Clarification of Provisions Related to the Issuance of Ten-Day Notices to State Regulatory Authorities and Enhancement of Corrective Action for State Regulatory Program Issues
| Published date | 14 May 2020 |
| Record Number | 2020-10165 |
| Section | Proposed rules |
| Court | Surface Mining Reclamation And Enforcement Office |
Federal Register, Volume 85 Issue 94 (Thursday, May 14, 2020)
[Federal Register Volume 85, Number 94 (Thursday, May 14, 2020)]
[Proposed Rules]
[Pages 28904-28917]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-10165]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Parts 733, 736, and 842
[Docket ID: OSM-2019-0010; S1D1S SS08011000 SX064A000 201S180110; S2D2S
SS08011000 SX064A00 20XS501520]
RIN 1029-AC77
Clarification of Provisions Related to the Issuance of Ten-Day
Notices to State Regulatory Authorities and Enhancement of 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 clarify the regulations about notifying regulatory
authorities of possible violations of any requirement of the Surface
Mining Control and Reclamation Act of 1977 (SMCRA). This action would
streamline the process for OSMRE's coordination with regulatory
authorities in order to minimize duplication of inspections,
enforcement, and administration of SMCRA. Additionally, the proposed
rule would enhance the procedures for early identification of, and
implementation of corrective action to address, State regulatory
program issues.
DATES: OSMRE will accept comments received or postmarked on or before
11:59 p.m. Eastern Daylight Time (EDT), June 15, 2020 (the closing
date). OSMRE must receive comments submitted electronically using the
Federal eRulemaking Portal (see ADDRESSES below) by 11:59 p.m. EDT on
the closing date.
ADDRESSES: You may submit comments, identified by RIN 1029-AC77, by any
of the following methods:
(1) Electronically: Go to the Federal eRulemaking Portal: https://www.regulations.gov. In the search box, enter RIN 1029-AC77, which is
the docket number for this proposed rulemaking. Then in the search
panel on the left side of the screen, under the Document type heading,
click on the Proposed Rules link to locate this document. You may
submit a comment by clicking on ``Comment Now!''
(2) By hard copy: Submit by U.S. mail, other mail delivery service,
or hand-delivery to: U.S. Department of the Interior, Office of Surface
Mining Reclamation and Enforcement, 1849 C Street NW, Mail Stop 4550,
Room 4558, Main Interior Building, Washington, DC 20240, Attention:
Division of Regulatory Support.
OSMRE requests that you send comments only by the methods described
above. OSMRE will post all comments on https://www.regulations.gov.
This generally means that OSMRE will post any personal information you
provide (see Public Comment Procedures, below, for more information).
FOR FURTHER INFORMATION CONTACT: Kathleen G. Vello, OSMRE, Division of
Regulatory Support, 1849 C Street NW, Mail Stop 4550, Room 4558,
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. Discussion of Proposed Rule and Section-by-Section Analysis
IV. Procedural Matters
I. Public Comment Procedures
You may submit written comments, identified with the RIN 1029-AC77,
by any of the methods described in the ADDRESSES section. Written
comments submitted on the proposed rule should be specific, confined to
issues pertinent to the proposed rule, and should 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: Supported by
quantitative information or studies; based on specific, identifiable
experience; and that 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 delivered to addresses other than those listed above
(see the ADDRESSES section) may not be considered or included in the
Administrative Record 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
[[Page 28905]]
hours (7:00 a.m. to 4:00 p.m.), Monday through Friday, except holidays.
Please be advised that OSMRE 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 OSMRE in your comment to withhold your personal identifying
information from public view, OSMRE cannot guarantee that your request
will be granted.
II. Background
A. Proposed Rule Summary
As set forth in section 201(c)(12) of SMCRA, Congress requires
OSMRE to, among other responsibilities, ``cooperate with . . . State
regulatory authorities to minimize duplication of inspections,
enforcement, and administration of this Act.'' 30 U.S.C. 1211(c)(12).
Consistent with this statutory obligation and based on OSMRE's 42 years
of experience administering SMCRA, the proposed rule would clarify the
regulations found at 30 CFR 842.11 and 842.12 to state that, before
issuing a notification to a State regulatory authority when a possible
violation exists, OSMRE will consider any information readily
available. This proposed modification would reduce inefficiencies by
ensuring that OSMRE considers any readily available information,
including information that a State regulatory authority may choose to
provide, before OSMRE issues a notification to a State regulatory
authority. Our consideration of this information is critical because a
State regulatory authority has primary enforcement responsibility under
a State regulatory program. Thus, the proposed rule would enable OSMRE
to eliminate duplication of inspection and enforcement under SMCRA by
clarifying that OSMRE would consider all readily available information,
including any information provided by the State regulatory authority
and other readily available information, before issuing a notification
of a possible violation to that State regulatory authority.
Furthermore, the proposed rule would clarify the meaning of the
statutory terms ``appropriate action'' and ``good cause,'' as used in
30 CFR 842.11, to describe the State regulatory authority's action or
inaction after OSMRE notifies the State regulatory authority that a
possible violation exists. Examples of what constitutes appropriate
action and good cause exist in the existing regulations; however, in
OSMRE's experience, the existing, example explanations are not
exhaustive and do not fully reflect the array of in-the-field
scenarios. Within the context of evaluating whether a State regulatory
authority has taken appropriate action with respect to a possible
violation, OSMRE has observed that not all State regulatory program
issues OSMRE identifies warrant a Federal inspection, but may require
further evaluation. To address these issues comprehensively and to
ensure more complete and efficient enforcement of SMCRA, the proposed
revision of 30 CFR part 733 would add procedures for corrective action
of State regulatory program issues, including implementation of action
plans. The proposed revisions to 30 CFR part 733 include adding
definitions of the terms ``action plan'' and ``State regulatory program
issue'' and introducing a mechanism for early identification and
corrective action to address State regulatory program issues.
For ease of organization, the preamble describes the proposed
changes to Part 842 first, then it describes the proposed changes to
Part 733.
In the spirit of cooperative federalism, OSMRE has developed each
of the proposed modifications and clarifications in close coordination
with State regulatory authorities. The proposed clarifications are also
consistent with Executive Order 13777 of February 24, 2017, 82 FR 12285
(March 1, 2017), because the proposed clarifications would modify the
existing regulations to alleviate unnecessary regulatory burden.
The proposed changes in this rulemaking are consistent with SMCRA
and will add transparency to OSMRE's oversight responsibilities;
promote regulatory certainty for State regulatory authorities,
regulated entities, and the public; enhance OSMRE's relationship with
the State regulatory authorities; reduce redundancy in inspection and
enforcement; and streamline the process for notifying State regulatory
authorities of possible violations and other issues.
B. Statutory Background
When Congress enacted SMCRA, 30 U.S.C. 1201 et seq., it established
a regulatory structure for protecting the environment from the surface
effects of coal mining. Specific to this proposed rulemaking, Title V
of SMCRA embodies a regulatory relationship between the Federal
Government, through OSMRE, and the States and Tribes (collectively
referred to as ``State regulatory authority'' throughout this proposed
rule because no Tribes currently have regulatory programs) known as
cooperative federalism. SMCRA's mandate of cooperative federalism
authorizes States (or Tribes)--within limits established by Federal
minimum standards--to enact and administer regulatory programs
structured to satisfy each State's individual needs. Under section
503(a) of SMCRA, States may submit proposed State regulatory programs
to the Secretary of the Interior (Secretary) for approval. 30 U.S.C.
1253(a). The Secretary acts through OSMRE to review and approve or not
approve a State's proposed State regulatory program. 30 U.S.C.
1211(c)(1). After approval of a proposed State regulatory program, the
State has achieved ``primacy.'' When a State achieves primacy, the
State becomes the regulatory authority and has primary jurisdiction
over the regulation of surface coal mining and reclamation operations
on non-Federal lands within its borders, except as provided in sections
521 and 523 and Title IV of SMCRA. 30 U.S.C. 1271, 1273, and 1231-1244.
In general, a State can assume primary jurisdiction if the Secretary,
acting through OSMRE, approves a proposed State regulatory program that
demonstrates the State's capability to carry out SMCRA's provisions and
satisfy its purposes.
One of the exceptions outlined in 30 U.S.C. 1271(a) is the primary
subject of this proposed rulemaking. This provision of SMCRA authorizes
OSMRE to issue a notification to a State regulatory authority--commonly
known as a Ten-Day Notice (TDN)--if OSMRE has reason to believe, based
on any information available, that any person is in violation of any
requirement of SMCRA or any permit condition required by SMCRA. The
State regulatory authority must, within ten days, take appropriate
action to cause the violation to be corrected or the State regulatory
authority must demonstrate good cause for not correcting the violation.
The State regulatory authority is obligated to transmit this response
to OSMRE for further evaluation as dictated by OSMRE's regulations
(discussed below in section II. C. Regulatory Background).
Relevant to the proposed revisions to the regulations at 30 CFR
part 733, as discussed below, section 504 of SMCRA, 30 U.S.C. 1254, in
general, directs the Secretary to prepare and implement a Federal
program if a State regulatory authority, among other reasons, fails to
implement, enforce, or maintain its approved program. Furthermore,
section 521(b) of SMCRA generally requires OSMRE to enforce the
requirements of SMCRA when a State regulatory authority fails to
enforce an approved State regulatory program effectively and certain
other criteria are satisfied. 30 U.S.C. 1271(b).
[[Page 28906]]
C. Regulatory Background
Section 201(c)(2) of SMCRA authorizes OSMRE to ``publish and
promulgate such rules and regulations as may be necessary to carry out
the purposes and provisions of this Act.'' 30 U.S.C. 1211(c)(2). OSMRE
has implemented the statutory requirements discussed above through the
existing regulations, including 30 CFR parts 842 and 733.
OSMRE has implemented section 521(a)(1) of SMCRA, in part, through
the existing regulations at 30 CFR 842.11(b)(1) and (b)(2). These
regulations outline the procedures for an authorized representative of
the Secretary to notify a State regulatory authority of a possible
violation and possible Federal enforcement. In addition, the existing
regulation at Sec. 842.11(b)(2) provides that ``[a]n authorized
representative shall have reason to believe that a violation, condition
or practice exists if the facts alleged by the informant would, if
true, constitute a condition, practice or violation referred to in
paragraph (b)(1)(i) of this section.'' As discussed below, in
conjunction with the proposed revision to Sec. 842.11(b)(2), the
proposed rule would modify that section to recognize that OSMRE
considers other readily available information in addition to the facts
that a citizen complainant alleges when the authorized representative
of the Secretary is determining whether there is reason to believe a
violation exists.
An administrative case before the Interior Board of Land Appeals
(IBLA) has interpreted SMCRA and these regulations, holding that OSMRE
``retains a significant oversight role to ensure compliance with
SMCRA's mandates.'' Frank Hubbard, 145 IBLA 49, 52 (1998). In Hubbard,
the IBLA also stated: ``[w]here pursuant to a citizen's complaint,
OSM[RE] has reason to believe that a permittee is in violation of a
[S]tate regulatory program, OSM[RE] is required to issue a TDN to the
appropriate [S]tate regulatory authority.'' Id. at 53. However, neither
SMCRA nor the regulations clearly define the phrase ``reason to
believe,'' and both are ambiguous as to what information OSMRE may
consider when determining whether OSMRE has ``reason to believe'' that
a permittee is in violation of applicable requirements.
The proposed rule would clarify areas of the regulations discussed
above, which have resulted in disparate application, regulatory
uncertainty, redundancy, and duplicative investigation and enforcement
by OSMRE and State regulatory authorities.
Moreover, the existing regulations at 30 CFR 842.11(b)(1)(ii)(B)(2)
through (4) further implement the requirements of section 521(a)(1) of
SMCRA. 30 U.S.C. 1271(a)(1). The existing regulations are primarily the
result of substantial amendments made to the regulations in 1988.
Pursuant to the final rule published in the July 14, 1988, Federal
Register (53 FR 26728), the regulations were amended to ``establish a
uniform standard by which OSMRE will evaluate [S]tate responses to
[F]ederal notices of possible violations of [SMCRA].'' The regulations
established that OSMRE ``will accept a [S]tate regulatory authority's
response to a [TDN] as constituting appropriate action to cause a
possible violation to be corrected or showing good cause for failure to
act unless OSMRE makes a written determination that the [S]tate's
response was arbitrary, capricious, or an abuse of discretion under the
[S]tate program.'' Id. This final rule became effective on August 15,
1988.
In summary, a State regulatory authority must take appropriate
action to correct a possible violation identified by OSMRE in a TDN, or
the State regulatory authority must show good cause why the violation
has not been corrected. Under section 521(a)(1) of SMCRA, if a State
regulatory authority does not take appropriate action or show good
cause, SMCRA requires us to initiate a Federal inspection of the
surface coal mining operation at which the alleged violation is
occurring (unless the information OSMRE has is from a previous Federal
inspection of the same operation). 30 U.S.C. 1271(a)(1). Thus, OSMRE's
interpretations of what the terms ``appropriate action'' and ``good
cause'' mean are essential to maintaining the proper balance between
Federal enforcement and the primary role of a State regulatory
authority in implementing an approved program. Although the existing
regulations discuss both ``appropriate action'' and ``good cause,'' the
regulations about these integral phrases have not been substantially
updated in over 31 years. Based on our experience and feedback from
State regulatory authorities, the proposed rule would update and
clarify the meaning of the terms ``appropriate action'' and ``good
cause.''
OSMRE is also proposing to revise the regulations at 30 CFR part
733 to add new definitions and a new section that would operate in
conjunction with the Part 842 regulations, discussed above. To balance
the provisions of SMCRA found at sections 503 and 504, 30 U.S.C. 1253
and 1254, and the provisions of section 517(b), 30 U.S.C. 1267(b),
regulations found at 30 CFR part 733 were promulgated. See generally 44
FR 15323 (March 13, 1979). States with State regulatory programs are
required to implement, administer, enforce, and maintain their
respective programs in accordance with SMCRA, the implementing
regulations, and the provisions of the approved program. 30 CFR 733.11.
The regulations at 30 CFR part 733 establish requirements for the
maintenance of State regulatory programs and procedures for the rare
remedy of substituting Federal enforcement of State regulatory programs
and withdrawing approval of State regulatory programs. 30 CFR 733.1.
These regulations have not been substantively revised in over 37 years.
47 FR 26366 (June 17, 1982). However, in coordination with State
regulatory authorities, OSMRE determined that mechanisms exist for
addressing identified State regulatory program issues to avoid reaching
a threshold that would require substitution of Federal enforcement of a
State regulatory program. OSMRE may identify these State regulatory
program issues in the context of reviewing a State regulatory
authority's response to a TDN. Therefore, the proposed rule addresses
any State regulatory program issue OSMRE may find during State
regulatory program reviews by adding provisions to 30 CFR part 733 for
early identification and corrective action and to refer to these State
regulatory program issues in the proposed revisions to 30 CFR
842.11(b)(1)(ii)(B)(3).
III. Discussion of the Proposed Rule and Section-by-Section Analysis
A. Overview
While most States with significant surface coal mining operations
have obtained primacy to regulate surface coal mining within their
borders, OSMRE still plays a significant oversight role in regulating
the coal mining industry. When OSMRE is not the primary agency
regulating surface coal mining in a State, OSMRE assumes a direct
oversight role. If OSMRE has reason to believe that any person has
violated the applicable requirements, section 521(a)(1) of SMCRA
requires OSMRE to notify the relevant State regulatory authority of the
potential violation. In this context, ``any person'' includes the SMCRA
permit holder, an operator contracted to conduct the surface coal
mining activity, or certain officials related to these entities who
have responsibilities under SMCRA. However, ``any person'' does not
include State regulatory authorities, OSMRE, or employees or agents
thereof,
[[Page 28907]]
unless they are acting as permit holders. A reasonable reading of
section 521(a)(1) is that the referenced violations are those that
permittees, and related entities or persons, commit in contravention of
State regulatory programs. Therefore, within the context of section
521(a) of SMCRA and the TDN regulations, the proposed rule would
clarify that OSMRE will not send TDNs to State regulatory authorities
based on allegations or other information that indicates that a State
regulatory authority may have taken an improper action under the
State's regulatory program. OSMRE concludes that this approach is
consistent with the plain language of section 521(a). However, if OSMRE
becomes aware that there is a State regulatory program issue that calls
into question a State regulatory authority's effective administration
of its State regulatory program, even with respect to a single
operation, OSMRE intends to clarify that OSMRE would address the issue
programmatically under the proposed revisions to 30 CFR part 733,
rather than through the TDN process. Moreover, as explained below in
the discussion of the proposed revisions to 30 CFR part 733, the
proposed rule would clarify that even when OSMRE is engaged in a
corrective action process with a State regulatory authority, the State
regulatory authority may take direct enforcement action under its State
regulatory program. Additionally, OSMRE can take appropriate oversight
enforcement actions, in the event that there is, or may be, an imminent
on-the-ground violation.
One of the instances when OSMRE may issue a TDN is when OSMRE
receives a complaint from a citizen about an alleged violation at a
surface coal mining operation. When OSMRE receives such a citizen
complaint, OSMRE will issue a TDN to the State regulatory authority if
OSMRE has reason to believe that any person is in violation of any
requirement of SMCRA, the implementing regulations, the applicable
State regulatory program, or a permit condition required by SMCRA.
Based on 42 years of regulatory and oversight experience, OSMRE finds
that unnecessary duplication exists in the current TDN process that can
be eliminated by ensuring OSMRE examines all readily available
information, including the information the State regulatory authority
possesses. This is critical because in some instances in the past,
OSMRE has issued a TDN after receipt of a citizen complaint even though
the State regulatory authority had received a simultaneous complaint
about the same possible violation. This resulted in the State
regulatory authority and OSMRE initiating two parallel processes and
engaging in duplicative effort without any significant benefit.
Further, the relevant State regulatory authority and OSMRE were
actively investigating the same issue. If OSMRE issues a TDN when a
State regulatory authority is already investigating the same
allegation, it can divert the State regulatory authority's efforts away
from addressing a potential problem to instead responding to OSMRE's
TDN. OSMRE could minimize or avoid redundancy and duplication of time
and resources by ensuring that a State regulatory authority is involved
early in the process, thus, freeing both OSMRE and the State regulatory
authority to redirect time and allocate limited resources more
effectively to ensure that potential violations are addressed.
Accordingly, the proposed rule would clarify that, if OSMRE's
authorized representative, while using his or her best professional
judgment, is aware that a State regulatory authority has investigated
or is actively investigating the possible violation, the authorized
representative would consider the State regulatory authority's action
before determining if there is reason to believe a violation exists.
B. Proposed 30 CFR 842.11(b)(1)
Existing 30 CFR 842.11(b)(1) explains the circumstances when OSMRE
``shall'' conduct a Federal inspection, but the paragraph primarily
focuses on the process leading up to a Federal inspection, including
the process for OSMRE's issuance of a TDN to a State regulatory
authority. In general (when there is no imminent danger or harm
scenario), consistent with section 521(a) of SMCRA, when OSMRE issues a
TDN to a State regulatory authority, OSMRE evaluates the State
regulatory authority's response to the TDN before deciding whether to
conduct a Federal inspection. Consistent with the existing regulations,
OSMRE will issue a TDN to a State regulatory authority when an
authorized representative of OSMRE has reason to believe that there is
a violation of SMCRA, the implementing regulations, the applicable
State regulatory program, or any condition of a permit or an
exploration approval. In general, OSMRE may also issue a TDN when there
is any condition, practice, or violation that creates an imminent
danger to the health or safety of the public or is causing, or that
OSMRE reasonably expect to cause, a significant, imminent,
environmental harm to land, air, or water resources. In the latter
situation, OSMRE will bypass the TDN process, and proceed directly to a
Federal inspection, if the person supplying the information provides
adequate proof that there is an imminent danger to the public health
and safety or a significant, imminent environmental harm.
In the introductory sentence at 30 CFR 842.11(b)(1), the proposed
rule would replace the word ``shall'' with the word ``will'' because it
explains an action that OSMRE will take under the specified
circumstances.\1\ In the context of the existing provision at Sec.
842.11(b)(1), OSMRE already treats ``shall'' as ``will.'' Consequently,
because other revisions are proposed to this section, the proposed rule
would change ``shall'' to ``will'' to remove any possible ambiguity.
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\1\ The U.S. Government Publishing Office recommends against
using the word ``shall'' because it can mean may, will, or must
depending on the context and can create ambiguity.
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The proposed rule would also modify existing 30 CFR 842.11(b)(1)(i)
to clarify that when an authorized representative assesses whether he
or she has reason to believe a violation exists, the authorized
representative would consider any information that is accessible
without unreasonable delay. The proposed rule would achieve this
clarification by inserting the word ``readily'' between the existing
words ``information'' and ``available.''
OSMRE finds that these proposed revisions would be consistent with
section 521(a)(1) of SMCRA, which sets forth that OSMRE can form reason
to believe ``on the basis of any information available to [the
Secretary], including receipt of information from any person.'' 30
U.S.C. 1271(a)(1). Based on SMCRA's plain language, such information is
not restricted to information OSMRE receives from a citizen
complainant. Rather, the information includes any information OSMRE
receives from a citizen or the applicable State regulatory authority,
or any other information OSMRE is aware exists. Also, the proposed rule
would clarify that such information must be readily available, so that
the process will proceed as quickly as possible and will not become
open-ended.
In addition, the House of Representatives discussion of proposed
section 521(a)(1) attempted to illustrate one way to establish ``reason
to believe'' in the context of TDNs:
In addition to normally programmed inspections, section
521(a)(1) of the bill also provides for special inspections when the
Secretary receives information giving him reason to believe that
violations of the act or
[[Page 28908]]
permit have occurred. It is anticipated that ``reasonable belief''
could be established by a snapshot of an operation in violation or
other simple and effective documentation of a violation.
By mandating primary enforcement authority to field inspectors,
this bill recognizes that inspectors are in the best position to
recognize and control compliance problems.
H. Rept. No. 95-218, at 129 (April 22, 1977) (emphasis added). See
also H. Rept. No. 94-1445, at 74-75; H. Rep. No. 94-896, at 76-77; and
H. Rept. No. 94-45, at 118-119. The proposed revision to Sec.
842.11(b)(1)(i) is consistent with this reference to the Secretary's
consideration of ``other simple and effective documentation of a
violation'' in determining whether there is reason to believe that a
violation exists. While this language from the legislative history
relates to the information that a citizen provides, it is reasonable to
apply the same principle to section 521, as enacted. In addition, in
practice, citizen complaints do not always include simple and effective
documentation of a violation. Instead, citizen complaints sometimes
present a combination of documentation and bare allegations. Under the
existing regulations, in cases where OSMRE has determined ``reason to
believe'' that a violation exists at a particular operation, it was
often because OSMRE only accepted the alleged facts. To ensure OSMRE
obtains effective documentation, the proposed rule would expand our
consideration to include a broader array of readily available
information.
As mentioned above, section 521(a)(1) allows OSMRE to consider
``any information available . . ., including receipt of any information
from any person'' when OSMRE is determining whether it has reason to
believe that a violation exists. Congress provided that when States
achieve primacy, they are the primary SMCRA regulatory authorities;
therefore, it is important for OSMRE to be able to consider any readily
available information that OSMRE receives from a State regulatory
authority when OSMRE is determining whether OSMRE has reason to believe
that a violation exists. Indeed, the above quoted passage from the
House Report notes inspectors, based on on-the-ground observations, are
``in the best position to recognize'' violations. In the overall
context of SMCRA, any information OSMRE receives from a State
regulatory authority is often integral to the assessment of whether a
violation exists. During the course of OSMRE oversight enforcement
history, the knowledge and information provided by a State regulatory
authority has been critical to OSME's understanding of a possible
violation.
Moreover, OSMRE's consideration of information that it receives
from the State regulatory authority promotes efficiency and avoids
duplication and redundancy of investigatory and enforcement activity
between OSMRE and a State regulatory authority. As discussed above in
the Overview, the TDN process is time-consuming for both State
regulatory authorities and OSMRE. OSMRE has spent considerable time
preparing TDNs and analyzing State regulatory authority TDN responses.
Similarly, State regulatory authorities have spent considerable time
preparing responses to TDNs issued by OSMRE, and some State regulatory
authorities have reported increases in the time spent investigating and
responding to TDNs. Accordingly, the proposed rule would clarify that,
if OSMRE's authorized representative, while using his or her best
professional judgment, is aware that a State regulatory authority has
investigated or is actively investigating the possible violation, the
authorized representative would consider the State regulatory
authority's action before determining if there is reason to believe a
violation exists.
In addition, clarification of the existing regulations is warranted
because State regulatory authorities have reported varying levels of
communication and approaches from our various field offices relative to
consideration of a State regulatory authority's actions when assessing
whether the OSMRE authorized representative has reason to believe that
a violation exists. Clarifying the regulation in the manner described
above will promote regulatory certainty for State regulatory
authorities and permittees, as well as the public, and should foster
better relationships between OSMRE and State regulatory authority
personnel. Increased cooperation between OSMRE and the State regulatory
authorities promotes both the common mission of effective SMCRA
implementation and collaboration between Federal and State agencies.
Additionally, relying on information OSMRE receives from a State
regulatory authority, along with the information in a citizen complaint
and other readily available information, will promote more efficient
and informed decision making on our part. Thus, by making a more
informed decision, the TDNs that OSMRE issues will be focused on
situations with a higher likelihood of a violation, which is a better
use of OSMRE and the State regulatory authority's resources. Armed with
more time, the State regulatory authorities and OSMRE could devote more
resources to effective regulation of potential environmental effects of
surface coal mining.
Finally, the existing regulations at Sec. 842.12(a) require that a
person requesting a Federal inspection must demonstrate that he or she
has notified the applicable State regulatory authority. In the context
of this rulemaking, OSMRE reiterates that, in general, OSMRE would not
consider a citizen complaint until the citizen has complied with this
regulation and properly notified the relevant State regulatory
authority. Therefore, the provisions of existing Sec. 842.12(a) work
in conjunction with the addition of the provisions of proposed Sec.
842.11(b) that would require an authorized representative to determine
whether he or she has reason to believe that a violation exists based
on ``any information readily available.'' The ``information readily
available'' would include information from a State regulatory
authority, which a citizen complainant has notified--consistent with
the existing regulations. However, if an imminent harm is present,
OSMRE will take any action it deems necessary under 30 U.S.C. 1271(a)
and the implementing regulations.
C. Proposed 30 CFR 842.11(b)(1)(ii)(A)
Existing 30 CFR 842.11(b)(1)(ii)(A) reads as follows: ``[t]here is
no State regulatory authority or the Office is enforcing the State
regulatory program under section 504(b) or 521(b) of the Act and part
733 of this chapter.'' In this section, the proposed rule would only
capitalize the ``p'' in the word ``Part'' and add the word
``regulatory'' between the words ``State'' and ``program'' to promote
consistency throughout this rulemaking and clarify that OSMRE is
referring to State regulatory programs.
D. Proposed 30 CFR 842.11(b)(1)(ii)(B)(1)-(4)
The proposed rule would make non-substantive changes to existing 30
CFR 842.11(b)(1)(ii)(B)(1) for readability. The existing language is
set forth above under section II.C. Regulatory Background. The proposed
revision would read,
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 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
[[Page 28909]]
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.
Although there is no proposed change to the existing regulation at
30 CFR 842.11(b)(1)(ii)(B)(2), it is discussed here for context related
to the proposed clarifications in 30 CFR 842.11(b)(1)(ii)(B)(3), which
describes the term ``appropriate action,'' and 30 CFR
842.11(b)(1)(ii)(B)(4), which describes the term ``good cause.''
Consistent with Sec. 842.11(b)(1)(ii)(B)(2), when OSMRE receives a
State regulatory authority's response to a TDN, OSMRE determines
whether or not the State regulatory authority's action or response
constitutes appropriate action to cause any violation to be corrected
or good cause for not taking action. The existing regulation requires
OSMRE to determine that the State regulatory authority's action or
response constitutes appropriate action or good cause if it is not
arbitrary, capricious, or an abuse of discretion under the approved
State regulatory program. In this context, the arbitrary and capricious
standard is appropriately deferential to State regulatory authorities
and is consistent with SMCRA's cooperative federalism model.
As it currently exists, 30 CFR 842.11(b)(1)(ii)(B)(3) explains that
``[a]ppropriate action includes enforcement or other action authorized
under the State program to cause the violation to be corrected.'' The
proposed rule would add to this requirement a second sentence that
reads, ``[a]ppropriate action may include OSMRE and the State
regulatory authority immediately and jointly initiating steps to
implement corrective action to resolve any issue that the authorized
representative and applicable Field Office Director identify as a State
regulatory program issue, as defined in 30 CFR part 733.'' The proposed
rule gives the responsibility for identification of State regulatory
program issues to the applicable Field Office Director and authorized
representative, as these officials possess unique knowledge of the
specific requirements of and responsibilities under the applicable
State regulatory program. Although OSMRE has historically allowed
programmatic resolution of State regulatory program issues, such as
implementation of remedies under 30 CFR part 732, to constitute
``appropriate action'' in a given situation, the existing regulations
do not specifically explain resolution of State regulatory program
issues through corrective actions. This approach has created regulatory
uncertainty. In order to avoid confusion for the regulated community,
State regulatory authorities, and the public at large, the proposed
rule would remove any ambiguity and definitively state that
``appropriate action'' may include corrective action to resolve State
regulatory program issues. However, proposed Sec. 733.12(a)(2)
reaffirms that if OSMRE concludes that the State regulatory authority
is not effectively implementing, administering, enforcing, or
maintaining all or a portion of its State regulatory program, OSMRE may
substitute Federal enforcement of the State regulatory program or
withdraw approval. Additionally, in accordance with proposed Sec.
733.12(d), OSMRE reserves the right to reinstitute oversight
enforcement if, subsequent to a finding of appropriate action based
upon a corrective action consistent with proposed 30 CFR part 733, an
on-the-ground violation occurs or may imminently occur.
As it currently exists, 30 CFR 842.11(b)(1)(ii)(B)(4) identifies
circumstances that constitute good cause for a State regulatory
authority not to have corrected a violation. In general, pursuant to
the existing regulations, good cause for a State regulatory authority's
failure to take action includes: (1) A finding that the possible
violation does not exist under the State regulatory program; (2) the
State regulatory authority requires additional time to determine
whether a violation exists; (3) the State regulatory authority lacks
jurisdiction over the possible violation under the State regulatory
program; (4) the State regulatory authority is precluded by an
administrative or judicial order from acting on the possible violation;
or (5) specific to abandoned mine sites, the State regulatory authority
is diligently pursuing or has exhausted all appropriate enforcement
provisions.
The proposed rule would make minor clarifications to the examples
of what constitutes good cause. First, proposed Sec.
842.11(b)(1)(ii)(B)(4)(i) would make a non-substantive change for
readability and consistency that would simply add the word
``regulatory'' between ``State'' and ``program'' and switch the
position of two phrases in the provision. The existing provision reads,
``[u]nder the State program, the possible violation does not exist,''
and the revised provision would read, ``[t]he possible violation does
not exist under the State regulatory program.'' Second, the proposed
rule would revise Sec. 842.11(b)(1)(ii)(B)(4)(ii) to provide that good
cause includes: ``[t]he State regulatory authority has initiated an
investigation into a possible violation and as a result has determined
that it requires a reasonable, specified additional amount of time to
determine whether a violation exists.'' The proposed revision would
explain that the authorized representative would have discretion to
determine how long the State regulatory authority should reasonably be
given to complete its investigation of the possible violation. Also,
the authorized representative would communicate to the State regulatory
authority the date by which its investigation must be completed. This
proposed revision would promote prompt identification and resolution of
possible violations. OSMRE cautions that investigations should not be
open-ended, the State regulatory authority would be required to perform
the investigations efficiently and effectively, and the State
regulatory authority should focus the investigation on satisfying the
objective of the TDN process--achieving compliance with the State
regulatory program. A State regulatory authority must demonstrate that,
when engaging in an investigation, its inquiry focuses on investigating
a possible violation. In no circumstance should a State regulatory
authority use an investigation to delay Federal oversight or
enforcement or delay our evaluation of a State regulatory authority's
response to a TDN.
The proposed rule would make a minor revision to Sec.
842.11(b)(1)(ii)(B)(4)(iii). This proposed change would also require
that a State regulatory authority would need to demonstrate that it
lacks jurisdiction over the possible violation to qualify for this good
cause showing. The existing language reads, ``[t]he State regulatory
authority lacks jurisdiction under the State program over the possible
violation or operation . . . .'' The proposed language would read,
``[t]he State regulatory authority demonstrates that it lacks
jurisdiction over the possible violation under the State regulatory
program . . . .''
Similarly, the proposed rule would make minor, non-substantive
modifications to Sec. 842.11(b)(1)(ii)(B)(4)(iv) for readability and
to clarify that, in order to show good cause, the State regulatory
authority would need to demonstrate that an order from an
administrative review body or court of competent jurisdiction precludes
it from taking action on the possible violation. The
[[Page 28910]]
existing language reads, ``[t]he State regulatory authority is
precluded by an administrative or judicial order from an administrative
body or court of competent jurisdiction from acting on the possible
violation, where that order is based on the violation not existing or
where the temporary relief standards of section 525(c) or 526(c) of the
Act have been met . . . .'' The proposed language would read, ``[t]he
State regulatory authority demonstrates that it is precluded from
taking action on the possible violation because an administrative
review body or court of competent jurisdiction has issued an order
concluding that the possible violation does not exist or that the
temporary relief standards of the State regulatory program counterparts
to section 525(c) or 526(c) of the Act have been satisfied . . . .''
Finally, the proposed rule would make minor, non-substantive
modifications to Sec. 841.11(b)(1)(ii)(B)(4)(v) to enhance readability
and clarity. The existing language reads,
[w]ith regard to abandoned sites as defined in Sec. 840.11(g) of
this chapter, the State regulatory authority is diligently pursuing
or has exhausted all appropriate enforcement provisions of the State
program.
The proposed rule would read,
[r]egarding abandoned sites, as defined in 30 CFR 840.11(g), the
State regulatory authority is diligently pursuing or has exhausted
all appropriate enforcement provisions of the State regulatory
program.
In addition to the specific clarifications of the terms
``appropriate action'' and ``good cause'' noted above, the proposed
rule would reaffirm the process OSMRE currently employs in relationship
to conclusions about State regulatory authority TDN responses. Pursuant
to existing Sec. 842.11(b)(1)(B)(2), the authorized representative may
make a finding that the State regulatory authority has taken an
appropriate action or has good cause for not taking action, as long as
the State regulatory authority has presented a rational basis for its
decision, action, or inaction. Additionally, the State regulatory
authority's response must not be arbitrary, capricious, or an abuse of
discretion under the State regulatory program. When an authorized
representative assesses whether a State regulatory authority has taken
appropriate action or has good cause for not taking action, the
authorized representative focuses on whether the action corrected the
violation and not merely the methodology that the State regulatory
authority employed to correct the violation. Additionally, OSMRE
assesses and determines if the State regulatory authority based its
action or response on a reasonable consideration of the relevant facts
and if the action or response is an exercise of reasoned discretion
that complies with the State regulatory program.
E. Proposed 30 CFR 842.11(b)(2)
As it currently exists, Sec. 842.11(b)(2) offers an interpretation
of the phrase ``reason to believe'' that has not been revisited in this
section since a 1982 rulemaking. The existing regulation at Sec.
842.11(b)(2) essentially requires an authorized representative to
accept the facts in a citizen complaint as true when determining
whether he or she has reason to believe that a violation exists. The
existing provision reads, ``[a]n authorized representative shall have
reason to believe that a violation, condition or practice exists if the
facts alleged by the informant would, if true, constitute a condition,
practice or violation referred to in paragraph (b)(1)(i) of this
section.''
The proposed revision reads,
[a]n 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,
constitute simple and effective documentation of the alleged
violation, condition, or practice. In making this determination, the
authorized representative will consider any information readily
available to him or her, including any information a citizen
complainant or the relevant regulatory authority submits to the
authorized representative.
Some might have interpreted the existing regulatory provisions to
mean that all OSMRE has to do is determine if the alleged facts would
constitute a violation before issuing a TDN. However, the existing
regulations at Sec. 842.11(b)(1)(i) provide that the authorized
representative can consider ``information available'' when determining
whether he or she has reason to believe a violation exists, rather than
automatically and only accepting the facts alleged in a citizen
complaint as true. Because of its importance to an understanding of the
statutory scheme, clarifying the meaning of the phrase ``reason to
believe,'' as discussed above in the explanation of proposed 30 CFR
842.11(b)(1), is paramount.
Consistent with this approach, the proposed rule would modify Sec.
842.11(b)(2) to clarify that OSMRE would consider any information
readily available and not only the facts alleged in a citizen complaint
when determining whether it has reason to believe a violation exists.
Nothing in SMCRA requires OSMRE to accept alleged facts as true in a
vacuum. Rather, information that a citizen provides is usually only a
portion of the readily available information that OSMRE would consider
when deciding whether to initiate the TDN process. Moreover, the
inclusion of the phrase ``reason to believe'' in section 521(a)(1) of
SMCRA indicates that Congress intended for OSMRE to use discretion in
determining whether to issue a TDN to a State regulatory authority.
With the proposed changes, after OSMRE receives an allegation of a
violation and assess all readily available information, OSMRE would
apply independent, professional judgment to determine whether OSMRE has
reason to believe a violation exists. Congress created OSMRE to be the
expert agency that administers SMCRA. Therefore, OSMRE should never be
acting as a mere conduit for transmitting a citizen complaint to a
State regulatory authority in the form of a TDN.
Proposed Sec. 842.11(b)(2) would complement the provisions of
proposed Sec. 842.11(b)(1)(i), discussed above, and, together, the
provisions would provide clarification for how an authorized
representative would arrive at reason to believe that a violation
exists in the context of the TDN process. In short, the clarified
provisions propose to adopt language that Congress offered when it was
drafting SMCRA. Specifically, Congress anticipated that ```reasonable
belief' could be established by a snapshot of an operation in violation
or other simple and effective documentation of a violation.'' H. Rept.
No. 95-218 at 129 (1977). As explained above, under the discussion of
proposed Sec. 842.11(b)(1), OSMRE would apply the principle of
considering ``other simple and effective documentation of a violation''
to all information readily available to it, no matter the source.
Specifically, the reference to ``any information available'' in section
521(a)(1), 30 U.S.C. 1271(a)(1), would include not only information
OSMRE receives from a citizen complainant and information of which it
is already aware, but also any information OSMRE receives from the
applicable State regulatory authority. The discussion of proposed Sec.
842.11(b)(1)(i), above, discusses in more detail OSMRE's multi-faceted
rationale for clarifying the meaning of the phrase ``reason to
believe.'' One key point that the proposed rule would be clarifying is
that, if the authorized representative, while using his or her best
professional
[[Page 28911]]
judgment, is aware that the State regulatory authority has investigated
or is actively investigating the possible violation, the authorized
representative would consider the State regulatory authority's action
before determining if there is reason to believe a violation exists.
However, OSMRE remains mindful of the important role that citizens
play in effective implementation and enforcement of SMCRA. Therefore,
OSMRE would continue to take allegations in a citizen complaint very
seriously, and OSMRE encourages citizens to provide as much detail and
simple and effective documentation about the alleged violation in their
complaints as possible.
In summary, the proposed revision to Sec. 842.11(b)(2) dovetails
with existing Sec. 842.11(b)(1)(i), as well as the proposed
clarification of that section, discussed above, which would allow OSMRE
to consider ``any information readily available'' when making a
``reason to believe'' determination. Being able to read these two
provisions in harmony should reduce or eliminate any conflict or
confusion that the existing provisions created.
F. Proposed 30 CFR 842.12(a)
As it currently exists, 30 CFR 842.12(a) identifies the process to
request a Federal inspection. This existing regulatory provision states
that a person may request a Federal inspection by submitting a signed,
written statement giving the authorized representative reason to
believe that a violation, condition or practice referred to in Sec.
842.11(b)(1)(i) exists and that the State regulatory authority has been
notified in writing about the violation. The provision also requires
the submitter to include a phone number and address where the person
can be contacted. The authorized representative then assesses if he or
she has reason to believe that a violation, condition, or practice
referred to in Sec. 842.11(b)(1)(i) exists.
The proposed modifications to 30 CFR 842.12(a) complement the
proposed clarifications outlined above in the discussion of proposed
Sec. 842.11(b)(1)'s ``reason to believe'' standard. Specifically, the
proposed rule would modify the existing language in Sec. 842.12(a) to
clarify that, when a person requests a Federal inspection, the person's
request must include, ``information that, along with any other readily
available information, may give the authorized representative reason to
believe that a violation, condition, or practice referred to in Sec.
842.11(b)(1)(i) exists.'' The proposed rule would also make minor, non-
substantive modifications to the provision at existing Sec. 842.12(a)
so that the revised provision would reaffirm that when any person
requests a Federal inspection, the person's written statement ``must
also 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 . . . .'' Under the proposed
rule, the person's statement must also include ``the basis for the
person's assertion that the regulatory authority has not taken action
with respect to the possible violation.'' The latter provision reflects
the fact that, most often, a State regulatory authority will address a
potential violation when the State regulatory authority is made aware
of the situation.
Under this section of the proposed rule, OSMRE would verify whether
the individual requesting the Federal inspection notified the State
regulatory authority. As with the ``reason to believe'' standard in
Sec. 842.11(b)(1), OSMRE would consider any readily available
information, including any information that the citizen or the State
regulatory authority provides, in our ``reason to believe''
determination. OSMRE may verify the person's compliance with this
section, and the State regulatory authority's action or inaction
relative to the alleged violation, using a variety of methods, not
limited to the examples that follow. OSMRE may directly communicate
with the State regulatory authority to obtain any readily available
information, or rely on other readily available information, such as
information in permit files, public records, or documentation that the
person provides in connection with the request for a Federal
inspection. OSMRE may also obtain the status of the situation if the
State regulatory authority acknowledges in writing that the requester
previously notified the State regulatory authority of the possible
violation, and the State regulatory authority sets forth whether it has
acted or not with respect to the possible violation. Again, OSMRE does
not deem this list of examples to be exhaustive, and OSMRE may select
other mechanisms to verify that the requester properly notified the
State regulatory authority of the existence of a possible violation,
and to ascertain the status of the State regulatory authority's
response to the possible violation.
Finally, in order to conform and update the regulations to modern,
generally accepted, and efficient mechanisms of communication, the
proposed rule would provide that, in addition to providing a phone
number and physical address, any person who requests a Federal
inspection should include an email address, if one is available, so
that OSMRE may contact the requester.
In Sec. 842.12(a), the proposed rule would replace the term ``a
person'' with the term ``any person'' to mirror the language of section
521(a) of SMCRA.
Please note that, under the proposed rule change in Sec.
842.12(a), when OSMRE determines whether a violation exists for
purposes of issuing a TDN or determining whether to conduct a Federal
inspection, a State regulatory program issue would not qualify as a
possible violation. Similarly, OSMRE would not consider a State
regulatory authority's failure to enforce its State regulatory program
as a violation that warrants a TDN or Federal inspection. The TDN and
Federal inspection process in section 521(a) applies to oversight
enforcement about violations at individual operations. Congress
differentiated this type of individual operation oversight from the
State regulatory program enforcement provisions of section 521(b).
Based on this distinction, the existing 30 CFR part 733 addresses State
regulatory program issue enforcement identified in section 521(b). As
discussed in the next section of the preamble, the proposed rule would
add new provisions to 30 CFR part 733, so that OSMRE may also address
potential problems for individual permits under the part 733
regulations. As proposed, the changes to 30 CFR part 733 discussed
below would not address the types of issues that qualify as violations
under the TDN and Federal inspection process in section 521(a).
However, OSMRE could still take appropriate oversight enforcement
actions in the event that there is an on-the-ground violation, or such
a violation could be imminent. The proposed modifications to 30 CFR
part 733 are discussed below.
G. 30 CFR part 733
As it currently exists, this part establishes requirements for the
maintenance of State regulatory programs, and procedures for
substituting Federal enforcement of State regulatory programs or OSMRE
withdrawal of approval of State regulatory programs.
Throughout OSMRE's 42 years of implementing and overseeing SMCRA
and State regulatory programs, OSMRE has observed that early
identification of and corrective action to address problems is critical
to strong enforcement of SMCRA. If problems remain unaddressed, they
may result in a State regulatory authority's ineffective
[[Page 28912]]
implementation, administration, enforcement, or maintenance of its
State regulatory program. To prevent this from occurring and to
encourage a more complete and efficient implementation of SMCRA, the
proposed rule would enhance the provisions of 30 CFR part 733. Proposed
Sec. 733.5 would define the terms ``action plan'' and ``State
regulatory program issue.'' Proposed Sec. 733.12 would address how
early identification of and corrective action for State regulatory
program issues can be achieved. OSMRE considers these additions to the
regulations beneficial for early identification, evaluation, and
resolution of potential problems that may impact a State regulatory
authority's ability to effectively implement, administer, enforce, or
maintain its State regulatory program. Further, these proposed
mechanisms would avoid unnecessary substitution of Federal enforcement
and minimize the number of on-the-ground violations.
Additionally, in the sections that would be added or revised
throughout 30 CFR part 733, the proposed rule would add the term
``regulatory'' between the terms ``State'' and ``program.'' Specific
wording is discussed in each proposed section, below. OSMRE finds these
to be nonsubstantive changes made for the purpose of clarity; if
incorporated into a final rule, these changes would clearly
differentiate between a regulatory program administered by OSMRE and a
State regulatory program that is administered by a State that has
achieved primacy after approval by OSMRE.
Proposed Sec. 733.5--Definitions
The proposed rule would add a definition section to 30 CFR part
733. The proposed rule would define the terms ``action plan'' and
``State regulatory program issue.'' In short, under the proposed
definition, the term ``action plan'' would mean ``a detailed schedule
OSMRE prepares to identify specific requirements a State regulatory
authority must achieve in a timely manner to resolve State regulatory
program issues identified during oversight of State regulatory
programs.'' Historically, OSMRE and State regulatory authorities have
used action plans as a compliance strategy and documented their use in
the Annual Evaluation Reports that OSMRE compiles to discuss, among
other things, the status of State regulatory programs. Therefore, the
proposed inclusion of a definition for the term ``action plan'' in the
regulations would not place a new burden on State regulatory
authorities, but would merely create regulatory certainty and promote
uniform application.
Similarly, the proposed rule would define the term ``State
regulatory program issue'' to mean:
an issue we identified during our oversight of a State or Tribal
regulatory program that could result in a State regulatory authority
not effectively implementing, administering, enforcing, or
maintaining all or any portion of its State regulatory program,
including instances when a State regulatory authority has not
adopted and implemented program amendments that are required under
30 CFR 732.17 and 30 CFR Subchapter T, and issues related to the
requirement in section 510(b) of the Act that a regulatory authority
must not approve a permit or revision to a permit unless the
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.
Generally, OSMRE identifies State regulatory program issues during
oversight of a State regulatory program. In short, State regulatory
program issues are those that may result in a State regulatory
authority not adhering to its approved, State regulatory program. Other
examples of a State regulatory program issue include when a State
regulatory authority does not adopt and implement program amendments
that are required under 30 CFR 732.17 and 30 CFR Subchapter T. The
proposed definition would also include issues related to the
requirement in SMCRA section 510(b), 30 U.S.C. 1260(b), that a
regulatory authority must not approve a permit or permit revision,
unless the regulatory authority finds that the application is accurate
and complete and is in compliance with all of SMCRA's requirements and
those of the approved program.
As discussed above in relation to the proposed changes to 30 CFR
part 842, the TDN and Federal inspection process in section 521(a) of
SMCRA and the State regulatory program enforcement provisions in
section 521(b) of SMCRA, along with the existing implementing
regulations, differentiate between issues related to a State regulatory
authority's failure to implement, administer, maintain, and enforce all
or a part of a State regulatory program and possible violations that
could lead to a TDN or Federal inspection. Most notably, the State
regulatory program enforcement provisions of section 521(b) of SMCRA
generally address systemic programmatic problems with a State
regulatory program, not specific violations exclusive to an individual
operation or permit as detailed in section 521(a) of SMCRA. However,
citizens sometimes identify State regulatory program issues in citizen
complaints under section 521(a) of SMCRA and 30 CFR part 842. OSMRE may
also become aware of a State regulatory program issue while overseeing
enforcement of specific operations or permits. As discussed above in
connection with proposed Sec. 842.11(b)(1)(ii)(B)(3), the proposed
rule would modify the definition of ``appropriate action'' to further
clarify the differences between possible violations, which may warrant
issuance of a TDN or a Federal inspection on specific permits, and
systemic, programmatic issues, which are not appropriately addressed
through the TDN or Federal inspection process. SMCRA and the existing
regulations provide a remedy for systemic, programmatic issues at 30
CFR part 733 by identifying procedures for substituting Federal
enforcement of State regulatory programs or withdrawing approval of
State regulatory programs. The proposed addition of early
identification and corrective action to address State regulatory
program issues would enhance our ability to ensure prompt resolution of
issues, which, if unattended, may result in OSMRE exercising the rare
remedy of substituting Federal enforcement. Specifically, if the
proposed inclusion of an ``action plan,'' as proposed in Sec.
733.5(a), is finally adopted, an ``appropriate action'' that a State
might take, as explained in proposed Sec. 842.11(b)(1)(ii)(B)(3),
could include OSMRE and the State regulatory authority immediately and
jointly initiating steps to implement corrective action to resolve any
issue that the authorized representative and applicable Field Office
Director identify as a State regulatory program issue. The proposed
modification to 30 CFR 842.11(b)(1)(ii)(B)(3), coupled with the
proposed definition of ``State regulatory program issue,'' is designed
to further clarify the differences between the types of violations or
issues that would be addressed by the TDN and Federal inspection
process in section 521(a) and the State regulatory program enforcement
provisions in section 521(b) of SMCRA, respectively.
While OSMRE may sometimes identify State regulatory program issues
during the TDN process, as discussed in the preceding paragraph, at
other times, as referenced earlier in this preamble, OSMRE may identify
and address State regulatory program issues before, and instead of,
initiating the TDN process. For example, over the years, various
groups, including citizens, State regulatory authorities, and industry,
[[Page 28913]]
have raised the issue of how OSMRE deals with alleged problems in a
permit that a State regulatory authority has issued to a permittee.
This proposed rule would address these types of issues in the proposed
additions to the regulations at 30 CFR part 733. As discussed above,
SMCRA provides textual support for this approach. However, as
previously discussed earlier in this preamble, even when a State
regulatory authority and OSMRE are engaged in the proposed Part 733
process, the State regulatory authority could still take direct
enforcement action under its State regulatory program. Additionally,
OSMRE could still take appropriate oversight enforcement actions, in
the event that there is or may be an imminent on-the-ground violation.
It should be noted that an imminent on-the-ground violation is
different from ``[i]mminent danger to the health and safety of the
public,'' as defined at 30 CFR 701.5. Like other changes proposed in
this rulemaking, the proposed additions to 30 CFR part 733 should
provide greater regulatory stability and certainty in relationship to
State regulatory program issues and how these issues will be addressed
to all interested parties, including citizens, State regulatory
authorities, and permittees. OSMRE has addressed mechanisms for
handling State regulatory program issues in various ways outside the
context of rulemaking, but uncertainty among the regulated community
and State regulatory authorities remain. The proposed rule would
resolve the issue in the context of this rulemaking initiative by
clearly differentiating between the types of violations or issues that
would be addressed by the TDN and Federal inspection process outlined
in section 521(a) and the State regulatory program enforcement
provisions in section 521(b) of SMCRA.
In sum, these proposed changes would ensure a more complete
enforcement of SMCRA, and provide guidance on early detection of
potential problems that may, if left unaddressed, escalate to the point
that OSMRE considers substituting Federal enforcement procedures as
outlined in existing 30 CFR 733.12 through 733.13.
Proposed 733.12--Early Identification and Corrective Action To Address
State Regulatory Program Issues
The proposed rule would redesignate certain sections of existing 30
CFR part 733 to accommodate both the proposed new definition section at
30 CFR 733.5, discussed above, and a new proposed Sec. 733.12
entitled, ``Early identification and corrective action to address State
regulatory program issues.'' Because this rulemaking proposes to number
the new, proposed section as 733.12, the proposed rule would re-
designate existing Sec. 733.12 as 733.13 and existing Sec. 733.13 as
733.14. Additionally, the proposed rule would replace references to
Sec. 733.12 in the existing regulations with references to Sec.
733.13 in the proposed rule, in accordance with the new section
numbering to accommodate the addition of proposed new Sec. 733.12. In
particular, in existing Sec. 733.10, the proposed rule would replace
the reference to 30 CFR 733.12(a)(2) with a reference to 30 CFR
733.13(a)(2). Similarly, in existing Sec. 736.11(a)(2), the proposed
rule would replace the reference to ``Sec. 733.12'' with a reference
to ``Sec. 733.13.'' Also, in existing Sec. 733.10, the proposed rule
would change a reference from ``OSM'' to ``OSMRE'' for consistency.
Proposed Sec. 733.12 would contain the substantive mechanisms and
compliance strategies that OSMRE would use to resolve a State
regulatory program issue (as defined in proposed 30 CFR 733.5) that
OSMRE becomes aware of during oversight of a State regulatory program
or from information OSMRE receives from any person. Although OSMRE has
historically worked closely with the State regulatory authorities and
used similar approaches, incorporating these approaches into the
regulations would provide a clear mechanism for early identification
and resolution of issues that would enable OSMRE to achieve regulatory
certainty and uniform implementation of the procedures among State
regulatory authorities. This proposed addition to the regulations would
include procedures for developing an action plan (as defined in
proposed 30 CFR 733.5) so that OSMRE can ensure that State regulatory
program issues are timely resolved.
When OSMRE identifies a State regulatory program issue, proposed
Sec. 733.12(a) would provide that the Director should take action to
make sure that the issue does not escalate to the point that might give
the Director reason to believe that the State regulatory authority is
not effectively implementing, administering, enforcing, or maintaining
all or a part of its State regulatory program, which could otherwise
lead to substituting Federal enforcement of a State regulatory program
or withdrawing approval of a State regulatory program as provided in 30
CFR part 733. OSMRE would use the proposed procedures in proposed Sec.
733.12 to attempt to achieve resolution of the issue in a timely and
effective manner. It is emphasized that proposed Sec. 733.12 would
not, in any manner, diminish the requirements of existing 30 CFR 733.12
(that would be re-designated as 30 CFR 733.13 under this proposed rule)
or our responsibilities associated with substituting Federal
enforcement of State regulatory programs or withdrawing approval of
State regulatory programs under the appropriate circumstances. Instead,
this proposed procedure supplements the existing process in order to
identify problems before State regulatory program issues rise to the
level of warranting the rare remedy of substituting Federal
enforcement. In the event OSMRE has reason to believe that the State
regulatory authority is not effectively implementing, administering,
enforcing, or maintaining its State regulatory program, OSMRE would use
existing 30 CFR 733.12 (that would be redesignated as Sec. 733.13) and
all other applicable provisions to respond appropriately. In contrast,
if the State regulatory program issue does not rise to the level of
requiring OSMRE to substitute Federal enforcement, OSMRE may initiate
the proposed process for early identification and corrective action
found in proposed Sec. 733.12(b). Inherent in the previous statement
is the supposition that the State regulatory program issue is a
programmatic problem, not a possible violation warranting a TDN or
Federal inspection, as contemplated in section 521(a)(1) of SMCRA; if
it is a possible violation, OSMRE would use the TDN procedures if OSMRE
has reason to believe that a violation exists.
In general, proposed Sec. 733.12(b) would allow the OSMRE
Director, or his or her delegate, as set forth in OSMRE's guidance, to
``employ any number of compliance strategies to ensure that the State
regulatory authority corrects State regulatory program issues in a
timely and effective manner.'' OSMRE suggests that possible compliance
strategies might include, but are not limited to:
OSMRE engaging in informal discussions with the State
regulatory authority regarding possible resolutions of the issue;
OSMRE and the State regulatory authority participating in
the program amendment process as outlined in 30 CFR 732.17;
OSMRE suggesting changes in the State regulatory
authority's procedures, use of resources, or training of staff;
OSMRE providing technical assistance or initiating
targeted special studies that our technical experts would conduct;
OSMRE increasing our number of oversight inspections
beyond the statutory minimum or providing more
[[Page 28914]]
OSMRE inspection teams to supplement the State regulatory authority's
inspection resources;
OSMRE conducting a formal audit of the State regulatory
authority's permitting and compliance activities;
OSMRE conducting public fact-finding hearings related to
the State regulatory program issue; or
OSMRE devising enhanced tracking procedures to determine
if the State regulatory program issue represents a systemic problem.
Although the above list reflects examples of potential corrective
actions that a State regulatory authority and OSMRE might jointly
employ, the list is not exhaustive. In fact, OSMRE recommends a case-
by-case analysis of the State regulatory program issue. This would
allow the State regulatory authority and OSMRE to develop a
specifically tailored, innovative solution to the State regulatory
program issue that is designed to achieve timely resolution.
Generally, OSMRE does not anticipate that resolution of a State
regulatory program issue should exceed 180 days. However, the proposed
rule at Sec. 733.12(b) would provide that if the OSMRE 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 an on-the-ground
violation, then the Director or delegate will develop and institute an
action plan [as defined in proposed Sec. 733.5].'' In proposed Sec.
733.12(b)(1), OSMRE would prepare a written action plan with sufficient
``specificity to identify the State regulatory program issue and an
effective mechanism for timely correction.'' When OSMRE is preparing
the action plan, OSMRE would consider any input it receives from the
State regulatory authority. When selecting corrective measures to
integrate into the action plan, OSMRE may consider any established or
innovative solutions, including the compliance strategies referenced
above. Additionally, proposed Sec. 733.12(b)(2) states that ``[a]ction
plans will identify any necessary technical or other assistance that
the Director or his or her delegate can provide and remedial measures
that a State regulatory authority must take immediately.'' It is
important for OSMRE to assist the State regulatory authorities in any
way to ensure successful implementation of their respective State
regulatory programs. This provision also recognizes that OSMRE might
identify a State regulatory program issue that requires immediate
remedial measures, and the action plan would reflect that fact.
The balance of this proposed section, at Sec. 733.12(b)(3),
describes the contents of action plans. To ensure that OSMRE can
adequately track actions plans and that the underlying State regulatory
program issue is resolved, under the proposed rule each action plan
would be required to include: A specific ``action plan identification
number''; ``a concise title and description of the State regulatory
program issue''; ``explicit criteria for establishing when complete
resolution will be achieved''; ``explicit and orderly sequence of
actions the State regulatory authority must take to remedy the
problem''; ``a schedule for completion of each action in the
sequence''; and ``a clear explanation that if the action plan, upon
completion, does not result in the correction of the State regulatory
program issue, the provisions of 30 CFR 733.13 [existing Sec. 733.12]
may be triggered.''
Proposed Sec. 733.12(c) reiterates that OSMRE will track all
identified State regulatory program issues. As part of OSMRE oversight
responsibilities, each year OSMRE develops a performance agreement and
evaluation plan to guide oversight activities within each primacy
State. That process includes solicitation and consideration of public
input and involves collaboration with the respective State. At the end
of the evaluation period, OSMRE prepares an Annual Evaluation report.
As proposed, this section would also require OSMRE to report the issues
in the applicable State regulatory authority's Annual Evaluation
report.
Finally, proposed Sec. 733.12(d) would emphasize that nothing in
the proposed new section ``prevents a State regulatory authority from
taking direct enforcement action in accordance with its State
regulatory program, or [us] from taking appropriate oversight
enforcement action, in the event that a previously identified State
regulatory program issue results in or may imminently result in an on-
the-ground violation.'' In context, ``imminence'' may vary, and OSMRE
will rely on our authorized representative to use his or her
professional judgment to determine whether an on-the-ground violation
is imminent in a given situation.
IV. Procedural Matters
Executive Order 12630--Governmental Actions and Interference With
Constitutionally Protected Property Rights
This proposed rule would not affect a taking of private property or
otherwise have takings implications under Executive Order 12630. The
proposed rule primarily concerns Federal oversight of State regulatory
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 will
review all significant rules. OIRA has not deemed this proposed rule
significant because it would not have a $100 million annual impact on
the economy, raise novel legal issues, or create significant impacts.
The proposed rule would primarily clarify the existing regulations to
reduce the burden upon the regulated community and preserve resources
by allowing for greater cooperation between the Federal Government and
the States.
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. This proposed rule has
been developed in a manner consistent with these requirements.
Executive Order 13771--Reducing Regulation and Controlling Regulatory
Costs
This proposed rule describes a proposed deregulatory action.
Consistent with Executive Order 13771 and the April 5, 2017, Guidance
Implementing Executive Order 13771, the proposed rule, if finalized,
will have total costs less than zero.
[[Page 28915]]
Executive Order 12988--Civil Justice Reform
This proposed rule complies with the requirements of Executive
Order 12988. Among other things, this 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; and
(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 does not have sufficient federalism implications to
warrant the preparation of a federalism summary impact statement. While
clarification of the existing regulations would have a direct effect on
the States and the Federal Government's relationship with the States,
this effect is not significant as it neither imposes substantial
unreimbursed compliance costs on States nor preempts 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. The proposed rule would reduce burdens on State
regulatory authorities and more closely align the regulations to SMCRA.
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. OSMRE has 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; therefore, OSMRE
regulates all surface coal mining and reclamation operations on Indian
lands with tribal input and assistance. Currently, OSMRE works in
conjunction with the Crow, Hopi, and Navajo regarding enforcement of
surface coal mining and reclamation operations. This proposed
rulemaking would not directly impact the Tribes. However, because they
have expressed interest in perhaps having their own regulatory programs
in the future, OSMRE has coordinated with the Crow, Hopi, and Navajo to
inform them of, and to provide updates on the progress of, our proposed
rulemaking.
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 would 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 note et seq.) directs Federal agencies to
use voluntary consensus standards when implementing regulatory
activities unless to do so would be inconsistent with applicable law or
otherwise impractical. This proposed rule would not be subject to the
requirements of section 12(d) of the NTTAA because application of those
requirements would be inconsistent with SMCRA, and the requirements
would not be applicable to this proposed rulemaking.
National Environmental Policy Act
OSMRE has made a preliminary determination that the changes to the
existing regulations that would be made under this proposed rule are
categorically excluded from environmental review under the National
Environmental Policy Act (NEPA). 42 U.S.C. 4321 et seq. Specifically,
OSMRE has 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 primarily seeks to
clarify how OSMRE formulates reason to believe in the TDN context and
the information OSMRE considers in this analysis. As such, the proposed
rule would merely clarify OSMRE's process. Therefore, OSMRE deems the
proposed changes to the regulations to be administrative and procedural
in nature, as these proposed changes ensure regulatory certainty. These
clarifications would result in efficiency and enhanced collaboration
among State regulatory authorities and OSMRE. OSMRE has 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. OSMRE will continue to review these factors as the
proposed rule is evaluated.
Paperwork Reduction Act
This proposed rule would not impose a collection of information
burden, as defined by 44 U.S.C. 3502, upon any entity defined in the
Paperwork Reduction Act (44 U.S.C. 3501 et seq.).
Regulatory Flexibility Act
Based on OSMRE's collaboration with State regulatory authorities
and years of experience, OSMRE certifies 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 on a substantial number of small entities. See 5 U.S.C.
601-612.
Small Business Regulatory Enforcement Fairness Act
This proposed rule is not a major rule under the Small Business
Regulatory Enforcement Fairness Act. 5 U.S.C. 804(2). Specifically, the
proposed rule: (a) Would not have an annual effect on
[[Page 28916]]
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 736
Coal mining, Intergovernmental relations, Surface mining,
Underground mining.
30 CFR Part 842
Law enforcement, Surface mining, Underground mining.
Casey Hammond,
Principal Deputy Assistant Secretary, Exercising the authority of the
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, 736
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 is revised to read as follows:
Authority: 30 U.S.C. 1201 et seq.
0
2. The heading of part 733 is revised as set forth above.
0
3. Add 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 schedule OSMRE prepares to identify
specific
requirements a regulatory authority must achieve in a timely manner
to resolve State regulatory program issues identified during oversight
of State regulatory programs.
State regulatory program issue means an issue OSMRE identifies
during oversight of a State or Tribal regulatory program that could
result in a State regulatory authority not effectively implementing,
administering, enforcing, or maintaining all or any portion of its
State regulatory program, including instances when a State regulatory
authority has not adopted and implemented program amendments that are
required under 30 CFR 732.17 and 30 CFR Subchapter T, 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.
0
4. Revise Sec. 733.10 to read as follows:
Sec. 733.10 Information collection.
The information collection requirement contained in 30 CFR
733.13(a)(2) has been approved by the Office of Management and Budget
under 44 U.S.C. 3507 and assigned clearance number 1029-0025. The
information required is needed by OSMRE to verify the allegations in a
citizen request to evaluate a State program and to determine whether an
evaluation should be undertaken.
0
5. Redesignate Sec. Sec. 733.12 and 733.13 as Sec. Sec. 733.13 and
733.14 respectively.
0
6. Add a new 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 in order to
ensure that it does not escalate into 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 person.
(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 substitute Federal enforcement of a State regulatory
program or withdraw approval of a State regulatory program as provided
in part 733.
(b) The Director or his or her delegate may employ any number of
compliance strategies to ensure that the State regulatory authority
corrects State regulatory program issues in a timely and effective
manner. However, 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 an on-the-ground violation, then the Director or delegate
will develop and institute an action plan.
(1) Action plans will be written with specificity to identify the
State regulatory program issue and an effective mechanism for timely
correction.
(2) Action plans will identify any necessary technical or other
assistance that the Director or his or her delegate can provide and
remedial measures that a State regulatory authority must take
immediately.
(3) Action plans must also include:
(i) An action plan identification number;
(ii) A concise title and description of the State regulatory
program issue;
(iii) Explicit criteria for establishing when complete resolution
will be achieved;
(iv) Explicit and orderly sequence of actions the State regulatory
authority must take to remedy the problem;
(v) A schedule for completion of each action in the sequence; and
(vi) A clear explanation that if the action plan, upon completion,
does not result in correction of the State regulatory program issue,
the provisions of 30 CFR 733.13 may be triggered.
(c) All identified State regulatory program issues must be tracked
and reported in the applicable State regulatory authority's Annual
Evaluation report. 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 appropriate
[[Page 28917]]
oversight enforcement action, in the event that a previously identified
State regulatory program issue results in or may imminently result in
an on-the-ground violation.
PART 736--FEDERAL PROGRAM FOR A STATE
0
7. The authority citation for part 736 continues to read as follows:
Authority: 30 U.S.C. 1201 et seq., as amended; and Pub. L. 100-
34.
0
8. Revise Sec. 736.11(a)(2) to read as follows:
Sec. 736.11 General procedural requirements.
(a) * * *
(2) The Director shall promulgate a complete Federal program for a
State upon the withdrawal of approval of an entire State program under
Sec. 733.13.
* * * * *
PART 842--FEDERAL INSPECTIONS AND MONITORING
0
9. The authority citation for part 842 continues to read as follows:
Authority: 30 U.S.C. 1201 et seq.
0
10. Amend Sec. 842.11 by revising paragraphs (b)(1) introductory text,
(b)(1)(i), (b)(1)(ii)(A), (b)(1)(ii)(B)(1), (3) and (4), and (b)(2) to
read as follows:
Sec. 842.11 Federal inspections and monitoring.
* * * * *
(b)(1) An authorized representative of the Secretary will
immediately conduct a Federal inspection:
(i) When the authorized representative has reason to believe on the
basis of any information readily available to him or her (other than
information resulting from a previous Federal inspection) that there
exists a violation of the Act, this chapter, the 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)(A) There is no State regulatory authority or the Office is
enforcing the State regulatory program under section 504(b) or 521(b)
of the Act and part 733 of this chapter; or
(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 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.
* * *
(3) Appropriate action includes enforcement or other action
authorized under the approved State program to cause the violation to
be corrected. Appropriate action may include OSMRE and the State
regulatory authority immediately and jointly initiating steps to
implement corrective action to resolve any issue that the authorized
representative and applicable Field Office Director identify as a State
regulatory program issue, as defined in 30 CFR part 733.
(4) Good cause includes:
(i) The possible violation does not exist under the State
regulatory program;
(ii) The State regulatory authority has initiated an investigation
into a possible violation and as a result has determined that it
requires a reasonable, specified additional amount of time to determine
whether a violation exists. When analyzing the State regulatory
authority's response for good cause, the authorized representative has
discretion to determine how long the State regulatory authority should
reasonably be given to complete its investigation of the possible
violation and will communicate to the State regulatory authority the
date by which the investigation must be completed. 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) The State regulatory authority demonstrates that it lacks
jurisdiction over the possible violation under the State regulatory
program;
(iv) The State regulatory authority demonstrates that it is
precluded from taking action on the possible violation because an
administrative review body or court of competent jurisdiction has
issued an order concluding that the possible violation does not exist
or that the temporary relief standards of the State regulatory program
counterparts to section 525(c) or 526(c) of the Act have been
satisfied; or
(v) Regarding abandoned sites, as defined in 30 CFR 840.11(g), the
State regulatory authority is diligently pursuing or has exhausted all
appropriate enforcement provisions of the State regulatory program.
* * * * *
(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, constitute
simple and effective documentation of the alleged violation, condition,
or practice. In making this determination, the authorized
representative will consider any information readily available to him
or her, including any information a citizen complainant or the relevant
State regulatory authority submits to the authorized representative.
* * * * *
0
11. 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 readily
available information, may give the authorized representative reason to
believe that a violation, condition, or practice referred to in Sec.
842.11(b)(1)(i) exists. The statement must also 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. The statement must set forth a phone number, address, and,
if available, an email address where the person can be contacted.
* * * * *
[FR Doc. 2020-10165 Filed 5-13-20; 8:45 am]
BILLING CODE 4310-05-P
