., Inc., 608 F.2d
187, 194-195 (5th Cir.  1979), modified, 611 F.2d 105 (5th Cir. 1980)
(per curiam)).  Nor has OSM offered any basis to support subsection
(5)'s  presumption that an owner of as little as ten per cent of a 
company's stock controls it. While ten per cent ownership  may, under
specific circumstances, confer control, OSM has  cited no authority
for the proposition that it is ordinarily  likely to do so.8
Accordingly we hold that the presumptions  in subsections (1) and (5)




__________

n require identification of a particular relationship does not mean to 
presume control from it.


8 In its brief OSM referred the court to several regulations 
promulgated by other agencies but none of them presumes control  based
simply on a ten per cent ownership stake, although another  Department
of Interior regulation does so. See 30 C.F.R.  s 206.101(b) ("based on
the instruments of ownership of the voting  securities of an entity,
or based on other forms of ownership: ...  (b) Ownership of 10 through
50 percent creates a presumption of  control"). We do not consider the
validity of section 206.101 here.


9 Because we invalidate these presumptions on the ground they  do not
sufficiently show control, we need not address NMA's 


By contrast the presumptions in subsections (3) and (4) are 
well-grounded. There is nothing strained about section (3)'s 
presumption that one "[h]aving the ability to commit the  financial or
real property assets or working resources of an  entity" controls it.
The ability to control assets goes hand-in- hand with control and is
typically entrusted, along with  general managerial authority, to a
single officer, often the  president. See University of R.I. v. A.W.
Chesterton Co., 2  F.3d 1200, 1214 (1st Cir. 1993) ("[T]he hand that
holds all the  purse strings presumably controls the dependent
entity."); 2  W. Fletcher, Cyclopedia of the Law of Private
Corporations  s 466 (rev. ed. 1998). As for subsection (4)'s
presumption  that control vests in each general partner, it naturally
flows  from "the tenet of partnership law that a general partner has 
control of partnership affairs as against the outside world."  Moving
Phones Partnership L.P. v. FCC, 998 F.2d 1051, 1055  (D.C. Cir. 1993)
(citing Uniform Partnership Act s 9 (1914);  Picone v. Commercial
Paste Co., 215 Miss. 114, 60 So.2d 590  (1952)); see DSE, Inc. v.
United States, 169 F.3d 21, 32 (D.C.  Cir. 1999) ("A General Partner
in a limited partnership has all  the rights and powers of a General
Partner in a General  Partnership. Thus, a General Partner in a
limited partner- ship is also presumptively in control of the limited
partner- ship for purposes of the [SBA] affiliation regulation.").10


II. Statute of Limitations and Retroactivity


NMA next contends the IFR violates the five-year statute  of
limitations governing penalty enforcement, 28 U.S.C.  s 2462, because
it authorizes permit-blocking based on viola-




__________

n alternative contention that the presumptions violate established 
principles of stockholder and director liability.


10 We do not address NMA's contention that the IFR's rebuttable 
presumptions of ownership shift the burden of proof to the permit- tee
in violation of the Administrative Procedure Act, 5 U.S.C.  s 556(d).
The challenged burden framework is set out not in the  IFR but in
OSM's procedural rules, see 43 C.F.R. ss 4.1374(b),  4.1384(b), which
are subject to appeal in a separate pending action.  See supra note


tions more than five years old. In addition, it claims the IFR  has
retroactive effect in blocking permits based on violations  that
attached to an applicant before November 2, 1988, the  effective date
of the Ownership and Control Rule. We con- clude the section 2462
limitation period does not apply to the  permit blocks because the
Congress intended to exempt them  from its scope but agree that the
IFR is impermissibly  retroactive insofar as it reaches back before


Section 2462 provides:


Except as otherwise provided by Act of Congress, an  action, suit or
proceeding for the enforcement of any civil  fine, penalty, or
forfeiture, pecuniary or otherwise, shall  not be entertained unless
commenced within five years  from the date when the claim first
accrued if, within the  same period, the offender or the property is
found within  the United States in order that proper service may be 


28 U.S.C. s 2462. By the statute's express terms, its limita- tion
period is inapplicable where "otherwise provided by Act  of
Congress"--and SMCRA so provides. Section 510(c) ex- pressly directs
the appropriate regulatory authority to deny  permits "[w]here the
schedule or other information available  to the regulatory authority
indicates that any surface coal  mining operation owned or controlled
by the applicant is  currently in violation" of environmental laws,
irrespective of  when the claim first accrued. 30 U.S.C. s 1260(c)
(emphasis  added). Because the statute expressly requires permit
block- ing based on current, ongoing violations, whenever first com-
mitted, we conclude that the Congress intended to exempt  permit
denials from section 2462's limitation period. Cf.  Mullikin v. United
States, 952 F.2d 920, 924-29 (6th Cir.  1991) (s 2462 not applicable
to assessing tax-fraud penalties  under 26 U.S.C. s 6701 because "[i]t
is the Court's view that  it was the intent of Congress in enacting
Section 6701 that  there be no statute of limitations governing the


penalties"), cert. denied, 506 U.S. 827 (1992); Lamb v. United  States,
977 F.2d 1296 (8th Cir. 1992) (following Mullikin).11


The rule against retroactivity is not so easily avoided. An 
administrative rule is retroactive if it "takes away or impairs 
vested rights acquired under existing law, or creates a new 
obligation, imposes a new duty, or attaches a new disability in 
respect to transactions or considerations already past." As- sociation
of Accredited Cosmetology Schs. v. Alexander, 979  F.2d 859, 864 (D.C.
Cir. 1992) (citation omitted). OSM's view  of controller liability,
first promulgated in the 1988 Ownership  and Control Rule and retained
in the IFR, imposes a "new  disability," permit ineligibility, based
on "transactions or con- siderations already past," namely pre-rule
violations by mine  operators over whom permit applicants acquired
control be- fore the rule's effective date.12 Before the rule took
effect  there was no clear liability under the statute for violations
by  entities indirectly controlled by the applicant. While OSM's 
construction of section 510(c)--to impose liability for such 
downstream violations--is a reasonable one, see supra Part I,  it is
not mandated by the statutory language. Where before  there was "a
range of possible interpretations" of the statuto- ry
language--including imposing liability only for violations  by the




__________

n 11 We recognize that the Fourth Circuit has held that section 2462 
does apply to permit blocking under section 510(c). See Arch  Mineral
Corp. v. Babbitt, 104 F.3d 660 (4th Cir. 1997). The Arch  court,
however, based its holding on the premise that, contrary to  OSM's
position, a permit block is an "action, suit or proceeding for  the
enforcement of any civil fine, penalty, or forfeiture," without 
considering whether the Congress in enacting SMCRA intended to  exempt
such blocks from section 2462. Because we hold that the  Congress
intended no limitation period for the permit blocks, we  need not
decide whether such blocks are, as Arch held, "penal" or,  as OSM


12 In the case of pre-rule violations by operators over whom an 
applicant assumed control after the rule issued, the regulation is not
 retroactive because the applicant's disability is "in respect to" its
 assumption of control, a transaction occurring after the effective 
date.


rule established "a precise interpretation," which "in a sense  changes
the legal landscape." Health Ins. Ass'n of Am., Inc.  v. Shalala, 23
F.3d 412, 423-24 (D.C. Cir. 1994), cert. denied,  513 U.S. 1147
(1995). Applying the rule's specific interpreta- tion to impose
liability based on pre-rule acts therefore gives  it retroactive
effect which OSM can do only if authority  therefor is "conveyed by
Congress in express terms." Bowen  v. Georgetown Univ. Hosp., 488 U.S.
204, 208 (1988) (citations  omitted); see also Health Ins. Ass'n of
Am., Inc., 23 F.3d at  422-25. Because section 510(c) contains no
"express terms"  authorizing retroactive liability, we hold that the
IFR is  invalid insofar as it block permits based on transactions 
(violations and control) antedating November 2, 1988, the  Ownership
and Control Rule's effective date.


III. The Notice of Violation Schedule


Next, NMA asserts the IFR is ultra vires in that it directs  applicants
to submit information not expressly required to be  included in a
permit application under section 507(b) of  SMCRA, 30 U.S.C. s
1257(b), or in the notice of violation  schedule under section 510(c).
This court has already held,  however, "that the Act's explicit
listings of information re- quired of permit applicants [in sections
507 and 508] are not  exhaustive, and do not preclude the Secretary
from requiring  the states to secure additional information needed to
ensure  compliance with the Act." In re Permanent Surface Mining 
Regulation Litig., 653 F.2d 514 (D.C. Cir.) (en banc), cert.  denied,
454 U.S. 822 (1981). Because section 510 is by its  terms no more
exhaustive than sections 507 and 508, we  conclude the Secretary may
require schedule information not  specifically listed in any of the


NMA also contends the IFR's schedule provisions are  arbitrary in
requiring that an applicant submit information in  the control of
"third parties," namely, entities it is presumed  to control under 30
C.F.R. s 773.5(b). Again we disagree.  The IFR provides an escape
hatch for an applicant who is  unable to obtain the specified
information. It can use that 


very inability to rebut the presumption of control and thereby  avoid
liability.


IV. Improvidently Issued Permits


Next, NMA contends the IFR regulations authorizing a  regulatory agency
to suspend or rescind an "improvidently  issued permit" (IIP), see 30
C.F.R. ss 773.20(c), 773.21, are  ultra vires because section 510(c)
authorizes only denials of  new permits. While it is true that section
510(c) does not  expressly provide for suspension or rescission of
existing  permits, the IFR rescission and suspension provisions
reflect  a permissible exercise of OSM's statutory duty, pursuant to 
section 201(c)(1) of SMCRA, to "order the suspension, revoca- tion, or
withholding of any permit for failure to comply with  any of the
provisions of this chapter or any rules and regula- tions adopted
pursuant thereto." 30 U.S.C. s 1211(c). The  IIP provisions simply
implement the Congress's general di- rective to authorize suspension
and rescission of a permit "for  failure to comply with" a specific
provision of SMCRA-- namely, section 510(c)'s permit eligibility
condition. In addi- tion, apart from the express authorization in
section 1211(c),  OSM retains "implied" authority to suspend or
rescind im- providently provided permits because of its express
authority  to deny permits in the first instance. See Gun S., Inc. v. 
Brady, 877 F.2d 858, 862 (11th Cir. 1989) (although "neither  the [Gun
Control Act, 18 U.S.C. ss 921 et seq.,] nor its  regulations
explicitly authorizes suspension" of permittee's  firearm importation
permit, Bureau of Alcohol, Tobacco and  Firearms, which is authorized
to grant permit, "must neces- sarily retain the power to correct the
erroneous approval of  firearms import applications") (citations


NMA also contends the IIP provisions impinge on the  "primacy" afforded
states under SMCRA insofar as they  authorize OSM to take remedial
action against operators  holding valid state mining permits without
complying with the  procedural requirements set out in section 521(a)
of SMCRA,  30 U.S.C. s 1271(a). On this point we agree.


Under SMCRA's state primacy regime, once a state permit  plan is
approved "the Secretary's role is primarily one of  oversight" and
"the state has the primary responsibility for  achieving the purposes
of the Act." In re Permanent Surface  Mining Regulation Litig., 653
F.2d at 519; see also 30 U.S.C.  s 1201(f) ("[T]he primary
governmental responsibility for de- veloping, authorizing, issuing,
and enforcing regulations for  surface mining and reclamation
operations subject to this  chapter should rest with the States....").
Even the Secre- tary's oversight role is strictly circumscribed by the
Act. "As  long as the state properly enforces its approved program, it
is  the exclusive 'on the scene' regulatory authority," 653 F.2d at 
519 (footnote omitted), and the Secretary's role is limited to  making
"such inspections of any surface coal mining and  reclamation
operations as are necessary to evaluate the ad- ministration of
approved State programs," 30 U.S.C.  s 1267(a). Nevertheless, "[i]n
the event that a State has a  State program for surface coal mining,
and is not enforcing  any part of such program, the Secretary may
provide for the  Federal enforcement, under the provisions of section
1271 of  [title 30], of that part of the State program not being
enforced  by such State." 30 U.S.C. s 1254(b). Section 1271 sets out 
specific procedural requirements to be met before the Secre- tary may
take remedial action against a state permittee  (whether based on a
federal inspection or section 1254(b) or in  the course of enforcing a
state program under section  1271(b)13). First, if the Secretary
"determines that any per- mittee is in violation of any requirement of
[SMCRA] or any  permit condition required by [SMCRA]" that does not
create  an imminent danger to health and safety,14 then the Secretary 
can issue a notice of violation setting a time period in which to 




__________

n 13 Section 1271(b) authorizes the Secretary, if he believes that 
violations have occurred because a state has failed to effectively 
enforce a state program, to assume enforcement of all or part of the 
state program, enforcing permit conditions, granting new or revised 
permits and issuing necessary orders. 30 U.S.C. s 1271(b).


14 Section 521 provides for prompt remedial federal action in the  case
of a violation that creates an "imminent danger." See 30  U.S.C. s
1271(a)(1)-(2).


abate the violation and providing opportunity for public hear- ing. 30
U.S.C. s 1271(a)(3). Only after the abatement peri- od has expired and
upon a "written finding ... that the  violation has not been abated"
can the Secretary suspend the  violating operations, in an order
setting out "the steps neces- sary to abate the violation in the most
expeditious manner  possible." Id. The IFR's IIP enforcement
provisions, by  contrast, permit OSM to issue a notice of violation to
a  permittee and to order cessation of mining operations by a 
specified date--unless the permittee by then undertakes re- medial
measures "to the satisfaction of the responsible agen- cy"--when OSM
"has reason to believe that a State surface  coal mining and
reclamation permit meets the criteria for an  improvidently issued
permit in [30 U.S.C.] s 773.20(b) or the  State program equivalent,
and the State has failed to take  appropriate action on the permit
under State program equiva- lents of [30 C.F.R.] ss 773.20 and
773.21." 30 C.F.R.  s 843.21(a). Because the Congress established
specific pro- cedures in section 521(a)(3) of SMCRA that the Secretary
 must follow before taking remedial action against a state  permittee,
we conclude those procedures must be used when  OSM seeks to revoke a


For the foregoing reasons, we dismiss as moot Appeal Nos.  97-5202,
97-5203 and 97-5204. In Appeal No. 97-5248 we  reverse the district
court's judgment insofar as it rejected  NMA's claims that the IFR
authorizes permit blocks based  on violations by operations no longer
controlled by an appli- cant, establishes rebuttable presumptions of
ownership and  control, allows impermissibly retroactive permit blocks
and  violates state primacy and we remand to the district court for 
remand to OSM to amend its permit block regime according- ly.


So ordered.