Ten-Day Notices and Corrective Action for State Regulatory Program Issues
| Published date | 09 April 2024 |
| Record Number | 2024-07248 |
| Citation | 89 FR 24714 |
| Court | Surface Mining Reclamation And Enforcement Office |
| Section | Rules and Regulations |
Federal Register, Volume 89 Issue 69 (Tuesday, April 9, 2024)
[Federal Register Volume 89, Number 69 (Tuesday, April 9, 2024)]
[Rules and Regulations]
[Pages 24714-24736]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-07248]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Parts 733 and 842
[Docket ID: OSM-2022-0009; S1D1SSS08011000SX064A000245S180110; S2D2S
SS08011000SX064A0024XS501520]
RIN 1029-AC81
Ten-Day Notices and Corrective Action for State Regulatory
Program Issues
AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.
ACTION: Final rule.
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SUMMARY: The Department of the Interior is amending its regulations
related to the Office of Surface Mining Reclamation and Enforcement's
(OSMRE's) notifications to a State regulatory authority of a possible
violation of any requirement of the Surface Mining Control and
Reclamation Act of 1977 (SMCRA). The final rule also amends the Federal
regulations regarding corrective actions for State regulatory program
issues. Together, the updates to these two areas of the Federal
regulations amend the overall ``ten-day notice'' (TDN) process and
OSMRE's oversight process.
DATES: This rule is effective May 9, 2024.
FOR FURTHER INFORMATION CONTACT: William R. Winters, (865) 545-4103,
ext. 170, [email protected].
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Background
A. Primary Provisions of SMCRA Supporting the Final Rule
B. Key Regulatory Provisions of the Final Rule and Their
Purposes
i. Information Used for ``Reason To Believe'' Determinations
ii. Types of Possible Violations
iii. State Regulatory Authorities as ``Any Person'' for TDN
Purposes
iv. Definitions
v. Time Frames
a. State Regulatory Program Issues
b. Good Cause for Not Taking Action
vi. Contacting the State Regulatory Authority Before OSMRE
vii. Citizen Justification for Possible Violation
viii. Citizen Complaints as Requests for Federal Inspections
ix. Action Plans as Appropriate Action
x. Similar Possible Violations
II. Summary of Changes From the Proposed Rule
III. General Public Comments and Responses
A. Rule Basis and Justification
B. Burden Reduction and Duplication of Work
C. Consultation With States Before and During This Rulemaking
D. State Primacy
E. ``Any Person'' Who Can Be in Violation of SMCRA
F. Permit Defects
G. Procedural Determinations
H. Minor Text Changes and Conforming Edits
IV. Section-by-Section Summaries of and Responses to Public Comments
A. 30 CFR 842.5
B. 30 CFR 842.11(b)(1)(i)
C. 30 CFR 842.11(b)(1)(ii)
D. 30 CFR 842.11(b)(2)
E. 30 CFR 842.12(a)
F. 30 CFR 733.5
G. 30 CFR 733.12(a)
H. 30 CFR 733.12(b)
I. 30 CFR 733.12(b)(1) Through (4)
J. 30 CFR 733.12(c)
K. 30 CFR 733.12(d)
V. Severability of Provisions in This Final Rule
VI. Procedural Matters and Required Determinations
I. Background
In addition to the explanations in this preamble, OSMRE directs the
reader to the preamble for the proposed rule, 88 FR 24944 (April 25,
2023), because the Department is adopting the regulatory provisions as
proposed with one exception.
A. Primary Provisions of SMCRA Supporting the Final Rule
Under SMCRA, each State that wishes to regulate surface coal mining
and reclamation operations on non-Federal and non-Indian lands within
its borders can submit a proposed State regulatory program to the
Secretary of the Interior. 30 U.S.C. 1253(a). The Secretary, acting
through OSMRE, reviews and approves or disapproves the proposed
program. 30 U.S.C. 1211(c)(1), 1253(b). When the Secretary approves a
State program, the State assumes exclusive jurisdiction or ``primacy,''
except as provided in sections 521 and 523 and title IV of SMCRA. 30
U.S.C. 1253(a), 1271, 1273, and 1231-1244. Under the exception at 30
U.S.C. 1271(a)(1), in a primacy State that has an approved State
regulatory program, OSMRE retains oversight of the State program and
some Federal enforcement authority. In this regard, SMCRA sometimes
refers to a State regulatory authority as having ``primary''
responsibility. See, e.g., 30 U.S.C. 1201(f) and 1291(26) (defining
``State regulatory authority'' to mean ``the department or agency in
each State which has primary responsibility at the State level for
administering [SMCRA]'').
As explained in the preamble to the proposed rule, two provisions
of SMCRA primarily govern OSMRE's
[[Page 24715]]
oversight and enforcement of State regulatory programs: sections 521(a)
and (b), 30 U.S.C. 1271(a) and (b). Section 521(a)(1) requires OSMRE to
notify a State regulatory authority (SRA) when OSMRE has ``reason to
believe'' that any person is in violation of any requirement of SMCRA,
the approved regulatory program, an approved permit, or a required
permit condition. That OSMRE notification of a possible violation is
known as a ten-day notice (TDN) because the SRA must respond to OSMRE
within ten days by either taking ``appropriate action'' to cause the
possible violation to be corrected or showing ``good cause'' for not
taking action. In general, if the SRA fails to respond within ten days
or the response is arbitrary, capricious, or an abuse of discretion,
OSMRE must immediately order a Federal inspection of the surface coal
mining operation where the alleged violation is occurring and take
appropriate enforcement action.
Section 521(b) of SMCRA describes the Secretary's oversight and
enforcement obligations when an SRA fails to effectively implement any
part of its approved State program. The relevant existing regulations
implementing section 521(b) of SMCRA are found at 30 CFR part 733 and
are administered by OSMRE. The 2020 TDN Rule revised provisions in 30
CFR parts 733 and 842 to address State regulatory program issues before
they rose to the level that would require OSMRE to take over
administration of all or part of an approved State program under
section 521(b). See 85 FR 75150 (Nov. 24, 2020). This final rule
retains the basic structure of the 2020 TDN Rule but amends 30 CFR
733.5 and 733.12 to comply more fully with SMCRA's statutory
requirements.
B. Key Regulatory Provisions of the Final Rule and Their Purposes
i. Information Used for ``Reason To Believe'' Determinations
In the 2020 TDN Rule, OSMRE modified the regulations at 30 CFR
842.11(b)(1)(i) so that when OSMRE received a citizen complaint, OSMRE
could consider ``any information readily available [ ], from any
source, including any information a citizen complainant or the relevant
State regulatory authority submits'' when determining whether OSMRE had
reason to believe a violation existed. Existing Sec. Sec. 842.11(b)(2)
(TDN process) and 842.12(a) (requests for Federal inspections) contain
similar ``information readily available'' and ``readily available
information'' language. Providing for consideration of information from
the SRA was an attempt to allow OSMRE to consider the latest, most
accurate information when determining if it had reason to believe a
violation existed.
Since publishing the 2020 TDN Rule, OSMRE has observed instances in
which requesting and considering information from an SRA resulted in
delay because the process extended the time periods for OSMRE to
receive the information from the SRA. OSMRE generally interpreted the
2020 TDN Rule to require the consideration of all readily available
information, including information that could be obtained from an SRA,
when determining whether OSMRE has reason to believe a violation
exists. In some instances, it took up to 30 days for the SRA to send
OSMRE information that OSMRE could consider in determining if it had
reason to believe a violation existed. This extended period is not
consistent with the text or spirit of the statutory language. SMCRA's
``reason to believe'' standard does not require that OSMRE determine
whether a violation actually exists; rather it only requires that OSMRE
determine that a possible violation could exist.
To that end, this final rule limits the sources of information that
OSMRE will need to consider in determining whether it has reason to
believe a possible violation exists. In this final rule, after careful
review of the statutory language, OSMRE's experience implementing the
2020 TDN Rule, and the public comments received on the proposed rule,
OSMRE has removed the direction to consider ``readily available
information'' and has, instead, in the final rule, as in the proposed
rule, limited the scope of information it will consider before
determining whether it has reason to believe ``information received
from a citizen complainant, information available in OSMRE files at the
time that OSMRE is notified of the possible violation (other than
information resulting from a previous Federal inspection), and publicly
available electronic information.'' Sec. 842.11(b)(1)(i). OSMRE also
made similar changes to final Sec. Sec. 842.11(b)(2) and 842.12(a).
With these sources of information, OSMRE believes it meets the text,
intent, and spirit of SMCRA's ``reason to believe'' standard while also
allowing OSMRE to consider enough information in a timely manner to
firmly establish whether OSMRE has reason to believe a violation
exists. Notably, this is not simply a reversion to the pre-2020 TDN
regulations; this final rule also provides for OSMRE's consideration of
``publicly available electronic information,'' which often fills in any
gaps in a citizen complaint, but with information that can be obtained
in a more timely manner than waiting for a response from an SRA.
Importantly, SMCRA's legislative history indicates that 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 (April 22,
1977). This illustrates that in Sec. 521(a)(1) of SMCRA, Congress
intended that OSMRE could form ``reason to believe'' well short of
proving an actual violation before issuing a TDN to an SRA. Thus, the
simpler test for the ``reason to believe'' standard in this final rule
is fully consistent with SMCRA and supported by its legislative
history. In its response to a TDN, an SRA can include information that
attempts to definitively disprove the existence of a violation; this
approach is consistent with SMCRA for the stage at which OSMRE is
determining whether a State has taken appropriate action or
demonstrated good cause for not doing so in response to a TDN.
ii. Types of Possible Violations
This final rule revises the 2020 TDN Rule with respect to what is
considered a ``violation'' for TDN purposes. As in the proposed rule,
the final rule treats all violations the same, regardless of their
genesis (i.e., whether they result from an operator's or permittee's
failure to conduct surface coal mining operations consistently with the
approved State program, or whether they result from an SRA's issuance
of a permit that allows mining that would be inconsistent with the
approved State program). As such, under 30 CFR 842.11, OSMRE will issue
a TDN for any possible violation after forming reason to believe a
violation exists.
OSMRE considered language in existing 30 CFR 733.12(d) that allowed
OSMRE to issue a TDN for a previously identified State regulatory
program issue that results in or may imminently result in a violation
of the approved State program. In this final rule, however, as in the
proposed rule, OSMRE modifies Sec. 733.12(d) such that OSMRE will not
wait for evidence of an imminent or actual on the-ground violation
before issuing a TDN. It makes little sense to wait for mining to occur
under a defective permit or a violation to occur on-the-ground before
issuing a TDN for an inconsistency with the approved permit, approved
State program, or SMCRA. It will no longer be the case that a possible
violation could bypass 30 CFR part 842 and proceed
[[Page 24716]]
initially as a State regulatory program issue under 30 CFR part 733.
Instead, under this final rule, all possible violations, excluding
imminent harm situations, will initially be considered under part 842.
In the preamble to the proposed rule, OSMRE used the example of
issuing a TDN for failure to submit a required certification or
monitoring report. This type of violation is not ``on-the-ground,'' but
OSMRE may nonetheless issue a TDN in such instances. As first described
in the preamble to the proposed rule and now reflected in the final
rule, OSMRE will issue TDNs for all violations, including those
committed by a permittee or those that result from an SRA issuing a
defective permit (i.e., a permit that is not in compliance with the
approved State program or that would allow a permittee to mine in a
manner that is not authorized by the State program). As stated in the
preamble to the proposed rule, the term ``permit defect'' is not in the
statute or regulations, and it has never been officially defined. OSMRE
has used the phrase in internal guidance documents through the years
and considers a permit defect to be a deficiency in a permit-related
action taken by an SRA, such as when an SRA has issued a permit with a
provision that is contrary to the approved State program or that, as
explained above, would allow mining that is not authorized by the State
program. After careful review and consideration of the public comments
received on the proposed rule, OSMRE concludes that this change to
apply the TDN process to all violations, including permit defects, more
closely adheres to SMCRA's language in 30 U.S.C. 1271(a)(1) by treating
all violations the same and preventing the perception that there are
two classes of violations: one that is subject to the TDN process and
one that is not. Instead, all possible violations, except those that
create an imminent harm, will start under 30 CFR part 842 whenever
OSMRE has reason to believe that a violation exists. Under this final
rule, upon forming reason to believe that a violation exists, OSMRE
will generally issue a TDN for all possible violations, including
permit defects.
iii. State Regulatory Authorities as ``Any Person'' for TDN Purposes
The issue of who can be in violation of SMCRA or a State program
for TDN purposes is related to the issue of permit defects. As OSMRE
noted in the preamble to the proposed rule (88 FR at 24949): ``In the
preamble to the 2020 TDN Rule, [OSMRE] explained that, under 30 U.S.C.
1271(a)(1), `any person' who can be in violation of SMCRA or a State
regulatory program `does not include a State regulatory authority,
unless it is acting as a permit holder. 85 FR 75176; see also id. at
75179.' '' After OSMRE's review of SMCRA, Congressional intent, and
implementation experience through the years on this issue, OSMRE
concludes that OSMRE must issue a TDN when it has reason to believe
that any person, including an SRA, violates the approved State program,
approved permit, or SMCRA. OSMRE will accept a State's response to the
TDN unless OSMRE concludes that the action or response is arbitrary,
capricious, or an abuse of discretion. 30 CFR 842.11(b)(1)(ii)(B)(2).
iv. Definitions
As in the proposed rule, the final rule adopts, for the first time,
regulatory definitions of ``ten-day notice'' and ``citizen complaint.''
OSMRE decided to define ``ten-day notice'' because these notices are
fundamental to the overall ten-day notice process that is addressed in
this final rule. OSMRE has frequently used the term ``ten-day notice''
in its implementing regulations and directives but has never defined
the term until now. The concept derives from SMCRA section 521(a)(1),
which provides that, after OSMRE notifies an SRA of a possible
violation, the State must take ``appropriate action'' or show ``good
cause'' for not doing so ``within ten days.'' This final rule creates a
new section, 30 CFR 842.5, which defines ``ten-day notice'' as ``a
communication mechanism that OSMRE uses, in non-imminent harm
situations, to notify a State regulatory authority under Sec. Sec.
842.11(b)(l)(ii)(B)(1) and 843.12(a)(2) when an OSMRE authorized
representative has reason to believe that any permittee and/or operator
is in violation . . . .'' Importantly, as the definition notes, a ten-
day notice is a ``communication mechanism'' between OSMRE and an SRA
about a possible violation. Issuance of a TDN, therefore, provides the
State with the first opportunity to review and address the possible
violation, as necessary, under its approved State program.
SMCRA section 521(a)(1) provides citizens with the right to
participate in the SMCRA enforcement process. This right often takes
the form of a citizen filing a complaint to OSMRE or the SRA concerning
a possible violation. These communications are often questions, formal
and informal complaints, or general inquiries about particular surface
coal mining and reclamation operations. At times, it has been difficult
to ascertain the exact nature of these communications. Consistent with
the proposed rule, the final rule defines ``citizen complaint'' at 30
CFR 842.5 to provide clarity and indicate that the purpose of a citizen
complaint, in the TDN context, is for citizens to inform OSMRE of a
possible violation. The definition of ``citizen complaint'' in this
final rule is ``any information received from any person notifying the
Office of Surface Mining Reclamation and Enforcement (OSMRE) of a
possible violation of the Act, this chapter, the applicable State
regulatory program, or any condition of a permit or an exploration
approval.'' The definition also provides that the information ``must be
provided in writing (or orally, followed up in writing).'' Defining the
phrase ``citizen complaint'' provides clarity for the meaning of the
phrase and related processes.
v. Time Frames
In this final rule, OSMRE adopts the time frames that it proposed
to ensure quicker resolution of outstanding issues. SMCRA section
521(a)(1) requires the SRA to respond within ten days to an OSMRE
notification of a possible violation, indicating either that it has
taken appropriate action to cause a possible violation to be corrected
or that it has good cause for not acting. 30 U.S.C. 1271(a)(1); 30 CFR
842.11(b)(1)(ii)(B). Responding within ten days does not require the
possible violation to be fully resolved but does require the SRA to
indicate its intended actions to resolve a possible violation. As
described in the proposed rule and below, the final rule incorporates
several additional time frames in both the TDN process and development
of a 30 CFR part 733 corrective action plan to reduce the time between
the identification of a violation or State regulatory program issue and
final resolution of the identified issue.
a. State Regulatory Program Issues
The 2020 TDN Rule contained no definitive time frames to address a
State regulatory program issue, except that, if OSMRE believed the
issue would take longer than 180 days to resolve, an action plan would
be developed. 30 CFR 733.12(b). There were no interim action items or
timelines, no maximum amount of time for an action plan to be
completed, and no defined time frames for development of an action
plan. Existing Sec. 733.12(b) provided only that OSMRE ``may employ
any number of compliance strategies to ensure that the State regulatory
authority corrects a State regulatory program issue in a timely and
effective manner.'' Id. Under this framework, a State regulatory
program issue could potentially exist for
[[Page 24717]]
a long period of time between identification of the issue and final
resolution.
This final rule amends existing 30 CFR 842.11 and 733.12 to address
the possibility of delays in resolving State regulatory program issues.
To accomplish this objective, under amended 30 CFR
842.11(b)(1)(ii)(B)(3), corrective actions developed under 30 CFR part
733 can no longer constitute appropriate action in response to a TDN.
However, under this final rule, addressing a possible violation, along
with substantially similar possible violations, under a part 733 action
plan can constitute ``good cause'' for not acting.
This final rule also removes the 180-day language from 30 CFR
733.12(b) that would trigger development of an action plan. In the
final rule, for each State regulatory program issue, Sec. 733.12(b)
indicates that OSMRE, ``in consultation with the State regulatory
authority, will develop and approve an action plan within 60 days of
identification of a State regulatory program issue.'' The fact that
development of an action plan is intended to be a cooperative process
between OSMRE and the SRA is also inherent in final Sec. 733.12(b)(4).
However, as that section indicates, ``[i]f the State regulatory
authority does not cooperate with OSMRE in developing the action plan,
OSMRE will develop the action plan . . . and require the State
regulatory authority to comply with [it].''
The 2020 TDN Rule, at existing Sec. 733.12(b), did not require
interim measures between identification of the State regulatory program
issue and implementation of a corrective action plan. The existing
regulations simply implied that measures would be developed, noting
that OSMRE ``may employ any number of compliance strategies to ensure
that the State regulatory authority corrects a State regulatory program
issue in a timely and effective manner.'' Id. OSMRE concluded that this
language could allow a violation to exist for extended periods of time
before or during the time in which an action plan was developed and the
issue resolved. In final Sec. 733.12(b), OSMRE adds a provision, which
it included in the proposed rule, to allow interim remedial measures to
be developed. The final provision provides: ``Within 10 business days
of OSMRE's determination that a State regulatory program issue exists,
OSMRE and the State regulatory authority may identify interim remedial
measures that may abate the existing condition or issue.''
Section 733.12(b)(1) of the final rule allocates 365 days (one
calendar year) for the SRA to complete all identified actions in an
action plan. The one year starts on the date on which OSMRE sends the
action plan to the SRA. As stated in the preamble to the proposed rule,
OSMRE recognizes that final resolution of an issue could exceed one
year. 88 FR at 24950. This is particularly true for actions involving
multiple parties and/or agencies, State legislative actions, or any
requirements imposed by court decisions. OSMRE reiterates that care
must be exercised in development of the action plan to ensure that the
identified corrective actions can be accomplished within one calendar
year. The associated completion criteria must have actions and
milestones that are achievable within one calendar year. The goal is to
keep violations from going unabated, minimize on-the-ground impacts,
and prevent off-site impacts. For example, if a State regulatory
program issue requires a State program amendment, it is often not
possible for a program amendment to be approved within one calendar
year. A more reasonable action plan objective may be to submit to OSMRE
a program amendment within one year.
b. Good Cause for Not Taking Action
The existing regulations at 30 CFR 842.11(b)(1)(ii)(B)(4)(ii)
indicated that ``good cause'' for an SRA not taking ``appropriate
action'' in response to a TDN includes the State's initiation of ``an
investigation into a possible violation'' and its resulting
determination that it ``requires a reasonable, specified additional
amount of time to determine whether a violation exists.'' This language
had the potential to allow violations to remain unabated for an open-
ended amount of time. As in the proposed rule, the final rule modifies
this provision by specifying the time within which the SRA must
complete its investigation. The final rule provides that ``[t]he State
regulatory authority may request up to 30 additional days to complete
its investigation of the issue'' and that, ``in complex situations, the
State regulatory authority may request up to an additional 60 days to
complete the investigation.'' The final rule caps the maximum amount of
time at 90 additional days from when the SRA has satisfied the criteria
for good cause for not taking action. Under OSMRE's normal practice,
when an SRA requests additional time under this provision, the length
of any OSMRE approved additional time will be measured from when OSMRE
notifies the SRA that OSMRE has approved an extension. The final rule
also requires a reasoned justification for an extended time frame to
identify whether a violation exists as indicated in a TDN. As stated in
the final rule provision, ``[i]n all circumstances, an extension
request must be supported by an explanation of the need for, and the
measures being undertaken that justify, an extension, along with any
relevant documentation.'' OSMRE retains discretion to approve the
requested time extension or establish the length of time, up to 90
additional days, that the SRA has to complete its investigation. These
changes are intended to facilitate expedited resolutions of identified
issues.
vi. Contacting the SRA Before OSMRE
The 2020 TDN Rule, at 30 CFR 842.12(a) of the existing regulations,
required citizens, when requesting a Federal inspection, to provide a
statement, including, among other things, the fact that the person has
notified the SRA of the existence of the possible violation. OSMRE
carefully reviewed the statutory language and Congressional record
preceding SMCRA's enactment and determined that no requirement exists
for citizens to contact the SRA before contacting OSMRE about a
possible violation. This concept first appeared in the preamble to the
Permanent Regulatory Program regulations (44 FR 15299 (August 27,
1979)) and was discussed in the comments section of that preamble.
There OSMRE concluded that it ``has no authority under [SMCRA] to
require a citizen to ask for a State inspection before asking for a
Federal inspection.'' Id. A few years later, in the preamble to a final
rule entitled, ``Permanent Regulatory Program Modifications;
Inspections and Enforcement; Civil Penalty Assessments'' (47 FR 35620
(Aug. 16, 1982)), OSMRE took the position that citizens must ``notify
the State regulatory authority in writing prior to, or simultaneously
with, his or her request to OSM[RE]'' (id. at 35628), even though OSMRE
had previously acknowledged that this is not a statutory requirement
(44 FR 15299). Even under that rule, however, ``the person [was] not
required to wait for any action to be taken by the State regulatory
authority before requesting a Federal inspection.'' 47 FR at 35628. The
State notification requirement was incorporated into section 842.12(a)
of the 1982 rule as a measure to allow the SRA the first chance to
address an issue identified by a citizen. However, OSMRE is aware of
instances where citizens were hesitant to contact the SRA. Based on the
foregoing, in this final rule, as in the
[[Page 24718]]
proposed rule, OSMRE removed the language in existing section 842.12(a)
requiring a citizen to first contact an SRA before they contact OSMRE
to report the same possible violation.
vii. Citizen Justification for Possible Violation
As in the proposed rule, OSMRE is removing the existing requirement
in section 842.12(a) that a citizen must state the basis for their
allegation of a possible violation. After careful consideration of the
statute, OSMRE's implementation experience, the regulatory language,
and the public comments on the proposed rule, this final rule removes
the requirement that a citizen must state the ``basis for the person's
assertion that the State regulatory authority has not taken action with
respect to the possible violation.'' Citizens are not necessarily well-
versed on the text of SMCRA or its implementing regulations; therefore,
they should not need to state their allegation in statutory or
regulatory language. Conversely, OSMRE and the SRAs are experts in
interpreting and implementing SMCRA and are, therefore, best suited to
determine if a violation is or is not occurring under the applicable
statutory and regulatory provisions. As OSMRE stated in the preamble to
the proposed rule, OSMRE continues to believe that if a citizen first
contacts the SRA, most possible violations will be resolved without the
need for OSMRE to issue a TDN. Therefore, although a citizen is not
required to contact the SRA about a possible violation before
contacting OSMRE, OSMRE continues to strongly encourage citizens to do
so because the SRA should be more acquainted with conditions on the
ground for permits that it has issued and is typically in the best
position to quickly determine and, if necessary, act on the merits of a
citizen complaint.
viii. Citizen Complaints as Requests for Federal Inspections
To better align Sec. Sec. 842.11(b)(1)(i) and 842.12(a), which
both allow citizens to provide information to OSMRE concerning possible
violations, the final rule makes both sections consistent with respect
to a Federal inspection resulting from information received from a
citizen complainant. This revision will reduce a real or perceived
barrier to our public participation procedures because, even if a
citizen complaint does not specifically request a Federal inspection,
the TDN process could ultimately result in a Federal inspection if an
SRA does not respond to the TDN or OSMRE determines that the SRA's
response is arbitrary, capricious, or an abuse of discretion. As in the
proposed rule, the final rule includes language in both Sec. Sec.
842.11(b)(2) and 842.12(a) stating that all citizen complaints will be
considered as requests for a Federal inspection. As stated in the
proposed rule, the final rule provides that, if a Federal inspection
occurs because of any information received from a citizen complainant,
the citizen will be afforded the opportunity to accompany the Federal
inspector on the inspection.
ix. Action Plans as Appropriate Action
As in the proposed rule, this final rule modifies the existing
regulations by removing 30 CFR part 733 corrective actions associated
with a State regulatory program issue as a possible ``appropriate
action'' in response to a TDN. 30 CFR 842.11(b)(1)(ii)(B)(3). This rule
excludes identification of a State regulatory program issue as a
possible appropriate action in response to a TDN because, as stated in
the preamble to the proposed rule, action plans do not themselves
remedy violations. After careful review, while OSMRE will no longer
consider an action plan to address a State regulatory program issue to
be ``appropriate action'' in response to a TDN, OSMRE concluded that
identifying and addressing a 30 CFR part 733 State regulatory program
issue can, in certain circumstances, constitute good cause for not
taking action within ten days in response to a TDN under 30 CFR
842.11(b)(1)(ii)(B)(4). Addressing a part 733 State regulatory program
issue and associated action plan demonstrates that the SRA will take
actions to abate a violation, even though an action plan likely will
not be developed and completed within the ten days allotted for
responding to a TDN. The SRA must adhere to the timelines provided for
in final 30 CFR 733.12(b) related to action plans.
x. Similar Possible Violations
This final rule also amends Sec. 842.11(b)(1)(ii)(B)(1) to reduce
the burden on SRAs and OSMRE. This is accomplished by allowing OSMRE to
issue a single TDN for substantively similar possible violations. The
final rule reads: ``Where appropriate, OSMRE may issue a single ten-day
notice for substantively similar possible violations found on two or
more permits, including two or more substantively similar possible
violations identified in one or more citizen complaints.'' As discussed
in more detail in section II of this preamble, OSMRE is removing the
words ``involving a single permittee'' after ``two or more permits,''
which represents a change from the proposed rule language.
Additionally, as mentioned above, this final rule amends Sec.
842.11(b)(1)(ii)(B)(4)(iii) so that good cause in response to a TDN
includes situations in which ``OSMRE has identified substantively
similar possible violations on separate permits and considers the
possible violations as a single State regulatory program issue . . .
.'' As stated in the preamble to the proposed rule, the phrase
``substantively similar possible violations'' is meant to indicate
issues or possible violations that have a common basis or theme; that
are similar, or even identical, in nature; and that are subject to the
same statutory or regulatory provisions. 88 FR at 24951. Issuing
separate and distinct TDNs for substantively similar possible
violations would be redundant and not an efficient use of OSMRE or
State resources when the underlying issue can be more efficiently
addressed through a single TDN or State regulatory program issue and
associated corrective action plan for a group of similar possible
violations. This is discussed further in section II of this preamble.
OSMRE believes that the presence of similar or identical violations on
several approved permits may indicate a systemic issue with
implementation of an SRA's program and that combining substantively
similar violations into a single State regulatory program issue and
addressing the similar violations through implementation of an action
plan is an efficient means of addressing the underlying issue. Treating
these possible violations as an overarching State regulatory program
issue will allow an SRA and OSMRE to focus on the larger context and
make sure that the underlying issue is efficiently resolved and
properly addressed going forward.
As mentioned above, final section 842.11(b)(1)(ii)(B)(4)(iii) also
provides that ``good cause'' includes when ``OSMRE has identified
substantively similar possible violations on separate permits and
considers the possible violations as a single State regulatory program
issue addressed through Sec. 733.12.'' It is appropriate to consider a
State regulatory program issue and associated action plan as ``good
cause'' because proper completion of the action plan will resolve the
underlying issue. After reconsidering the 2020 TDN Rule, the existing
regulations, and comments on the proposed rule, OSMRE determined that
an action plan is not ``appropriate action'' because creation of the
action plan itself does not resolve or correct the underlying issue.
Instead, as
[[Page 24719]]
its name suggests, it is only a ``plan'' to correct the underlying
issue.
The changes in this final rule enhance efficiency and effectiveness
of the TDN process, while honoring State primacy, and they more closely
adhere to the language, spirit, and intent of SMCRA's statutory
requirements. OSMRE will continue to honor State primacy and perform
its statutorily mandated oversight to ensure adequate SMCRA
implementation in the primacy States. In addition, OSMRE will continue
to work with citizens to ensure that their voices are heard and that
their legitimate concerns are properly addressed as SMCRA intended. In
summary, this final rule eases burdens on citizens filing complaints,
makes the TDN process more effective and efficient, and provides more
structure to the identification of State regulatory program issues and
associated action plan processes. As such, the final rule reduces
burdens on both OSMRE and SRAs and increases the overall effectiveness
of the SMCRA programs.
II. Summary of Changes From the Proposed Rule
As mentioned in section I.B.x of this preamble, in this final rule,
OSMRE made only one change from the proposed regulatory provisions.
OSMRE removed the phrase ``involving a single permittee'' after ``two
or more permits'' from the proposed revisions at 30 CFR
842.11(b)(1)(ii)(B)(1). All other provisions that OSMRE included in the
proposed rule are reflected in this final rule. The final rule language
enables OSMRE to incorporate substantively similar violations into a
single TDN without writing a separate TDN for each permittee. This will
allow OSMRE to group the possible violations together, which will alert
the SRA that the identified permits have possible violations involving
a substantively similar issue and relieve OSMRE of having to write
numerous TDNs for each identified permittee. Without this approach, an
SRA could receive multiple TDNs for substantively similar issues, which
would take undue time and effort for the SRA to evaluate before
identifying the commonality.
III. General Public Comments and Responses
OSMRE published the proposed rule on April 25, 2023 (88 FR 24944),
soliciting public comments for 60 days. During the comment period,
OSMRE received over 5,000 sets of comments from members of the public,
State governments, trade associations, environmental advocacy groups,
and private companies. Each public comment was considered in the
development of the final rule. Many comments were supportive of the
proposed rule, with some expressing support for reverting the
regulations to the pre-2020 rule, which provided for looking only at
the allegations of the citizen complaint before issuing a TDN. OSMRE
also received comments that were critical of the proposed rule. Some of
these comments expressed concern about revising these regulatory
provisions so soon after the 2020 TDN Rule became effective and alleged
that the proposed rule would infringe on State primacy.
Comments received that are similar in nature have been categorized
by subject and, in some instances, have been combined with related
comments.
A. Rule Basis and Justification
Comment: Some commenters asserted that the proposed rule conflicts
with various provisions of SMCRA, especially as it pertains to the
roles and responsibilities of SRAs and OSMRE in primacy states, such as
30 U.S.C. 1201(f), 1253, and 1271. These comments suggested that the
proposed rule should be withdrawn.
Response: As discussed more fully in the preamble of the proposed
rule at 88 FR at 24947-24948 and throughout this preamble, this rule is
fully consistent with the text, legislative history, and purposes of
SMCRA. OSMRE reviewed SMCRA and its legislative history and found no
discrepancy between the statute and the revisions to the regulations
that OSMRE is finalizing in this rule. As the commenters stated, over
the years, several court opinions and the Department have discussed
SMCRA's cooperative federalism structure. In this rule, OSMRE is
committed to ensuring that SRA's maintain their ``exclusive
jurisdiction over the regulation of surface coal mining and reclamation
operations, except as provided in [30 U.S.C. 1271 and 1273].'' 30
U.S.C. 1253(a) (emphasis added). The TDN process, which is the focus of
this rule, is set forth in 30 U.S.C. 1271(a) and is part of OSMRE's
oversight and enforcement role. Because SMCRA specifically exempts the
TDN process from a State's exclusive jurisdiction, this rule is not
inconsistent with SMCRA or any binding legal precedent on this topic.
Comment: One commenter asserted that the proposed rule fails to
acknowledge the 1988 TDN rule and the decades of regulatory policy
established by that rule, such as the limited Federal role in primacy
States and the handling of disagreements between OSMRE and SRAs.
Response: One of the policies established by the 1988 TDN Rule (53
FR 26728) was a uniform standard by which OSMRE would evaluate State
responses to a TDN. The 1988 preamble states that ``OSMRE will accept a
state regulatory authority's response to such a notice, called a ten-
day notice, 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 state's response
was arbitrary, capricious, or an abuse of discretion under the state
program.'' 53 FR at 26728. The 1988 rule clearly delineated the roles
of the State and OSMRE with respect to SMCRA implementation once a
State acquires primacy. In the same preamble, OSMRE also stated: ``In
primacy states, a mine operator's compliance is measured against the
approved state program, rather than directly against the Act. As the
court explained in In re: Permanent Surface Mining Regulation
Litigation (In re: PSMRL), `it is with an approved state law and with
state regulations consistent with the Secretary's that surface mine
operators must comply.' 653 F.2d at 519.'' With respect to OSMRE's role
once a State has an approved State program, OSMRE has stated that ``
`the state regulatory agency plays the major role, with its greater
manpower and familiarity with local conditions. It exercises front-line
supervision, and the Secretary will not intervene unless its discretion
is abused.' '' 53 FR at 26729 (quoting In re: PSMRL, 653 F.2d at 523).
This final rule is consistent with the legal authorities that OSMRE
cited in support of the 1988 rule. Nothing in this final rule changes
OSMRE's long-standing position not to intervene in a State's SMCRA
implementation unless a State is not properly implementing its SMCRA
program as approved. Likewise, OSMRE will continue not to intervene in
a State's enforcement actions unless the State acts inconsistently with
an approved State program. Nothing in this final rule is inconsistent
with these long-standing principles.
Comment: Some commenters stated that the rule lacks any concrete
justification or the legal or factual explanation for changing the 2020
TDN Rule.
Response: OSMRE disagrees. In the preambles to both the proposed
and final rules, OSMRE has demonstrated sufficient legal and factual
reasons for the revisions. This demonstration includes a closer
adherence to SMCRA's statutory requirements, which OSMRE discussed in
detail in the preamble to the proposed rule. Additionally,
[[Page 24720]]
OSMRE observed instances while implementing the 2020 TDN Rule, as
discussed in section I.B of this preamble, where the TDN process was
delayed as OSMRE sought and considered information from SRAs before
issuing a TDN or otherwise disposing of the citizen complaint.
Comment: Some commenters asserted that OSMRE did not have
sufficient experience (at most one year) implementing the 2020 TDN Rule
to support the rule changes. The commenters requested examples, data,
and facts to justify the rule, including specifically how the 2020 TDN
Rule compromised public protections, created delays for OSMRE's
consideration of some possible violations, caused communication
breakdown between OSMRE and SRAs, and created burdens by having the
complainant notify the SRA simultaneously with or before notifying
OSMRE of any potential violations. These commenters also asked for
identification of any material delays discussed in post-2020 OSMRE
reports, including State Oversight Reports, OSMRE Annual Reports, and
budget justifications.
Response: OSMRE has an independent duty to enforce SMCRA in order
to ``assure appropriate procedures are provided for public
participation in . . . the programs established by the Secretary or any
State under this Act . . . .'' 30 U.S.C. 1202(i), 1211(c)(2). Since the
2020 TDN Rule's promulgation, citizen groups have raised legal and
practical issues about it with OSMRE, specifically about actual and
perceived barriers to filing citizen complaints, the length of time it
takes for OSMRE to issue TDNs, and the overall time it takes for
possible violations to be addressed under the 2020 TDN Rule. Regardless
of the time that the 2020 TDN Rule has been in effect, OSMRE has an
obligation to seriously consider whether it caused delays or other
unintended effects and was the best interpretation of SMCRA.
Notably, the commenters do not identify any specific data that is
needed to understand the justification for the rule but instead
suggest, for example, that OSMRE should have sought data from the
States to support this rule. OSMRE did not request any specific data
from SRAs because OSMRE already had all of the information it needed to
review the amount of time it took under the 2020 TDN Rule to issue a
TDN or otherwise address a citizen complaint. OSMRE has been monitoring
implementation of the 2020 TDN Rule from the outset and has observed
that there is often a lag time of a month or more between the time
OSMRE receives a citizen complaint and when a TDN is issued or the
citizen complaint is otherwise resolved. Moreover, one commenter noted
that it was aware of an instance where it took OSMRE almost 60 days to
issue a TDN after receiving a citizen complaint. OSMRE notes there have
been additional instances when there have been several month lags
between the time OSMRE receives a citizen complaint and the time it
notifies the citizen complainant that it does not have reason to
believe a violation exists. OSMRE believes the 2020 TDN Rule would have
continued to lead to enforcement delays. The documented instances of
delay demonstrate how the 2020 TDN Rule is contrary to the immediate
process set forth in 30 U.S.C. 1271(a). To address this issue, this
final rule eliminates the 2020 TDN Rule's potential for an open-ended,
information gathering process--including obtaining information from an
SRA--before OSMRE determines whether it has reason to believe a
violation exists.
Comment: One commenter asserted the proposed rule was generated by
OSMRE Headquarters staff without meaningful consultation with OSMRE's
regional or field office staff.
Response: This comment is not accurate. OSMRE field staff, along
with Headquarters staff, participated in the rule development team
since its inception. OSMRE developed this rule with proper input from
qualified staff.
B. Burden Reduction and Duplication of Work
Comment: One commenter agreed with OSMRE that citizens are burdened
by the existing TDN process and supported reverting to the pre-2020
rule process.
Response: OSMRE appreciates this comment. This final rule will
reduce burdens on citizens to file citizen complaints and otherwise
bring concerns to OSMRE's attention. To arrive at this final rule,
OSMRE reviewed the statutory and regulatory language as well as
implementation of the citizen complaint and TDN processes through the
years and incorporated changes that ease the burden on citizens to
notify OSMRE of a possible violation.
Comment: Some commenters asserted that the proposed changes to the
2020 TDN Rule would create additional burdens, promote duplication of
resources, increase costs, and decrease productivity for SRAs and
subvert their jurisdiction.
Response: OSMRE does not agree with these commenters' assertions.
While this final rule reduces burdens on citizen complainants and the
time it takes to resolve possible violations, it will not
simultaneously increase SRA workloads in an appreciable manner and will
not lead to duplication of inspections and enforcement efforts between
OSMRE and SRAs. As has been the case for many years, after OSMRE issues
a TDN to an SRA, the SRA has the first opportunity to address or
explain the underlying issue. OSMRE will not second guess an SRA's
response to a TDN unless it is arbitrary, capricious, or an abuse of
discretion. As this rule is consistent with 30 U.S.C. 1271(a), there is
nothing in this rule that infringes upon or subverts an SRA's
jurisdiction, obligations, or implementation of its approved State
program.
In addition, as specified in Sec. 842.11(b)(1)(i) of the final
rule, before issuing a TDN, OSMRE will review only ``information
received from a citizen complainant, information available in OSMRE
files at the time that OSMRE is notified of the possible violation . .
. , and publicly available electronic information'' and not information
from a State when it decides if it has reason to believe a violation
exists. As a result, under the final rule, a State need not expend the
time and effort to provide OSMRE with a response at the reason-to-
believe stage and then again if OSMRE ultimately sends a TDN to a
State. This rule ensures that States need only respond to OSMRE about a
citizen complaint once--in response to a TDN, if OSMRE determines that
it has reason to believe a violation exists. Therefore, OSMRE believes
this final rule will not increase the burdens on SRAs and may eliminate
duplicative responses from the SRAs.
Comment: One commenter noted that, according to OSMRE, one of the
``[t]he primary goals of this rulemaking [is] to reduce burdens for
citizens to engage in the TDN process.'' However, according to this
commenter, there is no statutory directive for citizens to participate
in the TDN process.
Response: OSMRE disagrees with the tenor of this comment. Section
521 of SMCRA serves as the statutory underpinning for the TDN process.
It provides that OSMRE can receive information, in writing, from ``any
person'' about a possible SMCRA violation. 30 U.S.C. 1271(a)(1).
However, that provision does not exist in a vacuum; 30 U.S.C.
1267(h)(1) provides that ``any person who is or may be adversely
affected by a surface mining operation'' may contact OSMRE about ``any
violation of this Act which he has reason to believe exists at the
[[Page 24721]]
surface mining site.'' These two provisions operate together so that
the receipt of information from a citizen under 30 U.S.C. 1267(h)(1) is
one way that the TDN process may be initiated.
As the House of Representatives explained in a report preceding
SMCRA's enactment, citizens play an important role in the enforcement
of SMCRA and approved State programs. The House report states:
The success or failure of a national coal surface mining
regulation program will depend, to a significant extent, on the role
played by citizens in the regulatory process. * * * Thus in imposing
several provisions which contemplate active citizen involvement, the
committee is carrying out its conviction that the participation of
private citizens is a vital factor in the regulatory program as
established by the act.
H. Rept. No. 95-218, at 88-89 (April 22, 1977); see also S. Rept. No.
95-128, at 59 (May 10, 1977). This idea is codified in the purposes of
SMCRA at section 102(i) and various statutory sections including
section 521(a)(1) of SMCRA, which provides that the TDN process can be
initiated upon ``receipt of information from any person.'' 30 U.S.C.
1271(a)(1). One of the primary ways that citizens provide such
information to OSMRE is through formal and informal citizen complaints
about possible violations. This final rule assures that citizens can
easily file citizen complaints with OSMRE about possible violations and
play their important role in the implementation and enforcement of
SMCRA and approved State programs.
C. Consultation With States Before and During This Rulemaking
Comment: Some commenters asserted that OSMRE did not engage with
SRAs in the development of the rule as should be expected with
cooperative federalism; accordingly, the commenters urged OSMRE to
abandon the rulemaking.
Response: OSMRE disagrees. In drafting this rule, OSMRE followed
all legal requirements by seeking feedback from SRAs and other
stakeholders through the notice and comment process described in the
Administrative Procedure Act.
D. State Primacy
Comment: One commenter stated that the proposed rule attempts to
``federalize'' issues with State permits because, according to the
commenter, any disagreement between OSMRE and an SRA over a State
permitting decision could be subject to a Federal TDN and potentially
other Federal enforcement actions instead of resting solely with the
SRA, and OSMRE taking oversight action, if necessary, under 30 CFR
733.13 to substitute Federal enforcement of State programs or withdraw
approval of the State program. In addition, this commenter opines that
this interpretation transgresses the careful and deliberate statutory
allocation of regulatory jurisdiction, violates the specific statutory
procedures and deadlines for appealing State permits, and violates the
exclusive avenue for administrative and judicial review of all State
regulatory program decisions. As support for its position, the
commenter cites court decisions, a 2005 letter decision by the
Department's Assistant Secretary for Land and Minerals Management
(ASLM) (which was attached to the comments), a Departmental 2007 rule
preamble, and an OSMRE Director's 2010 memorandum decision.
Response: OSMRE disagrees with this comment. OSMRE has reviewed the
documents cited by the commenter and has determined that nothing in
this final rule conflicts with SMCRA or relevant case law. While the
Department has articulated different positions related to the issuance
of TDNs for permitting issues, OSMRE concludes that the positions it
takes in this final rule best comport with SMCRA section 521(a)(1).
The 2005 ASLM letter decision rejected an environmental group's
request for OSMRE to conduct a Federal inspection of a mine that an SRA
had recently permitted. The letter described the request as asking
``OSM to review the permit decision of [the SRA] with which you
disagree'' and concluded that ``[a] request for inspection under
section 517(h)(1) [of SMCRA] is not an alternative avenue for seeking
review of the regulatory authority's decision to issue a permit.'' The
letter also explained that the request did not provide ``any basis to
conclude that a violation exists at the mine site.'' In addition, the
letter referenced the SRA's ``exclusive jurisdiction'' under SMCRA and
cited several judicial decisions in support of that proposition: Bragg
v. West Virginia Coal Ass'n, 248 F.3d 275, 293-94 (4th Cir. 2001), Pa.
Fed'n of Sportsmen's Clubs, Inc. v. Hess, 297 F.3d 310, 318 (3rd Cir.
2002), Haydo v. Amerikohl Mining Inc., 830 F.2d 494, 497 (3rd Cir.
1987), and In re: PSMRL, 653 F.2d at 519. This commenter also cited
these and other cases in support of its position.
A close examination of the cases cited in the 2005 ASLM letter
decision reveals that they do not address whether OSMRE has oversight
and enforcement authority over State permitting decisions under section
521(a) of SMCRA and OSMRE's implementing regulations. In fact, Bragg
and Pa. Fed'n of Sportsmen's Clubs expressly recognize that, despite
the asserted exclusivity of a primacy State's jurisdiction, OSMRE
retains oversight authority in primacy States. See Bragg, 248 F.3d at
289, 294 (primacy State's ``exclusive jurisdiction'' subject to Federal
oversight and enforcement under section 521 of SMCRA); Pa. Fed'n of
Sportsmen's Clubs, 297 F.3d at 317, 325, 328 (OSMRE's ``oversight
jurisdiction'' under 30 CFR 843.12(a)(2) includes inspection of
specific mines and issuance of notices of violation to State permittees
pursuant to the TDN process). Therefore, the position taken in the 2005
letter decision goes beyond the holdings of the cited cases.
Moreover, the 2010 OSMRE Director's guidance (with which the Office
of the ASLM officially concurred) analyzed and rejected the rationale
set forth in the 2005 ASLM letter. The 2010 Director's guidance
``reaffirm[ed] OSM's historic position on this issue'' and
``clarifie[d] that OSM's TDN and pertinent Federal enforcement
regulations at 30 CFR parts 842 and 843 apply to all types of
violations, including violations of performance standards or permit
conditions and violations of permitting requirements.''
The 2007 rule preamble, 72 FR 68000, 68024-26, also does not
support the commenter's assertions. That preamble relied in part on the
2005 ASLM letter decision and the judicial decisions cited therein to
support the withdrawal of a specific regulatory provision related to
``State-issued permits that may have been improvidently issued based on
certain ownership or control relationships,'' which had been previously
codified at 30 CFR 843.21. See 72 FR at 68024. Before it was removed,
that section provided for ``direct Federal inspection and enforcement .
. . if, after an initial notice, a State failed to take appropriate
action or show good cause for not taking action with respect to an
improvidently issued State permit.'' Id. When OSMRE withdrew that
specific regulatory provision, however, it did not amend the general
TDN regulatory provision that this final rule has revised (Sec.
842.11). Indeed, that preamble did not even mention Sec. 842.11. In
any event, the 2007 rule preamble language does not expressly pertain
to how OSMRE interpreted Sec. 842.11, and, as mentioned, OSMRE
concludes that its positions in this final rule best comport with SMCRA
and the relevant implementing regulations. Moreover, as discussed
above, in 2010, the OSMRE Director, with the concurrence of the Office
of the
[[Page 24722]]
ASLM, rejected the rationale in the 2005 ASLM letter decision.
The 2007 rule preamble cited Nat'l Mining Ass'n v. U.S. Dep't of
the Interior, 177 F.3d 1 (D.C. Cir. 1999) (NMA v. DOI II), in support
of rescinding former Sec. 843.21. 72 FR at 68025-26. The better
reading of that opinion, however, is the Department's contemporaneous
interpretation in the 2000 preamble, see, e.g., 65 FR 79582, 79652. In
2000, the Department explained, among other things, that, in the NMA v.
DOI II decision, ``the court upheld our ability to take remedial action
relative to improvidently issued State permits, but found that our
previous regulations `impinge on the ``primacy'' afforded states under
SMCRA insofar as they authorize OSM to take remedial actions against
operators holding valid state mining permits without complying with the
procedural requirements set out in section 521(a)(1) of SMCRA, 30
U.S.C. 1271(a).' '' 65 FR at 79652 (citing NMA v. DOI II, 177 F.3d at
9). In 2000, the Department revised the regulation to conform with the
court's decision. The 2007 rule preamble later set forth an alternative
interpretation of the relevant NMA v. DOI II holding, which the
Department no longer supports. See, e.g., 2010 OSMRE Director's
memorandum decision.
In addition, under section 503(a) of SMCRA, 30 U.S.C. 1253(a), upon
OSMRE's approval of a State program, a State ``assume[s] exclusive
jurisdiction over the regulation of surface coal mining and reclamation
operations, except as provided in sections 1271 [SMCRA section 521] and
1273 of this title and subchapter IV of this chapter . . . .''
(Emphasis added.) This final rule implements section 521 of SMCRA and
thus is an exception to a State's otherwise-exclusive jurisdiction.
SMCRA also refers to a State's ``primary responsibility.'' See, e.g.,
30 U.S.C. 1291(26) (defining ``State regulatory authority'' to mean
``the department or agency in each State which has primary
responsibility at the State level for administering [SMCRA].'').
However, this language is describing which State department or agency
will administer SMCRA at the State level and does not remove OSMRE
oversight in any way. The final rule is consistent with the State
regulatory authority's responsibility to administer SMCRA, which
affords the SRA the first opportunity to address the underlying issue
identified in a TDN. And OSMRE is prepared to accept a State's response
to a TDN unless it is arbitrary, capricious, or an abuse of discretion,
which is an appropriately high level of deference.
OSMRE disagrees with the commenter's other assertions about how
this rule impinges on State primacy. This final rule does not allow
OSMRE to intervene in a State's permitting action while the permit
application is under review, nor does it contain any language that
circumvents the process for appealing a State's permitting actions. A
TDN is appropriate to address situations where a permittee is not
mining in accordance with the approved permit or the approved State
permit allows the permittee to mine in a manner that is inconsistent
with the approved State program.
In sum, this final rule is consistent with SMCRA and binding legal
precedent.
E. ``Any Person'' Who Can Be in Violation of SMCRA
Comment: Some commenters asserted that in section 521(a)(1) of
SMCRA, ``any person'' who can be in violation of SMCRA or the
applicable State program means a permittee, not the SRA.
Response: As explained in section I.B of this preamble, OSMRE
concludes that ``any person'' in violation under section 521(a)(1) of
SMCRA includes an act or omission by an SRA that is inconsistent with
its State program. The relevant SMCRA language refers to ``any person [
] in violation of any requirement of this Act or any permit condition
required by this Act . . . .'' As noted above, the preamble to the 2020
TDN Rule stated that ``any person'' who can be in violation of SMCRA or
a State regulatory program ``does not include a State regulatory
authority, unless it is acting as a permit holder.'' 85 FR at 75176;
see also id. at 75179. However, after careful consideration and review,
OSMRE concludes that an SRA is not exempt from the meaning of the
phrase ``any person'' in this context. For over four decades, the
Federal regulations at 30 CFR 700.5 have defined ``any person'' to
include ``any agency, unit, or instrumentality of Federal, State or
local government . . . .'' This definition would clearly include an
SRA, which is an agency or unit of a State government. OSMRE did not
change this general definition in the 2020 TDN Rule even though it
excluded an SRA from ``any person'' in the TDN context. OSMRE now
concludes that the term ``any person'' in 30 U.S.C. 1271(a)(1) should
match this long-standing definition. As a result, a TDN could be issued
for a possible violation if the SRA issues a permit that is not in
compliance with an approved State program or that authorizes a
permittee to mine in a manner that is inconsistent with that program.
If an SRA issues such a permit, that would be a violation of a
``requirement of this Act'' or the applicable State program. Thus,
under this final rule, if an SRA issues a permit that would allow a
permittee to mine in a manner that is inconsistent with the approved
permit or the approved State program, or that fails to include one or
more required provisions of the approved State program, that will be
considered as a possible violation for TDN purposes.
F. Permit Defects
Comment: Some commenters supported the proposed rule, stating that
it properly recognized that SMCRA intended ``permit defects'' to be
among the types of violations that OSMRE must address under the TDN
process as an avenue for citizens to raise concerns with permit-related
actions that may impact their lives.
Response: OSMRE appreciates these commenters' support for the
proposed change requiring a TDN be sent to an SRA for a possible
violation in the form of a permit defect. As outlined in the preamble
to the proposed rule and discussed in sections 1.B and III.F of this
preamble, OSMRE agrees with these commenters and concludes that a close
reading of SMCRA indicates that permit defects, just like all other
possible violations, are subject to a TDN. Thus, under this final rule,
OSMRE, upon forming reason to believe a violation exists, will consider
permit defects under 30 CFR part 842.
Comment: A few commenters asserted that OSMRE should ensure that
the regulations make clear that a violation is ``earth bound.'' As
support, the commenters noted that, when discussing a Federal
inspection, SMCRA section 521(a)(1) refers to alleged violations
occurring at a surface coal mining operation and that the last sentence
of that provision allows citizen complainants to accompany an inspector
on a Federal inspection.
Response: We disagree with the conclusions the commenters reach
from the statutory provision cited. In order to determine if a surface
coal mining operation is meeting the approved program or any permit
condition as required by both the existing and final rule at Sec.
842.11(b)(1)(i), it is sometimes necessary for OSMRE to not just
observe a mine site, but also to review and examine the SRA's
permitting material. As a result of this review, a violation may be
identified in those materials regardless of whether that violation can
also be observed at the mine site. Indeed, the existing Federal
regulations
[[Page 24723]]
require SRAs to make records related to surface coal mining operations
available to OSMRE. 30 CFR 840.14(a). Because OSMRE sometimes needs to
review the permitting files, OSMRE has historically viewed these files
and related materials as items that should be considered during a
Federal inspection. OSMRE adheres to that long-standing approach in
this final rule.
G. Procedural Determinations
Comment: A few commenters asserted that the 2023 proposed TDN rule
would produce ``significant new, unjustified'' exchanges of paper
between OSMRE and the SRA, resulting in increased burden.
Response: OSMRE's analysis under the Paperwork Reduction Act
indicates that there will be no new OSMRE requests for information as a
result of the changes in this final rule. Consequently, the final rule
will not increase the regulatory burden. Under this final rule, OMSRE
will only consider information contained in a citizen complaint,
information already in OSMRE's files at the time of a citizen
complaint, and publicly available electronic information to inform
whether OSMRE has reason to believe a violation may be present.
OSMRE strives to reduce redundancy particularly when a simple
search for publicly available electronic records can often adequately
inform the ``reason to believe'' analysis and determination. As such,
there is no additional transactional cost or burden created between the
SRA and OSMRE when available data from the three identified sources
provides sufficient information collection to reach a sound decision on
whether OSMRE has reason to believe. Based on OSMRE's experience, it
does not believe more TDNs will result from implementing this final
rule when viewed in the context of OSMRE's history related to writing
TDNs. Additionally, OSMRE estimates that the number of TDNs and
associated burden hours will stay the same as what is currently
authorized by OMB 1029-0118. Moreover, the SRAs already have a legal
responsibility to address underlying possible violations in accordance
with their approved State programs. A TDN is OSMRE's mechanism to
notify an SRA of a possible violation in accordance with OSMRE's
statutorily mandated oversight responsibilities. Even if an increase in
TDNs does result in an SRA needing to generate more responses to OSMRE,
addressing substantively similar possible violations as a single State
regulatory program issue and not requesting information from the SRA at
the time OSMRE is determining whether it has reason to believe a
violation exists will introduce efficiencies in the process and limit
paperwork burdens in those situations.
Comment: Some commenters asserted that the rule ``totally redefines
the relationship between itself and the States by essentially
eliminating State primacy under SMCRA'' such that OSMRE must prepare a
federalism summary impact statement.
Response: OSMRE disagrees. As explained in the responses above,
this rule neither makes OSMRE a co-regulator in primacy states nor
otherwise deviates from SMCRA's statutorily defined cooperative
federalism. SRAs will still retain exclusive jurisdiction subject to
OSMRE's oversight and enforcement authority set forth in 30 U.S.C. 1271
and 1273. The final rule focuses on OSMRE's process for handling
citizen complaints, issuing TDNs, and OSMRE's oversight
responsibilities, all of which are provided for in 30 U.S.C.
1271(a)(1)--an exception to the exclusive jurisdiction of the SRAs. If
an SRA receives a TDN from OSMRE, the SRA will continue to have the
first opportunity to address possible violations in accordance with
their approved State program, which remains codified in its State laws
and regulations. While revising the existing regulations governing the
TDN process will have a direct effect on the States' and the Federal
Government's relationship with the States, this effect will not be
significant, as it will neither impose substantial unreimbursed
compliance costs on States nor preempt State law. OSMRE also does not
believe more Federal inspections and Federal enforcement actions in
primacy States will result from this rule. As discussed in the response
to the preceding comment, this rule will not significantly increase
burdens on SRAs to address and resolve underlying issues. As such, a
federalism summary impact statement is not required.
Comment: A few commenters stated that the TDN rule would increase
regulatory burdens on SRAs so OSMRE needs to prepare a regulatory
flexibility analysis under the Regulatory Flexibility Act.
Response: OSMRE disagrees with these comments because, as discussed
in prior responses to comments, the new rule provisions are considered
enhancements in aiding more efficient and effective enforcement rather
than adding new significant regulatory burden on SRAs.
H. Minor Text Changes and Conforming Edits
Comment: A few commenters stated that changes in the regulatory
text that are editorial or introduce plain language changes in the rule
text may be interpreted by courts as substantive changes. These
commenters suggested that OSMRE should not make any editorial changes
so that a court cannot reinterpret the intended meaning.
Response: OSMRE disagrees with the commenters. OSMRE has made
certain changes in language pursuant to the Plain Writing Act of 2010
to improve the readability of the rule that do not affect its
substance. Any challenges to these minor, non-substantive wording
changes would likely withstand legal scrutiny, particularly when OSMRE
has noted that it did not intend substantive changes in meaning.
IV. Section-by-Section Summaries of and Responses to Public Comments
This section presents a summary of the final rule revisions,
section-by-section, accompanied with summaries of comments and OSMRE's
responses to the comments. This section starts with the revisions to 30
CFR part 842, followed by the revisions to 30 CFR part 733, to mirror
the sequence of the TDN process (i.e., issuance of a TDN under part
842, followed by possible grouping of substantively similar possible
violations into a State regulatory program issue under part 733).
A. 30 CFR 842.5
Summary of final rule provisions at 30 CFR 842.5: The final rule
creates a new definitions section at 30 CFR 842.5 that includes
definitions for the terms ``citizen complaint'' and ``ten-day notice.''
The definition of ``citizen complaint'' includes the word ``possible''
to modify ``violation,'' indicating that not all complaints need to
contain an affirmative allegation of a violation but can still identify
a possible violation. The definition of ``ten-day notice'' provides a
uniform understanding of the term, emphasizing that a TDN is a
communication mechanism that OSMRE uses to inform an SRA of a possible
violation of its State regulatory program when OSMRE has reason to
believe such a violation exists.
Comment: Some commenters supported the proposed definition of
``ten-day notice'' and the recognition that the TDN is a communications
mechanism and not a judgment or determination on the performance of the
permittee, operator, or SRA.
Response: OSMRE appreciates the support and again reiterates that a
TDN
[[Page 24724]]
is not an enforcement action in and of itself and the issuance of a TDN
is not a negative reflection on the permittee, operator, or the SRA. It
is simply the mechanism that OSMRE uses to inform an SRA about a
possible violation so that the SRA can investigate that allegation and
take action to abate the violation if the SRA determines a violation
exists.
Comment: Some commenters stated that ``citizen complaint'' and
``ten-day notice'' already have sufficient meaning and do not need to
be defined.
Response: OSMRE disagrees with these comments. While implementing
the SMCRA program, OSMRE has heard various proposed interpretations for
both terms from citizens, SRAs, and among its own staff. For example,
during TDN implementation, OSMRE has observed a range of references to
citizen complaints that characterize the complaints as anything ranging
from any information received to information that must be ``perfected''
before it would be considered a citizen complaint. These disparate
definitions mean that different people may treat information received
from citizens differently. For example, one person may consider the
information received and start the TDN process whereas another person
may review similar information, deem it unperfected, and delay action
or forgo issuing a TDN. OSMRE is introducing regulatory certainty by
establishing uniform definitions of these common terms.
Comment: One commenter asserted that the proposed changes to the
TDN process convert the TDN from a communication tool to an enforcement
tool.
Response: OSMRE does not agree with this comment. There are no
enforcement provisions associated with a TDN itself, and there is no
enforcement downstream of a TDN unless a State does not respond to the
TDN or the response is arbitrary, capricious, or an abuse of
discretion. That standard is deferential, and, in this regard, this
final rule is no different than prior iterations of the rules. As such,
a TDN is accurately described as a communication mechanism between
OSMRE and an SRA about a possible violation.
Comment: One commenter suggested that OSMRE specify that the
definition of ``citizen complaint'' includes ``any information received
from any person by the OSMRE of a condition or practice that might be a
possible violation of the Act . . .'' (emphasis added to identify the
commenter's suggested additions to the rule text).
Response: As OSMRE understands the comment, adding this language to
the definition of ``citizen complaint'' would not improve the
definition of the term or add any clarity because the suggested phrase
is encompassed by the definition of the term in this final rule. If a
questionable condition or practice is occurring, the key question is
whether it constitutes a possible violation of a State program. If
OSMRE has reason to believe a possible violation exists, OSMRE will
issue a TDN to the relevant SRA for the condition or practice. The
proposed language is therefore unnecessary and could imply that other
possible violations of a State program are not encompassed by the
definition.
Comment: One commenter suggested changing the term ``ten-day
notice'' to ``Ten-Day Notification to Respond'' because the proposed
rule will create two types of TDNs, one that results from a possible
SRA violation and a second that results from a citizen complaint.
Response: OSMRE disagrees that this rule creates two types of TDNs,
and it sees no benefit in revising the term or in using two terms to
describe a single process. OSMRE determines whether it has reason to
believe a violation exists from any source of information concerning a
possible violation, including information from a citizen or from an
oversight inspection. If it makes such a determination, OSMRE will send
the SRA a TDN, regardless of whether that possible violation stems from
an action of the permittee or from an SRA issuing a permit that is
inconsistent with the approved State program or that would allow a
permittee to mine in a manner that is inconsistent with the State
program.
B. 30 CFR 842.11(b)(1)(i)
Summary of final rule revisions to 30 CFR 842.11(b)(1)(i): As in
the proposed rule, the final rule limits the sources of information
that OSMRE reviews when determining whether OSMRE has reason to believe
a violation exist. The final rule amends the text of Sec.
842.11(b)(1)(i), in pertinent part, to state that the authorized
representative determines whether there is ``reason to believe'' that
there is a violation based on ``information received from a citizen
complainant, information available in OSMRE files at the time that
OSMRE is notified of the possible violation (other than information
resulting from a previous Federal inspection), and publicly available
electronic information.''
Comment: Some commenters asserted that the proposed rule
impermissibly raises the bar on Federal action, impermissibly delays
notification to the SRAs through the TDN process, and is inconsistent
with SMCRA because OSMRE would delay issuance of a TDN until after a
records search of all electronic databases, any complaint information,
and other information not in the agency's possession when the complaint
is received.
Response: OSMRE disagrees with these comments. SMCRA affords OSMRE
discretion to establish whether OSMRE has reason to believe a violation
exists based on ``any information available.'' 30 U.S.C. 1271(a)(1).
OSMRE review of these three sources of information that are available
to it at the time the citizen complaint is received neither ``raises
the bar'' with respect to information collection nor delays
notification to a State of a possible violation because OSMRE must
still form the predicate belief in a possible violation. In this rule,
OSMRE merely explains the processes it will use to form that belief.
Thus, OSMRE will review the citizen complaint and information that
OSMRE already has in its files or from publicly available electronic
information. In addition, OSMRE, in its expertise, has sufficient
knowledge to identify pertinent publicly available electronic
information that may be relevant to the citizen complaint and that will
help it to determine whether it has reason to believe a violation
exists. OSMRE does not envision exhaustive, time-consuming reviews of
any of these sources of information.
This final rule eliminates the potential that the 2020 TDN Rule
could allow for an open-ended, information gathering process before
OSMRE determines whether it has reason to believe a violation exists;
however, the final rule retains the 2020 TDN Rule's removal of the ``if
true'' standard. Therefore, this final rule will allow OSMRE to proceed
more quickly and efficiently than under the 2020 TDN Rule when making a
reason to believe determination. At the same time, this final rule will
allow OSMRE to exercise its expertise in reviewing citizen complaints
to determine whether there is reason to believe a possible violation of
SMCRA, the regulations, the State program, or permit condition exists
before deciding whether to send the SRA a TDN.
Comment: Some commenters supported OSMRE's limiting of the
information it can review when establishing reason to believe to that
information found in the complaint, publicly available electronic
information, and information OSMRE already possesses.
[[Page 24725]]
Response: OSMRE appreciates these comments. Limiting the
information to these three sources will result in an expeditious
``reason to believe'' determination while at the same time making the
process more efficient.
Comment: Some commenters agreed that the complainant may not
understand SMCRA's technical details, but an agency official, trained
in interpreting regulations, can determine if a possible violation
exists and notify the SRA.
Response: OSMRE agrees with these comments. OSMRE has developed
considerable expertise since the enactment of SMCRA in 1977 as it
implements SMCRA in Federal program States and on Indian lands across
the country and provides oversight of the 24 State programs. As stated
above, this final rule allows OSMRE to use this expertise to initially
evaluate a citizen complaint along with limited sources of other
information, determine if a possible violation exists, and, if so, let
the SRA know using a TDN.
Comment: One commenter supported the changes that limit the
information OSMRE can consider when evaluating a citizen complaint and
restore the requirement that complaints contain ``information'' rather
than ``documentation.''
Response: OSMRE appreciates the commenter's support. SMCRA affords
citizens with the opportunity to report possible violations to either
the SRA or OSMRE. Likewise, it contains a low threshold with respect to
OSMRE establishing reason to believe a violation exists and stops short
of requiring documentation from a citizen complainant before OSMRE
decides whether to send a TDN to the SRA. Thus, in final sections
842.11(b)(1)(i) and 842.11(b)(2), OSMRE will not require a citizen to
provide documentation; instead, OSMRE will consider any information
that a citizen complainant provides.
Comment: Some commenters asserted that excluding SRA input will
result in redundant, duplicative enforcement processes.
Response: OSMRE disagrees. OSMRE's goal is not to exclude SRA input
but rather to remove a process that is duplicative of the TDN process
itself, which will expedite OSMRE's initial evaluation of the
prospective violation. In addition, under SMCRA, the TDN is the
communication mechanism that OSMRE sends to the SRA whenever OSMRE has
reason to believe a violation exists. As explained above, OSMRE will
only take enforcement action if the SRA fails to respond to the TDN or
the response is arbitrary, capricious, or an abuse of discretion. Thus,
there will not be redundant enforcement processes.
Comment: One commenter stated that State-supplied information
should be considered when establishing reason to believe a violation
exists.
Response: OSMRE disagrees with the commenter. OSMRE concludes that
seeking and considering information from an SRA before making a reason
to believe determination is not the best interpretation of section
521(a)(1) of SMCRA and creates a duplicative process within the TDN
process. However, publicly available electronic information may include
publicly viewable SRA permitting databases, water monitoring and
reporting databases, GIS applications, and other easily viewable
information.
Comment: A few commenters suggested that OSMRE should develop an
internal OSMRE policy on information collection in lieu of this
rulemaking.
Response: OSMRE recognizes that it may have been able to use
internal policy guidance, such as a directive, to clarify to its own
staff what types of information OSMRE could consider when evaluating a
citizen complaint to determine if it has reason to believe a violation
exists. However, given the indirect impacts on SRAs and the public as
well as SMCRA's focus on ``assur[ing] appropriate procedures are
provided for public participation[,]'' 30 U.S.C. 1202(i), we concluded
that regulations, rather than internal and non-binding policy
documents, were the appropriate mechanism because they are more
transparent, easily accessible, and create more regulatory certainty
than an internal guidance document. OSMRE will continue to employ
internal policy documents and directives, as necessary, to ensure that
OSMRE staff are properly and consistently implementing the final rule.
Therefore, OSMRE intends to revise the relevant policy and guidance
documents after this final rule becomes effective to ensure there are
no conflicts between the final rule and preexisting guidance.
Comment: Some commenters asserted that delays in the TDN process
will result from OSMRE reviewing all information contained in OSMRE
files, publicly available electronic information, and information
contained in a citizen complaint.
Response: OSMRE recognizes that there may be some small delay as
OSMRE reviews information in the citizen complaint, information in
OSMRE's files, and publicly available electronic information; however,
this delay should be minor compared to the delays that have sometimes
occurred under the 2020 TDN Rule as OSMRE sought additional information
from an SRA and thoughtfully considered the information that had been
received. By allowing OSMRE to consider only these three sources of
information available to it at the time it receives the citizen
complaint, OSMRE should be able to more expeditiously establish whether
reason to believe a possible violation exists, and, if so, send the SRA
a TDN so that the SRA can conduct an investigation and respond to OSMRE
within ten days. Therefore, while it may be marginally faster for OSMRE
to act simply as a pass through for citizen complaints, this process is
streamlined in comparison to the existing rule.
Comment: Some commenters assert that the scope of information
considered in the proposed rule is inconsistent with SMCRA, which,
according to these commenters, requires OSMRE to consider ``all
information available.''
Response: OSMRE disagrees with the commenters' assertion that OSMRE
must consider ``all information available.'' SMCRA section 521(a)(1)
provides that OSMRE should consider ``any information available'' to
determine if it has reason to believe a violation exists, not all
information that tends to disprove the existence of a possible
violation. Even in the 2020 TDN Rule, OSMRE recognized that it should
not consider ``all information available'' and sought to put sideboards
on data collection by basing a reason to believe determination on ``any
information readily available.'' 30 CFR 842.11(b)(1)(i) (see also Sec.
842.11(b)(2) (referencing ``any information readily available'')).
Moreover, the preamble to the 2020 TDN Rule clearly explained that, to
ensure the process would proceed quickly and not become ``open-ended,''
OSMRE would only consider ``any information that is accessible without
unreasonable delay'' to be ``readily available information.'' 85 FR at
75163.
However, because the 2020 TDN Rule did not limit sources of
information it considered to be ``readily available'' as this final
rule does, in some instances there have been extensive investigations
and data collection before issuance of a TDN or before OSMRE determined
whether reason to believe existed. This result is contrary to section
521(a)(1), which focuses on correcting possible violations
expeditiously.
To reduce any delay, the final rule provides that OSMRE should use
its best professional judgment, including any information it has on
hand when it receives the citizen complaint, to determine whether it
has reason to believe a violation exists. This approach
[[Page 24726]]
strikes a balance between collecting all available information, which
could include information obtained from any source after the citizen
complaint is received, along with the attendant delays in seeking and
considering such information, and considering only information in a
citizen complaint, which was the case prior to the 2020 TDN Rule. The
more limited information that OSMRE will consider under this final rule
fully comports with the statutory directive to consider ``any
information available'' to determine whether OSMRE has reason to
believe a violation exists, as well as the structure of section
521(a)(1), which seeks to resolve possible violations quickly.
Comment: One commenter asked if OSMRE could provide an example of
the information that will no longer be used for a reason to believe
determination if the objective of the change is to expedite the TDN
process.
Response: Under the final rule, OSMRE will only consider
information contained in its files at the time it is notified of a
possible violation, information contained in a citizen complaint, and
publicly available electronic information. All other sources of
information will not be considered when OSMRE determines whether it has
reason to believe a violation exists. Information excluded could
include information provided by an SRA or permittee after OSMRE
received the citizen complaint that is not publicly available. These
limitations will help to prevent an open-ended investigation of the
possible violation before OSMRE determines whether to issue a TDN.
Comment: One commenter noted that the proposed rule suggested that
OSMRE will consider verbal allegations when making ``reason to
believe'' determinations and recommends removing the option for an oral
complaint to prevent inconsistencies between verbal and written
complaints.
Response: Accepting a verbal citizen complaint and request for a
Federal inspection, followed by submission of the complaint in writing,
has been a feature of the regulations for many years. See 30 CFR
842.12(a). In order to ensure public participation in the enforcement
of SMCRA, especially from those who may not be well-versed in SMCRA or
its regulations, as well as comply with the requirements of section
517(h)(1), OSMRE will continue to allow a verbal citizen complaint as
long as the oral complaint is followed up in writing.
C. 30 CFR 842.11(b)(1)(ii)
Summary of final rule revisions to 30 CFR 842.11(b)(1)(ii): At 30
CFR 842.11(b)(1)(ii)(B)(1), the final rule adds a new sentence at the
end of the existing provision. In the final rule, the sentence reads:
``Where appropriate, OSMRE may issue a single ten-day notice for
substantively similar possible violations found on two or more permits,
including two or more substantively similar possible violations
identified in one or more citizen complaints.'' In the proposed rule,
OSMRE proposed to include the phrase ``involving a single permittee''
after ``two or more permits.'' The rationale for this change to the
proposed rule is discussed in section II of this preamble.
At 30 CFR 842.11(b)(1)(ii)(B)(3), this final rule also eliminates
the language from the existing regulations that allowed for the
possibility that corrective action plans for State regulatory program
issues under 30 CFR part 733 could be a form of ``appropriate action''
in response to a TDN. Instead, in appropriate circumstances, under the
final rule at new Sec. 842.11(b)(1)(ii)(B)(4)(iii), State regulatory
program issues addressed under final Sec. 773.12, and associated
action plans, will be included under the ``good cause'' exception for
not acting in response to a TDN, aligning the regulations more closely
with statutory requirements. Finally, the good cause provision of the
final rule at Sec. 842.11(b)(1)(ii)(B)(4)(ii) outlines specific time
limits for SRAs to request extensions to determine whether a violation
exists, with a maximum cap of 90 additional days, emphasizing
expeditious resolution.
Comment: Some commenters noted that SMCRA section 521(a)(1)
authorizes the issuance of a TDN only when there is reason to believe
that a violation--not the plural ``violations''--exists.
Response: To the extent that these commenters are suggesting that
OSMRE must issue a separate TDN for each individual possible violation,
OSMRE disagrees with the commenters. SMCRA section 521(a)(1) does not
limit the number of possible violations that can be included in a TDN.
Nor does SMCRA limit the number of substantively similar possible
violations that OSMRE can group together as a single State regulatory
program issue.
Comment: Some commenters asserted that an action plan should not
count as either appropriate action or good cause for not taking such
action. The commenters also asserted that an action plan does not
replace immediate enforcement action if violations become manifest.
Response: As noted above, we agree with the commenters that
development of an action plan does not constitute appropriate action
that in and of itself corrects a violation in a manner consistent with
SMCRA. As such, OSMRE has concluded that it is not correct to consider
development of an action plan as appropriate action in response to a
TDN.
We disagree with the commenters, however, that development of an
action plan could not be good cause for not taking appropriate action.
As noted in this final rule, OSMRE added Sec. 842.11(b)(1)(B)(4)(iii)
to specify that State regulatory program issues addressed through a
Sec. 733.12 action plan could constitute good cause. An action plan
would ensure the violation is corrected, even if the correction does
not occur until after the plan is executed. Allowing a State to invoke
good cause for addressing a possible violation through an action plan
does not, however, mean that the underlying violation will not be
corrected. Instead, it means that the correction of the violation may
occur later as the systematic issues are addressed, which could be as
late as the implementation of the action plan, but may be sooner. For
example, under this final rule at Sec. 733.12(d), even if a possible
violation is being addressed as a State regulatory program issue, an
SRA can take direct enforcement action under its State regulatory
program and OSMRE can take additional appropriate oversight enforcement
action. Alternatively, if OSMRE has adequate proof of an imminent harm,
OSMRE would immediately conduct a Federal inspection even if OSMRE is
also developing a part 733 action plan.
Comment: Some commenters recommended that OSMRE should allow a
request for additional time to be considered an appropriate action.
Response: A request for additional time to review a specific
situation is not considered an ``appropriate action to cause the said
violation to be corrected'' as required by 30 U.S.C. 1271(a)(1), but
more appropriately falls under the good cause provision for not acting
to correct the violation within ten days. Requesting more time to
evaluate a situation can be an appropriate response to a TDN, but it
should not be confused with an appropriate action to correct the
violation.
Comment: One commenter requested that OSMRE retain the language in
the 2020 TDN Rule that allows for a State issuance of a notice of
violation (NOV) with appropriate remedial measures and deadlines to be
regarded as appropriate action.
Response: The 2020 TDN Rule allowed OSMRE to consider an SRA's
response indicating that it had written
[[Page 24727]]
an NOV to the permittee for the possible violation contained in a TDN
to be an appropriate action in response to a TDN. This final rule does
not change that concept.
Comment: Some commenters asserted that use of action plans for
violations erases the distinction between SMCRA section 521(a) ``on-
the-ground'' violations and section 521(b) State regulatory program
issues. The commenters stated that OSMRE must use its Federal
substitution regulations when a State regulatory program issue is
evident rather than developing an action plan or using the TDN process.
Response: OSMRE disagrees with this assertion. As explained in
sections I.B and III.E of this preamble, SMCRA section 521(a) contains
the conceptual framework for addressing a violation of ``any person''--
either a permittee's violation or a violation stemming from an SRA's
improper implementation of its approved program. Addressing on-the-
ground violations and State regulatory program issues through the Sec.
842.11 process is consistent with SMCRA and OSMRE's approach in this
rule.
Moreover, as we explained in the preamble to the 2020 TDN Rule, the
addition of corrective action plans under Sec. 773.12(a)(2) did not
``significantly alter OSMRE's implementation of the SMCRA program''
because OSMRE has used a similar process through guidance documents for
years. 85 FR at 75153. The final rule retains the use of the action
plan process ``to more easily address, with the cooperation of the
State regulatory authority, situations where an alleged violation can
be traced to a systemic problem within an existing State regulatory
program.'' Id. at 75172. OSMRE maintains, as it did in the 2020 TDN
Rule, that corrective action plans are ``consistent with SMCRA's
cooperative federalism approach, and OSMRE expects to use revised 30
CFR 733.12 more frequently than it has traditionally used its authority
to substitute Federal enforcement or withdraw State program approval
because it will allow OSMRE to work with a State regulatory authority
to cooperatively correct a State regulatory program issue.'' Id.
If, at any time, OSMRE is addressing a potential violation that is
a State regulatory program issue and later concludes that the SRA is
not effectively implementing, administering, enforcing, or maintaining
any part of its approved State regulatory program, OSMRE may then also
initiate procedures at Sec. 733.13 to substitute Federal enforcement
or withdraw approval of the State regulatory program. A State
regulatory program issue by itself does not, at least initially, rise
to the level of calling for substituting Federal enforcement or
withdrawing the State program, especially if the state is working with
OSMRE to implement an action plan. Identification of a State regulatory
program issue, instead, is intended to provide an efficient process for
an SRA to work with OSMRE to ensure it is effectively implementing its
program before the State regulatory program issue ``warrant[s] the rare
remedies of substitution of Federal enforcement or withdrawal of an
approved State program.'' Id. at 75175.
Comment: Commenters stated that informal review afforded to an SRA
under 30 CFR 842.11(b)(1)(iii) should not interfere with OSMRE's
obligation to initiate a Federal inspection and enforcement action, as
there is no legal authorization in the text or legislative history of
SMCRA for OSMRE to wait for informal review to be complete before
conducting a Federal inspection if OSMRE concluded, after receiving an
SRA's TDN response, that the State failed to take appropriate action or
did not have good cause for doing so.
Response: Existing 30 CFR 842.11(b)(1)(iii)(A) indicates that when
OSMRE notifies an SRA that its response to a TDN does not constitute
appropriate action or good cause, the State is entitled to seek
informal review by OSMRE's Deputy Director. Also, in general, Sec.
842.11(b)(1)(iii)(B) provides that no Federal inspection can be
conducted, or corresponding enforcement action taken, until the
informal review is completed. OSMRE did not propose to amend its
informal review process and declines to make any changes now based on
these comments. Because of the importance of these procedures, any such
changes should be subject to full notice and comment, especially from
the SRAs, who would be most affected by any changes.
Comment: One commenter asserted that actions plans should not be
considered ``good cause'' for failing to take appropriate action
because an action plan itself is a type of action. Thus, this commenter
opined that when an SRA enters into an action plan, it should be
considered ``appropriate action.'' Because OSMRE only evaluates whether
a State has shown ``good cause'' when the SRA fails to act on a TDN,
actions it takes under an action plan should not be part of OSMRE's
``good cause'' determination.
Response: As explained above, OSMRE disagrees. Section 521(a)(1)
provides that OSMRE should conduct a Federal inspection if the SRA
``fails within ten days after notification to take appropriate action
to cause said violation to be corrected or to show good cause for such
failure.'' 30 U.S.C. 1271(a)(1). While we agree with the commenter's
overarching point that an action plan will cause the violation to be
corrected, that correction did not happen during the ten days in which
the SRA responded to OSMRE's TDN. Therefore, it is more consistent with
SMCRA to consider action plans as ``good cause'' in response to a TDN.
Comment: One commenter requested clarification on whether, because
of OSMRE not allowing action plans to be appropriate action in response
to a TDN, a TDN will be considered an open, unresolved enforcement
action until the action plan is completed.
Response: A TDN would remain open while an action plan is being
used to resolve an underlying violation. Upon successful completion of
the action plan, the SRA will be deemed to have taken appropriate
action because the underlying violation will have been abated, and the
TDN will be resolved. As noted above, the TDN is a communication
mechanism and is not itself an enforcement action.
Comment: Some commenters supported the shortened time limits for
how much additional time States may request to respond to a TDN. The
commenters noted that this will be 30 days in most cases and 60 days in
complex cases.
Response: Under this final rule, an SRA must continue to respond to
a TDN within ten days. The time frames to which the commenters are
referring apply to the good cause provisions under final 30 CFR
842.11(b)(1)(ii)(B)(4)(ii) after a TDN is issued. Under that provision,
good cause includes when ``[t]he State regulatory authority has
initiated an investigation into a possible violation and has determined
that it requires an additional amount of time to determine whether a
violation exists.'' This additional amount of time may be days or
weeks, which is obviously necessary sometimes to develop material to
determine whether a violation does exist. As the commenter notes, under
this final rule, the ``State regulatory authority may request up to 30
additional days to complete its investigation of the issue; in complex
situations, the State regulatory authority may request up to an
additional 60 days to complete its investigation.'' Further, ``[t]he
sum total of additional time for any one possible violation must not
exceed 90 days.'' Under the 2020 TDN Rule, the SRA's investigation
could
[[Page 24728]]
have been for a ``reasonable, specified amount of time.'' As that
provision did not provide concrete time frames to ensure expeditious
correction of violations, OSMRE concluded that it was appropriate to
include the 30-day and 60-day time frames.
Comment: One commenter requested clarification that the revised
action plan process will not be used as a justification for SRA failure
to take appropriate action or to show good cause for such failure and
requested that OSMRE take immediate inspection and enforcement action
to correct on-the-ground violations resulting from programmatic
failures.
Response: An action plan will not be used as a ``justification for
failure,'' meaning an SRA cannot have an action plan ongoing
indefinitely while the underlying violation remains uncorrected. All
action plans will have defined timelines, stated objectives, and
criteria defining success. This final rule sets concrete timelines on
creation and completion of action plans (see Sec. 773.12(b)), which
will ensure timely resolution of underlying violations. An SRA cannot
claim action plan completion without addressing the underlying
violation. Moreover, even when OSMRE and a State are pursuing an action
plan, final Sec. 733.12(d) allows an SRA to take direct enforcement
actions and OSMRE to take appropriate oversight enforcement actions, as
necessary. Further, under Sec. 842.11(b)(1)(i), in imminent harm
situations OSMRE will proceed directly to a Federal inspection, which
ensures that these situations will be handled promptly.
Comment: One commenter stated that existing 30 CFR
842.11(b)(1)(iii)(B) should be rewritten to provide that a request for
informal review by an SRA of OSMRE's determination that the SRA has
failed to take appropriate action or to show good cause for such
failure should not delay or prevent either a Federal inspection or
issuance of an enforcement order for the violation.
Response: OSMRE did not propose to modify existing 30 CFR
842.11(b)(1)(iii)(A) regarding informal review afforded to SRAs. As
such, that provision, along with Sec. 842.11(b)(1)(iii)(B), is now
beyond the scope of this rulemaking. OSMRE declines to make the
requested change.
D. 30 CFR 842.11(b)(2)
Summary of final rule revisions to 30 CFR 842.11(b)(2): As in the
proposed rule, the final rule adds two new sentences to Sec.
842.11(b)(2) specifying that: ``All citizen complaints will be
considered as requests for a Federal inspection under Sec. 842.12. If
the information supplied by the complainant results in a Federal
inspection, the complainant will be offered the opportunity to
accompany OSMRE on the Federal inspection.'' These changes remove the
requirement that a citizen specifically request a Federal inspection,
which should eliminate any confusion regarding the processes associated
with citizen complaints versus requests for Federal inspections.
Additionally, and as previously discussed, this final rule also amends
Sec. 842.11(b)(2) by revising the information that OSMRE will consider
when determining if OSMRE has reason to believe a violation exists.
Finally, the final rule removes the existing language providing that
OSMRE will have reason to believe a violation exists if facts known to
OSMRE ``constitute simple and effective documentation of the alleged
violation . . . .'' Instead, the final rule provides that OSMRE will
have reason to believe that a violation exists if the facts ``support
the existence of a possible violation . . . .''
Comment: Some commenters supported the revisions that restore
SMCRA's intent to treat all citizen complaints as requests for Federal
inspection. These commenters also supported eliminating the requirement
that a citizen first notify the SRA and then explain to OSMRE why the
State's response was insufficient.
Response: OSMRE agrees. Treating all citizens complaints as
requests for Federal inspections is consistent with SMCRA. OSMRE has
revised the implementing regulatory language at Sec. Sec. 842.11(b)(2)
and 842.12(a) to reflect that. In addition, as explained in section I.B
of this preamble, allowing citizens to contact OSMRE directly about a
possible violation without an express requirement to contact the SRA is
consistent with SMCRA and alleviates any tension or stress associated
with a citizen contacting the SRA in situations where the citizen is
not comfortable with doing so. As also discussed in section I.B of this
preamble, OSMRE has explained why it eliminated the requirement at
existing Sec. 842.12(a) for a citizen to state the basis for their
assertion that the SRA has not acted.
Comment: As explained in the discussion above, one commenter agreed
that all citizen complaints should serve as requests for Federal
inspections, even if inspections are not specifically requested.
Response: OSMRE appreciates this comment, and as explained
elsewhere, has decided to finalize the corresponding regulatory
provisions as proposed at Sec. Sec. 842.11(b)(2) and 842.12(a). If a
citizen complaint, whether or not it specifically requests a Federal
inspection, gives OSMRE reason to believe there is imminent harm or a
violation of SMCRA or the applicable State program that will be
addressed through the TDN process, OSMRE could ultimately conduct a
Federal inspection. Thus, OSMRE concludes that there is not a
sufficient reason to keep the concepts separate in this final rule.
Comment: Some commenters asserted that all citizen complaints
should not be considered as requests for a Federal inspection. These
commenters were concerned that doing so could lead to a significant
increase in the number of Federal inspections, which could drain State
resources as SRAs often participate jointly with OSMRE in Federal
inspections. These commenters would prefer that OSMRE maintain its
discretion in deciding whether a citizen complainant is ``truly
requesting an inspection.'' These commenters also noted that the last
sentence of Sec. 842.12(a) as revised states that ``[i]f the
information supplied by the complainant results in a Federal
inspection, the complainant will be offered the opportunity to
accompany OSMRE on the Federal inspection.'' These commenters indicated
that the discretionary nature of ``if'' in that sentence appeared to
contradict OSMRE's statements in the preamble to the proposed rule that
all citizen complaints will be treated as requests for a Federal
inspection.
Response: OSMRE disagrees and has concluded that it is appropriate
to consider all citizen complaints as requests for a Federal
inspection, even if the citizen does not specifically ask for a Federal
inspection. If a citizen brings a possible violation to OSMRE's
attention, it is logical to assume that the citizen would also want
OSMRE to conduct any corresponding and necessary Federal inspection.
Contrary to the commenters' assertions, OSMRE does not believe that
treating all citizen complaints as a request for a Federal inspection
will significantly increase the overall number of Federal inspections
performed. While OSMRE will treat all citizen complaints as a request
for Federal inspection, OSMRE will still evaluate that citizen
complaint under 30 CFR 842.11(b)(1) to determine if it has reason to
believe a violation exists and, if so, issue a TDN to the State. In a
primacy State, a Federal inspection will only be conducted if OSMRE
determines that the State's response to a TDN was arbitrary,
capricious, or an abuse of discretion. Because SRAs typically provide
adequate responses to
[[Page 24729]]
TDNs, we expect the number of Federal inspections to remain about the
same as under the existing rule.
Furthermore, pursuant to this final rule, the Department requires a
citizen complaint or request for Federal inspection to follow the
process in Sec. 842.11(b); as a result, OSMRE retains two points of
discretion: when determining whether it has reason to believe a
violation exists before issuing a TDN, and determining whether an SRA's
TDN response is arbitrary, capricious, or an abuse of discretion. If
OSMRE either decides that it does not have reason to believe a
violation exists or that the State was not arbitrary and capricious in
its response, OSMRE will not conduct a Federal inspection; therefore,
the regulation correctly includes ``if'' in the last sentence.
Comment: One commenter noted that the proposed rule at Sec. 842.12
states that citizen complaints under Sec. 842.11(b) will be considered
requests for a Federal inspection. The commenter noted further that, if
the complaint results in a Federal inspection, the complainant will be
offered the opportunity to accompany OSMRE on the inspection. The
commenter asserted that the rule should be revised to clarify details
about the communication mechanism to the citizen, the time frame for
OSMRE's decision, OSMRE's notification to the SRA, and opportunity to
accompany OSMRE on the inspection.
Response: The final rule does not change the communication
mechanism between OSMRE and citizens related to participation on a
Federal inspection, the time frames for OSMRE's decision to conduct a
Federal inspection, or affording the SRA an opportunity to accompany
OSMRE. Under the TDN process, if OSMRE determines that the State did
not take appropriate action or show good cause for not doing so in
response to a TDN, OSMRE will notify the SRA according to existing 30
CFR 842.11(b)(1)(iii)(A). In accordance with OSMRE's longstanding
practice, the authorized representative may inform the SRA of a
resulting Federal inspection. Likewise, if a Federal inspection occurs
as a result of information provided by a citizen, OSMRE will notify and
give the citizen the opportunity to accompany OSMRE on the inspection
consistent with existing 30 CFR 842.12(c). If an imminent harm
situation exists, there is no requirement for OSMRE to notify the State
of a Federal inspection. If OSMRE determines a need exists in the
future for more specificity in procedures for citizen involvement or
SRA notification, OSMRE will propose such changes.
Comment: One commenter requested clarification of what constitutes
an SRA response that is arbitrary, capricious, or an abuse of
discretion and at what levels of OSMRE these decisions are made.
Response: Regarding the ``arbitrary, capricious, or an abuse of
discretion'' portion of the comment, the Department adopted that
standard of review in 1988. 53 FR at 26732. At that time, the
Department opted not to adopt the same deference standards that Federal
courts accord to the Secretary in developing regulations. Id. at 26733.
Instead, the Department decided that such language was unnecessary and
``[c]oncerns about future application of those words will best be
decided when specific fact situations have arisen and can be
evaluated.'' Id. The Department did state that ``OSMRE [will] defer to
a state's interpretation of its own regulations, as long as that
deference occurs within the framework of careful oversight, as provided
by the statute. OSMRE will recognize a State's interpretation of its
own program as long as it is not inconsistent with the terms of the
program approval or any prior state interpretation recognized by the
Secretary and as long as the state interpretation is not arbitrary,
capricious, or an abuse of discretion.'' Id. at 26732.
Regarding the levels at which OSMRE makes decisions such as when
``reason to believe'' exists or whether a TDN response is arbitrary,
capricious, or an abuse of discretion: these decisions are made in
accordance with OSMRE's internal management structure, but, generally,
an OSMRE authorized representative, with the concurrence of the Field
Office Director, makes the decision whether an SRA's response to a TDN
does or does not meet the standards for appropriate action or good
cause.
Comment: One commenter requested clarification as to whether the
proposed rule is intended to limit Federal inspections to requests
arising from citizen complaints.
Response: This final rule does not limit Federal oversight
inspections to those that occur because of citizen complaints. In
general, under existing Sec. 842.11(a)(1), OSMRE conducts oversight
inspections of surface coal mining and reclamation operations ``as
necessary . . . [t]o monitor and evaluate the administration of
approved State programs.''
Comment: Similarly, one commenter sought clarification as to
whether a citizen-requested Federal inspection would be counted toward
the overall number of Federal oversight inspections agreed upon in the
agencies' performance agreements.
Response: Under OSMRE's Directive REG-8 (Oversight of State and
Tribal Regulatory Programs, https://www.osmre.gov/sites/default/files/pdfs/directive997.pdf), when OSMRE conducts a Federal inspection
because of a citizen complaint, that inspection will count toward
OSMRE's target number of oversight inspections for the relevant State
or Tribe for the applicable evaluation year. OSMRE will retain this
approach under this final rule. However, if necessary, OSMRE can exceed
the target number of oversight inspections in an evaluation year. As
mentioned in response to the prior comment, under Sec. 842.11(a)(1),
OSMRE will conduct any Federal inspections that are necessary,
regardless of the overall amount.
E. 30 CFR 842.12(a)
Summary of final rule revisions to 30 CFR 842.12(a): As in the
proposed rule, the final rule changes Sec. 842.12(a) so that any
person may request a Federal inspection under Sec. 842.11(b) by
providing to an authorized representative a signed, written statement
(or an oral report followed by a signed, written statement) setting
forth information that, along with any other information the
complainant chooses to provide, may give the authorized representative
reason to believe that a violation, condition, or practice referred to
in Sec. 842.11(b)(1)(i) exists. Under the final rule, OSMRE will also
consider ``any other information the complainant chooses to provide.''
In addition, OSMRE removed the phrase ``readily available'' and added
that a reason to believe determination will be based upon information
from a citizen complainant, information available in OSMRE files, and
publicly available electronic information. Finally, OSMRE added new
sentences to clarify that all citizen complaints under Sec. 842.11(b)
will be considered as requests for a Federal inspection, and that, if
the information a citizen provides leads to a Federal inspection, the
citizen will be afforded the opportunity to accompany OSMRE on the
inspection.
Comment: One commenter opined that the term ``violation'' is used
throughout SMCRA in the context of a permittee or operator.
Response: Although the meaning of this comment is unclear, as
explained elsewhere, to the extent the commenter is suggesting that
OSMRE should not send a TDN to an SRA for a permit defect, OSMRE
disagrees with the comment. As explained above, OSMRE will issue a TDN
whenever it has reason
[[Page 24730]]
to believe that ``any person'' is in violation of SMCRA or the
applicable State program, including not only permittees and operators,
but also SRAs.
Comment: One commenter asserted that imposition of an opportunity
for the SRA to seek informal review and OSMRE's completion of that
review as a prerequisite to conducting a Federal inspection or issuing
a Federal notice of violation following issuance of a TDN and a
determination by OSMRE that the State did not take appropriate action
(or show good cause for such failure) is nowhere provided for in SMCRA.
The commenter also asserted that the provision has the effect of
allowing extant violations to continue unabated, possibly ripening into
avoidable imminent harm situations.
Response: For the reasons explained above, OSMRE declines to make
any changes to the final rule based on this comment. Until OSMRE
renders a decision on an SRA's request for informal review, OSMRE will
be vigilant in monitoring the underlying situation and make every
effort to ensure that an underlying violation does not reach the point
of imminent harm.
Comment: Some commenters agreed with OSMRE that a citizen should
not have to first notify the State when a citizen is requesting a
Federal inspection.
Response: As mentioned previously in section I.B of this preamble
and in response to other comments, when requesting a Federal
inspection, this final rule removes the requirement at Sec. 842.12(a)
for a citizen to notify an SRA of a possible violation.
Comment: Some commenters supported continuation of the requirement
for a complainant to contact the SRA before OSMRE.
Response: OSMRE explains above why it is removing the requirement
for a citizen to notify the SRA when requesting a Federal inspection.
The public will still be able to report possible violations directly to
the SRA, and OSMRE encourages citizens to do so. The change in this
final rule simply removes the requirement that a citizen notify the SRA
prior to or simultaneously with OSMRE. As a general matter, OSMRE
agrees with the commenters' reasoning that it is typically better for
the SRA, which has primary jurisdiction, to address a citizen complaint
because the SRA can address them promptly, ``without the delay the ten
day notice procedure necessarily involves.'' However, without the
regulatory change, if a citizen opted not to contact the SRA first for
whatever reason, then under the 2020 TDN Rule, OSMRE could have refused
to consider information received from any person--i.e., the citizen--to
determine whether it had reason to believe a violation of SMCRA exists.
After review, OSMRE determined that such an outcome would be contrary
to SMCRA section 521(a)(1), which requires OSMRE to consider ``any
information available'' from ``any person'' about the existence of a
possible violation and does not require that that person notify the SRA
first. Therefore, excluding the requirement for a citizen complainant
to contact the SRA first hews more closely to the statutory
requirements for public participation under 30 U.S.C. 1271(a)(1).
Comment: One commenter recommended that a citizen's failure to
provide information for the basis of the person's assertion should not
result in rejecting a citizen complaint.
Response: Under this final rule, as explained in section I.B of
this preamble and as stated in the preamble to the proposed rule, a
citizen need not state the basis for the assertion that the SRA has not
acted with respect to a possible violation.
Comment: Some commenters asserted that OSMRE should not remove the
requirement in the 2020 TDN Rule that a citizen provide a basis for
their belief that the SRA failed to act. These commenters recognized
that there was no mandate that this provision be included, but they
stated that such information would be, at a minimum, useful for OSMRE
to decide whether a possible violation exists. These commenters also
contend that providing a simple explanation would not add a significant
burden to the citizen complainant. Further, one commenter noted they
are not aware of OSMRE not acting on a citizen complaint, even if the
citizen did not provide such information.
Response: As the commenter recognizes, there is no language in
SMCRA that requires OSMRE to mandate that a citizen provide a reason
why they think the SRA failed to act. Therefore, as with removing the
requirement that the SRA be notified first, discussed above, removing
this requirement will remove barriers to public participation and make
the final rule adhere more closely to the requirements of SMCRA section
521(a)(1). OSMRE does, however, recognize that it will consider all
information provided by ``any person'' about the existence of a
possible violation in determining whether it has reason to believe a
violation exists. Thus, OSMRE encourages, but does not require,
citizens to provide it with all pertinent information about the
possible violation, which could include information about the SRA's
prior response, if any.
F. 30 CFR 733.5
Summary of final rule revisions to 30 CFR 733.5: The changes to 30
CFR 733.5 involve amending the definitions of ``action plan'' and
``State regulatory program issue.'' As explained in the preamble to the
proposed rule (88 FR at 24957), the revisions to the ``action plan''
definition in this final rule are non-substantive clarifying changes
that enhance its readability. OSMRE changed ``a detailed schedule'' to
``a detailed plan,'' but this change is not substantive because the
revised definition also provides that an action plan ``includes a
schedule . . . .'' Both the existing and new definitions require an
action plan to lead to the resolution of a State regulatory program
issue.
OSMRE also revised the definition of ``State regulatory program
issue.'' The revisions are chiefly for clarity but also include
substantive changes to the definition. Consistent with the discussions
of permit defects in the preamble to this final rule, OSMRE changed
``could result in'' to ``may result from'' to indicate that a State
regulatory program issue may result from a State regulatory authority's
actions. In tandem with this change, the last sentence of the revised
definition provides that ``State regulatory program issues will be
considered as possible violations and will initially proceed, and may
be resolved, under part 842 of this chapter.'' This language makes
clear that an SRA's actions could constitute a possible violation for
which OSMRE would issue a TDN. See discussions of permit defects above
and at 88 FR at 24951-24952 and 24957.
Comment: See section III.E. (``Any Person'' Who Can Be in Violation
of SMCRA) for comment summary and response.
G. 30 CFR 733.12(a)
Summary of final rule revisions to 30 CFR 733.12(a): Without
changing the meaning, the final rule removes ``in order'' before ``to
ensure'' as it is unnecessary. In addition, the final rule changes
``escalate into'' to ``become'' to be more concise. In existing Sec.
733.12(a)(1), the final rule adds ``including a citizen complainant''
at the end of the sentence to emphasize that a citizen complainant can
be the source of information that leads OSMRE to identify a State
regulatory program issue. In existing Sec. 733.12(a)(2), the final
rule adds ``initiate procedures to'' before ``substitute Federal
enforcement'' and adds ``in accordance with Sec. 733.13'' at the end
of the sentence to replace ``as
[[Page 24731]]
provided in this part.'' The changes to the last sentence indicate that
there is an established process for substituting Federal enforcement or
withdrawing approval of a State regulatory program.
Comment: See Section III.H (Minor Text Changes and Conforming
Edits) for comment summary and response.
H. 30 CFR 733.12(b)
Summary of final rule revisions to 30 CFR 733.12(b): The final rule
modifies existing Sec. 733.12(b) to require OSMRE to develop and
approve an action plan for a State regulatory program issue, along with
a specific time frame for completing the identified actions. The final
rule revises the first sentence of Sec. 733.12(b) to read: ``For each
State regulatory program issue, the Director or their designee, in
consultation with the State regulatory authority, will develop and
approve an action plan within 60 days of identification of a State
regulatory program issue.'' Additionally, the final rule adds a new
second sentence that would allow OSMRE and the relevant SRA to
``identify [within 10 business days] interim remedial measures that may
abate the existing condition or issue.'' The final rule removes the
existing language that allows OSMRE to ``employ any number of
compliance strategies'' and replaces it with the requirement for OSMRE
to develop and approve an action plan for all State regulatory program
issues. In addition, the final rule removes the existing second
sentence, which includes the requirement for OSMRE to develop and
institute an action plan only if OSMRE does not expect the SRA to
resolve the State regulatory program issue within 180 days after
identification or that it is likely to result in a violation of the
approved State program. Instead, the final rule includes a 60-day
period for development and approval of an action plan for all State
regulatory program issues. These changes also emphasize that State
regulatory program issues will start as possible violations under 30
CFR part 842, which is consistent with the revised definition of State
regulatory program issue at Sec. 733.5. Finally, the revised provision
includes the 10-day interim remedial measure language.
Comment: Some commenters supported the added language to Sec.
733.12(b) that requires OSMRE to develop action plans in consultation
with SRAs.
Response: OSMRE appreciates the support for this aspect of the
rule. OSMRE recognizes that it is vitally important for an SRA to have
input into an action plan that is developed to resolve a violation
because the States primarily implement SMCRA on non-Federal, non-Indian
lands within their borders, subject to OSMRE's oversight.
Comment: Some commenters asserted that action plan time frames are
too short, especially if the SRA needs to develop regulations or seek
legislative changes from the State legislature, which may have short
legislative sessions, or if there is litigation that affects the
resolution of the State regulatory program issue.
Response: OSMRE disagrees. OSMRE thoroughly considered these
comments and concludes that the time frames in final Sec. 733.12(b)
are sufficient and appropriate for what the action plan requires. As
explained in section I.B of this preamble, OSMRE, in general, does not
expect that final resolution of an issue could exceed one year. See
also 88 FR at 24950. Instead, when developing an action plan, OSMRE and
the SRA must give careful consideration to objectives that can be
completed within the specified time frame, such as proposing a State
program amendment (rather than having a State program amendment
approved).
Further, regarding the 10 days for interim measures, identification
of these measures is not mandatory. The final regulatory language uses
the phrase ``may identify interim measures that may abate the existing
condition or issue.'' (Emphasis added.) If 10 days is not sufficient or
feasible, OSMRE and the SRA will not need to develop interim measures.
The provision serves the purpose of highlighting and emphasizing the
utility of identifying interim measures that may abate a violation as
soon as possible. Even if these measures are not identified within 10
days, nothing prevents an SRA from later identifying such measures at
any time to ameliorate or resolve an underlying violation or issue.
OSMRE also concludes that 60 days is adequate for development of an
action plan, with the understanding that development and approval of an
action plan does not mean that any of the requirements of the action
plan need to be completed within 60 days.
Comment: One commenter noted that there is no provision for an SRA
appeal of an OSMRE-developed action plan.
Response: Under this final rule, OSMRE contemplates that
development of an action plan will be a joint effort between OSMRE and
an SRA. However, under final Sec. 773.12(b)(4), if the SRA does not
cooperate in developing the action plan, OSMRE will develop, and
require the State to comply with, the action plan. The Federal
regulations provide that any written decision of the Director or their
designee may be appealed to the Interior Board of Land Appeals if the
decision specifically grants such an appeal. 43 CFR 4.1281. Thus, it
will be up to the OSMRE Director or designated official to make a case-
by-case determination if the action plan warrants IBLA appeal rights.
Comment: One commenter noted there are no OSMRE time frames
required during its action plan development, and violations could
remain unabated while OSMRE develops or considers an action plan.
Response: SMCRA does not have concrete time frames for OSMRE to
determine whether it has reason to believe a violation exists. In like
manner, this final rule does not create time frames for OSMRE to
determine that there is a State regulatory program issue. However, the
non-mandatory 10-day period for OSMRE and the SRA to develop interim
measures in this final rule demonstrates OSMRE's commitment to
addressing on-the-ground issues quickly even while the action plan is
being developed. OSMRE will, of course, continue to monitor the
underlying situation and make every effort to ensure that an underlying
violation does not become an imminent harm if it is being addressed
through an action plan.
I. 30 CFR 733.12(b)(1) Through (4)
Summary of final rule revisions to 30 CFR 733.12 (b)(1) through
(4): In the first sentence of existing 30 CFR 733.12(b)(1), the final
rule repeats the word ``identify'' before ``an effective mechanism for
timely correction'' for clarity. This is a non-substantive change. The
final rule also modifies Sec. 733.12(b)(1) by adding a new second
sentence that would require the SRA to ``complete all identified
actions contained within an action plan within 365 days from when OSMRE
sends the action plan to the relevant State regulatory authority.'' The
365-day requirement is discussed in section I.B of this preamble and in
response to other comments in this section. OSMRE also finalized Sec.
733.12(b)(2) as proposed by adding ``upon approval of the action plan''
to the end of the existing section. This change clarifies that an
approved action plan will identify any remedial measures that an SRA
must take immediately after the action plan is approved. Additional
non-substantive changes to 30 CFR 733.12(b)(3) that were presented in
the proposed rule are included in this final rule.
Finally, OSMRE introduced in the proposed rule a new Sec.
733.12(b)(4) to enable OSMRE to develop and approve an action plan
unilaterally if the SRA does not cooperate in a manner
[[Page 24732]]
sufficient to develop such a plan. OSMRE would develop the action plan
in accordance with the requirements of Sec. 733.12(b)(1) through (3)
and require the State to comply with the action plan. This will ensure
timely resolution of violations. Further discussion of the changes to
existing 30 CFR 733.12(b) can be found in the preamble to the proposed
rule, 88 FR at 24958.
Comment: One commenter asserted that the proposed rule seeks to
treat State regulatory program issues as potential violations and
resolved under part 842 of this chapter, which aligns with SMCRA and
should be finalized.
Response: As discussed, requiring OSMRE to issue TDNs for 30 CFR
part 733 State regulatory program issues (i.e., permit defects) more
closely aligns with the text of SMCRA and congressional intent
regarding TDNs. Consistent with the revised definition of State
regulatory program issue at final Sec. 733.5, OSMRE notes that State
regulatory program issues will initially be considered as possible
violations and will initially proceed, and may be resolved, under 30
CFR part 842. However, OSMRE also notes that while it will consider all
possible violations initially under part 842, there may be instances
when it makes more sense to handle certain possible violations solely
through the part 733 action plan process rather than through the TDN
process. Even in these instances, the new action plan time frames and
requirements in Sec. 733.12(b) will ensure that these situations do
not take any longer than the TDN process, which will lead to timely
resolution of underlying issues.
Comment: One commenter noted that the proposed rule acknowledged
the need to address programmatic issues with SMCRA implementation by
the State regulator through part 733, while also ensuring timely and
direct enforcement of permit-related violations.
Response: OSMRE agrees with the commenter that the State regulatory
authority is responsible for addressing violations and State regulatory
program issues. As acknowledged by the commenter, SMCRA provides
mechanisms to address violations and State regulatory program issues.
SMCRA section 521(a), as implemented at 30 CFR 842.11, is intended to
address all possible violations of SMCRA or a State regulatory program.
SMCRA 521(b), as implemented at 30 CFR 733.12, is intended to address
issues that arise from a State's implementation of its approved SMCRA
program. In this final rule, all possible violations will initially be
considered under 30 CFR part 842. Violations that indicate problems
with SMCRA implementation may be addressed under the TDN process if the
issue is limited in scope and can be successfully resolved within the
confines of the TDN process. However, OSMRE believes most systemic
issues will be addressed through a State regulatory authority program
issue and addressed with a corrective action plan under 30 CFR 733.12.
Comment: One commenter stated that it is not clear how the
revisions prevent duplication and confusion when OSMRE receives a
citizen complaint related to a State regulatory program issue.
Response: When OSMRE receives a citizen complaint, OSMRE will
review the information contained in the complaint, information in its
files at the time the complaint is received, and publicly available
electronic information to determine if OSMRE has reason to believe a
violation exists. If OSMRE has reason to believe a violation exists, it
will communicate this possible violation to the SRA via a TDN. There is
no redundancy in this process. If the State is already aware of the
issue, it can respond to the TDN that there is no violation of the
State program, the State has taken appropriate action to abate the
issue, the State is in the process of developing an abatement plan, or
the State needs additional time to fully consider if the issue is a
violation. And, short of an imminent harm scenario, OSMRE would only
conduct a Federal inspection and take any corresponding enforcement
action if the State does not respond in ten days or its response to the
TDN is arbitrary, capricious, or an abuse of discretion.
Comment: Some commenters asserted that the State regulatory program
issue process identified in the TDN rule will result in Federal
assumption and/or control when a State regulatory program issue is
identified.
Response: OSMRE disagrees with these commenters. The only way
Federal assumption or control of a State program can occur is through
the procedures at existing 30 CFR 733.13, which are not a subject of
this final rule. Federal assumption of SMCRA jurisdiction cannot occur
through the State regulatory program issue process outlined in this
final rule at Sec. 733.12. Issuing a TDN in the first instance for a
State regulatory program issue and allowing a part 733 action plan to
constitute ``good cause'' in response to the TDN is consistent with
SMCRA and State primacy.
Comment: One commenter stated that the regulatory text
demonstrating deference to States should be reflective of SMCRA
regarding Federal inspections.
Response: As OSMRE understands the comment, the commenter claims
that OSMRE should not intervene in SRA inspections. If OSMRE has reason
to believe a violation exists, OSMRE will send a TDN to the SRA about
the possible violation. OSMRE will conduct a Federal inspection only as
directed in SMCRA and the implementing regulations at 30 CFR 842.11 if
the SRA does not respond in ten days or its response to the TDN is
arbitrary, capricious, or an abuse of its discretion. As previously
noted, the arbitrary or capricious standard affords a high level of
deference to an SRA, and it is fully consistent with SMCRA.
J. 30 CFR 733.12(c)
Summary of final rule revisions to 30 CFR 733.12(c): The final rule
includes non-substantive and grammatical changes to existing Sec.
733.12(c) for clarity. These revisions do not change the meaning of the
provision.
Comment: See section III.H. (Minor Text Changes and Conforming
Edits) for a general comment summary and response.
K. 30 CFR 733.12(d)
Summary of final rule revisions to 30 CFR 733.12(d): As in the
proposed rule, in the final rule at Sec. 733.12(d), OSMRE inserted the
word ``additional'' before the phrase ``appropriate oversight
enforcement action'' to indicate that any oversight enforcement action
that OSMRE takes is in addition to an initial TDN or identification of
a State regulatory program issue. The final rule ends the sentence
there and deletes the last clause of the existing language. The revised
provision reads: ``Nothing in this section prevents a State regulatory
authority from taking direct enforcement action in accordance with its
State regulatory program or OSMRE from taking additional appropriate
oversight enforcement action.'' OSMRE deleted the remainder of the
sentence because, as explained in section I.B of this preamble, under
this final rule, it will no longer be the case that a possible
violation could proceed initially as a State regulatory program issue
that could subsequently transform into a possible violation that
warrants the issuance of a TDN. Instead, under this final rule, OSMRE
will consider all possible violations initially under 30 CFR part 842,
which may result in the issuance of a TDN.
Comment: None.
[[Page 24733]]
V. Severability of Provisions in This Final Rule
The changes to the TDN and Federal inspection provisions at 30 CFR
part 842 are intended to be severable from the 30 CFR part 733
provisions for State regulatory program issues and associated action
plans. Thus, if any of the provisions of this final rule are stayed or
invalidated by a reviewing court, the other provisions could operate
independently and would be applicable to the relevant provisions of the
existing regulations. For example, if a court were to invalidate any
portion of the changes to part 842, the provisions at part 733 could
still operate independently. Conversely, if a court were to invalidate
any of the provisions at part 733, the provisions at part 842 could
still operate independently. Likewise, changes to specific sections
within these parts are intended to be severable from the changes to
other sections.
VI. Procedural Matters and Required Determinations
Executive Order 12630--Governmental Actions and Interference With
Constitutionally Protected Property Rights
This rule does not result in a taking of private property or
otherwise have regulatory takings implications under Executive Order
12630. The rule primarily concerns Federal oversight of approved State
programs and enforcement when permittees and operators are not
complying with the law. Therefore, the rule will not result in private
property being taken for public use without just compensation. A
takings implication assessment is therefore not required.
Executive Order 12866--Regulatory Planning and Review, Executive Order
13563--Improving Regulation and Regulatory Review, and Executive Order
14094--Modernizing Regulatory Review
Executive Order 12866, as amended by Executive Order 14094,
provides that the Office of Information and Regulatory Affairs (OIRA)
in the Office of Management and Budget (OMB) will review all
significant rules. OIRA has determined that this rule is not
significant under Executive Order 12866, as amended.
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. OSMRE has developed this
final rule in a manner consistent with these requirements.
Executive Order 12988--Civil Justice Reform
This rule complies with the requirements of Executive Order 12988.
Among other things, this rule:
(a) Meets the criteria of section 3(a) requiring that all
regulations be reviewed to eliminate errors and ambiguity; and be
written to minimize litigation;
(b) Meets the criteria of section 3(b)(2) 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
final rule does not have sufficient federalism implications to warrant
the preparation of a federalism summary impact statement. While
revising the existing regulations governing the TDN process would have
a direct effect on the States and the Federal Government's relationship
with the States, this effect would not be significant, as it would
neither impose substantial unreimbursed compliance costs on States nor
preempt State law. Furthermore, this final rule does not have a
significant effect on the distribution of power and responsibilities
among the various levels of government. The final rule would not
significantly increase burdens on SRAs to address and resolve
underlying issues. As such, a federalism summary impact statement is
not required.
Executive Order 13175--Consultation and Coordination With Indian Tribal
Governments
The Department of the Interior strives to strengthen its
government-to-government relationship with Tribes through a commitment
to consultation with Tribes and recognition of their right to self-
governance and Tribal sovereignty. OSMRE has evaluated this rule under
the Department's consultation policy and under the criteria in
Executive Order 13175 and determined that it does not have substantial
direct effects on Federally recognized Tribes and that consultation
under the Department's Tribal consultation policy is not required.
Currently, no Tribes have achieved primacy. Thus, this rule will not
impact the regulation of surface coal mining operations on Tribal
lands. However, OSMRE coordinated with Tribes to inform them of the
rulemaking. OSMRE coordinated with the Navajo Nation, Crow Tribe of
Montana, Hopi Tribe of Arizona, Choctaw Nation of Oklahoma, Muscogee
(Creek) Nation, and Cherokee Nation and did not receive comments or
concerns. None of the Tribes requested consultation.
Executive Order 13211--Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
This rule is not a significant energy action under the definition
in Executive Order 13211. A Statement of Energy Effects is not
required.
Executive Order 13045--Protection of Children From Environmental Health
Risks and Safety Risks
This final rule is not subject to Executive Order 13045 because it
does not meet the criteria of Executive Order 12866 section 3(f)(1), as
amended, and this action does not concern environmental health or
safety risks disproportionately affecting children.
National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act (NTTAA), 15 U.S.C. 3701 et seq., directs Federal agencies to use
voluntary consensus standards in their regulatory activities unless to
do so would be inconsistent with applicable law or otherwise
impractical. OMB Circular A-119 at page 14. This final rule is not
subject to the requirements of section 12(d) of the NTTAA because
application of those requirements would be inconsistent with SMCRA and
is not applicable to this final rule.
National Environmental Policy Act
This rule does not constitute a major Federal action significantly
affecting the quality of the human environment. A detailed statement
under the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C.
4321 et seq., is not required because the rule is covered by a
categorical exclusion. Specifically, OSMRE has determined that the
final rule is administrative or procedural in nature in accordance with
the Department of the Interior's NEPA
[[Page 24734]]
regulations at 43 CFR 46.210(i). OSMRE has also determined that the
final rule does not involve any of the extraordinary circumstances
listed in 43 CFR 46.215 that would require further analysis under NEPA.
Paperwork Reduction Act
This rule does not impose any new information collection burden
under the Paperwork Reduction Act. OMB has previously approved the
information collection activities contained in the existing regulations
and has assigned OMB control number 1029-0118. This rule does not
impose an information collection burden because OSMRE is not making any
changes to the information collection requirements. OSMRE estimates
that the number of burden hours associated with TDN processing will
stay the same as what is currently authorized by OMB control number
1029-0118.
Regulatory Flexibility Act
OSMRE certifies that this rule will 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.). OSMRE evaluated the impact of
the regulatory changes and determined the rule changes would not
induce, cause, or create any unnecessary burdens on the public, SRAs,
or small businesses; would not discourage innovation or entrepreneurial
enterprises; and would be consistent with SMCRA, from which the
regulations draw their implementing authority.
Congressional Review Act
The Congressional Review Act (5 U.S.C. 804(2)) requires certain
procedures for ``any rule that the Administrator of the Office of
Information and Regulatory Affairs of the Office of Management and
Budget finds has resulted in or is likely to result in--
a. an annual effect on the economy of $100 million or more;
b. a major increase in costs or prices for consumers, individual
industries, Federal, State, or local government agencies, or geographic
regions;
c. significant adverse effects on competition, employment,
investment, productivity, innovation, or the ability of United States-
based enterprises to compete with foreign-based enterprises in domestic
and export markets.
OIRA has determined that this rule does not meet those criteria.
Unfunded Mandates Reform Act
This rule does 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 rule does not have a significant or unique effect
on State, local, or Tribal governments, or the private sector. A
statement containing the information required by the Unfunded Mandates
Reform Act (2 U.S.C. 1531 et seq.) is not required.
List of Subjects
30 CFR Part 733
Intergovernmental relations, Surface mining, Underground mining.
30 CFR Part 842
Law enforcement, Surface mining, Underground mining.
Delegation of Signing Authority
The action taken herein is pursuant to an existing delegation of
authority.
Steven H. Feldgus,
Principal Deputy Assistant Secretary, Land and Minerals Management.
For the reasons set out in the preamble, the Department of the
Interior, acting through OSMRE, amends 30 CFR parts 733 and 842 as
follows:
PART 733--EARLY IDENTIFICATION OF CORRECTIVE ACTION, MAINTENANCE OF
STATE PROGRAMS, PROCEDURES FOR SUBSTITUTING FEDERAL ENFORCEMENT OF
STATE PROGRAMS, AND WITHDRAWING APPROVAL OF STATE PROGRAMS
0
1. The authority citation for part 733 continues to read as follows:
Authority: 30 U.S.C. 1201 et seq.
0
2. Revise Sec. 733.5 to read as follows:
Sec. 733.5 Definitions.
As used in this part, the following terms have the specified
meanings:
Action plan means a detailed plan that the Office of Surface Mining
Reclamation and Enforcement (OSMRE) prepares to resolve a State
regulatory program issue identified during OSMRE's oversight of a State
regulatory program and that includes a schedule that contains specific
requirements that a State regulatory authority must achieve in a timely
manner.
State regulatory program issue means an issue OSMRE identifies
during oversight of a State or Tribal regulatory program that may
result from a State regulatory authority's implementation,
administration, enforcement, or maintenance of all or any portion of
its State regulatory program that is not consistent with the basis for
OSMRE's approval of the State program. This may include, but is not
limited to, instances when a State regulatory authority has not adopted
and implemented program amendments that are required under Sec. 732.17
and subchapter T of this chapter, and issues related to the requirement
in section 510(b) of the Act that a State regulatory authority must not
approve a permit or revision to a permit, unless the State regulatory
authority finds that the application is accurate and complete and that
the application is in compliance with all requirements of the Act and
the State regulatory program. State regulatory program issues will be
considered as possible violations and will initially proceed, and may
be resolved, under part 842 of this chapter.
0
3. Revise Sec. 733.12 to read as follows:
Sec. 733.12 Early identification and corrective action to address
State regulatory program issues.
(a) When the Director identifies a State regulatory program issue,
he or she should take action to make sure the identified State
regulatory program issue is corrected as soon as possible to ensure
that it does not become an issue that would give the Director reason to
believe that the State regulatory authority is not effectively
implementing, administering, enforcing, or maintaining all or a portion
of its State regulatory program.
(1) The Director may become aware of State regulatory program
issues through oversight of State regulatory programs or as a result of
information received from any source, including a citizen complainant.
(2) If the Director concludes that the State regulatory authority
is not effectively implementing, administering, enforcing, or
maintaining all or a portion of its State regulatory program, the
Director may initiate procedures to substitute Federal enforcement of a
State regulatory program or withdraw approval of a State regulatory
program, in accordance with Sec. 733.13.
(b) For each State regulatory program issue, the Director or their
designee, in consultation with the State regulatory authority, will
develop and approve an action plan within 60 days of identification of
a State regulatory program issue. Within 10 business days of OSMRE's
determination that a State regulatory program issue exists, OSMRE and
the State regulatory authority may identify interim remedial measures
that may abate the existing condition or issue. The requirements of an
action plan are as follows:
(1) An action plan will be written with specificity to identify the
State
[[Page 24735]]
regulatory program issue and identify an effective mechanism for timely
correction. The State regulatory authority must complete all identified
actions contained within an action plan within 365 days from when OSMRE
sends the action plan to the relevant State regulatory authority.
(2) An action plan will identify any necessary technical assistance
or other assistance that the Director or his or her designee can
provide and remedial measures that a State regulatory authority must
take immediately upon approval of the action plan.
(3) An OSMRE approved action plan must also include:
(i) An action plan identification number;
(ii) A concise title and description of the State regulatory
program issue;
(iii) Specific criteria for establishing when complete resolution
of the violation will be achieved;
(iv) Specific and orderly sequence of actions the State regulatory
authority must take to remedy the problem;
(v) A detailed schedule for completion of each action in the
sequence; and
(vi) A clear explanation that if, upon completion of the action
plan, the State regulatory program issue is not corrected, the
provisions of Sec. 733.13 may be initiated.
(4) Once all items in paragraphs (b)(1) through (3) of this section
are satisfactorily addressed, OSMRE will approve the action plan. If
the State regulatory authority does not cooperate with OSMRE in
developing the action plan, OSMRE will develop the action plan within
the guidelines listed in paragraphs (b)(1) through (3) of this section
and require the State regulatory authority to comply with the action
plan.
(c) All identified State regulatory program issues, and any
associated action plans, must be tracked and reported in the applicable
State regulatory authority's Annual Evaluation Report. Each State
regulatory authority Annual Evaluation Report will be accessible
through OSMRE's website and at the relevant OSMRE office. Within each
report, benchmarks identifying progress related to resolution of the
State regulatory program issue must be documented.
(d) Nothing in this section prevents a State regulatory authority
from taking direct enforcement action in accordance with its State
regulatory program or OSMRE from taking additional appropriate
oversight enforcement action.
PART 842--FEDERAL INSPECTIONS AND MONITORING
0
4. The authority citation for part 842 continues to read as follows:
Authority: 30 U.S.C. 1201 et seq.
0
5. Add Sec. 842.5 to read as follows:
Sec. 842.5 Definitions.
As used in this part, the following terms have the specified
meanings:
Citizen complaint means any information received from any person
notifying the Office of Surface Mining Reclamation and Enforcement
(OSMRE) of a possible violation of the Act, this chapter, the
applicable State regulatory program, or any condition of a permit or an
exploration approval. This information must be provided in writing (or
orally, followed up in writing).
Ten-day notice means a communication mechanism that OSMRE uses, in
non-imminent harm situations, to notify a State regulatory authority
under Sec. 842.11(b)(l)(ii)(B)(1) and Sec. 843.12(a)(2) of this
chapter when an OSMRE authorized representative has reason to believe
that any permittee and/or operator is in violation of the Act, this
chapter, the applicable State regulatory program, or any condition of a
permit or an exploration approval or when, on the basis of a Federal
inspection, OSMRE determines that a person is in violation of the Act,
this chapter, the applicable State regulatory program, or any condition
of a permit or an exploration approval and OSMRE has not issued a
previous ten-day notice for the same violation.
0
6. Amend Sec. 842.11 by:
0
a. Revising paragraphs (b)(1)(i), (b)(1)(ii)(B)(1) and (3), and
(b)(1)(ii)(B)(4)(ii);
0
b. Redesignating paragraphs (b)(1)(ii)(B)(4)(iii) through (v) as
paragraphs (b)(1)(ii)(B)(4)(iv) through (vi), respectively;
0
c. Adding a new paragraph (b)(1)(ii)(B)(4)(iii); and
0
d. Revising paragraph (b)(2).
The revisions and addition read as follows:
Sec. 842.11 Federal inspections and monitoring.
* * * * *
(b)(1) * * *
(i) When the authorized representative has reason to believe on the
basis of information received from a citizen complainant, information
available in OSMRE files at the time that OSMRE is notified of the
possible violation (other than information resulting from a previous
Federal inspection), and publicly available electronic information,
that there exists a violation of the Act, this chapter, the applicable
State regulatory program, or any condition of a permit or an
exploration approval, or that there exists any condition, practice, or
violation that creates an imminent danger to the health or safety of
the public or is causing or could reasonably be expected to cause a
significant, imminent environmental harm to land, air, or water
resources; and
(ii) * * *
(B)(1) The authorized representative has notified the State
regulatory authority of the possible violation and more than ten days
have passed since notification, and the State regulatory authority has
not taken appropriate action to cause the violation to be corrected or
to show good cause for not doing so, or the State regulatory authority
has not provided the authorized representative with a response. After
receiving a response from the State regulatory authority, but before a
Federal inspection, the authorized representative will determine in
writing whether the standards for appropriate action or good cause have
been satisfied. A State regulatory authority's failure to respond
within ten days does not prevent the authorized representative from
making a determination, and will constitute a waiver of the State
regulatory authority's right to request review under paragraph
(b)(1)(iii) of this section. Where appropriate, OSMRE may issue a
single ten-day notice for substantively similar possible violations
found on two or more permits, including two or more substantively
similar possible violations identified in one or more citizen
complaints.
* * * * *
(3) Appropriate action includes enforcement or other action
authorized under the approved State regulatory program to cause the
violation to be corrected.
(4) * * *
(ii) The State regulatory authority has initiated an investigation
into a possible violation and has determined that it requires an
additional amount of time to determine whether a violation exists. The
State regulatory authority may request up to 30 additional days to
complete its investigation of the issue; in complex situations, the
State regulatory authority may request up to an additional 60 days to
complete the investigation. In all circumstances, an extension request
must be supported by an explanation of the need for, and the measures
being undertaken that justify, an extension, along with any relevant
[[Page 24736]]
documentation. The authorized representative has discretion to approve
the requested time extension or establish the length of time that the
State regulatory authority has to complete its investigation. The sum
total of additional time for any one possible violation must not exceed
90 days. At the conclusion of the specified additional time, the
authorized representative will re-evaluate the State regulatory
authority's response, including any additional information provided;
(iii) OSMRE has identified substantively similar possible
violations on separate permits and considers the possible violations as
a single State regulatory program issue addressed through Sec. 733.12
of this chapter. Previously identified possible violations that were
the subject of ten-day notices or subsequent, substantively similar
violations may be included in the same State regulatory program issue;
* * * * *
(b)(2) An authorized representative will have reason to believe
that a violation, condition, or practice referred to in paragraph
(b)(1)(i) of this section exists if the facts that a complainant
alleges, or facts that are otherwise known to the authorized
representative, support the existence of a possible violation,
condition, or practice. In making this determination, the authorized
representative will consider information from a citizen complainant,
information available in OSMRE files at the time that OSMRE is notified
of the possible violation, and publicly available electronic
information. All citizen complaints will be considered as requests for
a Federal inspection under Sec. 842.12. If the information supplied by
the complainant results in a Federal inspection, the complainant will
be offered the opportunity to accompany OSMRE on the Federal
inspection.
* * * * *
0
7. Amend Sec. 842.12 by revising paragraph (a) to read as follows:
Sec. 842.12 Requests for Federal inspections.
(a) Any person may request a Federal inspection under Sec.
842.11(b) by providing to an authorized representative a signed,
written statement (or an oral report followed by a signed, written
statement) setting forth information that, along with any other
information the complainant chooses to provide, may give the authorized
representative reason to believe that a violation, condition, or
practice referred to in Sec. 842.11(b)(1)(i) exists. In making this
determination, the authorized representative will consider information
from a citizen complainant, information available in OSMRE files at the
time that OSMRE receives the request for a Federal inspection, and
publicly available electronic information. The statement must also set
forth a phone number, address, and, if available, an email address
where the person can be contacted. All citizen complaints under Sec.
842.11(b) will be considered as requests for a Federal inspection. If
the information supplied by the complainant results in a Federal
inspection, the complainant will be offered the opportunity to
accompany OSMRE on the Federal inspection.
* * * * *
[FR Doc. 2024-07248 Filed 4-8-24; 8:45 am]
BILLING CODE 4310-05-P
