49-405. Powers and authority of secretary.
49-405
49-405. Powers and authority of secretary.The secretary shall have and exercise the following authority and powerswhich shall be enforced and administered by the secretary: (a) To adoptrules and regulations respecting the administration of this act and inconformity therewith and to adopt rules and regulations which may benecessary for the secretary to qualify to administer the regulatory programsadopted by the United States department of the interior, office ofsurface mining reclamation and enforcement, pursuant to the nationalsurface mining control and reclamation act of 1977 (public law 95-87)and federal rules and regulations adopted pursuant thereto and may adoptand enforce all standards established by such federal rules andregulations. Prior to adoption of such rules and regulations, the secretaryshall give not less than 30 days advance public notice by publicationin a newspaper or newspapers of general circulation in each county in whichcoal mining operations are being conducted. And provide in such noticefor not less than one public hearing at a place within a county whereincoal mining operations are being conducted, and for a period of not lessthan 30 days prior to adoption of such rules and regulations, duringwhich written public comments may be filed with the secretary.
(b) To encourage and conduct investigations, research, experimentsand demonstrations, and to collect and disseminate information relatingto surface types of mining and reclamation and conservation of lands andwaters affected by surface types of mining.
(c) To examine and pass upon all plans and specifications submittedby the operator for the method of operation and for the reclamation andconservation of the area of land affected by the operation.
(d) To make investigations and inspections which may be deemednecessary to insure compliance with the provisions and intent of thisact, and to require by rules and regulations such reporting, monitoringand record keeping requirements as are required by the national surfacemining control and reclamation act of 1977 (public law 95-87). Authorizedrepresentatives of the department shall have the right,without advance notice and uponpresentation of credentials, to enter upon any surface coal mining and reclamationoperations or any premises in which records required to be maintained arekept and, at reasonable times and without delay, may have access to andcopy any records, or inspect any monitoring equipment or method of operationunder this act. The secretary shall have all authority concerning such activityas is required by the national surface mining control and reclamation actof 1977 (public law 95-87).
(e) To order the suspension of any permit and order to cease anddesist operations for failure to comply with any of the provisions ofthis act.
(f) To order the stopping of any operation that is started withoutfirst having secured a permit as required by this act.
(g) To conduct hearings under provision of this act and for thepurpose of any investigation or hearing, the secretary or the secretary's designeemay administer oaths or affirmation, subpoena witnesses relevant to theinquiry. The secretary shall adopt rules and regulations concerning the conductof hearings consistent with and in compliance with the national surfacemining control and reclamation act of 1977 (public law 95-87).
(h) To order an operator to adopt such remedialmeasures as are necessary to comply with this act.
(i) To issue, after a hearing, a final order directing therevocation of a permit when any remedial action ordered has not beentaken.
(j) To apply for and receive grants of funds from federal agencies.
(k) To request from and receive from state agencies technicalassistance in administering the provisions of this act.
(l) To perform such other duties and functions as may be required bythe provisions of the national surface mining control and reclamationact of 1977 (public law 95-87) and federal rules and regulations adoptedpursuant thereto in order to qualify to administer the initial and permanentregulatory programs adopted by the United States department of interior,office of surface mining reclamation and enforcement, pursuant to suchact, and to prohibit mining where reclamation required by such act is not feasible.
(m) (1) When, on the basis of any inspection, the secretary or the secretary'sdesignee determines thatany condition or practices exist, or thatany operator is in violation of any requirement of this act or any permitcondition required by this act, which condition, practice, or violation alsocreates an imminent danger to the health or safety of the public, or iscausing, or can reasonably be expected to cause significant, imminent environmentalharm to land, air, or water resources, the secretary or the secretary's designeeimmediately shall order a cessation of surface coal mining and reclamationoperations or the portion thereof relevant to the condition, practice, orviolation. Such cessation order shall remain in effect until the secretaryor the secretary'sdesignee determines that the condition, practice,or violation has been abated, or until modified, vacated, or terminatedby the secretary or thesecretary's designee. Where the secretary finds thatthe ordered cessation of surface coal mining and reclamation operations,or any portion thereof, will not completely abate the imminent danger tohealth or safety of the public or the significant imminent environmentalharm to land, air, or water resources, the secretary inaddition to thecessation order, shall impose affirmative obligations on the operatorrequiring the operator to take whatever steps thesecretary deems necessary to abate theimminent danger or the significant environmental harm.
(2) When, on the basis of an inspection, the secretary or the secretary's designeedetermines that any operator is in violation of any requirementof this act or any permit condition required by this act, but such violationdoes not create an imminent danger to the health or safety of the public,or cannot be reasonably expected to cause significant, imminent environmentalharm to land, air, or water resources, the secretary or the secretary's designeeshall issue a notice to the operator or the operator'sagent fixing a reasonabletime but not more than 90 days for the abatement of the violationand providing opportunity for public hearing.
If, upon expiration of the period of time as originally fixed or subsequentlyextended, for good cause shown and upon the written finding of the secretaryor the secretary'sdesignee, the secretary orthe secretary's designeefinds that the violation has not been abated, thesecretary immediately shall ordera cessation of surface coal mining and reclamation operations or the portionthereof relevant to the violation. Such cessation order shall remain ineffect until the secretary orthe secretary's designee determines that the violationhas been abated, or until modified, vacated, or terminated. In the orderof cessation issued by the secretary under this subsection,the secretary shalldetermine the steps necessary to abate the violation in the most expeditiousmanner possible, and shall include the necessary measures in the order.
(3) When, on the basis of an inspection, the secretary or the secretary's designeedetermines that a pattern of violations of any requirements of this actor any permit conditions required by this act exists or has existed, andif the secretary or thesecretary's designee also finds that such violationsare caused by the unwarranted failure of the operator to comply with anyrequirements of this act or any permit conditions, or that such violationsare willfully caused by the operator, the secretary or the secretary's designeeshall issue an order to the operator to show cause as to why thepermit should not be suspended or revoked and shall provide opportunityfor a public hearing. If a hearing is requested the secretary shall informall interested parties of the time and place of the hearing. Upon the operator'sfailure to show cause as to why the permit should not be suspended or revoked,the secretary or thesecretary's designee shall suspend or revoke the permit.
(4) Notices and orders issued pursuant to this section shall set forthwith reasonable specificity the nature of the violation and the remedialaction required, the period of time established for abatement, and a reasonabledescription of the portion of the surface coal mining and reclamation operationto which the notice or order applies. Each notice or order issued underthis section shall be given promptly to the operator orthe operator's agentby the secretary or the secretary's designee and all such notices andorders shall be in writing and shall besigned by the secretary or thesecretary's designee. Any notice or order issued pursuantto this section may be modified, vacated or terminated by the secretaryor the secretary's designee. Any notice or order issued pursuant to thissection which requires cessation of mining by the operator shall expirewithin 30 days of actual notice to the operator unless a publichearing is held at the site or within such reasonable proximity to the sitethat any viewings of the site can be conducted during the course of public hearing.
The attorney general upon the attorney general's owninitiative or, at the request of the secretary, shall secure enforcementof the orders of the secretary and the provisionsof this act, through mandamus, injunction, by action tocompel specific performance of an order, or by other appropriate relief.Such proceedings shall beinitiated by the filing of a petition in the district courtof Shawnee county, together with atranscript of the record of the hearing before thesecretary or the secretary's designee, if a hearinghas been held, and issuanceand service of a copy of the petition as in civil actions. The courtshall have power to grant such temporary relief or restraining order asit deems just and proper, and to make and enter upon the pleadings,testimony and proceedings an order or decree, enforcing, modifying andenforcing, as so modified, or setting aside in whole or in part theorder of the secretary.
History: L. 1968, ch. 395, § 5; L. 1978, ch. 208, § 4; L. 1979,ch. 169, § 3;L. 1988, ch. 192, § 9; July 1.