Proposed Rule2023-08370
Ten-Day Notices and Corrective Action for State Regulatory Program Issues
Primary source
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Published
April 25, 2023
Issuing agencies
Interior DepartmentSurface Mining Reclamation and Enforcement Office
Abstract
The Office of Surface Mining Reclamation and Enforcement (OSMRE) proposes to amend the regulations related to notifying a State regulatory authority of a possible violation of any requirement of the Surface Mining Control and Reclamation Act of 1977 (SMCRA). The proposed rule would also amend the Federal regulations regarding corrective actions for State regulatory program issues. Together, the proposed updates to these two areas of the Federal regulations would amend the overall "ten-day notice" (TDN) process. Although a final rule covering these topics went into effect in 2020 (2020 TDN Rule), the rule has proven to delay our consideration of some possible SMCRA violations. In 2021, the Department of the Interior undertook a reexamination of the 2020 TDN Rule and decided to engage in this rulemaking effort. The primary goals of this rulemaking are to reduce burdens for citizens to engage in the TDN process, establish procedures for OSMRE to properly evaluate and process citizen allegations about possible SMCRA violations, clearly set forth the regulatory requirements for the TDN process, and continue to minimize the duplication of inspections, enforcement, and administration of SMCRA. In addition, we will continue to afford our State regulatory authority partners due deference during the TDN process to an extent that is appropriate under SMCRA. The proposed rule would ensure that possible SMCRA violations are properly identified and addressed in a timely fashion. When OSMRE obtains adequate proof of an imminent harm, OSMRE would immediately conduct a Federal inspection, outside of the TDN process, as SMCRA requires. Overall, we believe that this proposed rule would align more closely than the 2020 TDN Rule with SMCRA's requirements.
Full Text
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[Federal Register Volume 88, Number 79 (Tuesday, April 25, 2023)]
[Proposed Rules]
[Pages 24944-24962]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-08370]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Parts 733 and 842
[Docket ID: OSM-2022-0009; S1D1SSS08011000SX064A000201S180110; S2D2S
SS08011000SX064A0022XS501520]
RIN 1029-AC81
Ten-Day Notices and Corrective Action for State Regulatory
Program Issues
AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.
ACTION: Proposed rule.
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SUMMARY: The Office of Surface Mining Reclamation and Enforcement
(OSMRE) proposes to amend the regulations related to notifying a State
regulatory authority of a possible violation of any requirement of the
Surface Mining Control and Reclamation Act of 1977 (SMCRA). The
proposed rule would also amend the Federal regulations regarding
corrective actions for State regulatory program issues. Together, the
proposed updates to these two areas of the Federal regulations would
amend the overall ``ten-day notice'' (TDN) process. Although a final
rule covering these topics went into effect in 2020 (2020 TDN Rule),
the rule has proven to delay our consideration of some possible SMCRA
violations. In 2021, the Department of the Interior undertook a
reexamination of the 2020 TDN Rule and decided to engage in this
rulemaking effort. The primary goals of this rulemaking are to reduce
burdens for citizens to engage in the TDN process, establish procedures
for OSMRE to properly evaluate and process citizen allegations about
possible SMCRA violations, clearly set forth the regulatory
requirements for the TDN process, and continue to minimize the
duplication of inspections, enforcement, and administration of SMCRA.
In addition, we will continue to afford our State regulatory authority
partners due deference during the TDN process to an extent that is
appropriate under SMCRA. The proposed rule would ensure that possible
SMCRA violations are properly identified and addressed in a timely
fashion. When OSMRE obtains adequate proof of an imminent harm, OSMRE
would immediately conduct a Federal inspection, outside of the TDN
process, as SMCRA requires. Overall, we believe that this proposed rule
would align more closely than the 2020 TDN Rule with SMCRA's
requirements.
DATES: We will accept comments received or postmarked on or before
[[Page 24945]]
11:59 p.m. Eastern Daylight Time (EDT), June 26, 2023. We must receive
comments submitted electronically using the Federal eRulemaking Portal
(see ADDRESSES below) by 11:59 p.m. EDT on the closing date.
Upon request, we will hold a public hearing or a public meeting on
the proposed rule at a date, time, and location to be announced in the
Federal Register before the hearing. We will accept requests for a
public hearing or meeting until June 9, 2023.
ADDRESSES: You may submit comments, identified by OSM-2022-0009 and RIN
1029-AC81, by any of the following methods:
(1) Electronically: Go to the Federal eRulemaking Portal: <a href="https://www.regulations.gov">https://www.regulations.gov</a>. In the search box, enter the Docket ID listed
above. You may submit a comment by clicking on ``Comment''
(2) By hard copy: Submit by U.S. mail or hand-delivery to: U.S.
Department of the Interior, Office of Surface Mining Reclamation and
Enforcement, 1849 C Street NW, Mail Stop 4550, Main Interior Building,
Washington, DC 20240, Attention: Division of Regulatory Support.
We request that you send comments only by the methods described
above. We will post all comments on <a href="https://www.regulations.gov">https://www.regulations.gov</a>. This
generally means that we will post any personal information you provide
us (see Public Comment Procedures, below, for more information).
FOR FURTHER INFORMATION CONTACT: William R. Winters, OSMRE, Division of
Regulatory Support, 1849 C Street NW, Mail Stop 4550, Washington, DC
20240, telephone number: (202) 208-1908. If you use a
telecommunications device for the deaf (TDD), call the Federal Relay
Service at: (800) 877-8339.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Public Comment Procedures
II. Background
III. Section-by-Section Analysis
IV. Procedural Matters and Required Determinations
I. Public Comment Procedures
You may submit written comments, identified with OSM-2022-0009 or
RIN 1029-AC81, by any of the methods described in the ADDRESSES
section. Written comments submitted on the proposed rule should be
specific, be confined to issues pertinent to the proposed rule, and
explain the reason for any recommended change. Where possible, your
comments should reference the specific section or paragraph of the
proposal that you are addressing. The comments and recommendations that
will be most useful and likely to influence agency decisions are those
that are supported by quantitative information or studies; are based on
specific, identifiable experience; and include citations to, and
analyses of, the applicable laws and regulations.
Comments received after the close of the comment period (see the
DATES section) or that are delivered to addresses other than those
listed above (see the ADDRESSES section) may not be considered or
included in the Decision File for the final rule.
Comments, including names and street addresses of respondent
commenters, will be available for public review at the address listed
under ADDRESSES during regular business hours (8 a.m. to 4:30 p.m. ET),
Monday through Friday, except holidays.
Please be advised that we may make your entire comment--including
your personal identifying information, such as your name, phone number,
or email address--publicly available at any time. While you may ask us
in your comment to withhold your personal identifying information from
public view, we cannot guarantee that we will be able to grant your
request.
II. Background
A. Proposed Rule Summary
Under SMCRA, each State that wishes to regulate surface coal mining
and reclamation operations on non-Federal and non-Indian lands within
its borders can submit a proposed State regulatory program to the
Secretary of the Interior. 30 U.S.C. 1253(a). The Secretary, acting
through OSMRE, reviews and approves or disapproves the proposed
program. 30 U.S.C. 1211(c)(1), 1253(b). When the Secretary approves a
State program, the State assumes exclusive jurisdiction or ``primacy,''
except as provided in sections 521 and 523 and title IV of SMCRA. 30
U.S.C. 1253(a), 1271, 1273, and 1231-1244. Under the exception at 30
U.S.C. 1271(a)(1), in a primacy State that has an approved State
regulatory program, OSMRE retains oversight of the State program and
some Federal enforcement authority. In this regard, SMCRA sometimes
refers to a State regulatory authority as having ``primary''
responsibility. See, e.g., 30 U.S.C. 1201(f) and 1291(26) (defining
``State regulatory authority'' to mean ``the department or agency in
each State which has primary responsibility at the State level for
administering [SMCRA]'').
This proposed rule concerns the TDN process that derives from
section 521(a)(1) of SMCRA, 30 U.S.C. 1271(a)(1), and the provisions
for correction of State regulatory program issues, consistent with
section 521(b) of SMCRA, 30 U.S.C. 1271(b). Under the TDN process, when
the Secretary of the Interior, acting through OSMRE, has ``reason to
believe that any person is in violation of any requirement'' of SMCRA,
OSMRE notifies the appropriate State regulatory authority. After OSMRE
sends the notification to the State, the State has ten days to take
``appropriate action'' to cause the possible violation to be corrected
or to demonstrate ``good cause'' for not doing so. If the State
regulatory authority fails to respond within ten days, or if we
determine that the State's response is arbitrary, capricious, or an
abuse of discretion, we will conduct a Federal inspection and take
appropriate enforcement action.
Given the ten-day time frame, the notice that OSMRE sends to State
regulatory authorities under this provision is referred to as a TDN.
While citizens, industry, and regulatory authorities have commonly
understood this terminology, we propose to define ``ten-day notice''
for the first time in the Federal regulations so there is a uniform,
consistent understanding of the term. Similarly, because possible
violations identified in a ``citizen complaint'' are at the heart of
this proposed rule, we are also proposing to define that term for the
first time in the Federal regulations.
We are proposing that all citizen complaints will be considered as
requests for Federal inspections, even if a citizen complaint does not
specifically request an inspection. The 2020 TDN Rule requires
citizens, when requesting a Federal inspection, to provide a statement
that the person has notified the State regulatory authority of the
existence of the possible violation. However, the existing regulations
for citizen complaints do not explicitly contain a similar requirement.
To resolve this issue, we believe it is important to not require
citizens, who likely are not experts on SMCRA and the implementing
regulations, to use certain words or phrases in their complaint to
communicate their requested action to OSMRE. This approach also makes
sense because if a citizen brings a possible violation to our
attention, and we issue a TDN to the relevant State regulatory
authority, that process could ultimately lead to a Federal inspection
if the regulatory authority does not take appropriate action or
demonstrate good cause for not
[[Page 24946]]
doing so in response to the TDN, regardless of whether the citizen
initially asked for a Federal inspection to be undertaken.
We are also proposing to amend the regulations at 30 CFR 842.12(a),
which relate to requesting a Federal inspection, to make the process
easier for citizens by removing the requirement for a citizen to also
notify the relevant State regulatory authority when requesting a
Federal inspection. SMCRA does not require that a citizen notify the
State regulatory authority before filing a citizen complaint with
OSMRE. However, we continue to believe that if a citizen contacts the
State regulatory authority in the first instance, most possible
violations will be resolved without the need for OSMRE to issue a TDN.
To that end, we continue to strongly encourage citizens to contact the
State regulatory authority about possible violations, as the State
regulatory authority should be more acquainted with conditions on the
ground for permits that it has issued and is often in the best position
to determine the merits of a citizen complaint.
We are also proposing to remove the requirement at existing Sec.
842.12(a) for a citizen, when requesting a Federal inspection,\1\ to
set forth ``the basis for the person's assertion that the State
regulatory authority has not taken action with respect to the possible
violation.'' We believe this provision is onerous and cumbersome. For
example, if a citizen is filing a complaint with OSMRE, the citizen
implicitly believes that there is a violation that the State regulatory
authority has not addressed. And again, because citizens are not likely
to be experts on the administration of SMCRA and the applicable State
regulatory program, it is unduly onerous to require a citizen to cite
the applicable requirements for the basis of their assertion. Moreover,
citizens will not be in a position to determine a State official's
reasoning for the lack of action regarding the possible violation.
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\1\ It is important to note that, under 30 U.S.C. 1271(a)(1),
when a person supplies OSMRE with ``adequate proof that an imminent
danger of significant environmental harm exists and that the State
has failed to take appropriate action,'' OSMRE will proceed directly
to a Federal inspection. This proposed rule pertains only to the TDN
process, and not imminent harm situations, which are addressed
separately under the SMCRA provision at 30 U.S.C. 1271 and the
applicable existing regulations at 30 CFR parts 842 and 843.
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Over the years, we have found that while most citizen complaints
have merit, many raise issues unrelated to possible violations of SMCRA
or the State regulatory program. For that reason, and to reduce
duplication of inspection and enforcement efforts between OSMRE and
State regulatory authorities, in the 2020 TDN Rule, we expanded the
sources of information that OSMRE would consider when determining
whether we have reason to believe a violation exists under a State
regulatory program. Before 2020, the Federal regulations arguably
implied that OSMRE could consider only information contained within the
confines of a citizen complaint when determining whether there was
reason to believe a violation existed that would necessitate issuance
of a TDN to a State regulatory authority. For example, the pre-2020
regulations provided that OSMRE would have reason to believe that a
violation exists if the facts alleged in a citizen complaint would, if
true, constitute a violation. See 30 CFR 842.11(b)(2) (2019). But the
pre-2020 regulations also provided that OSMRE should base its reason to
believe determination upon ``information available.'' See id. at Sec.
842.11(b)(1)(i). In the 2020 TDN Rule, we sought to remove any
inconsistencies in the prior regulations by requiring OSMRE to consider
``readily available'' information, including information from a State
regulatory authority. Some commenters on the 2020 TDN proposed rule
contended that allowing OSMRE to gather information before determining
whether it has reason to believe a violation exists implied that OSMRE
did not have the information at the time of the citizen complaint. By
using the phrase ``readily available'' in the 2020 TDN Rule, we
intended to confine OSMRE's information gathering so that we could
determine, as quickly as possible, whether a TDN was warranted. See,
e.g., 85 FR 75157 (Nov. 24, 2020). In the 2020 TDN Rule, we also
explained that when we receive a citizen complaint, we will apply our
professional judgment and not merely transmit the citizen complaint to
a State regulatory authority without considering whether we have reason
to believe a violation exists.
After reexamining the 2020 TDN Rule and SMCRA's legislative
history, and based upon our experience implementing the rule for more
than two years, we have decided to further clarify OSMRE's evaluation
of a citizen complaint: instead of considering all ``readily available
information'' when determining whether we have reason to believe a
violation exists, we propose to limit the sources of information that
we will consider to information received from a citizen complainant,
information available in our files at the time that we are notified of
the possible violation, and any publicly available electronic
information. In implementing this section of the 2020 TDN Rule, we
found that the data collection process took longer than expected. We
believe that the approach outlined in this proposed rule would continue
to reduce any duplication of inspection and enforcement efforts between
OSMRE and the relevant State regulatory authority and better align with
SMCRA's statutory requirements and legislative history.
We further propose to amend the regulations to return to our
longstanding practice of requiring the issuance of a TDN, in the first
instance, when we have reason to believe a violation exists in the form
of a so-called ``permit defect.'' Although that term is not used in
SMCRA and has not been used in the Federal regulations, OSMRE has used
the term in guidance documents. We generally consider a permit defect
to be a deficiency in a permit-related action taken by a State
regulatory authority, such as when a State regulatory authority has
issued a permit with a provision that is contrary to the approved State
program. We propose to specify that we will issue a TDN for such
defects when we form the necessary reason to believe a violation
exists.
Existing Sec. 842.11(b)(1)(ii)(B)(3) allows a corrective action
plan to constitute ``appropriate action'' in response to a TDN. This
proposed rule would exclude an action plan from the categories of
``appropriate action'' in response to a TDN because action plans do not
themselves remedy violations. See Sec. 842.11(b)(1)(ii)(B)(3). Instead
of allowing the use of these plans to be considered appropriate action,
we propose that if we and the relevant State regulatory authority enter
into an action plan that includes the possible violation as one of
several substantively similar possible violations, such a plan could
constitute ``good cause'' for not taking action within ten days. A
completed action plan would lead to corrective action on the initial
violation, as well as other similar violations.
We have determined that the changes in this proposed rule would
enhance the overall administration and enforcement of SMCRA, while
continuing to honor State primacy, and correspond more closely to
SMCRA's statutory requirements. Once a State has achieved primacy under
SMCRA to administer its own State regulatory program, section
201(c)(12) of SMCRA requires us to, among other responsibilities,
``cooperate with . . . State regulatory authorities to minimize
duplication of inspections, enforcement, and administration of
[[Page 24947]]
[SMCRA].'' 30 U.S.C. 1211(c)(12). To this end, we have worked closely
with State regulatory authorities for over 40 years, and we will
continue to do so. Equally germane to our intent in this proposed rule,
one of the purposes of SMCRA is to ``assure that appropriate procedures
are provided for the public participation in the development, revision,
and enforcement of regulations, standards, reclamation plans, or
programs established by the Secretary or any State under [SMCRA.]'' 30
U.S.C. 1202(i). With this in mind, this proposed rule would provide a
better balance between minimizing duplication of efforts with the State
regulatory authorities and affording citizens an appropriate level of
involvement in enforcement of SMCRA programs.
B. Statutory and Regulatory Background
Two provisions of SMCRA chiefly govern our oversight and
enforcement of State regulatory programs. Section 521(a)(1), 30 U.S.C.
1271(a)(1), in context, requires us to notify a State regulatory
authority when we have ``reason to believe'' that any person is in
violation of any requirement of SMCRA, the approved regulatory program,
an approved permit, or a required permit condition. As explained above,
when we have reason to believe a violation exists, we issue a TDN to
the applicable State regulatory authority. Upon receipt of the TDN, the
State regulatory authority has ten days to cause the possible violation
to be corrected or show good cause for not taking action and
communicate either action to us. In general, if the State regulatory
authority fails to respond within ten days, we must immediately order a
Federal inspection of the surface coal mining operation where the
described violation is alleged to be occurring.
Section 521(b) of SMCRA, 30 U.S.C. 1271(b), addresses the situation
of a State regulatory authority failing to effectively implement any
part of its approved State program. The relevant existing regulations
implementing section 521(b) of SMCRA are found at 30 CFR part 733. The
2020 TDN Rule revised provisions in 30 CFR part 733 in an effort to
address State regulatory program issues before they rise to the level
that would require us to take over administration of all or part of an
approved State program under section 521(b). This proposed rule would
retain the basic structure of the 2020 TDN Rule, but would amend 30 CFR
733.5 and 733.12 to comply more fully with SMCRA's statutory
requirements.
SMCRA creates a cooperative federalism framework between OSMRE and
State regulatory authorities to ensure that SMCRA is properly
administered and enforced. As mentioned above, each State desiring to
implement SMCRA on non-Federal and non-Indian lands within its borders
must submit a proposed SMCRA program to the Secretary of the Interior
for review and approval. 30 U.S.C. 1253. Federally recognized Indian
Tribes may also obtain primacy over Indian lands within their
jurisdiction. Id. section 1300(j). SMCRA gives OSMRE the authority to
conduct the review for the Secretary. Id. section 1211(c)(1). OSMRE
must review each proposed program to ensure, among other things, that
it is in accordance with the requirements of SMCRA. Once a State or
Tribal regulatory authority obtains approval of its SMCRA program, it
has achieved ``primacy'' and becomes the primary entity through which
SMCRA is implemented and enforced on lands within its jurisdiction. In
primacy States, we have an oversight role over approved State
regulatory programs, primarily through SMCRA section 521, 30 U.S.C.
1271.
In our oversight role, any time we have reason to believe that any
person is in violation of SMCRA, the applicable State regulatory
program, or any required permit condition, we inform the State
regulatory authority through a TDN. The information that informs our
``reason to believe'' that a violation exists can come from any person,
but, most often, we become aware of a possible violation through a
Federal oversight inspection or a citizen complaint. If we become aware
of a possible violation by means other than through a Federal oversight
inspection, we must determine if we have reason to believe a violation
of SMCRA or the applicable State regulatory program exists. Neither
SMCRA nor the Federal regulations defines the ``reason to believe''
standard. However, the ``reason to believe'' standard that would
support issuance of a TDN for a possible violation is a lower standard
than ``reason to believe'' when it is coupled with ``adequate proof''
of an imminent harm that would require OSMRE to bypass the TDN process
and proceed directly to a Federal inspection.
Once a State receives a TDN, it has ten days to take appropriate
action to cause the possible violation to be corrected or show good
cause for not taking action and communicate its action to us. A TDN
that results from a citizen complaint is not a direct enforcement
action, a finding that any form of violation exists, or a determination
that the State has acted improperly. Rather, as SMCRA envisioned, a TDN
is a communication mechanism between OSMRE and the applicable State
regulatory authority indicating that a possible violation exists.
(Under 30 CFR 843.12(a)(2), however, we also issue a TDN to a State
regulatory authority when, on the basis of a Federal oversight
inspection, we determine that there is a non-imminent harm violation
and we have not previously issued a TDN for the same violation.) The
TDN communication mechanism allows the State the first opportunity to
investigate and enforce possible non-imminent harm violations. After we
send the TDN to the State, we do not take any other action regarding
the possible violation during the ten-day period.
Once a State has communicated its action in response to a TDN to
us, we review the State's response to determine whether it constitutes
appropriate action or good cause. Under 30 CFR 842.11(b)(1)(ii)(B)(2),
we accept the State's action or response as appropriate action or good
cause unless it is arbitrary, capricious, or an abuse of discretion.
After receiving the State's response to the TDN, but before a Federal
inspection, we determine in writing whether the standards for
appropriate action or good cause have been satisfied. Id. at Sec.
842.11(b)(1)(ii)(B)(1).
If the State regulatory authority does not respond to the TDN
within ten days, we make a determination on the TDN and proceed to a
Federal inspection. Failure to respond constitutes a waiver of the
right to request informal review of the determination under 30 CFR
842.11(b)(1)(iii). Id. After a written determination that the State did
not take appropriate action or has not shown good cause for not taking
action, the State then has an opportunity to seek informal review of
the determination within OSMRE. Id. Sec. 842.11(b)(1)(iii)(A). In
general, subject to the exceptions noted in Sec. 842.11(b)(1)(iii)(B),
when a State regulatory authority requests informal review, the
informal review process must conclude before we conduct a Federal
inspection or issue a Federal notice of violation regarding the TDN.
If, during a Federal inspection, we confirm the existence of a
violation, we write a Federal notice of violation or, if applicable, a
cessation order to the permittee. Id. Sec. 843.12(a)(2).
Section 201(c)(2) of SMCRA, 30 U.S.C. 1211(c)(2), requires us to
``publish and promulgate such rules and regulations as may be necessary
to carry out the purposes and provisions of [SMCRA].'' Sections 1271(a)
and (b) pertain to OSMRE's obligation to conduct oversight of State
regulatory
[[Page 24948]]
programs and provide any necessary Federal enforcement. We implement
the relevant statutory requirements of 30 U.S.C. 1271(a) and (b),
discussed above, through the existing regulations at 30 CFR parts 842
and 733.
As mentioned above, immediately prior to the 2020 TDN Rule, the
Federal regulations did not specify when OSMRE had ``reason to
believe'' a violation exists. On one hand, the pre-2020 regulations at
30 CFR 842.11(b)(1)(i) (2019) referred to OSMRE having ``reason to
believe on the basis of information available.'' On the other hand,
Sec. 842.11(b)(2) provided that OSMRE would have reason to believe
``if the facts alleged by the informant would, if true, constitute a .
. . violation . . . .'' In the 2020 TDN Rule, we sought to remove any
confusion by amending Sec. 842.11(b)(1)(i) to refer to ``reason to
believe on the basis of any information readily available [to an OSMRE
authorized representative], from any source, including any information
a citizen complainant or the relevant State regulatory authority
submits . . . .'' For consistency, we also amended Sec. 842.11(b)(2)
to provide that OSMRE will have reason to believe ``a violation . . .
exists if the facts that a complainant alleges, or facts that are
otherwise known to the authorized representative, constitute simple and
effective documentation of the alleged violation . . . .'' As noted
above, and as will be discussed in more detail below, we propose to
amend these sections to limit the sources of information that we will
consider when we are determining whether we have reason to believe that
a violation exists.
While the term ``permit defects'' has never appeared in the
regulations, OSMRE, for most of its existence, has issued TDNs to State
regulatory authorities for possible ``permit defects,'' that is,
allegations that a State regulatory authority has issued a permit with
a provision, or lack thereof, that is contrary to the approved State
program. The 2020 TDN Rule did not squarely address this issue, but as
noted above, the preamble to the 2020 TDN Rule explained that, under 30
U.S.C. 1271(a)(1), ``any person'' who can be in violation of SMCRA or a
State regulatory program ``does not include a State regulatory
authority, unless it is acting as a permit holder.'' 85 FR 75176. As
such, we explained that a permit defect ``will typically be handled as
a State regulatory program issue'' under 30 CFR part 733, rather than
through the TDN process, ``unless there is an actual or imminent
violation of the approved State program.'' Id.
This proposed rule would reinstate the practice of issuing TDNs to
State regulatory authorities for permit defects. Although a TDN under
30 CFR part 842 would be issued for a permit defect, the proposed
regulations would still allow OSMRE and the State regulatory authority
to develop an action plan under 30 CFR part 733 to address a State
regulatory program issue, and the development of that action plan
could, in the appropriate circumstances, constitute ``good cause'' for
not taking action in response to the TDN. Thus, this aspect of the
proposed revisions to the Federal regulations would incorporate a part
733 action plan, which originates from a citizen complaint, into the
TDN process.
Before the 2020 TDN Rule, under internal guidance, OSMRE used
``action plans'' to resolve State ``regulatory program problems.''
OSMRE has used action plans extensively and effectively to address a
State regulatory authority's misapplication of its approved State
regulatory program. In the 2020 TDN Rule, we incorporated the action
plan concept into 30 CFR 733.12 for what we defined in the regulations
at Sec. 733.5 as a ``State regulatory program issue.'' In general, a
State regulatory program issue, as we propose to amend the definition,
is one that we identify during oversight of a State or Tribal
regulatory program that may result from a regulatory authority's
implementation, administration, enforcement, or maintenance of its
State regulatory program. Under the 2020 TDN Rule at Sec.
842.11(b)(1)(ii)(B)(3), ``appropriate action'' in response to a TDN
could include ``OSMRE and the State regulatory authority immediately
and jointly initiating steps to implement corrective action to resolve
any issue that [OSMRE] identif[ies] as a State regulatory program
issue, as defined in 30 CFR part 733.''
Under this proposed rule, entering into an action plan to address a
State regulatory program issue would no longer constitute ``appropriate
action'' under the TDN process. However, we propose that, if a possible
violation is being addressed in an action plan, along with
substantively similar possible violations, that fact would constitute
``good cause'' in response to the TDN. In this regard, OSMRE's
treatment of a State regulatory program issue under an action plan
would be part of the overall TDN process. (Action plans can be
developed to address other aspects of a State regulatory program, such
as staff funding, adequate access to public documents, and other
similar programmatic issues that may not be part of the TDN process.)
Finally, the 2020 TDN Rule perpetuated the distinction between
citizen complaints and citizen requests for Federal inspections. For
example, under the existing regulations, the provisions for ``Federal
inspections and monitoring'' in 30 CFR 842.11(b)(1) are often triggered
by ``citizen complaints,'' yet Sec. 842.12 pertains to ``Requests for
Federal inspections.'' As mentioned above, we propose to eliminate any
confusion by proposing, at 30 CFR 842.11(b)(2) and 842.12(a), that all
citizen complaints would be considered requests for Federal
inspections.
III. Section-by-Section Analysis
A. Overview
To increase efficiency and make it easier for citizens to report
possible violations, we propose to simplify the processes for filing a
citizen complaint and requesting a Federal inspection. Under this
proposed rule at Sec. Sec. 842.11(b)(2) and 842.12(a), all citizen
complaints would be considered as requests for a Federal inspection.
After reviewing our experience implementing the citizen complaint
process under the 2020 TDN Rule, we are proposing to remove two
burdensome and unnecessary provisions from the existing regulations at
Sec. 842.12(a): (1) the express requirement for a person requesting a
Federal inspection to notify the State regulatory authority of the
possible violation and (2) the requirement for a person requesting a
Federal inspection to state the basis for their assertion that the
State regulatory authority has not taken action with respect to the
possible violation. The State regulatory authority is often best
positioned to address citizen complaints in the first instance, but,
for various reasons, some citizens do not, or will not, contact the
State regulatory authority. Under this proposed rule, therefore, a
citizen would not be required to notify the State regulatory authority.
After receiving a citizen complaint, we would evaluate information from
the complainant, information in our files, and publicly available
electronic information to determine if we have reason to believe a
violation exists.
Prior to the 2020 TDN Rule, we often automatically sent a TDN to
the State regulatory authority upon receipt of information from a
citizen alleging a violation and without undertaking a ``reason to
believe'' analysis. Under this proposed rule, instead of simply
forwarding a citizen complaint to the State regulatory authority as a
TDN or considering ``readily available information'' under the existing
[[Page 24949]]
regulations at 30 CFR 842.11(b)(1)(i) and (b)(2), and 842.12(a), we
propose to only issue a TDN to the State regulatory authority after we
have undertaken a ``reason to believe'' analysis that considers only
information received from a citizen complainant, information available
in OSMRE's files at the time we receive the citizen complaint, and
publicly available electronic information. This would allow the TDN
process to proceed without any undue delays associated with outside
research.
As explained above, we consider a TDN to be a communication
mechanism between OSMRE and the State regulatory authority. A TDN that
results from a citizen complaint is not itself a determination that
there is a violation or that the State has failed to address a
violation. Rather, consistent with the notion of State primacy, a TDN
affords the State the first opportunity to address the underlying
issue. A Federal inspection and possible Federal enforcement action
occur only if a State regulatory authority fails to respond within ten
days or submits a response that is arbitrary, capricious, or an abuse
of discretion.
As mentioned above, we are proposing to restrict the sources of
information that we review when determining whether we have reason to
believe a violation exists to: information received from a citizen
complainant, information in our files at the time that we are notified
of the possible violation, and publicly available electronic
information. The first source of information would include information
in the citizen complaint and any other supporting information that the
citizen chooses to provide. The second information source would
encompass information available in our files at the time that we are
notified of the possible violation or at the time that OSMRE receives a
request for a Federal inspection. We propose to limit this category to
information that we already have when we receive a citizen complaint or
a request for a Federal inspection so that we will be able to act
expeditiously and will not incur delay by engaging in a larger
information gathering effort.
In the 2020 TDN Rule, we sought to place a temporal limitation on
the data collection by indicating that the information must be
``readily available.'' Given our experience with that rule and after
reexamination, we now conclude that ``readily available'' does not
necessarily impose a time limit and could be interpreted to involve a
larger information gathering than we envisioned, potentially including
information that takes months to gather and analyze, and can
unnecessarily delay a ``reason to believe'' determination. Thus, we are
proposing to add a clear limitation so that the information that OSMRE
will consider is contained in our files at the time that we are
notified of a possible violation or receive a request for a Federal
inspection.
Given the widespread public availability of electronic information
via the internet or similar sources, however, we propose that we may
also consider information from a third source: ``publicly available
electronic information.'' This would include any and all data that is
publicly available in an electronic format. For us to use information
not already in our files when determining whether we have reason to
believe a violation exists, the information would have to be in an
electronic format and be ``publicly available.'' We propose to limit
this information to electronic sources to avoid delays associated with
trying to locate hard copy files. This information could include
electronic permitting information that the relevant regulatory
authority or governmental entity makes available to the public. Our
goal with these proposed changes is to limit the sources of information
that we would consider to ensure an expeditious ``reason to believe''
determination, and thus reduce the amount of time between when we
become aware of a possible violation and when we inform the State
regulatory authority of the possible violation.
In addition, treating a possible ``permit defect'' as we do any
other possible violation and notifying the State regulatory authority
through a TDN, rather than treating the issue, in the first instance,
as a ``State regulatory program issue'' under 30 CFR 733.12, could save
time and allow OSMRE and the State regulatory authorities to begin
addressing possible violations more quickly.
Treating all types of possible violations the same would be more
consistent with 30 U.S.C. 1271(a)(1), which provides that whenever the
Secretary, ``on the basis of any information available to him,
including receipt of information from any person,'' has ``reason to
believe that any person is in violation of any requirement of [SMCRA]
or any permit condition required by [SMCRA],'' the Secretary must
notify the State regulatory authority. (Emphasis added.) In the
preamble to the 2020 TDN Rule, we explained that, under 30 U.S.C.
1271(a)(1), ``any person'' who can be in violation of SMCRA or a State
regulatory program ``does not include a State regulatory authority,
unless it is acting as a permit holder.'' 85 FR 75176; see also id. at
75179. The better reading of that statutory provision is one we have
held throughout most of OSMRE's history: that we must issue a TDN when
we have reason to believe that any person, including a State regulatory
authority, is in violation of any requirement of SMCRA. If a State has
issued a permit that would allow coal mining to occur in a manner that
is inconsistent with SMCRA or the applicable State regulatory program,
or a permit that does not comply with all requirements to obtain a
permit, it makes little sense for us to wait for the permittee or
operator to act in accordance with that defective permit before we can
issue a TDN. Moreover, States would most likely become aware of a
``permit defect'' issue sooner under the proposed rule and therefore
have an earlier opportunity to evaluate and address the issue. As
always, if a State disagrees that there is a violation, it can respond
to the TDN by explaining its position that a possible violation does
not exist under the State regulatory program. 30 CFR
842.11(b)(1)(ii)(B)(4)(i). We will honor a State's response to the TDN
unless we conclude that the action or response is arbitrary,
capricious, or an abuse of discretion. Id. Sec.
842.11(b)(1)(ii)(B)(2).
Within the cooperative federalism framework, citizens have a voice
in the form of a citizen complaint. As mentioned, in this proposed
rule, we are also proposing to define ``citizen complaint,'' at
proposed 30 CFR 842.5, to remove any confusion and clarify that the
purpose of a citizen complaint, in the TDN context, is for citizens to
inform OSMRE of a possible violation or issue with a State regulatory
program. We are proposing to define ``citizen complaint'' as ``any
information received from any person notifying the Office of Surface
Mining Reclamation and Enforcement (OSMRE) of a possible violation of
the Act, this chapter, the applicable State regulatory program, or any
condition of a permit or an exploration approval.'' Defining the phrase
``citizen complaint'' would remove any inconsistencies associated with
the phrase or related processes.
In addition, in this proposed rule, we intend to remove any
confusion concerning the difference between ``citizen complaints''
under Sec. 842.11 and ``requests for Federal inspections'' under
existing Sec. 842.12(a). A citizen complaint may or may not expressly
request a Federal inspection, and the citizen complaint may result in
the issuance of a TDN if we form the requisite reason to believe and
there is
[[Page 24950]]
no imminent harm. Likewise, ``[r]equests for Federal inspections,''
under 30 CFR 842.12(a), may also result in the issuance of a TDN in
non-imminent harm situations.
Under this proposed rule, we also propose to avoid any
misunderstanding by removing the requirement for a citizen to contact
the applicable State regulatory authority before requesting a Federal
inspection. The SMCRA provision governing inspections and monitoring,
at 30 U.S.C. 1267(h)(1), states that any person adversely affected by a
surface mining operation may notify OSMRE ``in writing, of any
violation of [SMCRA] which he has reason to believe exists at the
surface mining site.'' This statutory provision does not require a
citizen to notify the State regulatory authority when informing us of a
possible violation. Likewise, the TDN process at 30 U.S.C. 1271(a)(1)
does not require a citizen to notify the State regulatory authority
when bringing a possible violation to our attention.
While we have discretion to require citizens to notify the State
regulatory authority whether they are filing a citizen complaint under
Sec. 842.11 or requesting a Federal inspection under Sec. 842.12, we
have decided, consistent with our objective to remove unnecessary
hurdles for citizen complainants, to propose to remove the requirement
from Sec. 842.12(a) and clarify that there is not a similar
requirement for Sec. 842.11(b).
In addition, to improve clarity, we propose to add language in both
Sec. 842.11(b)(2) and Sec. 842.12(a) stating that all citizen
complaints will also be considered as requests for Federal inspections.
Accordingly, if a Federal inspection occurs as a result of any
information received from a citizen complainant, the citizen would be
afforded the right to accompany the Federal inspector on the
inspection.
As we noted in the preamble to the 2020 TDN Rule, there has never
been a stringent time frame for determining whether we have reason to
believe a violation exists. 85 FR 75158. Notably, neither SMCRA nor the
pre-2020 TDN rules contain such a time frame. While SMCRA gives us
discretion to determine if and when we have the requisite reason to
believe, we intend to make such determinations quickly after receiving
a citizen complaint. Our proposed regulatory revision reflects that
intention by limiting the sources of information that we will consider
when evaluating whether we have reason to believe a violation exists.
In addition, SMCRA and our longstanding TDN regulations provide
that a State regulatory authority has ten days to respond to a TDN
indicating that it has taken appropriate action to cause the possible
violation to be corrected or that it has good cause for not taking
action. 30 U.S.C. 1271(a)(1); 30 CFR 842.11(b)(1)(ii)(B)(1). These
provisions do not require the underlying issue to be fully resolved
within ten days. In some instances, in response to a TDN, a State
regulatory authority will be able to demonstrate that the possible
violation has already been corrected or that the allegation does not
amount to a violation of the State regulatory program. However, in many
instances, the ultimate resolution of the issue or abatement action
occurs after we receive a State's response to a TDN. Whether we agree
with the State's proposed action to resolve an issue or disagree and
conduct a Federal inspection, ultimate resolution of the underlying
issue often occurs well after the initial ten-day period. Many times,
the final resolution of an issue occurs days or months after the
initial citizen complaint, and, in some circumstances, resolution can
take more than a year.
Nonetheless, we propose several steps to reduce the time between
the identification of a State regulatory program issue and final
resolution of that issue. Under the 2020 TDN Rule, 30 CFR part 733
corrective actions associated with State regulatory program issues may
constitute ``appropriate action'' in response to a TDN. 30 CFR
842.11(b)(1)(ii)(B)(3). However, the existing regulation provides that
we will only develop and institute an action plan if we believe the
State regulatory program issue will take longer than 180 days to
resolve or if the State regulatory program issue is likely to result in
a violation. 30 CFR 733.12(b). In addition, existing Sec. 733.12(b)
does not require any specific interim measures between identification
of the State regulatory program issue and institution of a corrective
action plan; the existing regulations say only that we ``may employ any
number of compliance strategies to ensure that the State regulatory
authority corrects a State regulatory program issue in a timely and
effective manner.'' Id. Thus, a possible violation, if addressed under
existing 30 CFR part 733 as a State regulatory program issue, could
exist for a long period of time before resolution.
To hasten that process, we propose to amend 30 CFR 842.11 and
733.12 to address the possibility of delay. First, under proposed 30
CFR 842.11(b)(1)(ii)(B)(3), corrective actions under 30 CFR part 733
could no longer constitute appropriate action in response to a TDN.
Second, at 30 CFR 733.12(b), we propose to remove the 180-day language
pertaining to development of an action plan. Instead, for each State
regulatory program issue, we, in consultation with the applicable State
regulatory authority, would ``develop and approve an action plan within
60 days of identification of a State regulatory program issue.'' When
crafting a corrective action plan, the proposed rule envisions a
collaborative process between OSMRE and the State regulatory authority.
In addition, at Sec. 733.12(b), we also propose that, ``[w]ithin 10
business days of OSMRE's determination that a State regulatory program
issue exists, OSMRE and the State regulatory authority may identify
interim remedial measures that may abate the existing condition or
issue.'' Amending these provisions would shorten the time between
identification of a State regulatory program issue and the development
of measures to address the issue. Thus, the proposed rule would retain
the corrective action plan concept but add timeframes to ensure that
action is taken expeditiously.
Further, for State regulatory program issues, Sec. 733.12(b)(1) of
the proposed rule would allow one calendar year from receipt of an
action plan for the State regulatory authority to complete the
identified actions in the action plan. We recognize that final
resolution of an issue may not occur within the allotted one year, but,
under the proposed regulations, the State regulatory authority would
need to complete the identified actions within one year. For example, a
State regulatory program issue may require an amendment of the approved
State regulatory program and gaining approval of a State program
amendment may require more than a year. In such circumstances, the
action identified in the action plan may be for the State regulatory
authority to prepare and submit the proposed State program amendment
within the allotted timeframe, with a recognition that there could be
additional required State approvals, and that, ultimately, we would
need to approve the State program amendment. Thus, when developing a
corrective action plan, care must be given to identify required actions
and what constitutes ``completion'' of the action plan. Completion
criteria would need to set forth actions and milestones that would be
achievable within 365 days. The goal is to keep violations from going
unabated, minimize on-the-ground impacts, and prevent off-site impacts.
Under the existing regulations at 30 CFR
842.11(b)(1)(ii)(B)(4)(ii), ``good cause'' for a State regulatory
authority not to take ``appropriate action'' in
[[Page 24951]]
response to a TDN includes the State's initiation of ``an investigation
into a possible violation'' and its resulting determination that it
``requires a reasonable, specified additional amount of time to
determine whether a violation exists.'' We propose to amend this
provision by specifying the time within which the State regulatory
authority must complete its investigation. The proposed rule would
provide that ``[t]he State regulatory authority may request up to 30
additional days to complete its investigation of the issue,'' and that,
``in complex situations, the State regulatory authority may request up
to an additional 60 days to complete the investigation.''
We are proposing this limit so that a State regulatory authority
will not postpone abatement measures while it is engaging in an open-
ended investigation of whether a violation exists. In our experience,
determining if a violation exists is not an exhaustive or indeterminate
process. Under this proposed rule, that process would end in 30 days
for most situations and 60 additional days when complex situations
arise. The proposed rule would cap the maximum amount of time at 90
days from when we determine that the State regulatory authority has
satisfied the criteria for good cause. In addition, when a State
regulatory authority is requesting more time to address an identified
issue, we would require the State regulatory authority to provide a
reasoned justification for the time extension. Under the proposed rule,
when we evaluate a State regulatory authority's request for additional
time, we would have ``discretion to approve the requested time
extension or establish the length of time, up to 90 days, that the
State regulatory authority has to complete its investigation.'' This is
intended to facilitate faster resolution of identified issues.
At proposed Sec. 842.11(b)(1)(ii)(B)(1) and (b)(1)(ii)(B)(4)(iii),
we propose similar revisions to reduce the burden on State regulatory
authorities and OSMRE. In the first provision, (Sec.
842.11(b)(1)(ii)(B)(1)), we propose that ``[w]here appropriate, OSMRE
may issue a single ten-day notice for substantively similar possible
violations found on two or more permits involving a single permittee,
including two or more substantively similar possible violations
identified in one or more citizen complaints.'' In the second
provision, (Sec. 842.11(b)(1)(ii)(B)(4)(iii)), we propose that good
cause in response to a TDN includes OSMRE ``identif[ying] substantively
similar possible violations on separate permits and consider[ing] the
possible violations as a single State regulatory program issue . . .
.'' By the phrase ``substantively similar possible violations,'' we
mean issues or possible violations that are similar, or even identical,
in that they are subject to the same statutory or regulatory provisions
and have a common theme. This provision would allow similar possible
violations to be addressed under a single corrective action plan.
Issuing separate TDNs on substantively similar possible violations
involving the same permittee is redundant and not an efficient use of
our or State resources when the underlying issue can be more
efficiently addressed simultaneously. Moreover, occurrence of
substantively similar issues on separate permits could indicate a
systemic issue in the implementation of a State regulatory authority's
program, which would be more efficiently addressed as a State
regulatory program issue and resolved through implementation of an
action plan. It is logical to combine substantively similar issues and
possible violations into a single plan of action and address all the
issues as a group rather than through a series of individual actions.
On a related topic, the 2020 TDN Rule defined ``State regulatory
program issue'' as an issue that could result in a State regulatory
authority not effectively implementing, administering, enforcing, or
maintaining its State regulatory program, including issues related to
the requirement that a State regulatory authority must not approve a
permit unless it finds that the application is accurate and complete
and complies with all requirements of the Act and the State regulatory
program. 30 CFR 733.5. This definition and associated provisions were
intended to address issues with a State regulatory authority's
implementation of its approved SMCRA program. In the TDN context, these
issues often arise as ``permit defects'' that are identified in a
citizen complaint. As explained elsewhere, we generally consider a
permit defect to be a deficiency in a permit-related action taken by a
State regulatory authority, such as issuance of a permit with a
provision, or lack thereof, that is contrary to the approved State
program. In colloquial terms, a permit defect results in a ``defective
permit.''
In the preamble to the 2020 TDN Rule, we explained that a permit
defect ``will typically be handled as a State regulatory program issue
[rather than through issuance of a TDN], unless there is an actual or
imminent violation of the approved State program.'' 85 FR 75176. Under
this proposed rule, we would once again issue TDNs for permit defects,
as possible violations, when we have the requisite reason to believe a
violation exists. An alleged permit defect could be grouped with
substantively similar possible violations and addressed as a single
State regulatory program issue. Addressing the issue as a State
regulatory program issue would constitute ``good cause'' for not taking
appropriate action within ten days under the TDN process.
In this proposed rule, we considered proposing a definition of
``permit defect,'' but ultimately determined that it is unnecessary to
do so. In general, SMCRA states that we issue a TDN when we have
``reason to believe that any person is in violation of any requirement
of [SMCRA] or any permit condition required by [SMCRA].'' 30 U.S.C.
1271(a)(1). A permit defect constitutes a ``violation'' under the
common understanding of that term. See Webster's New International
Dictionary 2846 (2d ed. 1959). Although the State regulatory authority
would not itself be mining in violation of SMCRA or the approved State
program, it has issued a State permit or it would allow a permittee to
mine in a manner that is not in compliance with the approved State
program or SMCRA. In appropriate circumstances, we would issue a TDN
even if mining has not started.
As mentioned, under the 2020 TDN Rule, we indicated that ``a so-
called `permit defect' will typically be handled as a State regulatory
program issue [under 30 CFR part 733], unless there is an actual or
imminent violation of the approved State program.'' 85 FR 75176. As
such, the existing regulations provide that nothing in 30 CFR 773.12(d)
``prevents a State regulatory authority from taking direct enforcement
action in accordance with its State regulatory program, or OSMRE from
taking appropriate oversight enforcement action'' if ``a previously
identified State regulatory program issue results in or may imminently
result in a violation of the approved State program.'' We had initially
proposed that we and the State regulatory authority could take
appropriate enforcement actions when ``a previously identified State
regulatory program issue results in or may imminently result in an on-
the-ground violation.'' 85 FR 28916-917 (emphasis added). In the final
rule, we substituted ``a violation of the approved State program'' for
``an on-the-ground violation.'' See, e.g., 85 FR 75152, 75174. However,
in the preamble to the final rule, we also explained that: ``In OSMRE's
experience, a violation of the approved State program often manifests
itself as an on-the-ground impact, but
[[Page 24952]]
may also manifest by other means, such as a failure to submit a
required certification or monitoring report.'' 85 FR 75170; see also 85
FR 75174 (``OSMRE recognizes that these violations often manifest as an
on-the-ground impact, but OSMRE also recognizes that these violations
may manifest by other means.'').
This proposed rule would treat all violations the same, whether
they are on-the-ground or otherwise. Thus, under 30 CFR 842.11, we
would issue a TDN for any possible violation after forming the
requisite reason to believe a violation exists. Proposed 30 CFR
733.12(d) would remove the reference to imminent violations, so that we
need not wait for an imminent or actual on-the-ground violation before
issuing a TDN. For example, we would be able to issue TDNs for, e.g.,
failure to submit a required certification or monitoring report after
forming reason to believe a violation exists. Our proposal to once
again be able to issue TDNs for all violations, including those
committed by a permittee and permit defects, would comport more closely
with SMCRA's language in 30 U.S.C. 1271(a)(1) by treating all
violations the same in the first instance and removing any concern that
we have created two classes of violations: one that is subject to the
TDN process and another that is not.
The term ``violation'' is defined at 30 CFR 701.5. That definition
only applies to ``the permit application information or permit
eligibility requirements of sections 507 and 510(c) of [SMCRA] and
related regulations'' and thus is not applicable to this proposed rule,
which primarily implements section 521 of SMCRA, 30 U.S.C. 1271.
Nonetheless, that definition provides a useful comparison. The
definition of ``violation'' at 701.5, in the SMCRA context, provides
that a violation includes a noncompliance for which OSMRE or a State
regulatory authority has provided a notice of violation; a cessation
order; a final order, bill, or demand letter pertaining to a delinquent
civil penalty; a bill or demand letter pertaining to delinquent
reclamation fees; or a notice of bond forfeiture. In the TDN context, a
violation could be any ``noncompliance'' for which a State regulatory
authority would, or could, issue a notice of violation, cessation
order, final order, bill, demand letter, or notice of bond forfeiture.
The TDN process is designed to trigger the State regulatory authority
to take appropriate action where there is a violation.
Moreover, State programs must be no less stringent than SMCRA and
no less effective than the Federal regulations in meeting SMCRA's
requirements. See 30 CFR 732.15(a) (a State program must be ``in
accordance with'' SMCRA and ``consistent with'' the Federal
implementing regulations); 30 CFR 730.5 (defining ``[c]onsistent with''
and ``in accordance with''). Under 30 CFR 773.7(a) and State
counterparts to that provision, a regulatory authority is required to
review permit applications and related information and issue a written
decision either granting, requiring modification of, or denying the
application. A permit applicant has ``the burden of establishing that
[the] application is in compliance with all the requirements of the
regulatory program.'' Id. at Sec. 773.7(b). Similarly, under 30 CFR
773.15 and State program counterparts, a permit application must
affirmatively demonstrate and the regulatory authority must make a
written finding that the ``application is accurate and complete and the
applicant has complied with all requirements of [SMCRA] and the
regulatory program.'' 30 CFR 773.15(a) (emphasis added).
In sum, an approved permit that is inconsistent with the approved
State program, and by extension the minimum Federal permit application
standards at 30 CFR parts 777 through 785, is tantamount to the
applicant's noncompliance with the requirements of SMCRA and the State
regulatory program. Therefore, such noncompliances are violations that
are subject to the TDN process. In some instances, an applicant may
provide incomplete or inaccurate information in its permit application,
which may lead the State regulatory authority to issue a defective
permit. In other circumstances, an applicant may believe it has
complied with all of the permitting requirements although it has not,
and the State regulatory authority may issue a permit that is not in
compliance with the approved program or SMCRA. In such a situation, it
makes little sense to wait for the permittee to begin mining activities
in accordance with the defective permit before we issue a TDN. Thus,
under this proposed rule, we would issue a TDN to a State regulatory
authority whenever we have reason to believe that there is a violation,
including violations related to defective permits.
In simple terms, an approved permit should not contain any
inconsistency with an approved State program, SMCRA, or the Federal
regulations. Issuance of a TDN, in appropriate circumstances, would
start the process of rectifying the situation. Under this proposed
rule, substantively similar possible permit defects could indicate
systemic issues that would be best addressed as a single State
regulatory program issue under 30 CFR part 733, with a corresponding
action plan, which could establish good cause in response to a TDN.
B. Proposed 30 CFR 842.5--Definitions
The proposed rule would create a new definitions section at 30 CFR
842.5 that would include definitions for the terms ``citizen
complaint'' and ``ten-day notice.'' Both terms have been used for years
and were referenced throughout the preamble of the 2020 TDN Rule but
have not been defined in the Federal regulations. To remove any
uncertainty regarding the meaning and usage of these terms, and to
promote consistency and clarity, we propose to define these terms.
In the definition of ``citizen complaint,'' we propose to include
the word ``possible'' to modify ``violation,'' rather than ``alleged''
or something similar, to indicate that not all citizen complaints will
contain an affirmative allegation of a violation, but the citizen
complaint may nonetheless, in substance, identify a possible violation.
Including ``possible violation'' in the proposed definition of
``citizen complaint'' would recognize that a citizen may provide
information that falls short of a formal allegation but may nonetheless
give us reason to believe a violation exists. A more formal allegation
would also qualify as a ``possible violation'' under the proposed
definition of citizen complaint. Thus, in this preamble, unless context
dictates otherwise, references to alleged violations are references to
possible violations.
As we explained in a 1982 final rule, we referred to ``possible''
violations at 30 CFR 842.11(b)(1)(ii)(B) because we may form ``reason
to believe'' that a violation exists even when there is not an
affirmative allegation. 47 FR 35627 (Aug. 16, 1982). Citizens may not
be familiar with the intricacies of SMCRA, the Federal regulations, or
the relevant State regulatory program. Thus, we propose that a citizen
complaint need only identify a possible violation, rather than
identifying an alleged violation with particularity, although citizens
are encouraged to provide as much legal and factual information as
possible in order to assist us in determining whether we have reason to
believe a violation exists.
As proposed, information in a ``citizen complaint'' would need to
be conveyed to us ``in writing (or orally, followed up in writing).''
Written information could be contained in a
[[Page 24953]]
traditional letter, electronic mail, or other electronic means.
Next, as explained above, we are proposing to define the term
``ten-day notice.''
Defining ``ten-day notice'' would provide a uniform understanding
of the term. In our experience, many State regulatory authorities
believe a TDN is equivalent to an ``enforcement action'' or is
otherwise a criticism of the State's enforcement of SMCRA. As a result,
some State regulatory authorities have a negative view of our issuance
of TDNs. As previously stated, when a TDN results from a citizen
complaint (rather than a Federal oversight inspection), the TDN is
merely a communication mechanism that we use to notify State regulatory
authorities of possible violations of the relevant State regulatory
program. A TDN is not an ``enforcement action'' against the State, even
though the concept is contained in the enforcement section of SMCRA. 30
U.S.C. 1271. The current State regulatory authorities obtained primacy
many years ago and have since been implementing SMCRA via their
approved State regulatory programs. In SMCRA, Congress envisioned
States as the primary enforcers of SMCRA, with Federal oversight. In
this regard, SMCRA provides a cooperative federalism model, with TDNs
part of that model. A TDN that results from a citizen complaint simply
represents OSMRE's statutory obligation to inform the primary
regulators of possible violations of SMCRA or an approved State
program. After OSMRE notifies the State regulatory authority, the State
might enforce SMCRA against a permittee or operator, or, in rare cases,
if we disagree with the State, we might take enforcement action. The
proposed definition of ``ten-day notice'' would capture the
understanding that a TDN is a communication mechanism that we use to
notify a State regulatory authority under Sec. Sec.
842.11(b)(1)(ii)(B)(1) and 843.12(a)(2) whenever an ``OSMRE authorized
representative has reason to believe that any permittee and/or operator
is in violation'' of the specified provisions ``or when, on the basis
of a Federal inspection, OSMRE determines that a person is in
violation'' of the specified provisions ``and OSMRE has not issued a
previous ten-day notice for the same violation.''
We propose to include in the definition of ``ten-day notice'' a
reference to ``this chapter.'' That reference is included in existing
Sec. 842.11(b)(1)(i), and, in this context, a violation of the
regulations implementing SMCRA is within the scope of the proposed
definition of ``ten-day notice.''
Finally, the proposed definition specifies that TDNs are ``used in
non-imminent harm situations'' because SMCRA, at 30 U.S.C. 1271(a)(1),
specifies that ``the ten-day notification period shall be waived when
the person informing the Secretary provides adequate proof that an
imminent danger of significant environmental harm exists and that the
State has failed to take appropriate action.'' Thus, when we receive
adequate proof of an imminent harm and the State regulatory authority
has failed to take appropriate action, we do not issue a TDN; rather,
we proceed directly to a Federal inspection. 30 CFR
842.11(b)(1)(ii)(C).
C. Proposed 30 CFR 842.11(b)(1)(i)
We propose a change to 30 CFR 842.11(b)(1)(i) that would limit the
sources of information that we review when determining whether we have
reason to believe a violation exists. In the 2020 TDN Rule, we
explicitly expanded the scope of information that we could use to
determine whether we have reason to believe to include ``any
information readily available to [OSMRE], from any source, including
any information a citizen complainant or the relevant State regulatory
authority submits . . . .'' 30 CFR 842.11(b)(1)(i); see also id.
Sec. Sec. 842.11(b)(2) and 842.12(a) (requests for Federal
inspections). In the preamble to the 2020 TDN Rule, we explained that
``[a]ny readily available information includes information from any
person, including the permittee, and is not limited to information that
OSMRE receives from a citizen or State regulatory authority.'' 85 FR
75162. The change was intended to enable us to make a better-informed
decision about whether we have reason to believe a violation exists.
Our experience implementing the 2020 TDN led us to reexamine it and
SMCRA's statutory underpinnings. The reference to ``receipt of
information from any person'' (emphasis added) in SMCRA section 1271(a)
is best read as referring to ``any person'' who has information about
the existence of a possible violation, rather than information from
other sources that could disprove the existence of a violation. While
in some cases it might be more efficient to consider information from
the State regulatory authority up front, we believe that SMCRA
envisions a back-and-forth process with the State regulatory authority
during the ten-day period after issuance of a TDN. In other words,
after we issue a TDN, the State regulatory authority can respond by
referring to any information in its possession about the possible
violation. We believe that this approach--limiting the sources of
information that we review to determine whether we have reason to
believe a violation exists--better aligns with SMCRA and would allow us
to make a quicker determination and allow any violations to be
corrected more quickly. Moreover, using information we have on hand or
that is available to the public electronically in addition to
information contained in a citizen complaint, will still allow us to
make a ``reason to believe'' determination without excessive delay in
issuing a TDN in appropriate circumstances. This change would make the
process more efficient by reducing the amount of time between receiving
information about a possible violation and issuing a TDN to the State
under the appropriate circumstances, which would prompt action to
correct violations as soon as possible.
To accomplish the changes discussed above, we are proposing to
amend the text of Sec. 842.11(b)(1)(i), in pertinent part, to state
that the authorized representative determines whether there is ``reason
to believe'' that there is a violation based on ``information received
from a citizen complainant, information available in OSMRE files at the
time that OSMRE is notified of the possible violation (other than
information resulting from a previous Federal inspection), and publicly
available electronic information.'' In the same provision of the
existing regulations, we are proposing to remove the language that
would allow us to determine whether we have reason to believe on the
basis of ``any'' information ``readily available,'' ``from any
source,'' ``including any information . . . the relevant State
regulatory authority submits.'' In addition to the deletions noted
above, we also propose to make minor, non-substantive changes for
readability.
This change would also limit the sources of information we could
consider when determining whether to conduct a Federal inspection in
areas where OSMRE is the regulatory authority (i.e., States and Tribes
without primacy and Federal coal in areas without a State/Federal
cooperative agreement). Under the proposed rule, we would consider
information received from a citizen complainant, information available
in our files at the time that we are notified of the possible
violation, and any publicly available electronic information when
determining whether we have reason to believe a violation exists in an
area where OSMRE is the regulatory authority. Under existing 30 CFR
842.11(b)(1)(ii)(A), if we conclude
[[Page 24954]]
we have reason to believe a violation exists, we will conduct a Federal
inspection.
D. Proposed 30 CFR 842.11(b)(1)(ii)
We propose several changes to the existing regulations at 30 CFR
842.11(b)(1)(ii). At 30 CFR 842.11(b)(1)(ii)(B)(1), we are proposing to
add a new sentence at the end of the existing provision, which would
read: ``Where appropriate, OSMRE may issue a single ten-day notice for
substantively similar possible violations found on two or more permits
involving a single permittee, including two or more substantively
similar possible violations identified in one or more citizen
complaints.'' This would enhance administrative efficiency by allowing
us to combine substantively similar possible violations by the same
permittee involving more than one permit into a single TDN when we
determine that doing so is the best course of action to resolve the
larger issue expeditiously.
We propose this change for two main reasons: first, to prevent
multiple, parallel Federal actions on substantively similar possible
violations or citizen complaints, and second, to more efficiently
resolve the possible violations. Addressing a single underlying issue
on several permits or citizen complaints simultaneously would lead to
more expeditious resolution of the underlying issue. In our experience,
each individual TDN requires OSMRE and the State regulatory authority
to commit resources to resolve the matter. Parallel actions can be
inefficient and may lead to actions that are not fully consistent.
Combining substantively similar possible violations into a single TDN
would remove these inefficiencies and potential inconsistencies,
allowing for quicker resolution of the possible violations. In sum,
this change would allow us and the State regulatory authority to more
efficiently use our limited resources and personnel to resolve
underlying issues more quickly.
In proposed Sec. 842.11(b)(1)(ii)(B)(3), we would remove the
second sentence in the existing provision, which allowed creation and
implementation of a corrective action plan under 30 CFR part 733 to
constitute ``appropriate action'' in response to a TDN. Pursuing an
action plan for a State regulatory program issue under 30 CFR part 733
would no longer constitute ``appropriate action.'' However, as
discussed in the following paragraphs, we are proposing that an action
plan could constitute ``good cause'' in certain situations for not
taking action in response to a TDN. We are also proposing a non-
substantive change to the first sentence of the existing section: we
propose to add ``regulatory'' between ``State'' and ``program'' so the
reference would be to ``State regulatory program.''
Inclusion of an action plan as an appropriate action under 30 CFR
842.11(b)(1)(ii)(B)(3) is not fully consistent with SMCRA section
521(a)(1), 30 U.S.C. 1271(a)(1). The statute states that ``appropriate
action'' is an action taken by the State regulatory authority within
ten days to ``cause said violation to be corrected . . . .'' Developing
an action plan, as envisioned in the 2020 rule, generally means that
the State regulatory authority cannot cause the violation to be
corrected within ten days of receiving a TDN; rather, OSMRE and the
State can initiate the action plan process in that ten-day window.
Correction of the violation would come later. Therefore, after further
review, we find that the action plan process would be better
incorporated into the ``good cause'' exception for not taking
appropriate action under 30 U.S.C. 1271(a)(1). This proposed change
would make the regulations adhere more closely to the statutory text.
As explained above, this proposed rule would provide for the
issuance of TDNs for permit defects. Hence, those types of possible
violations would no longer automatically be handled under 30 CFR part
733. Instead, we would issue TDNs for any possible violations,
including permit defects, when we form the requisite reason to believe
a violation exists, and entering into an action plan under part 733
would no longer constitute appropriate action in response to a TDN.
When implemented appropriately, however, an action plan could lead to
correction of underlying violations. Thus, in appropriate
circumstances, an action plan could constitute ``good cause'' for not
taking action within ten days of a TDN. In sum, we believe action plans
are an important oversight tool to correct State regulatory program
issues, but they do not demonstrate appropriate action in response to a
TDN.
This proposed rule would also change the examples of State
regulatory authority responses to a TDN that may constitute ``good
cause'' under 30 CFR 842.11(b)(1)(ii)(B)(4). We propose to add a new
paragraph (b)(1)(ii)(B)(4)(iii), which would result in redesignations
of existing paragraphs (b)(1)(ii)(B)(4)(iii) through (v) as paragraphs
(b)(1)(ii)(B)(4)(iv) through (vi).
Existing Sec. 842.11(b)(1)(ii)(B)(4)(ii) recognizes that State
regulatory authorities are not always able to determine whether a
possible violation exists within ten days, especially in complex
circumstances. Some circumstances require complex technical and/or
legal analysis to determine if there is actually a violation. For
example, issues relating to property rights and right of entry may
require legal review and analysis. Similarly, possible violations
related to groundwater well contamination may require more than ten
days to collect water samples, receive certified laboratory analyses,
and develop technical expert interpretation of data to determine the
possible origin of any contamination. In appropriate circumstances,
State regulatory authorities have long been able to show good cause by
demonstrating that they require additional time to determine whether a
violation exists.
Under the proposed rule, while State regulatory authorities could
still request extensions of time to respond to a TDN, we are proposing
to limit the length of extensions. In Sec. 842.11(b)(1)(ii)(B)(4)(ii),
we propose to remove ``as a result'' from the first sentence as
superfluous and unnecessary. In the same sentence, we propose to remove
``reasonable, specified'' as a modifier for the ``additional amount of
time'' that a State regulatory authority can request to respond to a
TDN. This language would no longer be necessary because we are
proposing specific extension limits. The next sentence would be new and
would read: ``The State regulatory authority may request up to 30
additional days to complete its investigation of the issue; in complex
situations, the State regulatory authority may request up to an
additional 60 days to complete the investigation.'' This new provision
would be consistent with our view that, when extenuating circumstances
are involved, a State regulatory authority should generally be able
determine if a violation exists within 30 days. The provision would
also recognize the need for longer time frames in complex situations
and, under this proposed rule, we would be able to approve up to an
additional 60 days.
The next sentence of the proposed rule would provide: ``In all
circumstances, an extension request must be supported by an explanation
of the need for, and the measures being undertaken that justify, an
extension, along with any relevant documentation.'' While this
requirement is implied under the existing regulations, we are proposing
to make the requirement explicit. The following sentence would amend
the existing second sentence of the provision: ``The authorized
[[Page 24955]]
representative has discretion to approve the requested time extension
or establish the length of time that the State regulatory authority has
to complete its investigation.'' We are proposing to delete the
introductory clause of the existing sentence that states: ``When
analyzing the State regulatory authority's response for good cause, . .
. .'' We are proposing this non-substantive change because the existing
language is unnecessary. The remaining changes to this sentence would
also be non-substantive. Under this provision, the authorized
representative would still have discretion to establish the length of
an extension, but, under the following sentence, which would be new,
any extension would be capped at 90 days. The proposed provision would
set a limit to ensure that all TDNs are addressed expeditiously. Thus,
under this proposed revision, we could not grant a State regulatory
authority an extension of more than 90 days total to determine if a
violation exists. In our experience implementing SMCRA for more than 40
years, we believe a State regulatory authority would not need more than
90 days to determine if there is a violation of SMCRA, the Federal
regulations, the relevant State regulatory program, or an approved
permit. If a State regulatory authority does not respond by the end of
an approved extension period, we will order an immediate Federal
inspection and take any appropriate enforcement action. In the last
sentence of the existing provision, for grammatical reasons, we are
proposing to add a comma between ``response'' and ``including.''
Finally, as discussed above, we propose to add a new paragraph
(b)(1)(ii)(B)(4)(iii), which would incorporate the action plan process
as a new example of what could constitute good cause for not taking
appropriate action within ten days in response to a TDN. As explained
above, we propose this new provision to create efficiencies by treating
substantively similar possible violations under the same State
regulatory program issue, which would allow similar possible violations
to be addressed under a single action plan. As stated, action plans
serve an important role as an oversight tool to ensure correction of
State regulatory program issues, and this provision would promote
uniform and consistent resolution of similar issues.
E. Proposed 30 CFR 842.11(b)(2)
There are several proposed changes to the existing regulations at
30 CFR 842.11(b)(2) that would align the section with the changes we
propose at Sec. 842.11(b)(1)(i) regarding the sources of information
we will consider when making a reason to believe determination.
As explained above, we do not think it is necessary to wait for
information from the State regulatory authority when determining
whether we have reason to believe a violation exists for TDN purposes.
As in Sec. 842.11(b)(1)(i), we propose to limit the information that
we consider to information received from a citizen complainant,
information available in OSMRE's files at the time that OSMRE is
notified of the possible violation, and publicly available electronic
information.
In addition, instead of stating that we have reason to believe a
violation exists if the facts available to an authorized representative
``constitute simple and effective documentation of the alleged
violation, condition, or practice,'' the proposed rule would state that
we have reason to believe if the facts ``support the existence of a
possible violation, condition, or practice.'' The existing language is
confusing. For example, although the first sentence of the existing
provision speaks to ``facts that a complainant alleges,'' the phrase
``simple and effective documentation of the alleged violation'' implies
that a citizen complainant must provide some form of ``documentation''
rather than only a written statement. However, SMCRA at 30 U.S.C.
1271(a)(1) establishes that we can form ``reason to believe'' on the
basis of any ``information,'' a lower threshold that need not depend on
supporting documentation. By requiring information to ``support'' the
existence of a possible violation, the proposed language would strike a
balance between a citizen complainant providing minimal information
about the existence of a possible violation and supplying enough
information to support ``reason to believe'' a violation exists. It is
in all parties' best interest for a citizen to provide as much
information as possible, including any documentation that the citizen
may have, to assist us in narrowing our focus and more readily
identifying possible violations.
Moreover, we continue to believe that citizen complaints require us
to engage in some review and analysis rather than simply accepting the
facts in a complaint as true and passing the complaint to a State
regulatory authority as a TDN. As such, we are also proposing that, in
addition to information from a citizen complainant, we could consider
``information available in OSMRE files at the time that OSMRE is
notified of the possible violation, and publicly available electronic
information.'' Practically speaking, this provision would limit us to
considering information that already exists at the time we receive a
citizen complaint and make clear that we do not conduct investigations
or inspections before we determine whether we have the requisite reason
to believe a violation exists to support issuance of a TDN. This
approach better aligns with SMCRA's language and legislative history.
It attempts to balance the benefit of citizen assistance in
implementing SMCRA with our obligation and expertise to determine if we
have reason to believe a violation exists.
We are also proposing to add two new sentences to Sec.
842.11(b)(2) specifying that: ``All citizen complaints will be
considered as requests for a Federal inspection under Sec. 842.12. If
the information supplied by the complainant results in a Federal
inspection, the complainant will be offered the opportunity to
accompany OSMRE on the Federal inspection.'' This would remove the
requirement for a citizen to specifically request a Federal inspection,
thus resolving any confusion about the processes associated with
citizen complaints versus requests for Federal inspections. A citizen
seeking help with a possible SMCRA problem may not appreciate the
difference under the 2020 TDN Rule between requesting a Federal
inspection and alerting OSMRE to a possible SMCRA problem. We propose
to eliminate any hurdles for citizens and simplify the process by
specifying that any citizen complaint will be considered as a request
for a Federal inspection. This proposed change would make it easier for
citizens to engage in the process, as SMCRA envisioned, by not
requiring them to use specific terms of art to request a Federal
inspection. This clarification is also consistent with the TDN process,
which could ultimately result in a Federal inspection regardless of
whether the citizen specifically requested that inspection. Finally,
under the proposed rule, if information supplied by a citizen
complainant results in a Federal inspection, even if the complainant
did not specifically request a Federal inspection, the citizen
complainant would be offered the opportunity to accompany us on the
Federal inspection.
F. Proposed 30 CFR 842.12(a)
The final proposed change in part 842 would be to existing 30 CFR
842.12(a). Some of the proposed changes would track our proposed
revisions to Sec. 842.11
[[Page 24956]]
regarding the information sources we can consider when determining
whether we have reason to believe a violation exists. We also propose
to add new requirements to this section. The revisions would eliminate
several barriers for citizens to file and obtain resolution of their
complaints.
The first proposed change would harmonize this section with the
changes we propose to Sec. 842.11(b)(1)(i) and (b)(2). Specifically,
the first sentence of existing Sec. 842.12(a) refers to OSMRE forming
``reason to believe'' a violation exists based upon information from a
person requesting a Federal inspection, ``along with any other readily
available information.'' As explained previously regarding the proposed
changes to Sec. 842.11(b)(1)(i), we are proposing to remove the
language that we consider ``readily available information,'' including
information from the State regulatory authority, when we determine
whether we have reason to believe a violation exists. We propose a
similar change to Sec. 842.12(a) so that we could consider the
requester's signed, written statement ``along with any other
information the complainant chooses to provide.'' Similar to the
proposed revisions to Sec. 842.11(b)(1)(i) and (b)(2), we are also
proposing to add a new second sentence in this section that would read:
``In making this determination, the authorized representative will
consider information from a citizen complainant, information available
in OSMRE files at the time that OSMRE receives the request for a
Federal inspection, and publicly available electronic information.''
These proposed changes would better comport with SMCRA. Further,
including similar language in the three instances where this concept is
addressed (30 CFR 842.11(b)(1)(i), (b)(2), and 842.12(a)) would clarify
the Federal regulations.
Next, we propose to delete the second sentence of the existing
section. Under the existing regulation, when requesting a Federal
inspection, citizens must ``set forth the fact that the person has
notified the State regulatory authority, if any, in writing, of the
existence of the possible violation, condition, or practice, and the
basis for the person's assertion that the State regulatory authority
has not taken action with respect to the possible violation.'' We
propose to delete this sentence because we believe it is a burdensome
requirement and poses a significant hurdle for citizens reporting a
possible violation. While we continue to believe that the State
regulatory authority is often in the best position to address citizen
complaints expeditiously in the first instance, many citizens prefer
not to or will not contact the State regulatory authority. In these
situations, we do not believe that there should be a mandatory
obligation for a citizen to contact the State regulatory authority
before we will act on information about a possible violation as
contained in a citizen complaint or request for a Federal inspection.
SMCRA at 30 U.S.C. 1271(a) allows citizens to bring their concerns
about possible SMCRA violations to OSMRE and provides for those
complaints to result in issuance of TDNs when we form the requisite
``reason to believe'' a violation exists. Section 1271(a)(1) does not
require a citizen to notify the State regulatory authority about a
possible violation. In fact, that section provides that ``[w]henever,
on the basis of any information available to [us], including receipt of
information from any person, [we have] reason to believe that any
person is in violation of any requirement of [SMCRA] or any permit
condition required by [SMCRA], [we] shall notify the State regulatory
authority, if one exists, in the State in which such violation
exists.'' (Emphasis added.) Under this proposed rule, if the citizen
does not notify the State regulatory authority, and we form the
requisite reason to believe, we would notify the State regulatory
authority through issuance of a TDN, consistent with SMCRA.
Furthermore, this process would be consistent with State primacy
because the State has the first opportunity to address the situation,
and we will accept a State's response to a TDN unless it is arbitrary,
capricious, or an abuse of discretion.
We are also proposing to remove the requirement in the existing
second sentence of the section for a person requesting a Federal
inspection to set forth ``the basis for the person's assertion that the
State regulatory authority has not taken action with respect to the
possible violation.'' That requirement is overly burdensome and
discourages citizens from notifying us of potential SMCRA violations.
Implicit in a citizen's submission of a complaint or a request for a
Federal inspection is their understanding that there is an issue or
violation that the State regulatory authority has not addressed. It is
unduly onerous to require a citizen to cite the basis of their
allegation with the specificity expected of a SMCRA expert. Likewise,
citizens will likely not be in a position to readily ascertain why the
relevant State officials have not taken any action regarding the
possible violation.
The third and final sentence of the existing section, regarding
provision of the person's contact information, would remain essentially
the same, with one minor, non-substantive edit: inclusion of the word
``also'' to indicate that it is in addition to previously stated
requirements.
We propose to add two new sentences to the end of this section.
Similar to the change we propose at Sec. 842.11(b)(2), we propose that
``[a]ll citizen complaints under Sec. 842.11(b) will be considered as
requests for a Federal inspection,'' even if a citizen does not
specifically request a Federal inspection. There is no legal or
pragmatic reason for differentiating between citizen requests for a
Federal inspection and citizen complaints that do not specifically
request a Federal inspection. In our view, any citizen complaint that,
in substance, alleges a violation of SMCRA is tantamount to a request
for a Federal inspection because, as stated above, the TDN process
could ultimately result in a Federal inspection. Likewise, when a
citizen complainant provides adequate proof of an imminent danger of
significant environmental harm, and the State has failed to take
appropriate action, we would bypass the TDN process and proceed
directly to a Federal inspection. Under this proposed rule, because all
citizen complaints would be considered as requests for a Federal
inspection, the citizen complainant would be afforded additional rights
that, under the existing rule, only extend to people who have requested
a Federal inspection. Those additional rights include certain
confidentiality rights contained in existing Sec. 842.12(b) and the
right to seek review of an OSMRE decision not to conduct a Federal
inspection or issue an enforcement action as set forth in existing
Sec. 842.15.
Finally, we propose to add a new last sentence to the section: ``If
the information supplied by the complainant results in a Federal
inspection, the complainant will be offered the opportunity to
accompany OSMRE on the Federal inspection.'' Similar language is
already included at existing Sec. 842.12(c), but we are proposing to
also include the language in Sec. 842.12(a) to emphasize this
important right, derived from 30 U.S.C. 1271(a)(1).
G. Overview of 30 CFR Part 733
The 2020 TDN Rule does not require us to issue a TDN for a ``permit
defect.'' This proposed rule would require the issuance of a TDN when
we have reason to believe any violation exists, including one in the
form of a permit defect. We propose to clarify that we will issue a TDN
in these circumstances upon forming the requisite reason to believe a
violation exists. In the preamble to the
[[Page 24957]]
2020 TDN Rule, we explained that, under 30 U.S.C. 1271(a)(1), ``any
person'' who can be in violation of SMCRA or a State regulatory program
``does not include a State regulatory authority, unless it is acting as
a permit holder.'' 85 FR 75176. We further stated that a permit defect
``will typically be handled as a State regulatory program issue [rather
than through issuance of a TDN], unless there is an actual or imminent
violation of the approved State program.'' Id. Upon reexamination, we
believe that a TDN is appropriate in these circumstances not because
the State regulatory authority is in violation of SMCRA or its approved
State program, but because it has issued a permit that is not in
compliance with the approved State program or that would allow a
permittee to mine in a manner that is not authorized by the State
regulatory program. We would issue a TDN for possible on-the-ground
violations as well as other possible violations of the approved State
program, such as noncompliance with the State analogues to the permit
application requirements at 30 CFR part 778. In this regard, we would
issue TDNs in the appropriate circumstances even if mining under the
permit has not started. Our proposed treatment of permit defects would
restore our historical practice that was in place before the 2020 TDN
Rule.
In the majority of cases, implementing the proposed rule would not
result in issuance of a Federal notice of violation to, or any other
Federal enforcement action against, a permittee resulting from a State
regulatory authority's misapplication of its State regulatory program.
State regulatory program issues would be addressed, in the first
instance, between us and the relevant State regulatory authority. Upon
resolution of the State regulatory program issue, the State regulatory
authority may revise an approved permit or take similar action, and we
assume that sufficient time would be allotted for the permittee to come
into compliance. We believe that this mechanism--resolution of a State
regulatory program issue through successful completion of an action
plan, coupled with, for example, a required permit revision--should
minimize the effects of the process on permittees. However, under the
proposed revisions to existing Sec. 733.12(d), even when OSMRE and a
State regulatory authority are pursuing an action plan, the State
could, in appropriate circumstances, take ``direct enforcement action
in accordance with its State regulatory program,'' and we could take
``additional appropriate oversight enforcement action.''
H. Proposed Section 30 CFR 733.5--Definitions
As mentioned previously, if, under proposed Sec.
842.11(b)(1)(ii)(B)(4)(iii), we were to identify ``substantively
similar possible violations on separate permits and consider the
possible violations as a single State regulatory program issue'' to be
addressed through 30 CFR 733.12, that could constitute ``good cause''
for not taking action in response to a TDN. In these situations, the
relevant provisions of 30 CFR part 733 would be part of the TDN
process. Our first proposed revisions for part 733 concern the
definitions of ``action plan'' and ``State regulatory program issue''
at existing 30 CFR 733.5. We propose non-substantive, clarifying
changes to the definition of ``action plan'' at 30 CFR 733.5 to enhance
its readability. The existing definition provides that an action plan
``means a detailed schedule . . . .'' We propose to change this to
indicate that an action plan ``means a detailed plan . . . .'' Both the
existing definition and our proposed revised definition would require
us to prepare an action plan that would lead to resolution of the State
regulatory program issue.
We also propose to revise the definition of ``State regulatory
program issue.'' Some of the revisions would be for readability, but we
also propose substantive changes to the definition. In the first
sentence, we propose to change the language indicating that a State
regulatory program issue ``could result in a State regulatory authority
not effectively implementing, administering, enforcing, or maintaining
all or any portion of its State regulatory program'' to ``may result
from a State regulatory authority's implementation, administration,
enforcement, or maintenance of all or any portion of its State
regulatory program that is not consistent with the basis for OSMRE's
approval of the State program.'' This proposed change is designed to
indicate that a ``State regulatory program issue'' could be a possible
violation that emanates from a State regulatory authority's actions. We
are proposing that a possible violation identified in a TDN could, in
the appropriate circumstances, be addressed as a State regulatory
program issue under 30 CFR 733.12.
We also propose non-substantive changes to the existing language
following ``State regulatory program'' and a new last sentence that
would read: ``State regulatory program issues will be considered as
possible violations and will initially proceed, and may be resolved,
under part 842 of this chapter.'' After review of SMCRA section
521(a)(1), 30 U.S.C. 1271(a)(1), its legislative history, and its
intent, and based on our experience implementing the 2020 TDN rule, we
determined that any ``noncompliance'' with SMCRA, the Federal
implementing regulations, the applicable State regulatory program, or
any condition of a permit or exploration approval is a violation under
section 521(a)(1). In our experience, the majority of violations result
from an operator's or permittee's erroneous implementation of an
approved permit. Under this proposed rule, a permit defect would also
be considered a possible violation subject to the TDN process and
could, in appropriate circumstances, be grouped together with
substantively similar possible violations and addressed as a State
regulatory program issue under part 733. We propose to consider a
``permit defect''--i.e., a deficiency in a permit-related action taken
by a State regulatory authority--to be a possible violation that would
start, and may be resolved, under the 30 CFR part 842 TDN process.
I. Proposed 30 CFR 733.12(a)
We propose minor, non-substantive revisions to existing 30 CFR
733.12(a). We propose to remove ``in order'' before ``to ensure'' as it
is unnecessary. We also propose to change ``escalate into'' to
``become'' to be more concise. These proposed changes would not alter
the substance of the existing provisions. In existing Sec.
733.12(a)(1), we propose to add ``including a citizen complainant'' at
the end of the sentence to emphasize that a citizen complainant can be
a source of information that allows us to identify a State regulatory
program issue. In existing Sec. 733.12(a)(2), we proposed to add
``initiate procedures to'' before ``substitute Federal enforcement''
and also to add ``in accordance with Sec. 733.13'' to the end of the
sentence to indicate that there is a process for substituting Federal
enforcement or withdrawing approval of a State regulatory program.
J. Proposed 30 CFR 733.12(b)
We are proposing to modify existing Sec. 733.12(b), to, among
other things, require development and approval of an action plan for
all State regulatory program issues, along with a specific timeframe
for development and approval of such a plan. The first sentence of the
existing provision provides that OSMRE's ``Director or his or her
delegate may employ any number of compliance strategies to ensure that
the State regulatory authority corrects a
[[Page 24958]]
State regulatory program issue in a timely and effective manner.''
Under the second sentence of the existing provision, actions plans are
only required to be developed and instituted ``if the Director or
delegate does not expect that the State regulatory authority will
resolve the State regulatory program issue within 180 days after
identification or that it is likely to result in a violation of the
approved State program . . . .''
The proposed rule would revise the first sentence of 733.12(b) to
read: ``For each State regulatory program issue, the Director or their
designee, in consultation with the State regulatory authority, will
develop and approve an action plan within 60 days of identification of
a State regulatory program issue.'' (Emphasis added.) Rather than using
other strategies to bring the State regulatory authority into
compliance, the revised provision would require immediate development
of an action plan that prescribes actions and timeframes for correcting
State regulatory program issues.
Additionally, we propose to add a new second sentence that would
allow us and the relevant State regulatory authority to ``identify
[within 10 business days] interim remedial measures that may abate the
existing condition or issue.'' We propose to remove the existing second
sentence, which includes the 180-day language, and replace it with 60
days for development and approval of an action plan and the 10-day
interim remedial measure language. The proposed provisions would ensure
that corrective action occurs quickly so that resources are not wasted,
and no avoidable environmental harm occurs. These proposed changes
would allow us to immediately begin working with a State regulatory
authority to develop an action plan to resolve issues rather than
waiting up to 180 days, as is provided in the existing rules.
It bears repeating that we propose to remove the requirement for an
action plan when a State regulatory program issue ``is likely to result
in a violation of the approved State program.'' Under this proposed
rule, all State regulatory program issues would begin as possible
violations under Sec. 842.11. We also propose the non-substantive
substitution of the word ``designee'' for the word ``delegate''
throughout this section. Finally, at the end of the section, we propose
to add, ``The requirements of an action plan are as follows:'' to lead
into the action plan requirements at 30 CFR 733.12(b)(1) through (4).
K. Proposed 30 CFR 733.12(b)(1) Through (4)
In the first sentence of existing 30 CFR 733.12(b)(1), we propose
the non-substantive inclusion of the word ``identify'' before ``an
effective mechanism for timely correction'' for clarity. We are also
proposing to modify Sec. 733.12(b)(1) by adding a new second sentence
that would require the State regulatory authority to ``complete all
identified actions contained within an action plan within 365 days from
when OSMRE sends the action plan to the relevant State regulatory
authority.'' (Emphasis added.) Action plans should be developed and
written so that the actions will be achievable within the 365-day time
frame. For example, a State regulatory program issue may require a
State program amendment, but the State program amendment process
normally exceeds 365 days from start to finish. In this instance, an
identified action in the action plan could be submission of a State
program amendment or, if State legislative approval is required,
submission of a plan to accomplish the program amendment, recognizing
that the State program amendment likely would not be finalized within
365 days. However, under proposed Sec. 733.12(d), even when an action
plan is in place, we and a State regulatory authority could still take
appropriate enforcement actions, such as actions that may be required
to abate an imminent harm situation. Further, at 30 CFR 733.12(b)(2),
we propose to add ``upon approval of the action plan'' to the end of
the existing section to clarify that an approved action plan will
identify any remedial measures that a State regulatory authority must
take immediately after the action plan is approved.
Existing Sec. 733.12(b)(3) sets forth additional information that
an action plan must include. In Sec. 733.12(b)(3)(iii) and (iv), we
propose the non-substantive change of replacing the word ``explicit''
with ``specific.'' Also, in existing Sec. 733.12(b)(3)(iii), after the
language ``complete resolution,'' we propose to insert ``of the
violation,'' which would again indicate that State regulatory program
issues would be considered as possible violations under this proposed
rule. In existing Sec. 733.12(b)(3)(v), we propose to insert
``detailed'' before ``schedule for completion'' to clarify that each
action identified in an action plan and associated completion milestone
must be set forth with sufficient detail so that that there is a clear
understanding of what is required under the action plan.
Additionally, we propose non-substantive changes to existing 30 CFR
733.12(b)(3)(vi). The existing provision reads: ``A clear explanation
that if the action plan, upon completion, does not result in correction
of the State regulatory program issue, the provisions of Sec. 733.13
may be triggered.'' We propose minor modifications to this language to
read: ``A clear explanation that if, upon completion of the action
plan, the State regulatory program issue is not corrected, the
provision of Sec. 733.13 may be initiated.'' This language would
ensure that if a State regulatory authority does not address the issues
identified in an action plan and otherwise fails to complete the action
plan within the time designated, we can begin the process under 30 CFR
733.13 for substituting Federal enforcement for, or withdrawing
approval of, the relevant State program.
Finally, we propose to add a new paragraph 30 CFR 733.12(b)(4),
which would state: ``Once all items in paragraphs (b)(1) through (3) of
this section are satisfactorily addressed, OSMRE will approve the
action plan. If the State regulatory authority does not cooperate with
OSMRE in developing the action plan, OSMRE will develop the action plan
within the guidelines listed in paragraphs (b)(1) through (3) of this
section and require the State regulatory authority to comply with the
action plan.'' We propose to add this provision to ensure that action
plans to address State regulatory program issues are always developed,
and that we can create and enforce an action plan with or without the
State regulatory authority's input to ensure that violations are timely
addressed.
L. Proposed 30 CFR 733.12(c)
We propose non-substantive and grammatical changes to existing
Sec. 733.12(c) for clarity. Among other things, we propose to
substitute ``Each'' for ``These'' and ``relevant'' for the second
occurrence of ``applicable.''
M. Proposed 30 CFR 733.12(d)
In Sec. 733.12(d), we propose to insert ``additional'' before
``appropriate oversight enforcement action'' to indicate that any
oversight enforcement action that OSMRE takes is in addition to an
initial TDN and corresponding identification of a State regulatory
program issue. We propose to end the sentence there and delete the last
clause of the existing language, which references appropriate oversight
enforcement actions ``in the event that a previously identified State
regulatory program issue results in or may imminently result in a
violation of the
[[Page 24959]]
approved State program.'' We propose this change to comport with the
fact that, under this proposed rule, all ``permit defects'' or ``State
regulatory program issues'' would be considered possible violations in
the first instance, even when they are not on the ground or when mining
has not yet started. As explained above, this proposed rule would
require us to issue a TDN when we have reason to believe a violation
exists, even in the form of a permit defect; thus, the language we
propose to delete would no longer be necessary. The revised provision
would read: ``Nothing in this section prevents a State regulatory
authority from taking direct enforcement action in accordance with its
State regulatory program or OSMRE from taking additional appropriate
oversight enforcement action.''
IV. Procedural Matters and Required Determinations
Executive Order 12630--Governmental Actions and Interference With
Constitutionally Protected Property Rights
This proposed rule would not result in a taking of private property
or otherwise have regulatory takings implications under Executive Order
12630. The proposed rule would primarily concern Federal oversight of
approved State programs and enforcement when permittees and operators
are not complying with the law. Therefore, the proposed rule would not
result in private property being taken for public use without just
compensation. A takings implication assessment is not required.
Executive Order 12866--Regulatory Planning and Review and Executive
Order 13563--Improving Regulation and Regulatory Review
Executive Order 12866 provides that the Office of Information and
Regulatory Affairs (OIRA) in the Office of Management and Budget (OMB)
will review all significant rules. OIRA has determined that that this
proposed rule is not significant because it would not have a $100
million annual impact on the economy, raise novel legal issues, or
create significant impacts.
Executive Order 13563 reaffirms the principles of Executive Order
12866 while calling for improvements in the nation's regulatory system
to promote predictability, reduce uncertainty, and use the best, most
innovative, and least burdensome tools for achieving regulatory ends.
The Executive order directs agencies to consider regulatory approaches
that reduce burdens and maintain flexibility and freedom of choice for
the public where these approaches are relevant, feasible, and
consistent with regulatory objectives. Executive Order 13563 emphasizes
further that agencies must base regulations on the best available
science and that the rulemaking process must allow for public
participation and an open exchange of ideas. We have developed this
proposed rule in a manner consistent with these requirements.
Executive Order 12988--Civil Justice Reform
This proposed rule complies with the requirements of Executive
Order 12988. Among other things, this proposed rule:
(a) Satisfies the criteria of section 3(a) requiring that all
regulations be reviewed to eliminate drafting errors and ambiguity; be
written to minimize litigation; and provide clear legal standards for
affected conduct.
(b) Satisfies the criteria of section 3(b) requiring that all
regulations be written in clear language and contain clear legal
standards.
Executive Order 13132--Federalism
Under the criteria in section 1 of Executive Order 13132, this
proposed rule would not have sufficient federalism implications to
warrant the preparation of a federalism summary impact statement. While
revising the existing regulations governing the TDN process would have
a direct effect on the States and the Federal government's relationship
with the States, this effect would not be significant, as it would
neither impose substantial unreimbursed compliance costs on States nor
preempt State law. Furthermore, this proposed rule would not have a
significant effect on the distribution of power and responsibilities
among the various levels of government. While we may issue more TDNs to
State regulatory authorities under this proposed rule, the proposed
rule would not significantly increase burdens on State regulatory
authorities to address and resolve underlying issues. As such, a
federalism summary impact statement is not required.
Executive Order 13175--Consultation and Coordination With Indian Tribal
Governments
The Department of the Interior strives to strengthen its
government-to-government relationship with Tribes through a commitment
to consultation with Tribes and recognition of their right to self-
governance and tribal sovereignty. We have evaluated this proposed rule
under the Department's consultation policy and under the criteria in
Executive Order 13175 and have determined that it would not have
substantial direct effects on federally recognized Tribes and that
consultation under the Department's tribal consultation policy is not
required. Currently, no Tribes have achieved primacy. Thus, this
proposed rulemaking would not impact the regulation of surface coal
mining on Tribal lands. However, we have coordinated with Tribes to
inform them of the proposed rulemaking. We coordinated with the Navajo
Nation, Crow Tribe of Montana, Hopi Tribe of Arizona, Choctaw Nation of
Oklahoma, Muscogee (Creek) Nation, and Cherokee Nation and have
received no comments or concerns. None of the Tribes have requested
consultation.
Executive Order 13211--Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
Executive Order 13211 requires agencies to prepare a Statement of
Energy Effects for a rule that is: (1) considered significant under
Executive Order 12866, and (2) likely to have a significant adverse
effect on the supply, distribution, or use of energy; or is designated
as a significant energy action by the Office of Management and Budget.
Because this proposed rule is not deemed significant under Executive
Order 12866, and is not expected to have a significant adverse effect
on the supply, distribution, or use of energy, a Statement of Energy
Effects is not required.
Executive Order 13045--Protection of Children From Environmental Health
Risks and Safety Risks
This proposed rule is not subject to Executive Order 13045 because
this is not an economically significant regulatory action as defined by
Executive Order 12866; and this action does not concern environmental
health or safety risks disproportionately affecting children.
National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act (NTTAA), 15 U.S.C. 3701 et seq., directs Federal agencies to use
voluntary consensus standards in their regulatory activities unless to
do so would be inconsistent with applicable law or otherwise
impractical. OMB Circular A-119 at p. 14. This proposed rule is not
subject to the requirements of section 12(d) of the NTTAA because
application of those requirements would
[[Page 24960]]
be inconsistent with SMCRA and is not applicable to this proposed
rulemaking.
National Environmental Policy Act
We have determined that the proposed changes to the existing
regulations are categorically excluded from environmental review under
the National Environmental Policy Act (NEPA). 42 U.S.C. 4321 et seq.
Specifically, we have determined that the proposed rule is
administrative or procedural in nature in accordance with the
Department of the Interior's NEPA regulations at 43 CFR 46.210(i). The
regulation provides a categorical exclusion for ``[p]olicies,
directives, regulations, and guidelines: that are of an administrative,
financial, legal, technical, or procedural nature; or whose
environmental effects are too broad, speculative, or conjectural to
lend themselves to meaningful analysis . . . .'' The proposed rule
would not change the substantive regulations--whether State or
Federal--with which SMCRA permittees must already comply. Rather, it
would primarily change the procedure we use to notify a State
regulatory authority when we have reason to believe that there is a
violation of SMCRA, the Federal regulations, the relevant State
regulatory program, or a permit condition. We have also determined that
the proposed rule does not involve any of the extraordinary
circumstances listed in 43 CFR 46.215 that would require further
analysis under NEPA.
Paperwork Reduction Act
This action does not impose any new information collection burden
under the Paperwork Reduction Act. OMB has previously approved the
information collection activities contained in the existing regulations
and has assigned OMB control number 1029-0118. This action does not
impose an information collection burden because OSMRE is not making any
changes to the information collection requirements.
Regulatory Flexibility Act
We evaluated the impact of the proposed regulatory changes and have
determined the rule changes would not induce, cause, or create any
unnecessary burdens on the public, State regulatory authorities, or
small businesses; would not discourage innovation or entrepreneurial
enterprises; and would be consistent with SMCRA, from which the
proposed regulations draw their implementing authority. For these
reasons, we certify that this proposed rule would not have a
significant economic impact on a substantial number of small entities
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). The
Regulatory Flexibility Act generally requires Federal agencies to
prepare a regulatory flexibility analysis for rules that are subject to
the notice-and-comment rulemaking requirements under the Administrative
Procedure Act (5 U.S.C. 553), if the rule would have a significant
economic impact, whether detrimental or beneficial, on a substantial
number of small entities. See 5 U.S.C. 601-612. Congress enacted the
Regulatory Flexibility Act to ensure that government regulations do not
unnecessarily or disproportionately burden small entities. Small
entities include small businesses, small governmental jurisdictions,
and small not-for-profit entities.
Congressional Review Act
This proposed rule is not a major rule under the Congressional
Review Act. 5 U.S.C. 804(2). Specifically, the proposed rule: (a) would
not have an annual effect on the economy of $100 million or more; (b)
would not cause a major increase in costs or prices for consumers,
individual industries, Federal, State, or local government agencies, or
geographic regions; and (c) would not have significant adverse effects
on competition, employment, investment, productivity, innovation, or on
the ability of United States-based enterprises to compete with foreign-
based enterprises in domestic and export markets.
Unfunded Mandates Reform Act
This proposed rule would not impose an unfunded mandate on State,
local, or Tribal governments, or the private sector, of $100 million or
more in any given year. The proposed rule would not have a significant
or unique effect on State, local, or Tribal governments, or the private
sector. A statement containing the information required by the Unfunded
Mandates Reform Act (2 U.S.C. 1531 et seq.) is not required.
List of Subjects
30 CFR Part 733
Intergovernmental relations, Surface mining, Underground mining.
30 CFR Part 842
Law enforcement, Surface mining, Underground mining.
Delegation of Signing Authority
The action taken herein is pursuant to an existing delegation of
authority.
Laura Daniel-Davis,
Principal Deputy Assistant Secretary, Land and Minerals Management.
For the reasons set out in the preamble, the Department of the
Interior, acting through OSMRE, proposes to amend 30 CFR parts 733 and
842 as follows:
PART 733--EARLY IDENTIFICATION OF CORRECTIVE ACTION, MAINTENANCE OF
STATE PROGRAMS, PROCEDURES FOR SUBSTITUTING FEDERAL ENFORCEMENT OF
STATE PROGRAMS, AND WITHDRAWING APPROVAL OF STATE PROGRAMS
0
1. The authority citation for part 733 continues to read as follows:
Authority: 30 U.S.C. 1201 et seq.
0
2. Revise Sec. 733.5 to read as follows:
Sec. 733.5 Definitions.
As used in this part, the following terms have the specified
meanings:
Action plan means a detailed plan that the Office of Surface Mining
Reclamation and Enforcement (OSMRE) prepares to resolve a State
regulatory program issue identified during OSMRE's oversight of a State
regulatory program and that includes a schedule that contains specific
requirements that a State regulatory authority must achieve in a timely
manner.
State regulatory program issue means an issue OSMRE identifies
during oversight of a State or Tribal regulatory program that may
result from a State regulatory authority's implementation,
administration, enforcement, or maintenance of all or any portion of
its State regulatory program that is not consistent with the basis for
OSMRE's approval of the State program. This may include, but is not
limited to, instances when a State regulatory authority has not adopted
and implemented program amendments that are required under Sec. 732.17
and subchapter T of this title, and issues related to the requirement
in section 510(b) of the Act that a State regulatory authority must not
approve a permit or revision to a permit, unless the State regulatory
authority finds that the application is accurate and complete and that
the application is in compliance with all requirements of the Act and
the State regulatory program. State regulatory program issues will be
considered as possible violations and will initially proceed, and may
be resolved, under part 842 of this chapter.
[[Page 24961]]
0
3. Revise Sec. 733.12 to read as follows:
Sec. 733.12 Early identification and corrective action to address
State regulatory program issues.
(a) When the Director identifies a State regulatory program issue,
he or she should take action to make sure the identified State
regulatory program issue is corrected as soon as possible to ensure
that it does not become an issue that would give the Director reason to
believe that the State regulatory authority is not effectively
implementing, administering, enforcing, or maintaining all or a portion
of its State regulatory program.
(1) The Director may become aware of State regulatory program
issues through oversight of State regulatory programs or as a result of
information received from any source, including a citizen complainant.
(2) If the Director concludes that the State regulatory authority
is not effectively implementing, administering, enforcing, or
maintaining all or a portion of its State regulatory program, the
Director may initiate procedures to substitute Federal enforcement of a
State regulatory program or withdraw approval of a State regulatory
program, in accordance with Sec. 733.13.
(b) For each State regulatory program issue, the Director or their
designee, in consultation with the State regulatory authority, will
develop and approve an action plan within 60 days of identification of
a State regulatory program issue. Within 10 business days of OSMRE's
determination that a State regulatory program issue exists, OSMRE and
the State regulatory authority may identify interim remedial measures
that may abate the existing condition or issue. The requirements of an
action plan are as follows:
(1) An action plan will be written with specificity to identify the
State regulatory program issue and identify an effective mechanism for
timely correction. The State regulatory authority must complete all
identified actions contained within an action plan within 365 days from
when OSMRE sends the action plan to the relevant State regulatory
authority.
(2) An action plan will identify any necessary technical assistance
or other assistance that the Director or his or her designee can
provide and remedial measures that a State regulatory authority must
take immediately upon approval of the action plan.
(3) An OSMRE approved action plan must also include:
(i) An action plan identification number;
(ii) A concise title and description of the State regulatory
program issue;
(iii) Specific criteria for establishing when complete resolution
of the violation will be achieved;
(iv) Specific and orderly sequence of actions the State regulatory
authority must take to remedy the problem;
(v) A detailed schedule for completion of each action in the
sequence; and
(vi) A clear explanation that if, upon completion of the action
plan, the State regulatory program issue is not corrected, the
provisions of Sec. 733.13 may be initiated.
(4) Once all items in paragraphs (b)(1) through (3) of this section
are satisfactorily addressed, OSMRE will approve the action plan. If
the State regulatory authority does not cooperate with OSMRE in
developing the action plan, OSMRE will develop the action plan within
the guidelines listed in paragraphs (b)(1) through (3) of this section
and require the State regulatory authority to comply with the action
plan.
(c) All identified State regulatory program issues, and any
associated action plans, must be tracked and reported in the applicable
State regulatory authority's Annual Evaluation Report. Each State
regulatory authority Annual Evaluation Report will be accessible
through OSMRE's website and at the relevant OSMRE office. Within each
report, benchmarks identifying progress related to resolution of the
State regulatory program issue must be documented.
(d) Nothing in this section prevents a State regulatory authority
from taking direct enforcement action in accordance with its State
regulatory program or OSMRE from taking additional appropriate
oversight enforcement action.
PART 842--FEDERAL INSPECTIONS AND MONITORING
0
4. The authority citation for part 842 continues to read as follows:
Authority: 30 U.S.C. 1201 et seq.
0
5. Add Sec. 842.5 to read as follows:
Sec. 842.5 Definitions.
As used in this part, the following terms have the specified
meanings:
Citizen complaint means any information received from any person
notifying the Office of Surface Mining Reclamation and Enforcement
(OSMRE) of a possible violation of the Act, this chapter, the
applicable State regulatory program, or any condition of a permit or an
exploration approval. This information must be provided in writing (or
orally, followed up in writing).
Ten-day notice means a communication mechanism that OSMRE uses, in
non-imminent harm situations, to notify a State regulatory authority
under Sec. Sec. 842.11(b)(l)(ii)(B)(1) and 843.12(a)(2) when an OSMRE
authorized representative has reason to believe that any permittee and/
or operator is in violation of the Act, this chapter, the applicable
State regulatory program, or any condition of a permit or an
exploration approval or when, on the basis of a Federal inspection,
OSMRE determines that a person is in violation of the Act, this
chapter, the applicable State regulatory program, or any condition of a
permit or an exploration approval and OSMRE has not issued a previous
ten-day notice for the same violation.
0
6. Amend Sec. 842.11 by:
0
a. Revising paragraphs (b)(1)(i), (b)(1)(ii)(B)(1) and (3), and
(b)(1)(ii)(B)(4)(ii);
0
b. Redesignating paragraphs (b)(1)(ii)(B)(4)(iii) through (v) as
paragraphs (b)(1)(ii)(B)(4)(iv) through (vi) respectively;
0
c. Adding a new paragraph (b)(1)(ii)(B)(4)(iii); and
0
d. Revising paragraph (b)(2).
The revisions and additions read as follows:
Sec. 842.11 Federal inspections and monitoring.
* * * * *
(b)(1) * * *
(i) When the authorized representative has reason to believe on the
basis of information received from a citizen complainant, information
available in OSMRE files at the time that OSMRE is notified of the
possible violation (other than information resulting from a previous
Federal inspection), and publicly available electronic information,
that there exists a violation of the Act, this chapter, the applicable
State regulatory program, or any condition of a permit or an
exploration approval, or that there exists any condition, practice, or
violation that creates an imminent danger to the health or safety of
the public or is causing or could reasonably be expected to cause a
significant, imminent environmental harm to land, air, or water
resources; and
(ii) * * *
(B)(1) The authorized representative has notified the State
regulatory authority of the possible violation and more than ten days
have passed since notification, and the State regulatory authority has
not taken appropriate action to cause the violation to be
[[Page 24962]]
corrected or to show good cause for not doing so, or the State
regulatory authority has not provided the authorized representative
with a response. After receiving a response from the State regulatory
authority, but before a Federal inspection, the authorized
representative will determine in writing whether the standards for
appropriate action or good cause have been satisfied. A State
regulatory authority's failure to respond within ten days does not
prevent the authorized representative from making a determination, and
will constitute a waiver of the State regulatory authority's right to
request review under paragraph (b)(1)(iii) of this section. Where
appropriate, OSMRE may issue a single ten-day notice for substantively
similar possible violations found on two or more permits involving a
single permittee, including two or more substantively similar possible
violations identified in one or more citizen complaints.
* * * * *
(3) Appropriate action includes enforcement or other action
authorized under the approved State regulatory program to cause the
violation to be corrected.
(4) * * *
(ii) The State regulatory authority has initiated an investigation
into a possible violation and has determined that it requires an
additional amount of time to determine whether a violation exists. The
State regulatory authority may request up to 30 additional days to
complete its investigation of the issue; in complex situations, the
State regulatory authority may request up to an additional 60 days to
complete the investigation. In all circumstances, an extension request
must be supported by an explanation of the need for, and the measures
being undertaken that justify, an extension, along with any relevant
documentation. The authorized representative has discretion to approve
the requested time extension or establish the length of time that the
State regulatory authority has to complete its investigation. The sum
total of additional time for any one possible violation must not exceed
90 days. At the conclusion of the specified additional time, the
authorized representative will re-evaluate the State regulatory
authority's response, including any additional information provided;
(iii) OSMRE has identified substantively similar possible
violations on separate permits and considers the possible violations as
a single State regulatory program issue addressed through Sec. 733.12.
Previously identified possible violations that were the subject of ten-
day notices or subsequent, substantively similar violations may be
included in the same State regulatory program issue;
* * * * *
(b)(2) An authorized representative will have reason to believe
that a violation, condition, or practice referred to in paragraph
(b)(1)(i) of this section exists if the facts that a complainant
alleges, or facts that are otherwise known to the authorized
representative, support the existence of a possible violation,
condition, or practice. In making this determination, the authorized
representative will consider information from a citizen complainant,
information available in OSMRE files at the time that OSMRE is notified
of the possible violation, and publicly available electronic
information. All citizen complaints will be considered as requests for
a Federal inspection under Sec. 842.12. If the information supplied by
the complainant results in a Federal inspection, the complainant will
be offered the opportunity to accompany OSMRE on the Federal
inspection.
* * * * *
0
7. Revise Sec. 842.12(a) to read as follows:
Sec. 842.12 Requests for Federal inspections.
(a) Any person may request a Federal inspection under Sec.
842.11(b) by providing to an authorized representative a signed,
written statement (or an oral report followed by a signed, written
statement) setting forth information that, along with any other
information the complainant chooses to provide, may give the authorized
representative reason to believe that a violation, condition, or
practice referred to in Sec. 842.11(b)(1)(i) exists. In making this
determination, the authorized representative will consider information
from a citizen complainant, information available in OSMRE files at the
time that OSMRE receives the request for a Federal inspection, and
publicly available electronic information. The statement must also set
forth a phone number, address, and, if available, an email address
where the person can be contacted. All citizen complaints under Sec.
842.11(b) will be considered as requests for a Federal inspection. If
the information supplied by the complainant results in a Federal
inspection, the complainant will be offered the opportunity to
accompany OSMRE on the Federal inspection.
* * * * *
[FR Doc. 2023-08370 Filed 4-24-23; 8:45 am]
BILLING CODE 4310-05-P
</pre></body>
</html>Indexed from Federal Register on April 25, 2023.
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