Clarification of Provisions Related to the Issuance of Ten-Day Notices to State Regulatory Authorities and Enhancement of Corrective Action for State Regulatory Program Issues, 75150-75191 [2020-24137]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation
and Enforcement
30 CFR Parts 733, 736 and 842
[Docket ID: OSM–2019–0010; S1D1S
SS08011000 SX064A000 212S180110;
S2D2S SS08011000 SX064A00 21XS501520]
RIN 1029–AC77
Clarification of Provisions Related to
the Issuance of Ten-Day Notices to
State Regulatory Authorities and
Enhancement of Corrective Action for
State Regulatory Program Issues
Office of Surface Mining
Reclamation and Enforcement, Interior.
ACTION: Final rule.
AGENCY:
On May 14, 2020, the Office
of Surface Mining Reclamation and
Enforcement (OSMRE) published a
proposal to clarify the Federal
regulations about how OSMRE notifies
State regulatory authorities, via issuance
of a ten-day notice (TDN), of possible
violations of any requirement of the
Surface Mining Control and
Reclamation Act of 1977 (SMCRA). This
final rule adopts, with minor
adjustments, much of OSMRE’s
proposals to streamline the process for
OSMRE’s coordination with State
regulatory authorities in order to
minimize duplication of inspections,
enforcement, and administration of
SMCRA. This final rule comports with
the specific language of SMCRA,
remedies internal disparate application
of existing regulations, and will operate
to ensure more effective enforcement of
SMCRA. Additionally, the final rule
will enhance the procedures for early
identification of, and implementation of
corrective action to address, State
regulatory program issues.
DATES: This rule is effective on
December 24, 2020.
FOR FURTHER INFORMATION CONTACT:
Kathleen G. Vello, OSMRE, Division of
Regulatory Support, 1849 C Street NW,
Mail Stop 4558, Washington, DC 20240,
telephone number: (202) 208–1908. If
you use a telecommunications device
for the deaf (TDD), call the Federal
Relay Service at: (800) 877–8339.
SUPPLEMENTARY INFORMATION:
SUMMARY:
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Preamble Table of Contents
I. Background and Overview of the Final
Rule
A. Background
B. Key Provisions of the Final Rule
C. Summary of Changes Since the
Proposed Rule
II. Summary of Public Comments
A. Overview of Comments
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B. OSMRE Provided an Adequate Period
To Comment on the Proposed Rule, and
Hearings Were Not Necessary
C. The Final Rule is Properly Characterized
as a Clarification
D. This Final Rule Neither Inhibits a
Citizen’s Ability To Report Violations to
OSMRE Nor Limits OSMRE’s Ability To
Exercise Oversight Enforcement
E. OSMRE’s Authorized Representative
Will Continue To Formulate ‘‘Reason To
Believe’’ As Mandated by SMCRA; This
Includes Using Best Professional
Judgment
F. It is Important To Clarify That ‘‘Any
Information’’ Under 30 U.S.C. 1271(a)
Includes Information From the State
Regulatory Authority
G. Citizens’ Ability To Request Federal
Inspections Is Not Diminished
H. OSMRE’s Enhancement to the Existing
30 CFR Part 733 Process is Aimed at
Addressing State Regulatory Program
Issues Early and Promptly Resolving the
Issues
I. Interrelationship of 30 CFR Part 733 and
30 CFR Part 842
J. Specific Responses to Other Comments
Received About the Proposed Rule
III. Discussion of the Final Rule and Sectionby-Section Analysis
IV. Procedural Determinations
A. Statutes
1. Congressional Review Act
2. Data Quality Act
3. National Environmental Policy Act
4. National Technology Transfer and
Advancement Act
5. Paperwork Reduction Act
6. Regulatory Flexibility Act
7. Small Business Regulatory Enforcement
Fairness Act
8. Unfunded Mandates Reform Act
B. Executive Orders
1. Executive Order 12630—Governmental
Actions and Interference With
Constitutionally Protected Property
Rights
2. Executive Order 12866—Regulatory
Planning and Review and Executive
Order 13563—Improving Regulation and
Regulatory Review
3. Executive Order 12988—Civil Justice
Reform
4. Executive Order 13045—Protection of
Children From Environmental Health
Risks and Safety Risks
5. Executive Order 13132—Federalism
6. Executive Order 13175—Consultation
and Coordination With Indian Tribal
Governments
7. Executive Order 13211—Actions
Concerning Regulations That
Significantly Affect Energy Supply,
Distribution, or Use
8. Executive Order 13771—Reducing
Regulation and Controlling Regulatory
Costs
9. Executive Order 13783—Promoting
Energy Independence and Economic
Growth
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I. Background and Overview of the
Final Rule
A. Background
SMCRA requires the Secretary of the
Interior, acting through OSMRE, to,
among other things, ‘‘publish and
promulgate such rules and regulations
as may be necessary to carry out the
provisions of [SMCRA]’’ and to
‘‘cooperate with . . . State regulatory
authorities to minimize duplication of
inspections, enforcement, and
administration of [SMCRA].’’ 30 U.S.C.
1211(c)(2) and (12). Consistent with
these statutory obligations, based on
OSMRE’s 43 years of experience
administering SMCRA, after
consultation with OSMRE’s State
regulatory authority partners, and after
consideration of public comments
received on the proposed rule, OSMRE
is finalizing its proposal to enhance the
early identification of State regulatory
program issues and clarify the
regulations found at 30 CFR 842.11 and
842.12 to state, among other things, that,
before issuing a notification to a State
regulatory authority when a possible
violation exists, OSMRE will consider
any information readily available.
OSMRE’s final rule will reduce
inefficiencies by ensuring that, before
OSMRE issues a TDN to a State
regulatory authority, OSMRE considers
any readily available information about
the alleged violation, including
information that a State regulatory
authority may provide. OSMRE’s
consideration of this information is
critical because a State regulatory
authority has primary enforcement
responsibility under its State regulatory
program. Thus, the final rule eliminates
duplication of inspection and
enforcement under SMCRA by
clarifying that OSMRE’s authorized
representative will consider all readily
available information, from any source,
including any information provided by
the State regulatory authority, before
issuing a notification of an alleged
violation, in the form of a TDN, to that
State regulatory authority. Also, the
final rule clarifies the meaning of the
statutory terms ‘‘appropriate action’’
and ‘‘good cause,’’ as used in 30 CFR
842.11, to better describe the State
regulatory authority’s action that will
qualify as ‘‘appropriate action’’ or
scenarios in which a State regulatory
authority’s inaction may have ‘‘good
cause’’ after OSMRE notification that a
possible violation exists. Examples of
what constitutes a State regulatory
authority’s ‘‘appropriate action’’ in
response to a TDN or ‘‘good cause’’ for
not taking an action in response to a
TDN are in the existing regulations;
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however, in OSMRE’s experience, the
existing examples and explanations of
what qualify as an ‘‘appropriate action’’
or ‘‘good cause’’ for inaction are not
exhaustive and do not fully reflect the
array of in-the-field scenarios.
In addition, because OSMRE must
evaluate whether a State regulatory
authority has taken appropriate action
or has good cause for inaction with
respect to a possible violation, OSMRE
has observed that not all issues that are
raised in the TDN process warrant a
Federal inspection,1 but they may
require further evaluation and action as
they may raise issues with how a State
is implementing its approved State
regulatory program. To address these
issues comprehensively and to ensure
more complete and efficient
enforcement of SMCRA, OSMRE has
expanded 30 CFR part 733 to add
procedures for corrective action of State
regulatory program issues, including
implementation of action plans. As
finalized, 30 CFR part 733 includes
definitions of the terms ‘‘action plan’’
and ‘‘State regulatory program issue’’
and adopts a mechanism for early
identification and corrective action to
address State regulatory program issues.
We refer to these added procedures and
definitions in this preamble as the
‘‘enhanced Part 733 process.’’
The final rule is consistent with
SMCRA and will add transparency to
OSMRE’s oversight responsibilities;
promote regulatory certainty for State
regulatory authorities, regulated entities,
and the public; enhance OSMRE’s
relationship with the State regulatory
authorities; reduce redundancy in
inspection and enforcement; and
streamline the process for notifying
State regulatory authorities of possible
violations.
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B. Key Provisions of the Final Rule
OSMRE is adopting the following key
provisions from the proposed rule in
this final rule:
• Enhancement of 30 CFR part 733:
Early Identification and Corrective
Action.
The regulations at existing 30 CFR
part 733 establish requirements for the
maintenance of State regulatory
programs, as well as the procedures for
the rare remedy of substituting Federal
enforcement for State enforcement of
State regulatory programs and
withdrawing approval of State
regulatory programs. In coordination
with State regulatory authorities,
1 A Federal inspection in the context of 30 U.S.C.
1271(a) is an inspection of a surface coal mining
and reclamation operation conducted by an OSMRE
authorized representative.
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OSMRE has determined that
mechanisms exist for addressing
identified State regulatory program
issues to avoid the need to substitute
Federal enforcement for State
enforcement of a State regulatory
program. In this final rule at § 733.12,
OSMRE is codifying this existing
OSMRE practice of identifying State
regulatory program issues and ensuring
that prompt corrective action is taken.
• Clarification of Distinction Between
OSMRE Enforcement Actions under 30
U.S.C. 1271(a) and (b).
The TDN and Federal inspection
process in 30 U.S.C. 1271(a) applies to
oversight enforcement of alleged
violations at specific sites. In this
preamble, we refer to these types of
OSMRE oversight actions (TDNs and
Federal inspections) that OSMRE may
take under 30 U.S.C. 1271(a) as ‘‘sitespecific’’ enforcement actions. Congress
differentiated these site-specific
enforcement actions from the type of
actions that OSMRE may take under the
State regulatory program enforcement
provisions of 30 U.S.C. 1271(b), which
are aimed at ensuring that a State
regulatory authority is properly
enforcing its approved State program.
This type of OSMRE oversight action
under 30 U.S.C. 1271(b) is intended to
address what we will refer to in this
preamble as a ‘‘State regulatory program
issue’’ and which could, in the most
serious circumstances, result in
revocation of all or part of a State
program. OSMRE recognizes that its
review of State regulatory authority
permit issuance guidelines and
practices generally are systemic in
nature and that those guidelines and
practices squarely fall within a State
regulatory authority’s implementation,
administration, enforcement, and
maintenance of an approved program. In
this final rule, OSMRE further clarifies
the distinction between the situations to
which 30 U.S.C. 1271(a) and (b) apply,
while also recognizing that there may be
situations in which OSMRE becomes
aware of a State regulatory authority
that is not adequately implementing,
administering, maintaining, or enforcing
a part or all of a State program
(governed by 30 U.S.C. 1271(b) and the
implementing regulations at 30 CFR part
733) in the course of OSMRE’s oversight
enforcement of alleged violations at
specific mine sites (governed by 30
U.S.C. 1271(a) and the implementing
regulations at 30 CFR part 842). In
acknowledgement of OSMRE’s
obligation to resolve 30 U.S.C. 1271(a)
site-specific violations and 30 U.S.C.
1271(b) State regulatory program issues
using two separate mechanisms, this
final rule clarifies in 30 CFR
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842.11(b)(1)(ii)(B)(3) that a State
regulatory authority may be deemed to
have taken appropriate action in
response to a TDN if corrective action to
resolve an identified State regulatory
program issue has been initiated
consistent with the final rule § 733.12.
• Nothing in This Final Rule Prevents
OSMRE From Issuing A TDN for a SiteSpecific Violation.
Despite the two separate enforcement
mechanisms outlined in 30 U.S.C.
1271(a) and (b), these SMCRA
enforcement provisions may still
overlap in practice. As alluded to above,
and discussed more thoroughly in
response to public comments below,
OSMRE maintains its legal position that
SMCRA authorizes OSMRE to issue a
TDN to a State regulatory authority, if a
State regulatory program issue results in
or may imminently result in a violation
of an approved State program.
Specifically, in these situations, under
final § 733.12(d), OSMRE may still take
a direct site-specific enforcement action.
• Before Issuing a TDN, OSMRE Will
Consider All Readily Available
Information From Any Source.
OSMRE proposed to clarify that when
formulating a decision about whether
there is reason to believe that a possible
violation exists for purposes of direct
enforcement under 30 U.S.C. 1271(a)(1),
it will consider all readily available
information, including information it
receives from the State regulatory
authority, about an alleged violation.
(Throughout this preamble, we will, at
times, use an abbreviated way of
referring to this decision-making
process about whether there is reason to
believe that a possible violation exists as
‘‘formulating reason to believe’’ or
simply as ‘‘reason to believe’’ in
quotation marks.) OSMRE is adopting
this clarification in this final rule, with
a minor modification, which specifies
that OSMRE will consider all readily
available information it receives from
‘‘any source’’ in order to promote more
efficient and effective enforcement of
SMCRA.
C. Summary of Changes Since the
Proposed Rule
OSMRE has made 11 revisions to the
proposed rule in preparing this final
rule. These revisions are based on a
process of reasoned decision-making,
including reliance on over 43 years of
OSMRE experience overseeing the
implementation of SMCRA, including
review of past OSMRE data and
practices, meaningful consideration of
the 93 comments received from the
public, and adherence to plain language
principles to ensure regulatory clarity.
Specific details of the final rule are
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discussed in finer detail in the sectionby-section analysis below. For the ease
of the public, a summary of the changes
from the proposed rule to the rule being
finalized today (organized by section,
Section No.
Brief summary of change
Rationale
30 CFR 733.5 (definition of ‘‘Action
plan’’).
30 CFR 733.12(a)(1) ............................
Insert ‘‘State’’ before ‘‘regulatory authority’’.
OSMRE maintaining consistency and clarity.
Substitute ‘‘any source’’ for ‘‘any person’’.
30 CFR 733.12(b) ................................
Change ‘‘State regulatory program issues’’ to singular ‘‘a State regulatory program issue’’.
Substitute ‘‘a violation of the approved State program’’ for ‘‘an on-the-ground violation’’.
Accommodate citizen comments to allow the subsection to be more inclusive consistent with the
intent of the proposed rule.
OSMRE maintaining consistency and clarity.
30 CFR 733.12(b) ................................
30 CFR 733.12(b)(1)–(3) .....................
30 CFR 733.12(c) ................................
30 CFR 733.12(c) ................................
30 CFR 733.12(d) ................................
Change ‘‘action plans’’ to singular ‘‘action plan’’ in
three instances.
Insert ‘‘any associated action plan’’ after ‘‘State
regulatory program issues’’.
Acknowledge that Annual Evaluations reports will
be accessible on OSMRE’s website and at the
applicable OSMRE office.
Substitute ‘‘a violation of the approved State program’’ for ‘‘an on-the-ground violation’’.
30 CFR 842.11(b)(1) ............................
Substitute ‘‘must’’ for ‘‘will’’.
30 CFR 842.11(b)(1)(i) .........................
Add, ‘‘from any source, including any information a
citizen complainant or the relevant State regulatory authority submits,’’.
Change to conform to 30 CFR 842.11(b)(1)(i).
30 CFR 842.11(b)(2) ............................
II. Summary of Public Comments
A. Overview of Comments
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brief summary of the change, and
succinct rationale for change) include:
OSMRE received 93 written
comments on the proposed rule,
consisting of hundreds of pages of text.
The majority of the comments received
were from individuals, who reside in
many different States, including some
States that do not have coal mining. The
States in which these commenters
reside include: Alaska, California,
Colorado, Illinois, Indiana, Kentucky,
Massachusetts, Missouri, Montana, New
Mexico, North Carolina, North Dakota,
Pennsylvania, Tennessee, Texas, Utah,
Vermont, Virginia, Washington, West
Virginia, and Wyoming. The majority of
the individual comments originated
from citizens residing in Montana. The
39 comments received from Montana
residents were almost identical in
nature. As discussed further below,
these commenters generally objected to
the proposed rule, requested an
extended comment period, and
suggested that public hearings should be
held in the ‘‘4 coal regions’’ within the
United States. Additionally, several
other individual commenters referenced
support for non-governmental
organizations (NGOs) within their
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Accommodate citizen comments and OSMRE
evaluation to ensure OSMRE preserves the ability to take enforcement action.
OSMRE maintaining consistency and clarity.
OSMRE evaluation and accommodates citizen
comments requesting transparency and review
of action plans that are found in Annual Evaluation reports.
Accommodate citizen comments and OSMRE
evaluation to ensure transparency to the public.
OSMRE evaluation and accommodates citizen
comments about State regulatory program
issues that may also result in a site-specific violation.
OSMRE maintaining consistency with the Federal
Register and Plain Language Act.
OSMRE evaluation to specifically state the intention of the clarification.
Accommodate citizen comments requesting consistency between this subsection and 30 CFR
842.11(b)(1)(i).
comments that generally disapproved of
the proposed rule without giving
specific rationale. For example, six
commenters supported Coal River
Mountain Watch and provided very
similar comments opposed to the
proposed rule.
Additionally, many comments either
supported other comments and
incorporated them by reference or were
submitted on behalf of multiple parties.
Most of the comments representing
multiple parties were submitted on
behalf of NGOs. OSMRE received
comments from the following NGOs:
Alaska Center, Alaska Community
Action on Toxics, Appalachian Citizens’
Law Center, Appalachian Mountain
Advocates, Appalachian Voices, Black
Warrior Riverkeeper, Inc., Castle
Mountain Coalition, Center for
Biological Diversity (CBD), Citizens
Against Longwall Mining, Citizens Coal
Council (CCC), Coal River Mountain
Watch, Conservation Council for
Hawaii, Cook Inlet Keeper, Dakota
Resource Council, Earthworks, Eastern
Pennsylvania Coalition for Abandoned
Mine Reclamation, Endangered Habitats
League, Foundation for Pennsylvania
Watersheds, Gila Resources Information
Project, Great Old Broads for
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Wilderness, Heartwood, Kentuckians for
the Commonwealth, Kentucky
Resources Council, Inc., National
Wildlife Federation, Native Plant
Conservation Campaign, NH Audubon,
Northern Plains Resource Council,
NY4WHALES, Ohio Valley
Environmental Coalition, Oil Change
International, Powder River Basin
Resource Council, Save Our Sky Blue
Waters, Save the Scenic Santa Ritas,
Sierra Club, Stand Up to Coal, The
Lands Council, Trustees for Alaska,
Turtle Island Restoration Network, West
Virginia Highlands Conservancy, West
Virginia Rivers Coalition, Western
Nebraska Resources Council, Western
Organization of Resource Councils,
Western Watersheds Project, WildEarth
Guardians, and Wilderness Workshop.
With few exceptions, most of these
commenters generally objected to the
proposed rule, requested that the
comment period be extended, and
advocated for public hearings. A few of
these commenters made suggestions on
how to improve the proposed rule. As
discussed in detail below, OSMRE has
considered these suggestions and, in
some circumstances, is adopting the
suggestions in the final rule.
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The following industry and trade
groups submitted comments: Indiana
Coal Council, Kentucky Coal
Association, National Mining
Association (NMA), and Virginia Coal
and Energy Alliance. Generally, as
discussed more fully below, these
commenters supported the proposed
rule and made suggestions for
improvements. In some circumstances,
OSMRE is incorporating suggestions
made by these organizations in the final
rule.
A few State and quasi-governmental
organizations provided comments,
including the Central Illinois Healthy
Community Alliance and the Interstate
Mining Compact Commission (IMCC)
representing the following 27 States:
Alabama, Alaska, Arizona, Arkansas,
Colorado, Illinois, Indiana, Kentucky,
Louisiana, Maryland, Mississippi,
Missouri, Montana, New Mexico, New
York, North Carolina, North Dakota,
Ohio, Oklahoma, Pennsylvania, South
Carolina, Tennessee, Texas, Utah,
Virginia, West Virginia, and Wyoming.
One of these commenters was generally
opposed to the proposed rule, while the
other, IMCC, supported the proposed
rule.
B. OSMRE Provided an Adequate Period
To Comment on the Proposed Rule and
Hearings Were Not Necessary
OSMRE provided a 30-day comment
period for the proposed rule. OSMRE
received many comments requesting an
extension of the comment period from
an additional 30 days to an additional
180 days. One commenter, citing one of
the purposes of SMCRA at 30 U.S.C.
1202(i), essentially suggested that the
alleged absence of ‘‘a reasonable
comment period’’ deprived the public of
meaningful participation in this
rulemaking. OSMRE is aware of this
statutory provision, but, as explained
below, finds that the 30-day comment
period was adequate for meaningful
participation in this rulemaking. In
contrast to the other commenters, a
commenter stated that this rule was
‘‘long overdue’’ and that ‘‘additional
time is not necessary for the formulation
and submittal of comments on a 14-page
Federal Register notice.’’ Additionally,
many commenters requested that public
hearings—virtual or in person when
‘‘safe’’—be held, and many of those
commenters, particularly the 39
commenters from Montana, requested
that at least four public hearings be held
in different coal regions across the
country. Other commenters suggested
that SMCRA requires OSMRE to offer to
hold public hearings for rulemakings
affecting SMCRA’s permanent
regulatory program. These commenters
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opine that holding public hearings has
been the standard and expected
practice.
Section 553(c) of the Administrative
Procedure Act (APA) requires that
agencies, such as OSMRE, provide
‘‘interested persons an opportunity to
participate in the rule making through
submission of written data, views, or
arguments with or without an
opportunity for oral presentation.’’ 5
U.S.C. 553(c). Notably, the APA does
not contain a requirement to hold public
hearings. It is squarely within OSMRE’s
discretion to decline to either extend the
comment period or offer public hearings
or meetings. Additionally, the Office of
the Federal Register states that comment
periods generally last 30 to 60 days. See
Office of the Federal Register, ‘‘A Guide
to the Rulemaking Process,’’ available at
https://www.federalregister.gov/
uploads/2011/01/the_rulemaking_
process.pdf (last accessed August 12,
2020). As discussed above, OSMRE
received a diverse set of substantive
comments from a diverse set of
commenters within the 30-day comment
period. Based on this and several other
reasons, regardless of what other
agencies have done with regard to
extension requests, the public had a
meaningful opportunity to comment
with sufficient time to prepare their
comments.
First, OSMRE’s proposed revisions
would not significantly alter OSMRE’s
implementation of the SMCRA program.
As stated in the proposed rule, the
proposed changes were primarily
intended to clarify a potential ambiguity
in OSMRE’s existing regulations,
eliminate duplicative efforts of OSMRE
and the State regulatory authorities
when responding to citizen complaints,
and enhance procedures for corrective
action of State regulatory program
issues. See, e.g., 85 FR at 28905, 28910.
Previously, OSMRE has addressed these
issues through guidance documents,
such as the memorandum from Director
Joseph G. Pizarchik to Regional
Directors regarding Application of the
Ten-Day Notice Process and Federal
Enforcement to Permitting Issues Under
Approved Regulatory Programs, which
were issued without any opportunity for
advance public comment. Memorandum
from Director Joseph G. Pizarchik (Nov.
15, 2010). By addressing these issues
through the APA rulemaking process,
OSM has provided the public an
opportunity to comment.
Second, the proposed rule proposed
to make only limited changes to the
Federal regulations. The changes
OSMRE proposed primarily occurred in
three sections—30 CFR 733.12, 842.11,
and 842.12. The other proposed changes
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were conforming changes. If this rule
was significant, the Office of
Information and Regulatory Affairs
(OIRA) in the Office of Management and
Budget (OMB) would have classified it
as such; however, it has not because this
final rule is not expected to have a $100
million annual impact on the economy,
raise novel legal issues, or create
significant impacts. See ‘‘Procedural
Determinations’’ below.
Third, as stated in section 6(a)(1) of
Executive Order (E.O.) 12866, ‘‘before
issuing a notice of proposed rulemaking,
each agency should, where appropriate,
seek the involvement of those who are
intended to benefit from and those
expected to be burdened by any
regulation (including, specifically, State,
local, and tribal officials).’’ The State
regulatory authorities were the parties
most likely to be affected if the changes
in the proposed rule were finalized. As
such, before publishing the proposed
rule, OSMRE involved the State
regulatory authorities by seeking their
suggestions on what the proposed rule
should accomplish. For example, as part
of a program efficiency work group,
OSMRE requested that State regulatory
authorities provide information about
the number of citizen complaints
received; the number of TDNs received;
whether duplication exists between
citizen complaints the State regulatory
authority receives directly from citizens
and TDNs received from OSMRE; and
the amount of time State regulatory
authority personnel expend responding
to TDNs and citizen complaints that the
State regulatory authority receives
directly from citizens. In addition,
OSMRE directly engaged with its State
regulatory authority partners by
requesting input on the development of
internal OSMRE guidance about TDNs,
which, when finalized, were made
publicly available on OSMRE’s website
at https://www.osmre.gov/lrg/
directives.shtm.
Comment: Although most of the
commenters seeking extensions of time
or public hearings were general in
nature, some of the commenters
provided specific rationales for the
requests for extensions of time or public
hearings. In most circumstances, these
specific requests for extensions of time
or hearings were prompted by the
impacts of the COVID–19 pandemic,
including the potential for lack of access
to the internet due to library closures
and obligations associated with caring
for family members infected with
COVID–19. Some of these commenters
cited other Federal agencies’ decisions
to extend comment periods because of
COVID–19. Other commenters
supported an extension of the comment
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period because the 30-day comment
period included the Memorial Day
holiday. Finally, as indicated above, a
group of commenters suggested that 30
U.S.C. 1251(b), through its reference to
section 1251(a), requires OSMRE to offer
to hold public hearings for rulemakings
affecting SMCRA’s permanent
regulatory program. These commenters
also opine that holding public hearings
has been the standard and expected
practice.
Response: OSMRE recognizes that the
comment period for this rule occurred
during the COVID–19 pandemic, which
may have changed the manner in which
people and organizations would have
traditionally reviewed and submitted
comments on the proposed rule.
Although it is true that the pandemic
may have changed operating
procedures, it is also true that OIRA
recognized that ‘‘work on behalf of the
American people must continue during
this period, including work on
regulations . . . .’’ See Memorandum
from Paul J. Ray, OIRA Administrator
(March 23, 2020). OIRA, therefore,
declined to issue a ‘‘wholesale
extension of the comment periods of
pending notices of proposed
rulemakings . . . .’’ Id. Despite the
hardships posed by the pandemic and
the existence of a Federal holiday
within the comment period, OSMRE
received 93 comments from a
representative group of interests. In
total, these comments presented a
thorough examination of the limited
number of changes proposed, and the
commenters did not appear to be
hampered by the length of the comment
period.
In addition, OSMRE disagrees with
the comment that SMCRA, at 30 U.S.C.
1251(b), requires OSMRE to offer to
hold public hearings for rulemakings
such as this one. On its face, section
1251(b) applies to the permanent
regulatory program that OSMRE
promulgated long ago. While OSMRE
can still hold public hearings with
regard to proposed rules that are
published after the permanent program
regulations were promulgated, it is not
required to do so. For many of the same
reasons a 30-day comment period was
adequate, including receipt of a diverse
set of substantive comments from a
diverse set of commenters within the
30-day comment period, OSMRE also
finds that public hearings were not
necessary to inform OSMRE of the
various issues and viewpoints at play.
Instead, as explained above, OSMRE
obtained a full range of comments from
a diverse group of commenters. In sum,
OSMRE values public participation in
its rulemaking efforts and finds that
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there was reasonable and adequate
public participation in this particular
rulemaking.
Comment: A few commenters stated
that OSMRE should extend the
comment period beyond 30 days
because Federal employees’ teleworking
arrangements as a result of the COVID–
19 pandemic impinged on the
commenting process.
Response: Despite the challenges
posed by the COVID–19 pandemic,
OSMRE has been diligent in responding
to inquiries regarding the proposed
rulemaking either via email or
telephone. As previously stated, OIRA
has made clear that ‘‘work on behalf of
the American people must continue
during this period, including work on
regulations . . . .’’ See Memorandum
from Paul J. Ray, OIRA Administrator
(March 23, 2020). OSMRE did not shut
down or stop its work on behalf of the
American people as a result of the
COVID–19 pandemic. As is its
customary practice, OSMRE specified
the methods for submitting comments in
the proposed rule. 85 FR at 28904. This
included submission of comments via
regulations.gov or hard copy. The
submission of comments on
regulations.gov was not affected by the
pandemic, and OSMRE personnel still
regularly collected the comments that
were submitted in hard copy.
Comment: A few commenters cited
the Native American population as
being disproportionally affected by the
COVID–19 pandemic. According to
commenters, many of these same
population centers are located adjacent
to coal mine sites, are affected by the
coal mine operations, and need to voice
their comments on the proposed
rulemaking. Commenters cited the lack
of developed information technology
infrastructure and widespread COVID–
19 illnesses within the Native American
community as sufficient reasons to
extend the comment period. OSMRE
appreciates the commenters’ focus on,
and is sensitive to, the COVID–19
pandemic’s effect on Native American
populations.
Response: No Tribe currently has
primacy to regulate surface coal mining
operations within its jurisdiction.
Because this rule relates to OSMRE’s
enforcement in primacy States, these
revisions will have no direct impact on
any Tribe. Once a Tribe obtains
primacy, that Tribe would be in the
same position as a State regulatory
authority. 30 U.S.C. 1300(j). Therefore,
OSMRE would consider information
from a Tribal regulatory authority, just
as OSMRE considers information from a
State regulatory authority, in
determining whether to issue a TDN to
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the Tribal regulatory authority. Despite
this final rule not affecting any Tribe
directly, OSMRE directly engaged with
the three Indian Tribes that have either
expressed an interest in achieving
primacy or that have traditionally had
surface coal mining operations—the
Navajo Nation and the Hopi and Crow
Tribes. See ‘‘Procedural
Determinations,’’ E.O. 13175—
Consultation and Coordination With
Indian Tribal Governments, below. In
addition, Tribes were able to comment
on the proposed rule. To the extent the
commenters were concerned about the
rule’s effects on individual Native
Americans, as opposed to Indian Tribes,
OSMRE’s final rule will not hamper any
citizen’s ability to submit a citizen
complaint to OSMRE. Thus, any citizen,
including a Tribal member, can
continue to raise concerns to OSMRE
about potential SMCRA violations.
Comment: One commenter cites the
ongoing improvements to
regulations.gov, one of the methods of
submitting comments on the proposed
rule to OSMRE, as a rationale for
extending the comment period.
Response: OSMRE is aware that
regulations.gov has been undergoing
beta testing since July 2019, and it is
fully cooperating with the U.S. General
Services Administration (GSA) in its
ongoing efforts to improve the
experience of a user while participating
in the Federal government rulemaking
process. Contrary to the commenter’s
assertions, the core functionality of
regulations.gov has not been affected by
the beta testing. In fact, the
regulations.gov site has merely been
updated to be more accessible to the
public and improve the public interface.
GSA has characterized the beta testing
and associated improvements as efforts
to create transparency and expose the
public to improvements contemplated
for the website and to solicit feedback.
See Beta Frequently Asked Questions
available at https://beta.regulations.gov/
faq?type=beta (last accessed August 17,
2020). Moreover, the standard
regulations.gov site is still available, and
users may choose the ‘‘classic’’ version
if they prefer. Id. Therefore, the
improvement process for
regulations.gov was not a basis for
extending the comment period.
For all of these reasons, including the
limited nature of this rulemaking and
the sufficient time available to provide
meaningful comment, as evidenced by
the diverse and thorough comments
received, neither an extension of time
nor public hearings were warranted.
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C. This Final Rule is Properly
Characterized as a Clarification
In the proposed rule, OSMRE
characterized the provisions related to
30 CFR part 842 as clarifications
because OSMRE primarily sought to
remove ambiguity as to what
information should be considered by the
OSMRE authorized representative when
formulating reason to believe that any
person is in violation of any
requirement of [SMCRA] or any permit
condition required by [SMCRA].’’ 30
U.S.C. 1271(a). Many commenters
objected to OSMRE’s use of the term
clarification to describe the changes to
part 842; however, some industry
commenters supported this
characterization. OSMRE maintains that
clarification is an appropriate
descriptor. As discussed in more detail
in specific comment responses below,
several citizen group commenters
alleged that OSMRE invented ambiguity
in the existing regulations where none
existed to justify the regulatory changes.
OSMRE strongly disagrees with this
assertion.
Due to the complex nature of SMCRA,
and coal mining in general, ambiguity
has arisen about how OSMRE should
perform some of its oversight functions.
Through this final rulemaking, OSMRE
is seeking to end any ambiguity.
Notably, over the years, OSMRE has had
varying interpretations of how to
administer 30 U.S.C. 1271(a) and the
implementing regulations at 30 CFR part
842. An example of disparate
implementation of the existing
regulations by OSMRE is evidenced by
the fact that OSMRE has revised its
primary Directive on the TDN process,
INE–35, eight times in 33 years—an
average of approximately once every
four years—each time without taking
prior public comment. Tellingly, the
various interpretations documented
within OSMRE policy have the common
theme of attempting to define the right
balance of expertise and professional
discretion and due diligence. With this
final rulemaking, OSMRE has achieved
better balance. In proposing this rule,
OSMRE closely examined the concepts
of expertise and professional discretion
and due diligence in its enforcement of
SMCRA. For example, when
considering an early draft of SMCRA,
the House of Representatives recognized
the importance of formulating
‘‘reasonable belief’’ based on available
information.
When the Secretary receives information
from any source that would give rise to a
reasonable belief that the standards of the Act
are being violated, the Secretary must
respond by either ordering an inspection by
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Federal inspectors during the interim period
or, after the interim, notice to the States in
the follow-up inspection that the State’s
response is inadequate. It is anticipated that
‘‘reasonable belief’’ could be established by a
snapshot of an operation in violation or other
simple and effective documentation of a
violation.
H.R. Rep. No. 93–1072, at 11 (May 20,
1974).
If OSMRE simply passes along a
citizen complaint without considering
available information, it is not
establishing the requisite reasonable
belief that was Congress’ intent.
Congress recognized the value of relying
on the professional competence and
capacity of OSMRE staff to ensure
effective and efficient processing of
citizen complaints. In fact, the Senate
Report recognized the importance of
OSMRE experts in achieving the twin
goals of efficiency and effectiveness for
State enforcement programs:
Efficient enforcement is central to the
success for the surface mining control
program contemplated by S.7. For a number
of predictable reasons—including
insufficient funding and the tendency for
State agencies to be protective of local
industry—State enforcement has in the past
often fallen short of the vigor necessary to
assure adequate protection of the
environment. The Committee believes,
however, that the implementation of minimal
Federal standards, the availability of Federal
funds, and the assistance of the experts in the
Office of Surface Mining Reclamation and
Enforcement in the Department of Interior,
will combine to greatly increase the
effectiveness of State enforcement programs
operating under the Act. While it is confident
that the delegation of primary regulatory
authority to the States will result in adequate
State enforcement, the Committee is also of
the belief that a limited Federal oversight role
as well as increased opportunity for citizens
to participate in the enforcement program are
necessary to assure that the old patterns of
minimal enforcement are not repeated.
S. Rep. No. 95–128, at 90 (May 10,
1977). These factors have weighed
heavily in OSMRE’s analysis and the
formulation of this final rule. In order to
achieve an effective balance of these
concepts, OSMRE has always focused
on the mandates of SMCRA, including
expeditious enforcement. In the final
rule, OSMRE’s clarifications act to
resolve the internal struggle to exercise
expertise and professional judgment and
due diligence to best implement the
existing regulations at 30 CFR part 842,
despite the potential ambiguities
contained within those regulations.
Strategies employed in versions of the
INE–35 Directive have included various
interpretations of the ‘‘reason to
believe’’ standard, what constitutes
appropriate action, and how to address
various types of violations. The
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regulations that OSMRE is finalizing
today aim to remove the potential
ambiguity related to the ‘‘reason to
believe’’ standard that made those
various interpretations possible.
OSMRE’s final rule is crafted to create
a more uniform, efficient, and
transparent process for resolving citizen
complaints. These changes do not
diminish the public’s access to
enforcement or reinvent the TDN
process.
In response to a commenter’s
suggestion that OSMRE should provide
objective support for this rule, including
data, OSMRE notes that it proposed this
rulemaking to clarify issues raised by
State regulatory authorities and
identified by OSMRE’s own experience.
Additionally, a goal of the proposed
rulemaking is to ensure OSMRE
uniformly applies the statute and
regulations and no disparate application
occurs within the agency. Recognizing
that there may have been inconsistent
application of the existing regulations,
analysis of past data is not germane to
the rulemaking as the commenter
suggests. For example, if various
OSMRE authorized representatives
applied the existing regulatory language
inconsistently, relying on data related to
the number of citizen complaints that
led to the issuance of TDNs would not
illustrate how those authorized
representatives might have interpreted
the existing regulations in formulating
‘‘reason to believe’’. Because ensuring
that information from the State
regulatory authority is considered when
formulating ‘‘reason to believe’’ is a
major component of this final rule,
revisiting individual TDN analyses
under previous interpretations of the
existing regulations or internal OSMRE
policies is not useful or informative.
OSMRE’s clarifications harmonize the
implementing regulations with
congressional intent. These
improvements were needed because one
possible interpretation of 30 CFR
842.11(b)(2) was that OSMRE’s
authorized representative was required
to find that reason to believe that a
violation exists whenever any
information submitted to OSMRE
would, if true, constitute a violation.
Under this possible interpretation,
OSMRE would merely serve as a
conduit to the State regulatory
authority, eviscerating the authority
bestowed upon OSMRE by Congress to
act with ‘‘professional competence and
capacity to administer the provisions of
[SMCRA].’’ 30 U.S.C. 1211(a). In
practice, if this interpretation were
implemented, OSMRE would almost
always be required to immediately issue
a TDN to the State regulatory authority.
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This interpretation removes any aspect
of an OSMRE authorized
representative’s discretion and prevents
the authorized representative from
exercising best professional judgment.
OSMRE’s clarification reduces
ambiguity in the regulations that could
lead to this unwarranted interpretation.
Instead, the final rule makes clear that
OSMRE’s authorized representative, a
qualified, trained, professional with
SMCRA expertise, is in the best position
to consider all readily available
information available to him or her
before making a determination about
whether there is reason to believe a
violation exists before deciding whether
to issue a TDN. Instead of simply
accepting what is submitted to OSMRE
as true, under this final rule, OSMRE’s
authorized representative can review all
readily available information, regardless
of the source of that information. This
change also better aligns the Federal
regulations with the carefully crafted
language of 30 U.S.C. 1271(a), and, as
explained below, reduces duplication of
effort between OSMRE and a State
regulatory authority as mandated by 30
U.S.C. 1211(c)(12).
The ambiguity in the regulations was
leading to inconsistent interpretations of
the ‘‘reason to believe’’ standard in the
regulations. As discussed more
thoroughly below, the comments to the
proposed rule illustrate the inconsistent
interpretations that existed within
OSMRE and among the State regulatory
authorities, citizens, and industry. Some
have interpreted the regulatory standard
in a way that would make OSMRE a
mere conduit of citizen complaints to
the State regulatory authority while
others interpreted the regulatory
‘‘reason to believe’’ standard to evoke
more discretion, in the form of OSMRE’s
authorized representative exercising
professional judgment. Additionally,
there have been varying views about the
type of information that OSMRE’s
authorized representative should
consider and from whom that
information originates, with some
groups claiming that OSMRE should
only consider citizen information while
others found it essential that OSMRE
also consider information provided by
the State regulatory authority—the
primary SMCRA enforcement authority
under approved State programs. This
inconsistency has manifested itself in
the various internal directives that
OSMRE has issued throughout the
years, which have contained various
interpretations of the regulations
regarding, among other things, what
information should be considered when
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determining if the OSMRE authorized
representative has a ‘‘reason to believe.’’
With the assistance and comments of
OSMRE’s State regulatory authority
partners, citizens, and industry, OSMRE
identified these inconsistent
interpretations as significant enough to
warrant a resolution through a clarifying
rulemaking.
Comment: A commenter expressed
concern that the current TDN process
was not working and gave an example
of a TDN that seemingly took many
years to resolve. The commenter further
opined that the proposed rulemaking
was not a step in the right direction and
will result in ‘‘protracted delays’’ of
enforcement to correct on-the-ground
issues.
Response: OSMRE agrees with the
commenter that the existing process
needed to be clarified to avoid
unnecessary delays, and that is one of
the reasons why OSMRE is issuing this
final rule. OSMRE notes that this final
rule will improve the TDN process by,
among other things, increasing
collaboration and coordination between
OSMRE and the State regulatory
authorities. OSMRE acknowledges that,
historically, there have been challenges
associated with the TDN process, and
sometimes TDN issues were not
resolved as quickly as OSMRE would
have liked. However, while this final
rule will not eliminate all future delays
in TDN outcomes, just as the existing
regulations did not, this final rule is
intended to enhance the overall
efficiency of the TDN process going
forward in addressing violations.
Because State regulatory program issues
will be more appropriately addressed
through the enhanced Part 733 process,
rather than through the TDN process,
OSMRE and the State regulatory
authorities will be able to focus more
quickly on site-specific violations that
arise.
To be clear, neither the proposed rule
nor the final rule substantively impacts
the TDN process. Instead, in the final
rule, OSMRE removes ambiguity by
clarifying that the OSMRE authorized
representative can review information
received from any source, including the
State regulatory authority, when
deciding whether he or she has reason
to believe a violation exists as
contemplated by SMCRA. 30 U.S.C.
1271(a). When an OSMRE authorized
representative has reason to believe a
violation exists, the information about
the alleged violation will continue to be
transmitted to the State regulatory
authority via a TDN. The distinction
between the existing regulations and the
final rule is that, under the final rule,
the OSMRE authorized representative
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will consider all readily available
information when formulating reason to
believe. Most importantly, all readily
available information includes
information that the OSMRE authorized
representative may receive from the
State regulatory authority.
OSMRE also notes that some of the
other revisions that OSMRE proposed
and is finalizing today, namely the
enhancement to 30 CFR part 733 related
to State regulatory authority action
plans to address State regulatory
program issues, are a variation of an
administrative process that has been
contained in OSMRE’s Directives REG–
8 and REG–23 since as early as 1988.
Given OSMRE’s longstanding use of
these action plans, the changes to these
regulations also are not a material
alteration of the administrative process
that OSMRE has already used to interact
with State regulatory authorities to
enforce SMCRA. OSMRE is codifying
these practices to avoid ambiguity about
when these State regulatory authority
corrective action plans are appropriate
to use.
In summary, Merriam-Webster
Dictionary defines clarify as, ‘‘to make
understandable; to free from confusion.’’
See Clarification, Merriam Webster
Online Dictionary, available at merriamwebster.com/dictionary/clarification
(last accessed August 14, 2020). Because
of the varying interpretations of what
information may be considered when
formulating reason to believe, not only
by SMCRA stakeholders, but by OSMRE
itself, a clarification is certainly
warranted. Moreover, codifying the
enhancements to early identification of
corrective action to address State
regulatory program issues will remove
ambiguity as to when this process
should be applied. OSMRE finds it
essential to be transparent and make the
regulations ‘‘understandable’’ and ‘‘free
from confusion’’ so that the TDN
process pursuant to 30 U.S.C. 1271(a)
and the enhanced 30 CFR part 733
process pursuant to 30 U.S.C. 1271(b)
work efficiently and effectively. This
clarification is necessary to remove
ambiguity.
D. This Final Rule Neither Inhibits a
Citizen’s Ability To Report Violations to
OSMRE Nor Limits OSMRE’s Ability To
Exercise Oversight Enforcement
OSMRE received comments that
evidence a misconception by many
commenters that the changes OSMRE
proposed, if finalized, would alter the
obligations of 30 U.S.C. 1271. As
discussed below, in response to specific
comments, the statutory obligations
under SMCRA are not altered by this
rulemaking, and OSMRE will continue
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to take action on citizen complaints and
engage in oversight enforcement
consistent with statutory mandates and
the Federal regulations.
Comment: Many commenters,
including citizen group commenters,
suggested that the proposed rule
clarification would eliminate the ability
of the public to report violations
directly to OSMRE. According to several
commenters, the proposed clarification
would alter the process citizens would
use to report alleged violations, make it
prohibitively difficult, impair
enforcement, and would lengthen the
amount of time for a State regulatory
authority to respond to a TDN from 10
days to unlimited, and make a TDN
response from the State regulatory
authority discretionary instead of
mandatory. A commenter also opined
that the clarification of the TDN process
that OSMRE proposed explicitly
contradicts the letter and intent of
SMCRA. Similarly, another commenter
suggested that, under the proposal,
OSMRE would be able to simply ignore
complaints against mining companies.
Response: OSMRE disagrees with the
premise of these comments. The rule, as
proposed and finalized today, does not
materially alter the manner in which
OSMRE already enforces SMCRA.
Specifically, OSMRE disagrees with the
commenters who suggested that the
proposed provisions and clarifications
in 30 CFR parts 733 and 842 would
impair, weaken, or eliminate the ability
of the public to report violations
directly to OSMRE. To the contrary, the
public will be able to continue to report
possible violations directly to OSMRE,
and OSMRE will continue to take such
complaints seriously and issue a TDN to
the State regulatory authority when
appropriate. OSMRE’s consideration of
all readily available information before
issuing a TDN will make the process
more efficient and effective by making
correction of the violation the objective.
Indeed, the purpose of this final rule
is to ensure that both alleged violations
and potential State regulatory program
issues are corrected promptly and
effectively. After working closely with
State regulatory authority partners for
over 40 years, OSMRE has learned that,
within the cooperative federalism
framework established by SMCRA,
effective enforcement requires close
cooperation with primacy states.
Furthermore, OSMRE notes that the
United States Supreme Court has
recognized that SMCRA has established
a system of cooperative federalism
involving an essential relationship
between OSMRE in an oversight
capacity and State regulatory
authorities. In Hodel v. Va. Surface
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Mining and Reclamation Ass’n, 452 U.S.
264, 289 (1981) (citing In re Permanent
Surface Min. Regulation Litigation, 617
F.2d 807, 808 (1980)), the Supreme
Court explained that SMCRA
‘‘established a program of cooperative
federalism that allows the States, within
limits established by federal minimum
standards, to enact and administer their
own regulatory programs, structured to
meet their own particular needs.’’ Given
the unique nature of cooperative
federalism embodied in SMCRA,
coupled with the specific requirements
within SMCRA to consider ‘‘any
information available’’ when
formulating reason to believe in the
TDN context, it makes sense for OSMRE
to consider available information from
the State regulatory authority. 30 U.S.C.
1271(a)(1).
OSMRE’s clarification in the final rule
to provide explicitly that OSMRE will
consider all ‘‘readily available
information,’’ including any information
that a State regulatory authority
provides, promotes the goal of ensuring
that the entities with primary
jurisdiction over respective State
programs supply OSMRE with
information essential to its assessment
of alleged violations. After OSMRE
considers readily available information,
including any information that a State
regulatory authority provides, OSMRE
will continue to make an independent
assessment regarding whether it has
reason to believe a possible violation
exists. Further, the basic principle of
SMCRA and the implementing
regulations at 30 CFR 842.11 remains
unchanged—OSMRE will continue to
issue a TDN to a State regulatory
authority when it concludes there is
reason to believe a violation exists. As
OSMRE explained in the proposed rule,
and as embodied in this final rule, any
information that OSMRE considers must
be ‘‘readily’’ available to ensure that the
process proceeds as quickly as possible
and does not become open-ended.
The existing regulations at 30 CFR
842.12(a) already require that, if a
citizen requests a Federal inspection,
then the citizen is required to notify a
State regulatory authority of a possible
violation before or simultaneously with
notification to OSMRE. In fact,
OSMRE’s proposal, and ultimately this
final rule, is fundamentally no different
from the existing rule because it retains
language that requires citizens to notify
the State regulatory authority prior to, or
simultaneously with, reporting
violations to OSMRE. The language in
existing 30 CFR 842.12(a) requires
citizens, as part of a request for Federal
inspection, to do several things,
including furnishing OSMRE with ‘‘a
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75157
signed, written statement . . . giving the
authorized representative reason to
believe that a violation, condition or
practice referred to in § 842.11(b)(1)(i)
exists and that the State regulatory
authority, if any, has been notified
. . . .’’
Moreover, contrary to some
commenters’ assertions that this
proposed rule clarification would
institute a new requirement for citizen
complainants to contact the State
regulatory authority before requesting a
Federal inspection under section
842.12, the requirement for citizens to
contact the State regulatory authority,
before or simultaneously with a request
to OSMRE for a Federal inspection, has
been in 30 CFR 842.12(a) since August
16, 1982. 47 FR 35620. Because OSMRE
continues to believe, as OSMRE has
since 1982, that most alleged violations
will be resolved by a State regulatory
authority without intrusion by OSMRE
(47 FR at 35628), OSMRE strongly
encourages a citizen also to report a
violation to the State regulatory
authority first. However, neither the
proposed rule nor the final rule
mandates that a citizen report an alleged
violation to the State regulatory
authority before reporting it to OSMRE.
The proposed rule clarification, which
is adopted in this final rule, does not
change or alter the requirement for
citizen complainants to contact the State
regulatory authority before or
simultaneously with requesting a
Federal inspection from OSMRE.
SMCRA confers exclusive jurisdiction
upon a State regulatory authority after
that State has achieved primacy. See
Bragg v. W. Va. Coal Ass’n, 248 F.3d
275, 288 (4th Cir. 2001) (explaining that
once a State achieves primacy, it has
‘‘ ‘exclusive jurisdiction over the
regulation of surface coal mining’
within its borders’’) (citing 30 U.S.C.
1253(a)). However, a State’s exclusive
jurisdiction is subject to the statutory
exceptions outlined in SMCRA sections
521 and 523 and Title IV of SMCRA, 30
U.S.C. 1271, 1273, and 1231–1244.
Given the prominent role that the States
play in administering and enforcing
SMCRA, OSMRE has found, in its
experience, that including a State
regulatory authority early in the process
is advantageous to both the State
regulatory authority and OSMRE
because it reduces duplicative efforts to
address potential violations. In
OSMRE’s experience, when a citizen
first contacts the State regulatory
authority, violations are often promptly
and effectively resolved without
OSMRE’s direct involvement.
In OSMRE’s experience implementing
SMCRA, it has witnessed instances
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when citizens filed complaints for the
same or similar alleged violations on the
same permit with both the State
regulatory authority and OSMRE.
Resolution of the violation was not
efficient or effective because the State
regulatory authority was simultaneously
trying to use the same resources to
respond to the citizen complaints and
the various TDNs issued by OSMRE. For
example, in one instance, OSMRE
issued six TDNs on the same permit in
less than six months. Instead of focusing
directly on correcting the alleged
violations at the site, both OSMRE and
the State regulatory authority were
subsumed by the paperwork exercise of
issuing TDNs, responding to TDNs, and
evaluating the State’s responses to the
TDNs; correcting the alleged violations
became secondary to following the TDN
process. Specifically, under one
interpretation of the ‘‘reason to believe’’
standard in the existing regulations, the
OSMRE authorized representative
considered information in OSMRE’s
possession but ultimately issued
separate TDNs, automatically assuming
the allegations in the complaints to be
true and without considering all readily
available information—most
importantly, the information that the
State regulatory authority, with primary
regulatory authority over the mine site,
had available. Because the State
regulatory authority knows its specific
permits best, this is a perfect example of
why considering any information the
State regulatory authority provides is
essential. In the anecdote above, had the
State regulatory authority provided all
‘‘readily available information’’ to
OSMRE up front, both OSMRE and the
State regulatory authority could have
better understood the alleged violations,
cooperated effectively, and spent
valuable time and resources addressing
the alleged violations and not simply
generating duplicative paperwork.
Tellingly, in this example, the OSMRE
field office ultimately found no
violations of the approved program. The
citizens filed a request for informal
review with an OSMRE regional
director, and, ultimately, the regional
director affirmed the OSMRE field
office’s original decision. This
duplication of effort unnecessarily
diminished OSMRE and State regulatory
authority resources that could have
better been directed to resolving real
issues, not merely preparing and
exchanging paperwork. Thus, under this
final rule, OSMRE must consider all
readily available information, including
any information the State regulatory
may provide, when the authorized
representative determines whether there
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is reason to believe that a violation
exists.
As noted above, the removal of the
language that essentially required
OSMRE to automatically accept citizen
complaints as true removes a potential
ambiguity in the existing regulations
and clarifies the information OSMRE
can consider in forming a ‘‘reason to
believe.’’ Finalizing the rule in this
manner does not hinder the ability of
citizens to report a violation directly to
OSMRE. Because the regulations
continue to require that the citizen
notify the State regulatory authority
before or simultaneously with
requesting that OSMRE initiate a
Federal inspection, a primacy State will
have an opportunity to address an
alleged violation before OSMRE, which
is advantageous because the State
regulatory authorities are more familiar
with the operations in their States and
can typically respond to alleged
violations faster than OSMRE. This is
consistent with primacy, as described
by a U.S. Court of Appeals:
the Secretary is initially to decide whether
the proposed state program is capable of
carrying out the provisions of the Act but is
not directly involved in local decision
making after the program has been approved.
In re Permanent Surface Min.
Regulation Litigation, 653 F.2d 514, 518
(D.C. Cir. 1981). The court further stated
that:
[o]nce a state program has been approved, 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.
Id. at 523. Although a State plays the
major role in enforcing its State
program, the court did note that:
‘‘Ultimate responsibility for
guaranteeing effective state enforcement
of uniform nationwide minimum
standards lies with the Secretary.’’ Id.
States are expected to fully implement
their programs, including all applicable
enforcement provisions. OSMRE will
exercise its oversight responsibility, in
part, through this final rule and will
continue to issue TDNs when it has
reason to believe a possible violation
exists; the relevant provisions of this
final rule clarify the process that
OSMRE will use to arrive at a ‘‘reason
to believe.’’ Further, if a State does not
effectively enforce its State program,
Congress authorized OSMRE to address
such inadequacies in the State’s
implementation through SMCRA
section 521(b). 30 U.S.C. 1271(b).
Some commenters asserted that the
time frames for responding to TDNs
have been extended or made indefinite
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by the proposed rule. While it is true
that there is no time frame set forth in
the final rule for OSMRE’s authorized
representative to make a determination
about whether they have reason to
believe a violation exists, it is also true
that there has never been a stringent
time frame imposed. Further, as OSMRE
explained in the proposed rule, OSMRE
proposed, and is finalizing, inclusion of
the word ‘‘readily’’ to the revised
regulations at 30 CFR 842.11(b)(1)(i) to
modify the phrase ‘‘available
information’’ to ensure that the process
proceeds as quickly as possible and
does not become open-ended. 85 FR at
28907; see also OSMRE’s response to a
request to specifically define ‘‘readily
available.’’ Once OSMRE’s authorized
representative has determined that they
have reason to believe that a possible
violation exists, the State regulatory
authority will still have only ten days to
respond to the TDN. See 30 CFR
842.11(b)(1)(ii)(B)(1). Thus, this rule
ensures that reported alleged violations
will be responded to in a reasonable
amount of time.
Finally, this rule neither makes a
State regulatory authority’s response to
a TDN discretionary nor impinges on
OSMRE’s ability to perform oversight of
a State regulatory program. OSMRE is
not changing the nondiscretionary
requirement that a State regulatory
authority must respond to a TDN with
good cause for inaction or by taking
appropriate action within ten days. 30
CFR 842.11(b)(1)(ii)(B)(1). OSMRE is,
however, revising its regulations to
ensure a more uniform and efficient
process when OSMRE receives a citizen
complaint. The revised regulation
clarifies what the OSMRE authorized
representative should consider when
they receive a citizen complaint, which
eliminates the possibility that different
OSMRE offices will apply different
standards when determining whether to
issue a TDN. This revised process also
ensures that the OSMRE authorized
representative who receives a citizen
complaint is able to apply their
independent, professional judgment to
determine whether they have reason to
believe a possible violation exists based
on all readily available information
before them. Once an OSMRE
authorized representative determines
that they have ‘‘reason to believe,’’ they
must issue a TDN to the State regulatory
authority. See 30 CFR 842.11(b)(1).
Therefore, OSMRE’s oversight of alleged
violations is not materially altered.
Comment: Very similar to the
comment addressed above, a citizens’
group commenter expressed the opinion
that the rule gives the coal industry a
free pass to break environmental laws
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and provides no meaningful way for
citizens to bring potential violations to
the attention of OSMRE. As evidence for
this claim, the commenter references a
statement by OSMRE in regard to the
spirit of cooperative federalism, at 85 FR
at 28905 in the preamble of the
proposed rule, ‘‘to alleviate unnecessary
regulatory burden’’ consistent with E.O.
13777.
Response: This rulemaking does not,
and could not, alter OSMRE’s statutory
responsibilities to enforce SMCRA.
Moreover, this rulemaking does not
impair, weaken, or eliminate OSMRE’s
ability to enforce SMCRA and the
implementing regulations or the
public’s ability to report alleged
violations directly to OSMRE. See also
OSMRE’s further explanations in this
section.
To the extent that OSMRE referred to
the spirit of cooperative federalism in
the preamble, it was a recognition of the
fundamental importance of cooperative
federalism to SMCRA’s administrative
and enforcement framework. See, e.g.,
Bragg, 248 F.3d at 288 (SMCRA
‘‘accomplishes [its] purposes through [ ]
‘cooperative federalism,’ in which
responsibility for the regulation of
surface coal mining in the United States
is shared between the U.S. Secretary of
the Interior and State regulatory
authorities.’’). It was in this spirit that
we coordinated with our State
regulatory partners as we
conceptualized this rulemaking. This
spirit also informed how we chose to
clarify any potential ambiguities in the
existing regulations and develop a more
efficient process for addressing alleged
violations of SMCRA within the limits
of our statutory authority. Cooperative
federalism does not mean that OSMRE
will no longer perform its statutory duty
to oversee a State regulatory authority’s
implementation, administration,
enforcement, and maintenance of its
State program. Instead, it means that,
given the prominent role that the States
play in administering and enforcing
SMCRA, including State regulatory
authorities early in the process is
advantageous to both the State
regulatory authority and OSMRE
because it reduces duplicative efforts to
address potential violations. Also, as
stated above, in OSMRE’s experience,
when a citizen first contacts the State
regulatory authority, violations are often
promptly and effectively resolved
without OSMRE’s direct involvement.
Likewise, the fact that this action is
consistent with E.O. 13777 and helps to
alleviate unnecessary regulatory
burdens does not mean that OSMRE
will fail to perform its statutory
responsibilities set forth in SMCRA—
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including its oversight responsibilities.
It simply means that by removing a
potential ambiguity from the Federal
regulations and creating a more uniform
process for OSMRE authorized
representatives to follow when
determining whether they have ‘‘reason
to believe,’’ OSMRE is reducing the
likelihood of duplicative processes
between OSMRE and the State
regulatory authorities. It does not mean
that permittees will be held to a lesser
standard for abating SMCRA violations
when they occur.
Comment: In the same vein, a citizen
commenter states that United States
citizens and taxpayers have a right to
seek accountability for violations of
mining laws that protect citizens and
the environment. As a rationale for not
finalizing the proposed rule, the
commenter also cites to a State
constitution and asserts that there is a
provision that is aimed at protecting
citizens’ rights to a ‘‘clean and healthful
environment.’’
Response: Nothing in this final rule
diminishes a citizen’s ability to bring
potential violations of SMCRA or State
counterparts to SMCRA to OSMRE’s
attention. Further, when OSMRE has
reason to believe that a violation exists,
OSMRE will continue to send a TDN to
the relevant State regulatory authority
and take appropriate enforcement
action. This final rule is fully authorized
by SMCRA. In order for a State to be
granted primacy of an approved SMCRA
State program, the State must follow the
procedures of section 503 of SMCRA, 30
U.S.C. 1253; however, ‘‘[n]o State law or
regulation . . . shall be superseded by
any provision of [SMCRA] or any
regulation issued pursuant thereto,
except insofar as such State law or
regulation is inconsistent with the
provisions of [SMCRA],’’ and State laws
and regulations may be more stringent
than SMCRA and its implementing
regulations. See 30 U.S.C. 1255.
Therefore, nothing in SMCRA prevents
any State from adopting laws and
regulations related to surface coal
mining operations that are more
stringent than SMCRA or its
implementing regulations, including
this final rule. Moreover, this final rule
is consistent with SMCRA’s purpose of
protecting society and the environment
from the adverse effect of surface coal
mining operations, which is similar to
the State constitutional provision cited
by the commenter.
Comment: A citizen commenter
expressed concern that OSMRE’s
proposed rule, if finalized, would
reduce the efficacy of OSMRE’s
oversight of approved State programs.
Similarly, another commenter opined
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that the proposed rule, if finalized,
would reduce or hinder OSMRE’s
ability to conduct oversight of State
regulatory programs.
Response: OSMRE disagrees with
these commenters’ characterization of
the impacts of the regulatory
clarification that OSMRE proposed and
is finalizing today. As explained in
response to other comments within this
section, OSMRE drafted the regulatory
revisions to improve the efficiency and
effectiveness of OSMRE’s oversight by
focusing State and OSMRE resources on
addressing alleged violations and not on
simply generating paperwork. Nothing
in the final rule prevents OSMRE from
exercising the full panoply of oversight
actions that Congress authorized in
SMCRA. To the contrary, OSMRE’s
regulatory revisions seek to build on the
oversight responsibilities at 30 U.S.C.
1254(b) and 1271(b), which authorize
OSMRE to provide Federal enforcement
when a State is not enforcing all or part
of its approved program or to take over
all or part of a State regulatory program
if the State regulatory authority fails to
enforce the approved State program.
Specifically, OSMRE is adding the
concept of action plans to 30 CFR
733.12, which enhances the tools
available to OSMRE to ensure the
approved State program continues to be
effectively implemented, maintained,
enforced, and administered. This
addition will codify an existing OSMRE
practice and result in more accurate and
concise solutions to State regulatory
program issues.
Comment: One citizen commenter
expressed concerns that SMCRA does
not intend the citizen complaint process
to be so complicated that it would
impair citizens’ access to filing
complaints or inhibit citizens from
filing complaints. This citizen was
particularly concerned that the
clarification as proposed would make
the filing of a citizen complaint more
difficult for those who are not experts in
SMCRA and SMCRA procedures. For
example, the citizen alleges that, as
proposed, the clarification would be
similar to a legal filing instead of an
informational filing as SMCRA
intended. Similarly, another citizen
commenter expressed concern that the
proposed requirement to specify the
basis for the person’s assertion that the
State regulatory authority has not taken
action with respect to the possible
violation is too burdensome upon the
public and will reduce the number of
Federal inspections.
Response: OSMRE disagrees with the
commenters’ views; the clarification
adopted in this final rule has very little
practical effect on how citizens may file
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complaints and places no additional
burden on the citizen complaint process
from a complainant’s perspective. The
majority of the proposal finalized today
only affects OSMRE’s process after
receipt of a citizen complaint. For a
citizen, the finalized regulation at 30
CFR 842.12(a) reconfirms the
requirement in existing 30 CFR
842.12(a) that, when requesting a
Federal inspection, the citizen must
include a statement that the citizen has
informed the State regulatory authority
of the existence of the possible
violation, condition, or practice. As
proposed, the final rule will also require
the citizen to provide the basis for the
citizen’s assertion that the State
regulatory authority has not taken action
with respect to the possible violation.
OSMRE finds this necessary because
any information the citizen can provide
to OSMRE about the State regulatory
authority’s response would be very
helpful in OSMRE’s efforts to efficiently
resolve the alleged violation. OSMRE is
not suggesting that a citizen
complainant enter a mine to verify
whether or not the State regulatory
authority has acted on the possible
violation. To the contrary, OSMRE asks
citizens not to do so and is merely
asking the requester of the Federal
inspection to provide any information
he or she may have about the State
regulatory authority’s action or inaction.
By no means is this requirement aimed
at reducing requests for Federal
inspections; it is intended to ensure that
OSMRE has all readily available
information.
Furthermore, OSMRE does not expect
a citizen to provide the level of
information that would be required for
a legal filing. For instance, just as in the
existing regulations, under the final
regulation at 30 CFR 842.12(a), OSMRE
specifies that an oral report is sufficient
for submitting a citizen complaint that
requests a Federal inspection as long as
it is followed up by a written statement.
Of course, the more detail that a citizen
can provide to OSMRE, the more
information the authorized
representative will have when he or she
determines whether there is reason to
believe there is a violation, which could
expedite the correction of any violation
that the citizen complaint brings to
OSMRE’s attention. However, OSMRE
recognizes that obtaining significant
information is frequently beyond most
citizens’ ability, and the final rule does
not require any more information than
the citizen has available, such as
information explaining why the citizen
believes there is a violation, that the
State regulatory authority was notified,
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and, possibly, the State regulatory
authority’s response.
Comment: One commenter
interpreted OSMRE’s preamble
statement at 85 FR at 28910 that
‘‘OSMRE should never be acting as a
mere conduit for transmitting a citizen
complaint to a State regulatory authority
in the form of a TDN’’ to mean that
OSMRE’s proposed rule would
eliminate the ability of a citizen to seek
Federal relief.
Response: As explained in the
response immediately above, citizens
can still avail themselves of the citizen
complaint process set forth in 30 U.S.C.
1267(h)(1). This rule does not materially
alter the ability of a citizen to contact
OSMRE about an alleged violation.
OSMRE included the language quoted
by the commenter in the preamble of the
proposed rule because 30 U.S.C.
1271(a)(1) requires OSMRE’s authorized
representative to use their discretion to
make an independent, professional
judgment based on all readily available
information, including information
provided by a citizen, to determine if
they have reason to believe a violation
exists before issuing a TDN. In other
words, OSMRE has the discretion to
determine whether it has reason to
believe a violation exists. See, e.g.,
Castle Mountain Coal. v. OSMRE, No.
3:15–CV–00043, 2016 WL 3688424, at
*6 (D. Alaska July 7, 2016) (30 U.S.C.
1271(a)(1) ‘‘does not assign any nondiscretionary duties to the agency
unless and until the Secretary has found
‘reason to believe’ that a violation
exists.’’). Once OSMRE determines it
has reason to believe a violation exists,
the final rule still recognizes that
OSMRE has a mandatory duty to issue
a TDN to a State regulatory authority.
This comment, in fact, highlights one
of the reasons that OSMRE is revising its
regulations—to clarify a potential
ambiguity in its existing regulations.
This commenter appears to interpret
OSMRE’s existing ambiguous
regulations as requiring OSMRE to
automatically issue a TDN every time it
receives a citizen complaint. To the
extent that this is the case, the
commenter is not alone. The ambiguity
in the existing regulations has, in some
instances, created the impression that
the existing regulation at 30 CFR
842.12(a) means that OSMRE will be
merely serving as a conduit for a citizen
complaint, i.e., automatically issuing a
TDN anytime it receives a citizen
complaint. See, e.g., W. Va. Highlands
Conservancy, 152 IBLA 158, 187 (Apr.
25, 2000) (When examining the existing
regulations, the IBLA stated: ‘‘[W]e
agree with appellants that the
regulations do not envision ‘fact-
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finding’ to determine if a violation
exists before deciding whether a
‘possible’ violation may exist. Rather,
the preamble language to the 1982 rule
makes clear that the possibility of a
violation triggers the regulatory
requirements to notify the State.’’
(emphasis added)). To the extent that
our existing regulations were
interpreted, by the Interior Board of
Land Appeals and others, to mandate a
TDN on receipt of every citizen
complaint, that interpretation is in clear
contrast with the language of 30 U.S.C.
1271(a)(1), which requires an OSMRE
authorized representative to use his or
her discretion to determine whether
there is ‘‘reason to believe’’ before
issuing a TDN. Therefore, the revised
regulations seek to eliminate any
possible ambiguity—it is now clear,
consistent with the plain language of 30
U.S.C. 1271(a)(1), that the OSMRE
authorized representative has discretion
to determine whether to issue a TDN
based on whether they have ‘‘reason to
believe’’ based on all readily available
information. Any other interpretation
would change OSMRE’s role from an
independent, professional expert on
mining to that of a clerical worker
without the discretion to discern facts
underlying a complaint and that is not
contemplated by SMCRA.
Comment: A commenter, providing
input on behalf of a citizens’ group,
expressed concern that the proposed
changes to OSMRE’s regulations would
undermine OSMRE’s ability to perform
its oversight role and prevent public
participation in the process. The
commenter stressed the importance of
OSMRE’s ability to hold mine operators
accountable in addition to what the
States do to protect the public and the
environment.
Response: OSMRE appreciates the
commenter’s recognition of the
important role that OSMRE plays in
ensuring public safety and
environmental protection. However, in a
primacy State, OSMRE is secondary to
the State regulatory authority. Section
503(a) of SMCRA specifies that in a
primacy State, the State has ‘‘exclusive
jurisdiction over the regulation of
surface coal mining and reclamation
operations, except as provided in
sections 521 and 523 and title IV’’ of
SMCRA. 30 U.S.C. 1253(a). Thus, in a
primacy State, OSMRE’s role is limited
to those functions specified in sections
521 and 523 and Title IV (30 U.S.C.
1271, 1273, and 1231–1244). Most
relevant to this rulemaking, section 521
sets forth the circumstances in which
OSMRE may exercise its oversight
enforcement authority in a primacy
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State. This authority operates to better
assure that the goals of SMCRA are met.
Although OSMRE’s enforcement
authority in a primacy State is limited
to that authorized by 30 U.S.C. 1271,
OSMRE disagrees that the rule, as
proposed, would further limit OSMRE’s
ability to enforce SMCRA and to protect
the public and the environment.
OSMRE also disagrees that the proposed
rule would, in any way, prevent public
participation. Public participation is an
important tenet of SMCRA. As the U.S.
Court of Appeals for the Fourth Circuit
stated:
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SMCRA is designed in part to ‘‘assure that
appropriate procedures are provided for the
public participation in the development,
revision, and enforcement of regulations,
standards, reclamation plans, or programs
established by the Secretary or any State
under [the Act].’’ [30 U.S.C.] 1202(i). One of
the ‘‘appropriate procedures’’ to assure
public participation in enforcing SMCRA
standards allows any adversely affected
person to notify OSM[RE] of the existence of
a SMCRA violation at any surface mining
operation. Id. § 1267(h). The notification is
commonly known as a ‘‘citizen complaint.’’
W. Va. Highlands Conservancy, Inc. v.
Norton, 343 F.3d 239, 242 (4th Cir.
2003).
The final rule does not change the
public’s ability to submit a citizen
complaint. A citizen may still submit a
complaint to OSMRE just as he or she
has been able to do for more than 40
years.
The final rule clarifies OSMRE’s
process after receipt of a citizen
complaint. Specifically, it provides that
OSMRE will verify the requirement that
has been in our regulations since 1982
that, in a primacy State, a citizen, when
requesting a Federal inspection, must
notify the State regulatory authority of
an alleged violation before or
simultaneously with notification to
OSMRE. 47 FR at 35620. Also, as
described in response to comments
about OSMRE’s clarification that when
formulating a decision about whether
there is ‘‘reason to believe,’’ ‘‘any
information readily available’’ includes
information received from the State
regulatory authority, OSMRE is also
removing the potential ambiguity in the
existing regulations about the
information that OSMRE’s authorized
representative will review before
determining whether he or she has
reason to believe a violation exists.
These clarifications to OSMRE’s process
after receiving a citizen complaint will
allow both OSMRE and the State
regulatory authority to dedicate
resources toward addressing any
violation alleged by a citizen instead of
preparing superfluous paperwork for
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each other. The clarification also
enhances cooperation and minimizes
duplication of administration with the
State regulatory authority as required by
30 U.S.C. 1211(c)(12).
OSMRE will continue to follow the
requirements of 30 U.S.C. 1271(a) and
the implementing regulations found at
30 CFR parts 842 and 843 and issue a
TDN when appropriate. Therefore, the
final rule does not eliminate the existing
TDN process or lessen OSMRE’s overall
oversight authority, including OSMRE’s
ability to enforce violations in primacy
States, if that is necessary.
Comment: One citizen commenter
emphasized that mining operations
must be held accountable for daily
mining practices and reclamation to
ensure protection of the environment.
The commenter did not support the
proposed regulation in any way without
explicitly stating a rationale or support
for this position. Additionally, the
commenter states that costs for
reclamation should be secured initially
and ‘‘no closure should happen before
all work and costs are absorbed by the
company.’’ The commenter also asserts
that a mining company ‘‘CEO should be
paid what is left if there is anything.’’
Response: Although certain aspects of
the comment are not entirely clear or do
not relate to the proposed rule, OSMRE
agrees that mining operations must be
held accountable for their mining
practices to ensure that mining and
reclamation are done in an
environmentally protective manner.
One of the stated purposes of SMCRA is
to ‘‘assure that surface coal mining
operations are so conducted as to
protect the environment,’’ 30 U.S.C.
1202(d), and OSMRE always has a duty
to further the purposes of SMCRA.
Moreover, as stated elsewhere, this final
rule will enhance OSMRE’s and the
State regulatory authorities’ ability to
identify and address alleged violations
of State regulatory programs so that any
violations can be corrected as soon as
possible. Also, as we have stated in
response to other comments, should a
citizen have information related to an
alleged violation at a specific mining
operation, he or she is entitled to file a
citizen complaint, and OSMRE will
address any citizen complaints it
receives in accordance with SMCRA
and the relevant regulations to ensure
that any violations are timely corrected.
In addition, information in a citizen
complaint may result in OSMRE
identifying a State regulatory program
issue, which OSMRE will address under
§ 733.12 of this final rule. A citizen may
also request that OSMRE evaluate a
State program as outlined in existing 30
CFR 733.12(a), that has been
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redesignated as 30 CFR 733.13(a) under
this final rule. With regard to
reclamation requirements and the cost
of reclamation, OSMRE notes that those
issues were not a part of the proposed
rule, and this final rule does not alter
any of the existing reclamation
regulations. Importantly, SMCRA
section 509, 30 U.S.C. 1259, and the
existing regulations at 30 CFR part 800,
have bonding requirements to assure,
among other things, completion of
reclamation plans.
Comment: One commenter asserted
that State agency personnel have been
physically relocated farther from mine
sites and have become less effective.
The commenter also notes that agency
personnel have recently changed, which
has resulted in a loss of institutional
memory.
Response: OSMRE recognizes that the
loss of staff and their institutional
knowledge can be a problem for both
OSMRE and State regulatory authorities.
Similarly, budget savings, which may
have been the reason that personnel
from State regulatory authorities were
relocated, is a part of government. Both
reasons, however, support OSMRE
revising its regulations, as OSMRE is
doing here, to make them more efficient
and effective, and to avoid duplication
of efforts between a State regulatory
authority and OSMRE. This final rule
enhances OSMRE’s ability to engage in
appropriate oversight of State regulatory
programs.
Comment: Several commenters
offered examples of alleged OSMRE
oversight enforcement failures.
Response: To the extent the
commenters believe there is a failure of
any State regulatory authority to
implement, administer, enforce, or
maintain an approved program, OSMRE
directs the citizens to the provisions of
existing 30 CFR 733.12(a) that are being
redesignated as 30 CFR 733.13(a)
pursuant to this final rule. Moreover, as
to a concern expressed by one
commenter that the proposed rule
would impact an individual’s ability to
‘‘protest projects going through their
own or state/fed[eral] property,’’
OSMRE’s proposed rule clarification, as
adopted in this final rule, will not
change a citizen’s ability to ‘‘protest’’ or
comment on proposed mining projects
or permitting actions of any individual
mine located on private, State, or
Federal property. OSMRE did not
propose to revise, and is not revising, 30
CFR 773.6, which details how citizens
can participate in permit processing.
Thus, the opportunities for the public to
comment on proposed mining projects
or permitting actions provided by
SMCRA and further explained in 30
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CFR 773.6 remain unchanged, including
the time to file objections to individual
mine permits on all property, regardless
of ownership. In conclusion, OSMRE
will continue to take its oversight
responsibilities very seriously, in
accordance with SMCRA and the
implementing regulations.
E. OSMRE’s Authorized Representative
Will Continue To Formulate ‘‘Reason To
Believe’’ As Mandated by SMCRA; This
Includes Using Best Professional
Judgment
Comment: One citizens’ group
representing many national citizen
organizations and ‘‘thousands of
individuals’’ across the country
questioned OSMRE’s assertion that the
information used to formulate ‘‘reason
to believe’’ has created ambiguity within
the TDN process, in particular related to
on-the-ground violations. To support
this contention, the citizens’ group
states that ‘‘a search of all [Interior
Board of Land Appeals (IBLA or the
Board)] decisions fails to disclose even
one instance where the Board found the
long-established OSMRE Ten Day
Notice procedure to be problematic.’’
Response: As explained below,
OSMRE disagrees with the commenter’s
opinion that OSMRE is creating an
ambiguity where it does not exist. First,
this rule is being promulgated to
improve OSMRE’s coordination with
State regulatory authorities to minimize
duplication of inspections, enforcement,
and administration of SMCRA.
Specifically, this rule provides a
streamlined, more uniform, and efficient
process for OSMRE to follow when it
receives a citizen complaint. Because
the IBLA typically does not get involved
until after OSMRE makes a decision on
whether to issue a TDN, conduct a
Federal inspection, or issue a notice of
violation or cessation order, it is
unsurprising that the IBLA has not
identified OSMRE’s internal process
leading to the issuance of a TDN as a
problem.
Second, some of the IBLA cases that
the commenter cites illustrate how the
existing regulations may result in a
disparate application of OSMRE’s
various enforcement tools. For example,
the commenter highlights a decision in
which the IBLA found OSMRE’s
decision to defer violations for
programmatic review under the 30 CFR
part 733 process was not in accordance
with the existing regulations. W. Va.
Highlands Conservancy, et al., 152 IBLA
at 193. While it is true that the
commenter accurately summarized the
holding of this decision, it is also true
that the facts presented in that case
demonstrate an OSMRE internal
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inconsistency when applying the
existing Federal regulations.
Specifically, the case focused on when
it was appropriate for OSMRE to use the
different enforcement tools set forth in
30 U.S.C. 1271(a) and (b) in response to
complex citizen complaints. See, e.g.,
id. at 187–188 (The Board rejected
OSMRE’s attempt to justify its failure to
issue TDNs on specific sites as required
by 30 U.S.C. 1271(a) based upon its use
of the programmatic review process in
30 U.S.C. 1271(b)).
The rule OSMRE is finalizing today
helps to clarify to agency personnel and
the public when each of the
enforcement tools in 30 U.S.C. 1271(a)
and (b) will be used and what
information OSMRE will rely on when
it makes a determination that it has
reason to believe a violation exists. For
instance, if a similar fact pattern to the
one in West Virginia Highlands
Conservancy arose under the regulations
finalized today, OSMRE’s authorized
representative would make a
determination whether they have reason
to believe a violation exists on a specific
site based on all readily available
information available to them. If they
have ‘‘reason to believe,’’ they would
then issue a TDN. However, the
revisions made to 30 CFR
842.11(b)(1)(ii)(B)(3) would also allow
the State regulatory authority to respond
that it has taken appropriate action
because it, along with OSMRE, is
immediately implementing steps to
correct a programmatic issue using the
action plan process set forth in revised
30 CFR 733.12. The revised regulations
also clarify that OSMRE may still take
enforcement action under 30 U.S.C.
1271(a) if the State regulatory program
issue ‘‘results in or may imminently
result in a violation of the approved
State program.’’ Therefore, the revisions
to the Federal regulations finalized
today should help reduce the ambiguity
that lead to the West Virginia Highlands
Conservancy case.
Third, despite the cases cited by the
commenters, there is no judicial or
administrative decision defining
‘‘reason to believe’’ as used in 30 U.S.C.
1271(a). One case, Castle Mountain
Coalition v. OSMRE, explicitly
recognizes that OSMRE does not have a
mandatory duty to act under 30 U.S.C.
1271(a) until it has determined there is
reason to believe that a violation exists.
2016 WL 3688424, at *6. In another
case, a court reviewed the ‘‘reason to
believe’’ standard in 30 U.S.C. 1271(b)
and concluded that a determination as
to ‘‘whether the Secretary of the Interior
‘‘has ‘reason to believe’ a violation has
occurred is a matter committed to her
discretion by law.’’ Dacotah Chapter of
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Sierra Club v. Jewell, No. 12–065, 2013
WL 12109410, at *8 (D.N.D. Oct. 22,
2013). The rulemaking that OSMRE is
finalizing today ensures that there is no
debate that the OSMRE authorized
representative is allowed to use their
independent, professional discretion,
based on all readily available
information, to determine whether they
have ‘‘reason to believe.’’ This
clarification is needed because many of
the comments received in response to
the proposed rulemaking show that the
public misunderstands the discretion
committed to OSMRE’s authorized
representative by 30 U.S.C. 1271(a).
Comment: Many commenters,
including industry groups that represent
operations that mine coal through
surface and underground methods,
submitted questions and comments
about the requisite information
necessary to establish reason to believe
a violation exists under the revisions to
30 CFR 842.11 and 842.12 adopted in
this final rule. Within this general
category of comments, one commenter
requested that OSMRE include a
provision in the final rule that the
OSMRE authorized representative
should not base his or her decision to
issue a TDN on ‘‘bare allegations.’’ This
same commenter also requested that
OSMRE include language in the final
rule that clarifies that the OSMRE
authorized representative will use and
consider information obtained from any
source, including the permittee, to
establish reason to believe a violation
exists.
Response: In accordance with 30
U.S.C. 1271(a), OSMRE can formulate a
decision about whether reason to
believe that a violation exists ‘‘on the
basis of any information available. . . ,
including receipt of information from
any person. . . .’’ Emphasis added.
Consistent with this statutory provision,
§§ 842.11(b)(1)(i) and 842.12(a) of this
final rule specify that OSMRE’s
authorized representative will consider
any readily available information when
he or she is deciding whether there is
reason to believe a violation exists,
including information from a citizen
complainant and any information that
the relevant State regulatory authority
submits to the authorized
representative. Any readily available
information includes information from
any person, including the permittee,
and is not limited to information that
OSMRE receives from a citizen or State
regulatory authority. In addition, as
OSMRE stated in the preamble to the
proposed rule, other examples of
sources of readily available information
include permit files or public records.
85 FR at 28911. However, based on this
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commenter’s suggestion for clarification
and other commenters’ similar
suggestions, in the rule OSMRE is
finalizing, OSMRE includes the phrase
‘‘from any source’’ within 30 CFR
842.11(b)(1)(i) and (b)(2). This addition
will further remove any ambiguity
relevant to information an OSMRE
authorized representative considers
when formulating reason to believe and
reinforces internal consistency in the
Federal regulations.
Moreover, as OSMRE explained in the
proposed rule preamble, OSMRE
considers ‘‘any information that is
accessible without unreasonable delay’’
to be ‘‘readily available information.’’ 85
FR at 28907. In the proposed rule,
OSMRE chose the phrase ‘‘readily
available’’ purposely ‘‘so that the
process will proceed as quickly as
possible and will not become openended.’’ Id. OSMRE agrees with the
commenter that the authorized
representative should not base the
decision to issue a TDN on ‘‘bare
allegations.’’ SMCRA establishes a firm
foundation for an authorized
representative to exercise professional
judgment when formulating reason to
believe a violation exists. Thus, under
this final rule, OSMRE’s authorized
representative, while using best
professional judgment, will make the
‘‘reason to believe’’ determination based
upon readily available information,
rather than bare allegations.
Comment: One commenter suggested
that an authorized representative should
not have discretion to use his or her best
professional judgment when evaluating
alleged violations. The commenter also
suggested that, in lieu of the authorized
representative, the most appropriate
person to determine that ‘‘reason to
believe’’ a violation exists should be a
qualified OSMRE career staff employee,
who should have a degree in
engineering, geology, environmental
science, or a related field.
Response: This comment appears to
focus on OSMRE’s authorized
representative’s formulating ‘‘reason to
believe.’’ OSMRE agrees with the
commenter that an OSMRE authorized
representative should be a qualified
individual with the appropriate
educational background and specialized
experience required to be certified by
the Director of OSMRE to serve as an
authorized representative. However,
OSMRE disagrees with the commenter’s
suggestion that an authorized
representative should not have
discretion to use his or her best
professional judgment when evaluating
alleged violations. The use of best
professional judgment is essential for an
authorized representative.
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When enacting SMCRA, Congress
mandated that OSMRE ‘‘shall have a
Director who shall be appointed by the
President. . . .’’ 30 U.S.C. 1211(b).
Congress required the Director to,
among other things, ‘‘make those
investigations and inspections necessary
to [e]nsure compliance with this Act[.]’’
30 U.S.C. 1211(c)(1). Integral to the
Director carrying out these obligations is
hiring appropriate, qualified employees
within OSMRE. To this point, Congress
mandated that ‘‘[e]mployees of the
Office shall be recruited on the basis of
their professional competence and
capacity to administer the provisions of
the Act.’’ 30 U.S.C. 1211(b). Ultimately,
it is the OSMRE Director who must
ensure that employees of OSMRE—
including a designated authorized
representative—have the ‘‘professional
competence and capacity’’ to undertake
the ‘‘investigations and inspections
necessary’’ to ensure compliance with
SMCRA. See 30 U.S.C. 1211(b) and (c).
Only an OSMRE employee who is
certified as an authorized representative
with inspection authority may issue a
TDN pursuant to section 521(a)(1) of
SMCRA. 30 U.S.C. 1271(a)(1). An
employee who is certified as an
authorized representative receives a
badge and identification credentials that
he or she carries when on duty. Outside
the context of this rulemaking, only
these same authorized representatives
may undertake inspection and
enforcement actions under section 517
of SMCRA. 30 U.S.C. 1267. OSMRE
promulgated regulations specific to
these tasks at 30 CFR parts 842 and 843.
Additionally, as set forth in OSMRE’s
Directive INE–18, ‘‘Authorized
Representatives’’, OSMRE has
established a rigorous process to ensure
that the best qualified candidates are
selected for positions as authorized
representatives and that these
individuals have the ‘‘professional
competence and capacity’’ to
appropriately issue TDNs based on their
best professional judgment, consistent
with 30 U.S.C. 1211(b). See https://
www.osmre.gov/LRG/docs/
directive958.pdf (last accessed Aug. 23,
2020). Based on established OSMRE
practice and procedure, the Director (or
approved designee) may certify an
OSMRE employee as an authorized
representative only upon satisfactory
completion of significant training and
certification requirements. Furthermore,
the Director (or approved designee) may
suspend or withdraw the certification of
any authorized representative. Each
authorized representative with authority
to issue TDNs is required to hold a fouryear college degree with major study in
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75163
the areas of hydrology, agronomy,
geology, range conservation, forestry,
ecology, civil engineering, mining
engineering, natural science, biological
sciences, natural resources,
environmental planning, or earth
sciences as required by the U.S. Office
of Personnel Management’s Federal
Position Classification and
Qualifications. See https://
www.opm.gov/policy-data-oversight/
classification-qualifications/generalschedule-qualification-standards/1800/
surface-mining-reclamation-specialist1801/ (last accessed Aug. 23, 2020).
Authorized representatives with
authority to issue TDNs are highly
educated, highly trained individuals
who must also undergo a progressive
on-the-job training and mentoring plan
before becoming an authorized
representative. The OSMRE Director (or
designee) approves the training and
mentoring plan to ensure competency
and capacity to administer SMCRA.
This information is documented in the
authorized representative’s personnel
file.
In sum, OSMRE authorized
representatives are highly educated,
trained, and qualified individuals who
OSMRE hires precisely because of their
ability to exercise professional
judgment. Specific to this final rule,
these individuals are uniquely qualified,
based upon their professional judgment,
to determine whether there is reason to
believe a violation exists, issue TDNs
when necessary, and ensure that
violations of a State regulatory program
are corrected in a timely manner.
Comment: Several citizen commenters
oppose the clarification of the TDN
process, alleging that the proposed rule
would no longer treat citizen complaints
as true. These commenters state that the
proposed rule would result in citizen
complaints not being formally
investigated within 10 days of the
complaint being filed. The commenters
state that the proposed rule would result
in OSMRE dismissing public concerns
and ignoring mining violations. Many
commenters also suggested that the
proposed rule was not simply a
clarification of existing rules.
Response: OSMRE disagrees with
these characterizations of the proposed
rule and notes that, under this final rule,
OSMRE will continue to take citizen
complaints seriously, in recognition of
the important role citizens play in the
SMCRA enforcement process. When
OSMRE issues a TDN to a State
regulatory authority, the TDN may be
based upon information that OSMRE
initially received in a citizen complaint.
However, to fully address this comment,
OSMRE will explain the existing TDN
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process as authorized by section
521(a)(1) of SMCRA, 30 U.S.C. 1271(a),
and implemented in OSMRE’s existing
regulations at 30 CFR 842.11.
Section 521(a)(1) provides that the
‘‘reason to believe’’ determination in the
TDN context is based upon ‘‘any
information available to [the Secretary],
including receipt of information from
any person.’’ Likewise, under the
existing regulations at section
842.11(b)(1)(i), as they pertain to the
TDN process, OSMRE’s authorized
representative’s determination of
whether he or she has ‘‘reason to
believe’’ is based upon ‘‘information
available.’’ Moreover, under existing
§ 842.11(b)(2), upon receipt of a citizen
complaint, OSMRE’s authorized
representative transmits the citizen
complaint to the State regulatory
authority as a TDN after the authorized
representative has formulated reason to
believe that a violation, condition or
practice exists.’’ The OSMRE authorized
representative’s formulation of reason to
believe includes analysis based on
SMCRA and the Federal regulations,
surface coal mining expertise, and any
information readily available. OSMRE
explained in the proposed rule that
some might have interpreted existing
§ 842.11(b)(2) to mean that all OSMRE
has to do is determine whether the facts
alleged in a citizen complaint would
constitute a violation before issuing a
TDN. However, the existing regulations
are not designed to have OSMRE merely
serve as a conduit to the State regulatory
authority. OSMRE’s authorized
representative must analyze the
information. In the proposed rule,
OSMRE explained that when the
authorized representative performs the
analysis necessary to formulate reason
to believe, he or she should consider all
readily available information—
including information ascertained from
the State regulatory authority and any
additional information that citizens
provide. While it is accurate that
OSMRE proposed to remove the phrase
‘‘if true’’ from existing § 842.11(b)(2),
and has adopted that change in this
final rule, the proposed rule was not
intended to weaken the TDN rules with
respect to an OSMRE authorized
representative’s analysis of whether he
or she has ‘‘reason to believe’’ that a
violation exists. In fact, in the proposed
rule, OSMRE proposed that the
authorized representative would
consider information that is vital to
understanding and examining an
alleged violation. OSMRE’s authorized
representative must weigh the evidence
in front of him or her, especially if some
of that evidence is contradictory—this is
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part of the OSMRE authorized
representative’s exercise of professional
judgment based upon readily available
information in determining whether he
or she has reason to believe a violation
exists.
In this final rule, the removal of the
phrase ‘‘if true’’ from 30 CFR
842.11(b)(2) coupled with the insertion
of the phrase ‘‘on the basis of any
information readily available’’ found at
proposed 30 CFR 842.11(b)(1)(i)
removes ambiguity in the existing TDN
process, increases efficiency, and allows
OSMRE’s authorized representative to
more fully exercise his or her
professional judgment. This approach is
consistent with SMCRA and even
OSMRE’s existing regulations at
§ 842.11(b)(1)(i). In this regard, the
relevant provisions that OSMRE is
adopting in this final rule are a
clarification of the existing regulations.
However, this clarification is necessary
to remove any confusion that was
created by the ‘‘if true’’ language.
Moreover, Congress created OSMRE
as the expert agency that administers
SMCRA, 30 U.S.C. 1211(a) and (c), and
requires that ‘‘[e]mployees of [OSMRE]
shall be recruited on the basis of their
professional competence and capacity to
administer the provisions of this Act’’
(30 U.S.C. 1211(b)). Thus, it stands to
reason that OSMRE, through its
authorized representative, must apply
expertise and professional judgment in
determining whether ‘‘reason to
believe’’ exists. Interpreting SMCRA in
a manner that relegates the OSMRE
authorized representative to a position
of a mere conduit of a citizen complaint
to the State regulatory authority is not
supported by SMCRA or its
implementing regulations. Therefore,
the commenters’ assumption that a
citizen complaint must be treated ‘‘as
true’’ ignores OSMRE’s expertise in
administering SMCRA and does not
comport with SMCRA or even OSMRE’s
existing TDN regulations and practice.
Nothing in SMCRA requires OSMRE to
accept alleged facts as true in a vacuum;
the totality of readily available
information must be considered in order
to prevent issuing an unwarranted TDN
to a State regulatory authority, which
would needlessly waste OSMRE’s and
the State regulatory authority’s time and
resources.
For these precise reasons, the
proposed clarification, which OSMRE is
adopting in this final rule, removes any
unnecessary conflict between OSMRE
and the State regulatory authority.
OSMRE’s experience has shown that
when OSMRE works cooperatively with
State regulatory authorities, the TDN
process works best, and problems are
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resolved more efficiently, furthering the
purposes of SMCRA. See generally, 30
U.S.C. 1202(a) and (d). For example,
under the existing TDN process, OSMRE
does not always receive important
information from the State regulatory
authority that would inform the ‘‘reason
to believe’’ inquiry, but it may receive
such information from a citizen. Under
this final rule, OSMRE must consider
information the State regulatory
authority provides about an alleged
violation, eliminating duplication of
resources and processes between
Federal and State agencies. Cooperation
between OSMRE and State regulatory
authorities is mandated by SMCRA to
‘‘minimize duplication of inspections,
enforcement, and administration of the
Act.’’ 30 U.S.C. 1211(c)(12). This final
rule does just that. Once OSMRE
formulates reason to believe that a
possible violation exists and sends a
TDN to a State regulatory authority, the
State will continue to have ten days to
take appropriate action to cause the
alleged violation to be corrected or to
demonstrate good cause for not
correcting the alleged violation. Thus,
the regulations OSMRE is adopting in
this final rule will continue to be in
conformity with section 521(a)(1) of
SMCRA.
Comment: Several commenters
suggested that the proposed rule
clarification would provide states with
unlimited time to review and respond to
citizen complaints. Further, these
commenters alleged that the proposed
rule provision would render action on
citizen complaints discretionary.
According to one commenter, the
proposed rule would undermine
SMCRA at section 521(a) by changing
the specified response time and
eliminating a mandated deadline.
Response: These characterizations
neither accurately reflect the proposed
rule nor reflect a proper understanding
of SMCRA. The proposed rule was
aimed at enhancing the coordination
process between OSMRE and its State
regulatory program partners to ensure
that all information readily available is
considered by the authorized
representative before deciding whether
there is reason to believe that a violation
exists. The existing regulations do not
specifically state that the authorized
representative may consider information
that a State regulatory authority
provides in his or her determination of
whether there is reason to believe a
violation exists. Explicitly stating that
information from the State regulatory
authority may be considered will
remove ambiguity and ensure that all
stakeholders are aware of the
information that OSMRE can consider
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when its authorized representative
formulates reason to believe. Moreover,
there may have been inconsistent levels
of review of information across the
bureau. Specifically stating that OSMRE
will consider readily available
information when formulating reason to
believe will also ensure that it
uniformly considers all simple and
effective documentation of the alleged
violation, condition, or practice.
Historically, while OSMRE typically
considered information in its
possession, the potential ambiguity in
OSMRE’s existing regulations may have
resulted in OSMRE accepting
allegations in a complaint as true
without the benefit of any information
that the State regulatory authority may
have chosen to provide. The practice of
issuing TDNs without the benefit of
information from the State regulatory
authority increasingly resulted in the
issuance of TDNs when the State
regulatory authority was already
investigating the issue or had previously
determined that there was not a
violation of the approved State
regulatory program. As described in
response to other comments, this is
inefficient and has resulted in
duplicative processes for both OSMRE
and the State regulatory authorities.
OSMRE does not always receive
important information from a citizen
that would inform the ‘‘reason to
believe’’ inquiry, but it may receive
such information from the State
regulatory authority, and the OSMRE
authorized representative should be
afforded this opportunity.
By way of example, a recent
complaint received by an OSMRE field
office involved blasting related to road
construction. This complaint was
ultimately found to be unrelated to a
SMCRA permit. Simply generating a
TDN, without considering all
information readily available, resulted
in a waste of OSMRE and State
regulatory authority resources and
taxpayer money and time; it also
unnecessarily redirected resources and
time away from true SMCRA-related
issues. These inefficiencies could easily
have been avoided by considering all
readily available information, including
any information the State regulatory
authority chose to provide. Again, it is
a basic requirement of SMCRA that
OSMRE must ‘‘cooperate with . . . State
regulatory authorities to minimize
duplication of inspections, enforcement,
and administration of [SMCRA].’’ 30
U.S.C. 1211(c)(12). Furthermore, as
noted above, the Supreme Court in
Hodel, 452 U.S. at 289, explained that:
‘‘[SMCRA] establishes a program of
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cooperative federalism that allows the
States, within limits established by
federal minimum standards, to enact
and administer their own regulatory
programs, structured to meet their own
particular needs.’’
The removal of the potential
inconsistency between existing
§ 842.11(b)(1)(i) and existing
§ 842.11(b)(2) in this final rule properly
enhances the cooperative federalism
intended by Congress when it enacted
SMCRA by allowing OSMRE to consider
information that a State regulatory
authority chooses to provide when
OSMRE is assessing whether it has
reason to believe that a violation exists.
Furthermore, removing the phrase ‘‘if
true’’ eliminates any perception that
OSMRE is a mere conduit to the State
regulatory authority when in reality
OSMRE should exercise best
professional judgment when
formulating reason to believe. The
objective of the rulemaking is to
minimize, to the extent possible,
duplication of efforts associated with
inspections, enforcement, and
administration of SMCRA, while also
ensuring that the public is involved in
the enforcement process, which will
allow potential violations of SMCRA
and approved State programs to be
identified and addressed as soon as
possible. Of course, after the revisions to
the existing regulations that OSMRE is
adopting in this final rule take effect,
OSMRE will continue to exercise the
oversight of State regulatory programs
that SMCRA requires.
OSMRE disagrees with the
commenters’ suggestion that the rule
change OSMRE is adopting will result
in a State regulatory authority having
unlimited review time. The final rule
does not alter the SMCRA-mandated ten
days that a State regulatory authority
has to respond once OSMRE issues a
TDN. 30 U.S.C. 1271(a)(1). However, the
clarification does afford OSMRE an
opportunity to consider all readily
information, including any information
the State regulatory chooses to provide,
when formulating reason to believe
before issuing any TDN to the State
regulatory authority. Under existing
§ 842.11(b)(1)(i), the authorized
representative already has the authority
to consider ‘‘information available’’
before determining that reason to
believe exists. In the proposed rule,
OSMRE explained that information that
the authorized representative considers
must be ‘‘readily available, so that the
process will proceed as quickly as
possible and will not become openended.’’ Thus, considering ‘‘readily
available information’’ under this final
rule may create, at most, only a modest
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increase in the amount of time it takes
the authorized representative to decide
whether he or she has ‘‘reason to
believe.’’ Further, affording OSMRE the
opportunity to easily ascertain if the
State regulatory authority has been
appropriately put on notice of a request
for Federal inspection, including the
possible violation—as is already
required under the existing regulations
at 30 CFR 842.12(a)—and whether or
not the State regulatory authority has
investigated or is actively investigating
the subject of the complaint eliminates
duplication and redundancy of State
and Federal enforcement activities. For
example, if OSMRE obtains readily
available information that demonstrates
that the State regulatory authority is
actively investigating a citizen
complaint, the OSMRE authorized
representative may, using professional
judgment, consider the State regulatory
authority’s action before determining
whether reason to believe exists.
In summary, this final rule clarifies
the existing TDN regulations set forth at
30 CFR 842.11 and 842.12. Nothing in
this final rule nullifies the statutory
requirements that OSMRE must issue a
TDN when it determines that there is
reason to believe that a violation exists
and that a State regulatory authority has
ten days to respond. As is true with the
existing regulations, the final rule
requires that there are only two possible
outcomes when an authorized
representative reviews a citizen
complaint: (1) The authorized
representative issues a TDN because
there is reason to believe a possible
violation exists, or (2) the authorized
representative declines to issue a TDN
because he or she does not have reason
to believe a possible violation exists.
Under this final rule, the authorized
representative does not have discretion
to not issue a TDN to the State
regulatory authority once he or she
determines, based on professional
judgment, that there is reason to believe
that a violation exists; issuance of a
TDN then becomes mandatory. If the
information in the citizen complaint,
along with any other readily available
information, is not sufficient to
formulate reason to believe, the
authorized representative will not issue
a TDN. Finally, to ensure transparency,
OSMRE will continue the practice of
sending a letter to the citizen
complainant explaining the decision to
issue or not issue a TDN and the
rationale for this decision. It is standard
OSMRE practice, absent a citizen
complainant’s request for
confidentiality, to also provide the State
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regulatory authority a copy of the letter
to facilitate collaboration.
F. It is Important To Clarify That ‘‘Any
Information’’ Under 30 U.S.C. 1271(a)
Includes Information From the State
Regulatory Authority
Comment: A coal industry group
comprised of several companies in an
Appalachian Basin-based coal State
offered significant support for OSMRE’s
proposed clarification of the existing
regulations related to the issuance of
TDNs and the proposed enhancement of
corrective action for State regulatory
program issues. This group remarked
that the proposed clarification to the
existing regulations would allow
regulatory authorities to use more
information as part of their decisionmaking. Because, under the proposal,
the regulations would clearly set forth
that OSMRE will consider all readily
available information prior to issuing a
TDN, the commenter expressed that
view that the proposed clarification
would provide more transparency about
the TDN process and allow for more
cooperation between the State
regulatory authority and OSMRE. The
commenter also noted that the enhanced
cooperation between OSMRE and the
State regulatory authority would ensure
that mine operations comply with
SMCRA.
The coal industry group commenter
noted that allowing State regulatory
authorities to provide information that
is directly relevant to citizen complaints
before OSMRE issues TDNs is positive
and improves the process. The
commenter pointed out that the
clarification would be an improvement
and would promote efficiency because
the existing process may result in the
issuance of a TDN despite the fact that
the State regulatory authority has
valuable information that is directly
related to the alleged violation. The
commenter noted that without relevant
information from the State regulatory
authority, OSMRE may not have an
opportunity to consider the totality of
the situation in advance, and such an
omission decreases efficiency. The
commenter also noted that frequently
the State regulatory authority and
OSMRE receive the same complaint
resulting in both agencies undertaking
duplicative investigations, which the
commenter claimed is in contravention
of section 201(c)(12) of SMCRA, 30
U.S.C. 1211(c)(12).
Response: OSMRE concurs with these
comments as they highlight the value of
coordination between the primary
SMCRA regulatory authority, which is
the State regulatory authority, and
OSMRE as the oversight authority.
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Although, in the TDN context, OSMRE
is exercising oversight of State
regulatory authorities, there is still room
for up front cooperation between
OSMRE and the State regulatory
authority to minimize duplication of
inspections, enforcement, and
administration of SMCRA, as section
201(c)(12) of SMCRA, 30 U.S.C.
1211(c)(12), contemplates. Most
importantly, OSMRE values the
commenter’s recognition of the positive
impacts of the clarification OSMRE is
adopting in this final rule as it will
improve compliance with SMCRA by
promoting cooperative federalism and
ensuring that OSMRE considers all
readily available information. For four
decades OSMRE has observed that
protecting society and the environment
from the adverse effects of surface coal
mining operations is accomplished
more effectively and efficiently when
State regulatory authorities—that have
direct authority to administer SMCRA
within their borders—and OSMRE work
cooperatively, rather than working in
isolation, to ensure timely resolution of
issues. Not only does this coordination
promote the cooperative federalism
construct established within SMCRA, it
more effectively achieves the purposes
of SMCRA as outlined in section 102 of
SMCRA, 30 U.S.C. 1202. Specifically,
considering a State regulatory
authority’s unique position to assess its
approved State program, it makes sense
to consult with the State regulatory
authority to determine if steps have
already been taken or are underway to
address alleged violations. This
commenter understands that, with
OSMRE’s consideration of all readily
available information, including
information provided by the State
regulatory authority, the existing
process is improved. However, OSMRE
notes that being able to consider
‘‘readily available information’’ is not
the same as being able to consider ‘‘the
totality of the situation in advance.’’
Considering only ‘‘readily available
information’’ up front will allow the
process to proceed relatively quickly.
Even with this distinction, OSMRE is
confident that the clarification that
OSMRE is adopting in this final rule
will achieve the intended result of
greater cooperation and a more efficient
and effective enforcement of SMCRA.
Comment: Several commenters
objected to OSMRE’s proposal to add
‘‘readily available’’ to provisions at 30
CFR 842.11(b)(1)(i) and (b)(2) and
842.12(a), raising concerns that
information that is not currently in
OSMRE’s possession and that has to be
gathered does not constitute ‘‘readily
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available information.’’ Furthermore,
one of these commenters opined that
any delay resulting from gathering
information was not acceptable and
directly conflicts with the ‘‘shall
immediately’’ order a Federal inspection
language found in 30 U.S.C. 1271(a)(1)
and the existing regulations. Another
commenter suggested that OSMRE’s
explanation of the proposed provision
inserts more uncertainty into the TDN
process because it does not define what
OSMRE deems ‘‘accessible without
unreasonable delay.’’ A commenter
further opined that the language ‘‘shall
immediately’’ in 30 U.S.C. 1271(a)
requires OSMRE to accept only
information submitted in a citizen
complaint, rather than readily available
information, to establish reason to
believe that a violation exists.
Response: With respect to the
information OSMRE can consider when
making a ‘‘reason to believe’’
determination, the statutory language is
not as specific as the commenter
suggests. As explained throughout this
final rule notice, SMCRA grants the
Secretary, acting through OSMRE, the
authority to promulgate regulations that
may be necessary to carry out the
purposes and provisions of SMCRA. 30
U.S.C. 1211(c)(2). OSMRE is using
SMCRA’s rulemaking authority, in part,
to specify the information that OSMRE’s
authorized representative can obtain
and consider when making a ‘‘reason to
believe’’ determination. The proposed
rule language, which OSMRE is
adopting in this final rule, is consistent
with the statutory language at 30 U.S.C.
1271(a)(1) and allows an authorized
representative to review information
that is readily available. A more detailed
discussion of the information that
OSMRE considers to be ‘‘readily
available’’ is contained elsewhere in the
proposed rule preamble (85 FR at
28911) and in this final rule, but most
certainly includes information that the
OSMRE authorized representative can
easily and promptly access, such as
permit documentation about the specific
mine site, OSMRE’s inspection history,
and data retrieved from the State
regulatory authority. Fundamentally, as
to the commenter’s other point about
the ‘‘shall immediately’’ language in 30
U.S.C. 1271(a), OSMRE notes that the
statute provides, absent an imminent
harm scenario, that OSMRE ‘‘shall
immediately order Federal inspection’’
in a primacy State only after it issues a
TDN to the State regulatory authority,
and OSMRE finds that a violation
remains uncorrected at the conclusion
of the TDN process. The aspect of the
final rule that the commenters take issue
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with—OSMRE’s consideration of readily
available information as part of the
‘‘reason to believe’’ determination—
occurs before OSMRE issues a TDN to
a State regulatory authority and is
therefore consistent with SMCRA.
Importantly, at the conclusion of the
TDN process, OSMRE will immediately
undertake a Federal inspection if it
finds that a violation continues to exist.
Moreover, accepting only information
contained in a citizen complaint as the
basis for a ‘‘reason to believe’’
determination is not in accordance with
prudent regulatory implementation as
explained in the proposed rule. 85 FR
at 28908, 28910–11. If OSMRE were to
accept only information contained in a
citizen complaint to establish ‘‘reason to
believe,’’ OSMRE could be in a situation
of issuing a TDN to a State regulatory
authority when a complainant lacks
information or knowledge concerning
the possible violation that OSMRE may
be able to readily ascertain under this
final rule. OSMRE could also be in a
situation of concluding that the citizen
complaint does not establish ‘‘reason to
believe’’ and refusing to issue a TDN,
but for readily available information
from the State regulatory authority that
might otherwise establish ‘‘reason to
believe.’’ Moreover, if OSMRE considers
only information in a citizen complaint,
the complaint process could be
misused, unwittingly or otherwise,
resulting in frivolous and unfounded
allegations and unnecessary TDNs.
Also, a fair reading of the legislative
history supporting the passage of
SMCRA indicates that considering only
information in a citizen complaint when
formulating reason to believe in
association with the TDN process is not
consistent with congressional intent.
This issue was addressed in 1977 in
House Report 95–218: ‘‘[i]t is
anticipated that ‘reasonable belief’ could
be established by a snapshot of an
operation or other simple and effective
documentation of a violation.’’
Emphasis added. As noted in the
proposed rule, while this passage from
the legislative history appears to be
referring to information that a citizen
may provide, it is reasonable to apply
the same principle to 30 U.S.C.
1271(a)(1), as enacted. This final rule is
consistent with congressional intent in
the formulation of SMCRA, and, more
importantly, consistent with SMCRA, as
enacted, with respect to information
that can be used to establish reason to
believe that a violation exists.
Comment: A commenter indicated
that OSMRE should consider all
available information, not just readily
available information, and should
include information from any person
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and not just the State regulatory
authority.
Response: OSMRE has considered this
comment and agrees that OSMRE
should consider information from any
source; however, as explained below,
OSMRE disagrees that it should
consider ‘‘all available information’’
rather than readily available
information. OSMRE has revised the
final rule text at 30 CFR 842.11(b)(1)(i)
to further clarify that the authorized
representative will consider all readily
available information ‘‘from any source,
including any information a citizen
complainant or the relevant State
regulatory authority submits[.]’’ This
change reflects OSMRE’s intent with
respect to readily available information
obtained from any source. For
consistency, OSMRE has also
incorporated the phrase ‘‘from any
source’’ into revised 30 CFR
842.11(b)(2). The plain language of this
revised text makes clear that OSMRE
will consider information from any
source and not just the two possible
sources of information that OSMRE
proposed to list as examples of
sources—the State regulatory authority
and a citizen. As OSMRE stated in the
preamble to the proposed rule, other
examples of sources of readily available
information may also include permit
files or other public records. 85 FR at
28911.
The only limitation as to the source of
information that OSMRE’s authorized
representative can consider is that the
information must be readily available.
As stated in the proposed rule,
inclusion of the word ‘‘readily
available’’ to modify ‘‘any information’’
is important to ensure that the process
of making a ‘‘reason to believe’’
determination proceeds as quickly as
possible and does not become openended. 85 FR at 28907; see also
OSMRE’s other responses in this
section. If OSMRE were to delay its
‘‘reason to believe’’ determination until
all available information was
discovered, there could be substantial
delays in the process, which would be
contrary to the process Congress set
forth in 30 U.S.C. 1271(a)(1). Substantial
delays in determining ‘‘reason to
believe’’ would also be contrary to a
goal of this rulemaking—ensuring that
alleged violations are addressed quickly,
effectively, and efficiently. Thus,
OSMRE is not making a change to its
proposed rule to consider all
information that could possibly be
obtained; OSMRE will consider only
that information which is readily
available.
Comment: One commenter expressed
doubt about OSMRE’s rationale for
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clarifying that a State regulatory
authority should be a source of
information necessary to formulate
reason to believe. Specifically, the
commenter expressed doubt that
OSMRE and the State regulatory
authorities are inundated with
duplicative complaints.
Response: SMCRA provides that
OSMRE will issue a TDN ‘‘[w]henever,
on the basis of any information
available to him, including receipt of
information from any person, the
Secretary has reason to believe that any
person is in violation of any
requirement of this Act. . . .’’ 30 U.S.C.
1271(a)(1) (emphasis added). A plain
reading of this provision is that OSMRE
can consider any information it has
available regardless of the source. It is
only natural that a State regulatory
authority could be a source of
information that OSMRE’s authorized
representative uses to formulate reason
to believe.
OSMRE has not claimed that it is
‘‘inundated’’ with citizen complaints
that have also been issued to the State
regulatory authority. However, OSMRE
has experienced many instances where
it has received a citizen complaint that
was identical to a citizen complaint
received by a State regulatory authority.
When this has occurred, oftentimes
OSMRE has learned that the State
regulatory authority was either already
investigating the alleged violation or
had reached a decision about the alleged
violation. Such information would be
useful to OSMRE in formulating reason
to believe. It has been a regulatory
requirement since 1982 that, when
requesting a Federal inspection, citizens
are required to submit complaints to the
State regulatory authority before or
simultaneously with submitting the
complaint to OSMRE. 47 FR at 35628.
In OSMRE’s experience, and based upon
data acquired over 43 years of
implementing SMCRA, it has become
obvious, as OSMRE expected in 1982,
that ‘‘if citizens contact the State
initially, most problems will be resolved
satisfactorily without the need for
intrusion by the Federal government.’’
Id. Thus, it only makes sense for
OSMRE to revise the SMCRA
implementing regulations to allow
OSMRE’s authorize representative to
consider readily available information
from the State regulatory authority that
is relevant to the possible violation
before OSMRE issues a TDN. That way,
OSMRE and the State regulatory
authority can avoid an unnecessary
exchange of paperwork instead of
resolving alleged violations. This simple
change will make the process more
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effective and will conserve scarce
government resources.
Comment: A commenter supported
the proposed rule clarification at 30 CFR
842.11(b)(1)(i) and (b)(2) that would
allow OSMRE to consider any
information readily available when
determining whether there is reason to
believe that a violation exists. The
commenter, which represents the coal
industry, added that it is appropriate for
OSMRE to provide these clarifications
to the process so that OSMRE can
determine whether information
submitted in a citizen complaint
constitutes documentation of alleged
violations; the commenter also notes
that OSMRE must have the authority to
evaluate information objectively in
order to determine the validity of
allegations. Further, the commenter
supports OSMRE’s ability to review
readily available information, from any
source, including information that may
be available to the State regulatory
authorities. The commenter finds that
this would allow OSMRE to more
accurately identify the specific nature of
an alleged violation or program issue
identified by a citizen. Moreover, the
commenter stated that the clarification
would provide OSMRE an opportunity
to apply a remedy that most
appropriately corresponds to the alleged
violation—whether it is a permit
specific violation, on-the-ground
violation, or is better characterized as a
State regulatory program issue.
Response: OSMRE agrees with the
commenter that it is necessary for the
OSMRE authorized representative to
consider any information readily
available when formulating reason to
believe. This clarification specifies that
information provided by the State
regulatory authority is included in the
‘‘any information’’ that an OSMRE
authorized representative may consider,
consistent with 30 U.S.C. 1271(a), while
also highlighting the importance of
timely formulation of reason to believe
to ensure prompt resolution of a
possible violation. The latter point is
clarified by OSMRE adopting the
proposal to include the word ‘‘readily’’
in 30 CFR 842.11(b)(1)(i) and (b)(2).
Also, the clarification of 30 CFR
842.11(b)(2), which OSMRE is adopting
in this final rule, codifies OSMRE’s
flexibility to more appropriately analyze
and identify the existence of violations,
and, if necessary, to issue a TDN or use
the enhanced part 733 process for a
State regulatory program issue. The
ability to efficiently and effectively
differentiate between violations
addressed under revised section
§ 842.11 and State regulatory program
issues, as defined in this final rule and
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addressed under revised § 733.12, is an
important point. As the regulations
currently exist, there is ambiguity
related to these two distinct resolutions
of problems that may be alleged in
citizen complaints—those outlined in
section 521(a) of SMCRA (site-specific)
and those outlined in section 521(b) of
SMCRA (program issue). As the
commenter notes, it is important to
clearly differentiate between sitespecific alleged violations governed by
section 521(a) and 30 CFR part 842,
under which the TDN process is
invoked, and State regulatory program
issues related to a State regulatory
authority’s alleged failure to implement,
administer, maintain, or enforce its
approved program governed by section
521(b) of SMCRA and 30 CFR part 733.
In this final rule, OSMRE is seeking to
eliminate this ambiguity and afford
OSMRE the discretion to resolve sitespecific violations and program issues
by the most appropriate method while
working in coordination with the State
regulatory authority.
G. Citizens’ Ability To Request Federal
Inspections Is Not Diminished
As discussed throughout OSMRE’s
responses to comments received, several
commenters expressed concern over the
impact of the proposed rule on Federal
inspections, while other commenters
offered suggestions for further altering
the regulations related to requesting
Federal inspections pursuant to 30 CFR
842.12.
Comment: A commenter challenged
OSMRE’s proposed language in
§ 842.12(a) requiring a citizen, when
requesting a Federal inspection, to
provide the basis for their assertion that
a State regulatory authority failed to act
upon an alleged violation.
Response: As proposed and finalized
in this rule, this provision will not be
overly burdensome for a citizen
complainant. For example, if the
complainant notifies the State
regulatory authority simultaneously
with filing a complaint with OSMRE,
the basis for the person’s assertion could
be as simple as restating the allegations
in the complaint made to the State
regulatory authority, coupled with the
action, if any, taken by the State
regulatory authority in response.
However, OSMRE notes that a citizen
complainant should provide as much
information as possible, as that
information will inform the OSMRE
authorized representative’s ‘‘reason to
believe’’ determination. In all cases,
OSMRE’s authorized representative will
consider readily available information,
in addition to any information that the
complainant may provide, as part of the
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authorized representative’s ‘‘reason to
believe’’ determination. As noted
previously, requiring the citizen
complainant to notify the State
regulatory authority before or
simultaneously with filing a request for
a Federal inspection with OSMRE will
give the State regulatory authority an
opportunity to address the issue raised.
This requirement is not unreasonable
and should help prevent duplicative
efforts.
Comment: A commenter requested
that OSMRE amend § 842.12(a) to
incorporate text contained in 30 U.S.C.
1267(h)(1) by inserting the phrase ‘‘at
the surface mining site’’ after the word
‘‘exists’’ in the first sentence in
proposed § 842.12(a), so that it would
read: Any person may request a Federal
inspection under § 842.11(b) by
providing to an authorized
representative a signed, written
statement (or an oral report followed by
a signed written statement) setting forth
information that, along with any other
readily available information, may give
the authorized representative reason to
believe that a violation, condition, or
practice referred to in § 842.11(b)(1)(i)
exists [at the surface mining site]. The
commenter suggested that the same
change be made to proposed
§ 842.11(b)(1)(i) by inserting the same
phrase in the first sentence after the first
appearance of the word ‘‘exists’’ and
before the term ‘‘a violation’’ in the
middle of the first sentence to limit
citizen complaints, and any
accompanying inspection, to on-theground impacts.
Response: OSMRE declines to make
the suggested change because SMCRA
does not include this language in 30
U.S.C. 1271(a). As explained elsewhere
in this final rule, if a citizen
complainant makes OSMRE aware of a
State regulatory program issue that has
not resulted in actual or imminent
violation of the approved State program
that often manifests as an on-the-ground
impact at a specific site, OSMRE will
handle the issue initially through the
enhancements to the 30 CFR part 733
process adopted in this final rule.
However, as noted repeatedly, OSMRE
will still initiate an appropriate Federal
enforcement action, such as issuance of
a TDN, if the State regulatory program
issue results in, or may imminently
result in, a violation of the approved
State program.
Comment: A commenter requested
that OSMRE clarify that a request for a
Federal inspection under 30 CFR 842.12
may be denied if it is clear that the
request is a repeat of substantially
identical requests made by the same
person on the same issue.
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Response: This rulemaking does not
provide that OSMRE will automatically
deny a request for a Federal inspection
simply because a substantially identical
request has been made previously.
Instead, this rulemaking requires
OSMRE to make a fact-specific
determination each time it receives a
citizen complaint or other allegation of
a violation.
First, the OSMRE authorized
representative must determine whether
the alleged violation would constitute
imminent harm. If so, OSMRE will
bypass the TDN process and will
proceed directly to a Federal inspection
if the person supplying the information
(usually in the form of a citizen
complaint) provides adequate proof that
there is an imminent danger to the
public health and safety or a significant,
imminent environmental harm and the
State has failed to take appropriate
action. See 30 U.S.C. 1271(a)(1) and (2).
Nothing in this final rule is intended to
modify these essential provisions of
SMCRA and the existing regulations,
which are aimed at immediately
identifying and correcting imminent
harm scenarios.
Second, the OSMRE authorized
representative must issue a TDN to a
State regulatory authority whenever he
or she has reason to believe a violation
exists. 30 U.S.C. 1271(a)(1) and 30 CFR
842.11(b)(1). The final rule makes clear
that when determining whether he or
she has ‘‘reason to believe,’’ OSMRE’s
authorized representative must make a
fact-specific inquiry based on readily
available information. 30 CFR
842.11(b)(1)(i). If OSMRE has already
received a similar citizen complaint or
if a substantially identical complaint
has been filed with the State regulatory
authority, and the State regulatory
authority has investigated the matter,
OSMRE may have more information
readily available to determine if it has
reason to believe a violation exists. Such
information could lead the OSMRE
authorized representative to determine
that he or she does not have ‘‘reason to
believe’’ because earlier, similar
complaints had not revealed a violation.
Similarly, if OSMRE has already issued
a TDN based on a previously received
similar complaint, it is unlikely that
OSMRE will have reason to believe that
another violation exists; without the
requisite ‘‘reason to believe,’’ the
authorized representative will not issue
another TDN. Instead, as has been
OSMRE’s practice, OSMRE will inform
the citizen in writing that subsequent
citizen complaints are already being
resolved through an existing TDN
process, and a new TDN process will
not be initiated. OSMRE will retain all
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citizen complaints in the record of the
existing TDN process. It is also possible,
however, that the OSMRE authorized
representative will review what seems
to be a similar complaint and formulate
reason to believe that a different or
renewed violation exists. In that
scenario, the OSMRE authorized
representative will issue a new TDN.
Although many variations are possible,
the OSMRE authorized representative
will consider the facts alleged in each
citizen complaint and any other readily
available information before deciding if
he or she has reason to believe a
violation exists.
Comment: A commenter suggested
that OSMRE clarify the final rule text at
30 CFR 842.12 to require citizens to
exhaust all remedies afforded to them
under each respective State regulatory
program before requesting a Federal
inspection. The commenter further
opined that OSMRE should better
delineate between the process it will
follow when it receives a request for a
Federal inspection in a State where
OSMRE operates a Federal program and
a primacy State. For primacy States, the
commenter states that OSMRE should
defer to the State process under which
the alleged violation occurs, including
the exhaustion of all State remedies.
Response: Nothing in SMCRA
authorizes OSMRE to require that a
citizen exhaust their remedies under a
State regulatory program before
requesting a Federal inspection. See 30
U.S.C. 1267(h)(1) and 1271(a)(1). Thus,
OSMRE did not propose and is not
finalizing a rule that would require a
citizen to exhaust its remedies under a
State program before requesting a
Federal inspection from OSMRE.
OSMRE notes, however, that by
clarifying that OSMRE’s authorized
representative can review information
from a State regulatory authority before
determining whether he or she has
‘‘reason to believe,’’ OSMRE is
recognizing that a State regulatory
authority, as the primary SMCRA
enforcement agency within its
jurisdiction, is likely to have relevant
information. Although the OSMRE
authorized representative will make an
independent determination of his or her
‘‘reason to believe,’’ this change better
recognizes the State regulatory
authority’s expertise.
In response to the commenter’s
suggestion that OSMRE should
delineate between situations where the
State regulatory authority is the primacy
enforcement authority—as in most
situations—and when OSMRE is the
primary regulatory authority, such as in
the State of Tennessee, OSMRE
reviewed its regulations and concluded
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that 30 CFR part 842, as finalized today,
clearly distinguishes between OSMRE’s
oversight function in monitoring and
evaluating the administration of
approved State programs, including
inspections and enforcement of Federal
programs. Compare 30 CFR
842.11(b)(1)(ii)(A) (Federal program
states) with 30 CFR 842.11(b)(1)(ii)(B)
(primacy states). As specified in these
regulations, the TDN process does not
apply to Federal programs, where
OSMRE is the regulatory authority.
Comment: One commenter supported
the proposed addition to 30 CFR
842.12(a) requiring that a citizen
provide an email address, if the citizen
possesses one, when submitting the
statement required to accompany a
request for a Federal inspection.
Response: OSMRE agrees and is
adopting this proposal in the final rule
to allow for a more expeditious manner
to contact citizen complainants, if
necessary.
H. OSMRE’s Enhancement to the
Existing 30 CFR Part 733 Process is
Aimed at Addressing State Regulatory
Program Issues Early and Promptly
Resolving the Issues
Comment: Several commenters opine
that the 30 CFR part 733 process is an
inadequate method of dealing with State
regulatory program issues because it
creates a delay in enforcement. These
same commenters also claim that the
existing 30 CFR part 733 process does
not require prompt action by the State
regulatory authority because of the
public notice requirement found in
existing 30 CFR 733.12(d).
Response: OSMRE agrees with the
commenters that use of the existing 30
CFR part 733 process can take more
time than is warranted to address issues
requiring a timely response. However,
the use of action plans as described in
the finalized and redesignated § 733.12
does not have the same time
requirements that are associated with
existing § 733.12, which will be
redesignated as 30 CFR 733.13 under
this final rule. This will promote more
prompt resolution of State regulatory
program issues, as these issues will be
identified prior to the issues escalating
to the point where substitution of
Federal enforcement or withdrawing
part or all of a State program are
necessary. Moreover, as OSMRE has
repeatedly noted, even if OSMRE and
the State regulatory authority are
engaged in the corrective action process,
including developing an action plan
pursuant to the enhanced provisions of
30 CFR part 733, finalized in this
rulemaking, the State regulatory
authority and OSMRE will still take an
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appropriate enforcement action if there
is an actual or imminent violation of the
approved State program. In OSMRE’s
experience, a violation of the approved
State program often manifests itself as
an on-the-ground impact, but may also
manifest by other means, such as a
failure to submit a required certification
or monitoring report.
Comment: A few commenters asserted
that the existing process outlined in 30
CFR part 733 has only been used 10
times in the history of SMCRA.
Response: OSMRE agrees with the
commenters that OSMRE has used the
30 CFR part 733 process infrequently
since the inception of SMCRA. Prior to
the enhancements to 30 CFR part 733,
finalized in this rulemaking, the existing
30 CFR part 733 process, which was
limited to substituting Federal
enforcement of State programs or
withdrawing approval of part or all of a
State program, was a lengthy process
that involved significant OSMRE and
State regulatory authority interaction
over a long period. The seriousness of
substitution or withdrawal of State
regulatory programs (whether in whole
or in part), when necessary, should not
be minimized, and OSMRE continues to
find that this process is prudent.
However, this type of enforcement
mechanism is not well-suited to smaller,
non-imminent harm issues that may
require a much shorter time frame to
effectuate resolution. This final rule
does not change the fact that imminent
harm issues will continue to be
addressed promptly through Federal
enforcement, as appropriate, to protect
public health and safety. OSMRE’s
proposal to use early identification of
State regulatory program issues and
implement corrective action through
action plans and to use Federal
enforcement for site-specific violations
bridges the two enforcement
mechanisms of the existing 30 CFR part
733 process, as outlined in 30 U.S.C.
1271(b), and the TDN process, as
outlined in 30 U.S.C. 1271(a).
Development of a definition of ‘‘State
regulatory program issue’’ and the use of
compliance strategies and action plans
to address State regulatory program
issues before these issues develop into
a more systemic, and potentially more
environmentally harmful program issue
requiring substitution of Federal
enforcement or withdrawal of a State
program, is much more efficient,
addresses issues earlier, and potentially
reduces the need to invoke the rare
remedies of existing 30 CFR part 733.
The intermediate process adopted in
this final rule should minimize or
prevent any unnecessary burdens as
OSMRE and the State regulatory
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authority promptly resolve the State
regulatory program issue.
Comment: A commenter supported
the proposed addition at 30 CFR 733.5
of the definition of ‘‘action plan’’ and
the explanation in the proposed rule
that an ‘‘action plan’’ would be an
efficient means of addressing State
regulatory program issues. The
commenter also favors the concept of
identifying these issues early to avoid
OSMRE exercising its oversight
authority in the form of substitution or
withdrawal of an approved State
program.
Response: OSMRE agrees with these
comments because, overall, OSMRE’s
final rule clarifications and
enhancements at 30 CFR parts 733 and
842 will enable OSMRE to more quickly
identify whether an alleged violation
requires more immediate resolution
through 30 CFR part 842 and the
potential issuance of a TDN or whether
the problem should be more
appropriately and effectively handled
through the 30 CFR part 733 process
because it is a State regulatory program
issue, as defined in this final rule, or a
systemic problem within the approved
program. This is a necessary distinction
as set forth in SMCRA at 30 U.S.C.
1271(a) and (b). The latter statutory
provision—30 U.S.C. 1271(b)—is aimed
at correcting systemic, programmatic
issues with State programs. Under this
final rule, OSMRE will handle State
regulatory program issues under the
authority of section 1271(b). It is
imperative for the Federal regulations to
comport with this distinction. One of
the reasons OSMRE proposed to
specifically define the term ‘‘State
regulatory program issue’’ is that, after
four decades of oversight enforcement,
citizens have sometimes conflated the
provisions of sections 1271(a) and
1271(b), resulting in frustration,
duplication, and unnecessary
complication of the TDN process, which
was designed to quickly address on-theground impacts. Moreover, not properly
distinguishing the actions available
under 30 U.S.C. 1271 has resulted in
inefficient use of Federal and State
resources, as it frequently resulted in
duplication of State and OSMRE efforts
without any clear environmental
benefit. OSMRE’s enhancements and
clarifications in this final rule that
distinguish features of the remedies for
potential violations and State regulatory
program issues will improve efficiency
and effectiveness by appropriately
narrowing the focus of 30 CFR part 842
because, under this final rule, State
regulatory program issues will be
addressed using the ‘‘action plan’’
process in final 30 CFR 733.12.
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OSMRE’s ‘‘action plan’’ concept, which
OSMRE is adopting in this final rule
through the definition of ‘‘action plan’’
at 30 CFR 733.5 and the regulatory
provisions at 30 CFR 773.12(b), will
enhance OSMRE’s ability to resolve
programmatic issues as quickly as
possible, resulting in better
implementation of SMCRA.
Furthermore, the addition of this
enhancement will result in OSMRE
taking action in advance of the rare
remedies of withdrawal or substitution
of an approved State program.
Comment: Similar to other
commenters, as discussed above, that
recognize the value in the enhancement
of the existing 30 CFR part 733 process,
a commenter also agrees with the
proposed rule clarification that would
allow programmatic concerns that
OSMRE may identify involving a State
regulatory authority to be handled
outside the TDN process because
programmatic concerns are more
appropriately addressed under section
521(b) of SMCRA, 30 U.S.C. 1271(b),
and the Federal regulations
implementing that section. The
commenter also supports OSMRE’s
proposed, minor revision to the
circumstances that constitute ‘‘good
cause’’ at existing § 842.11(b)(1)(ii)(B)(4)
and OSMRE’s proposed clarification of
what constitutes ‘‘reason to believe’’ at
existing § 842.11(b)(2). The commenter
supported the proposed, minor
revisions to the ‘‘good cause’’ provisions
at existing 30 CFR
842.11(b)(1)(ii)(B)(4)(ii) because, after
OSMRE issues a TDN to a State
regulatory authority, ‘‘good cause’’ for
the State regulatory authority not taking
appropriate action to cause an alleged
violation to be corrected includes a
State regulatory authority’s initiation of
an investigation into the alleged
violation, and a reasonable amount of
time is required to complete that
investigation before OSMRE initiates a
Federal inspection.
Response: OSMRE agrees with the
commenter’s statements about how the
proposed rule would clarify the terms
‘‘reason to believe’’ and ‘‘good cause,’’
which should greatly reduce the number
of situations when these terms, as
implemented under the existing
regulations, may have thwarted
successful collaboration between
OSMRE and the relevant State
regulatory authority. OSMRE
appreciates the commenter’s support for
the provision that OSMRE is adopting in
this final rule that allows initiation of an
investigation into an alleged violation to
establish good cause. Moreover,
successful collaboration between
OSMRE and the State regulatory
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authority is a lynchpin to successful
enforcement of SMCRA and State
regulatory programs and is necessary
under SMCRA’s cooperative federalism
framework. The provisions OSMRE is
adopting in this final rule will enhance
OSMRE’s ability to consult with the
State regulatory authority to efficiently
and effectively solve problems.
Implementation of OSMRE’s proposed
changes, which OSMRE is adopting in
this final rule, will result in OSMRE
being able to act more quickly to
differentiate between violations that
need immediate attention, and systemic
program problems that are appropriately
addressed through the existing 30 CFR
part 733 process. In OSMRE’s
experience, OSMRE has observed that
the existing TDN process frequently
results in a State regulatory authority
and OSMRE engaging in unnecessary
duplication of effort and processes
rather that working cooperatively to
quickly resolve problems. This is
contrary to the intent of section
201(c)(12) of SMCRA, which requires
OSMRE to ‘‘cooperate with . . . State
regulatory authorities to minimize
duplication of inspections, enforcement,
and administration of [SMCRA].’’ 30
U.S.C. 1211(c)(12). Furthermore, the
implementation of the relevant
clarifications in OSMRE’s proposed
rule, which OSMRE is adopting in this
final rule, is consistent with E.O. 13777
of February 24, 2017, 82 FR 12285
(March 1, 2017). E.O. 13777 is aimed at
alleviating unnecessary regulatory
burdens placed on the American people,
and this final rule achieves that goal by
removing unwarranted duplication of
processes by OSMRE and State
regulatory authorities.
Comment: Unlike other commenters
supporting the enhancement of 30 CFR
part 733, regarding OSMRE’s proposal
to codify the process of early
identification and corrective action to
address State regulatory program issues
as authorized by 30 U.S.C. 1271(b), a
citizen commenter asserts that
historically OSMRE had stronger
oversight capabilities and that the
proposed rule clarification is an attempt
to redress OSMRE’s alleged loss of
oversight authority to resolve problems
with State regulatory enforcement and
recapture OSMRE oversight capabilities
after State primacy is achieved. The
citizen commenter expressed the
concern that the 30 CFR part 733
process is like using a club to fix what
is wrong with State enforcement. As an
alternative, the commenter suggests
repealing OSMRE’s Directive REG–8 as
a more effective tool than trying to
enhance 30 CFR part 733. The
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commenter provided an example of the
alleged slowness of a State regulatory
authority’s response to a recently filed
citizen complaint. The commenter also
asserts that OSMRE is attempting to
address on-the-ground violations
through the 30 CFR part 733 process,
not through the TDN process. Notably,
the citizen acknowledges that the
rationale for citizens to notify both the
State regulatory authority and OSMRE
serves a positive purpose—essentially to
ensure checks and balances resulting in
more prompt resolution of issues.
Response: SMCRA and the
implementing regulations provide
OSMRE with two primary tools to
ensure that a State regulatory authority
is enforcing its approved program
appropriately. First, SMCRA provides
that, in certain circumstances, OSMRE
may issue a notice of violation or
cessation order directly to a permittee in
a primacy State; the circumstances in
which OSMRE can exercise direct
Federal enforcement are outlined in 30
U.S.C. 1271(a) and 30 CFR parts 842 and
843. One relevant example of OSMRE’s
ability to engage in direct Federal
enforcement is OSMRE performing a
Federal inspection after determining
that the State regulatory authority
lacked good cause or did not take
appropriate action to cause a violation
to be corrected after OSMRE reviews the
State regulatory authority’s response to
a TDN. 30 U.S.C. 1271(a)(1) and 30 CFR
842.11. The second tool OSMRE can use
is outlined in 30 U.S.C. 1254(b),
1271(b), and 30 CFR part 733. This tool
allows OSMRE to address a failure of a
State to effectively enforce all or part of
its State program. Under these
provisions, OSMRE may substitute
Federal enforcement for all or part of a
State regulatory program or withdraw
approval of all or part of a State
program.
These two mechanisms are distinct
and should not be conflated—one
involves potential violations at specific
sites, and one involves more systemic
issues in State program enforcement.
While it is true that, sometimes, a
systemic issue with a State program can
manifest itself in a violation at a site, it
is also true that the TDN process is not
the appropriate tool for resolving
systemic, programmatic issues. Instead,
the TDN process is designed to address
alleged violations associated with
individual permits. Importantly,
however, § 733.12(d), as proposed and
adopted in this final rule, provides that
nothing in § 733.12 ‘‘prevents a State
regulatory authority from taking direct
enforcement action in accordance with
its State regulatory program, or OSMRE
from taking appropriate oversight
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75171
enforcement action, in the event that a
previously identified State regulatory
program issue results in or may
imminently result in a violation of the
approved State program.’’ This
provision will ensure that actual or
imminent violations of an approved
State program that often manifest in onthe-ground impacts, but may manifest
by other means, are properly addressed
even as OSMRE and a State regulatory
authority are working to correct State
regulatory program issues.
Despite the distinction between a sitespecific violation and a systemic issue,
OSMRE has received citizen complaints
(i.e., the site-specific process) that allege
a State regulatory program issue (i.e., a
systemic issue). The regulatory revisions
that OSMRE proposed, and that OSMRE
is finalizing today, help to clarify the
distinction between when OSMRE will
use specific oversight tools—such as
direct enforcement through the TDN
process as opposed to an action plan
under revised § 733.12. Specifically, the
revision to the description of
‘‘appropriate action’’ at 30 CFR
842.11(b)(1)(ii)(B)(3) clarifies that, if
OSMRE issues a TDN, and the State
responds that it is working with OSMRE
to ‘‘immediately and jointly’’ initiate
steps to correct the systemic State
regulatory program issue under 30 CFR
733.12, that response will be considered
appropriate action, and OSMRE will not
continue with the direct Federal
enforcement process and will not
perform a Federal inspection. Instead,
OSMRE and the State regulatory
authority will work to develop an action
plan as set forth in revised 30 CFR
733.12 to address the underlying State
regulatory program issue. To the extent
that a systemic problem has resulted in
a violation of the approved State
program at a particular site, OSMRE will
continue to use its direct Federal
enforcement authority, including the
TDN process, if warranted, to ensure
such violation is corrected. This final
rule serves to differentiate more
accurately between the two distinct
processes of oversight outlined in 30
CFR part 733 and 30 CFR parts 842 and
843. OSMRE’s existing approach has
demonstrated that a clarification of the
distinction between these two processes
is necessary to ensure that proper
enforcement of SMCRA is achieved.
OSMRE understands the commenter’s
concern that 30 CFR
842.11(b)(1)(ii)(B)(3) refers to 30 CFR
part 733, and OSMRE agrees with the
commenter that, traditionally, using the
existing part 733 process to cause the
Federal enforcement of State regulatory
programs or the withdrawal of approval
of State regulatory programs is fairly
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severe and has been rarely used.
However, OSMRE also proposed, and is
finalizing, the addition of § 733.5 that
specifically defines ‘‘action plan’’ and
‘‘State regulatory program issue’’ as
used in final § 733.12, which
specifically provides a process for
OSMRE and a State regulatory authority
to enter into an action plan to address
systemic problems. The addition of the
action plan process will allow OSMRE
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. This addition is
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.
The commenter also suggested that
repealing OSMRE’s Directive REG–8
would be a more effective tool for
ensuring enforcement of SMCRA than
the proposed revisions to 30 CFR part
733. OSMRE’s Directive REG–8 is a
detailed instructional document
advising OSMRE staff on best practices
for performing oversight consistent with
30 U.S.C. 1271. Within Directive REG–
8, OSMRE identifies two types of
regular oversight activities it uses to
ensure a State regulatory authority is
effectively administering,
implementing, maintaining, and
enforcing its approved regulatory
program consistent with 30 U.S.C.
1271(b) and 30 CFR part 733. First,
OSMRE prepares a report annually
evaluating each State regulatory
program. As set forth in Directive REG–
8, each year, OSMRE uses certain fixed
topics, such as off-site impacts and
reclamation success, to evaluate the
State regulatory authority. Each year,
OSMRE also selects special topics for
review. These special topics are chosen,
in part, based on suggestions from the
public. Second, OSMRE conducts
inspections of surface coal mining and
reclamation operations as necessary to
monitor and evaluate the administration
of approved State programs in
accordance with 30 CFR part 842. This
Directive is an internal document that
OSMRE uses to ensure consistency
across the bureau and to provide
transparency to stakeholders on how
OSMRE operates with respect to its
routine evaluation of State regulatory
authorities. Elimination of Directive
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REG–8 would increase the likelihood
that various OSMRE offices would
approach annual evaluation reports and
oversight inspections differently, which
could result in a lack of clarity for the
public. For this reason, elimination of
Directive REG–8 would not be a more
effective method to implement change.
The regulations, as finalized, better
distinguish between the distinct
oversight tools authorized by 30 U.S.C.
1271, by better explaining when OSMRE
will use each tool. As such, the finalized
regulations encourage efficiency and
effectiveness when resolving alleged
violations and State regulatory program
issues by categorizing them
appropriately and eliminating wasteful
administrative processes that may
hinder prompt resolution.
OSMRE also acknowledges that
citizens may determine that filing
citizen complaints with both OSMRE
and a State regulatory authority may be
beneficial. However, in OSMRE’s
experience, State regulatory authorities
are typically in a better position to
respond quickly and ensure that
violations are corrected. OSMRE has
long since acknowledged that ‘‘if
citizens contact the State initially, most
problems will be resolved satisfactorily
without the need for intrusion by the
Federal government.’’ 47 FR at 35628.
That is why, since 1982, OSMRE has
required that a citizen notify a State
regulatory authority ‘‘in writing, of the
existence of the violation, condition or
practice’’ before or simultaneously with
notifying OSMRE of a request for
Federal inspection. OSMRE still finds,
as it did in 1982, that ‘‘this citizen
notification requirement will enhance
the protection of citizens by giving the
State an earlier opportunity to act.
Information from a person can be
transmitted to a State regulatory
authority quickly and accurately when a
citizen communicates directly with the
State.’’ Id. Thus, OSMRE has
maintained the requirement in 30 CFR
842.12(a) to require a citizen, when
requesting a Federal inspection, to
inform OSMRE that the citizen has
contacted the State regulatory authority.
Additionally, OSMRE is finalizing the
proposal that a citizen, when requesting
a Federal inspection, also provide a
basis for why the citizen asserts that the
State regulatory authority has not taken
action. This information will help
OSMRE’s authorized representative
better ascertain whether the citizen
followed the regulation by notifying the
State regulatory authority and what
information may exist that would be
useful in determining whether the
authorized representative has reason to
believe a violation exists.
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Comment: One commenter opined
that OSMRE needs to codify the process
for the action plan.
Response: Through this rulemaking,
OSMRE is codifying the process for
developing and using action plans to
correct systemic State regulatory
program issues. Currently, OSMRE uses
a variation of this process as set forth in
its Directives REG–8 and REG–23. As
long as they are not arbitrary and
capricious or contrary to SMCRA’s
specific statutory language, section
201(c)(2) of SMCRA confers on the
Secretary of the Interior broad authority
to ‘‘publish and promulgate such rules
and regulations as may be necessary to
carry out the purposes and provision of
this Act.’’ 30 U.S.C 1211(c)(2); see also
In re Permanent Surface Min.
Regulation Litig., 653 F.2d 514, 523
(D.C. Cir. 1981) (en banc)); Nat’l Min.
Ass’n v. U.S. Dep’t of the Interior, 105
F.3d 691, 695 (D.C. Cir. 1997).
Section 521(b) of SMCRA provides
that ‘‘[w]henever on the basis of
information available to him, the
Secretary has reason to believe that
violations of all or any part of an
approved State program result from a
failure of the State to enforce such State
program or any part thereof effectively,’’
the Secretary must initiate a process that
could result in OSMRE substituting
Federal enforcement for all or part of a
State regulatory program or
withdrawing approval of all or part of a
State regulatory program. 30 U.S.C.
1271(b); see also 30 U.S.C. 1254(a). This
rulemaking is not contrary to these
provisions of SMCRA because it allows
OSMRE to work with a State to correct
a systemic issue that OSMRE has
identified with a State program. The
mere fact that a State is willing to work
with OSMRE in good faith to correct a
problem shows that it is working to
adequately implement, administer,
enforce, and maintain its approved
program. Logically then, OSMRE would
not have ‘‘reason to believe’’ under 30
U.S.C. 1271(b) that the State is failing to
enforce its program effectively. Thus, no
statutory change is needed for OSMRE
to promulgate this regulation.
Comment: One commenter suggested
specific changes to OSMRE’s proposed
definition of ‘‘action plan’’ at 30 CFR
733.5 to mean a ‘‘detailed list of specific
actions and the schedule OSMRE
prepares to identify specific actions
. . . .’’ The suggested definition of
‘‘action plan’’ would also list examples
of specific actions such as: Compliance
with what the commenter has classified
as ‘‘Federal environmental regulations’’
that the commenter later defines as
‘‘Federal regulations,’’ but which
actually consist of Federal
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environmental statutes, that include,
among others, the Migratory Bird Treaty
Act and the Clean Water Act; public
notification and involvement; and dates
in which State regulatory issues are to
be resolved. The commenter requested
that its proposed definition of ‘‘action
plan’’ include ‘‘specific information on
compliance measures including
timelines, success criteria, and
contingency plans in the event the
success criteria are not reached.’’ The
commenter also suggested the addition
of new definitions at § 733.5 for many
of the terms included in its proposed
definition of ‘‘action plan,’’ such as
‘‘adequate funding’’ and ‘‘public
notification and involvement.’’
According to the commenter, these
definitions would work in conjunction
with the commenter’s suggested
revisions to the term ‘‘action plan.’’ For
instance, the commenter indicated that
an ‘‘adequate funding’’ definition would
be useful to ensure that the State
regulatory authority has sufficient funds
to carry out compliance and mitigation
measures described in the action plan.
Likewise, the commenter suggested that
the addition of ‘‘public notification and
involvement’’ would include a list of
various public notification methods and
techniques relating to notifying the
public.
Response: OSMRE disagrees that the
appropriate location for the items
suggested by the commenter is within
the definitions at 30 CFR 733.5. OSMRE
proposed most of the items suggested by
the commenter at revised 30 CFR
733.12(b), which details what should be
included in an action plan, such as the
requirements that an action plan contain
specific dates and timelines of when the
State regulatory program issue is to be
resolved and contingency plans if
success is not achieved.
As to the suggested definition of
‘‘adequate funding,’’ State regulatory
authorities must demonstrate that they
have ‘‘sufficient funding to enable the
State to regulate surface coal mining and
reclamation operations in accordance
with the requirements of this Act.’’ 30
U.S.C. 1253(a)(3). OSMRE provides
administration and enforcement grants
to State regulatory programs annually.
30 U.S.C. 1295(a). In addition, OSMRE
conducts an annual oversight review of
each State program, and, if necessary,
OSMRE can evaluate the sufficiency of
a State regulatory authority’s funding,
including the sufficiency of funding to
carry out any action plans. For these
reasons, OSMRE declines to add a
definition of ‘‘adequate funding’’ to 30
CFR 733.5.
OSMRE also disagrees with the need
to include a definition for ‘‘public
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notification and involvement.’’ Any
definition of this term in 30 CFR 733.5
would only be applicable to the sections
of part 733; OSMRE’s general
definitions for its permanent regulatory
program are found in 30 CFR 700.5 and
701.5 and neither contains a definition
of public notification and involvement
or a similar term. SMCRA contains
many provisions related to public
participation. See, e.g., W. Va.
Highlands Conservancy, Inc. v. Norton,
343 F.3d at 242. SMCRA’s public
notification and participation
procedures have long been understood
in the context of their usage and as part
of each State’s approved regulatory
program. Moreover, while OSMRE’s
regulations do not provide for public
involvement in the development of an
action plan, revised 30 CFR 733.12(c)
requires each State regulatory program
issue, and benchmarks related to the
resolution of that issue, to be tracked in
each State’s Annual Evaluation report,
which is a public document published
on OSMRE’s website. Thus, the public
will have access to any action plans that
are developed.
Comment: A commenter suggested
that OSMRE add a definition in § 733.5
for ‘‘Federal regulations.’’ The suggested
definition makes reference to several
Federal environmental regulations with
which a State regulatory authority must
comply, including the Endangered
Species Act of 1973, the Migratory Bird
Treaty Act, the Clean Water Act, and the
Archaeological Resources Protection
Act. The commenter also suggests the
addition of a definition in § 733.5 for
‘‘Listed species’’ and refers to the
meaning of the term under the
Endangered Species Act of 1973. The
commenter also requested that OSMRE
define ‘‘Migratory bird’’ and make
reference to the meaning of the term
under the Migratory Bird Treaty Act.
The same commenter also suggested
adding a sentence to the end of
OSMRE’s definition of ‘‘State regulatory
program issue.’’ The added sentence
would state that ‘‘State regulatory
program issue’’ would include ‘‘the
potential failure to comply with or
completely implement Federal
regulations.’’
Response: These terms exist outside
of SMCRA and are not part of this
rulemaking effort. States must comply
with all applicable Federal and State
laws. For these reasons, OSMRE
declines to include them in this rule.
Comment: Similar to the comment
above, the same commenter,
representing an NGO, suggested that
OSMRE list specific Federal regulations
that could result in a State regulatory
program issue and a subsequent action
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plan in the commenter’s proposed
definition of ‘‘Federal regulations.’’ This
commenter also suggested rule changes
to reflect inclusion in the action plan of
any mitigation measures ‘‘that are
necessary to return the affect[ed] area to
pre-project conditions.’’ The commenter
also suggested that OSMRE include
specific criteria to determine if the State
regulatory program issue has been
remedied or mitigated.
Response: OSMRE declines to add a
definition of ‘‘Federal regulations’’ to 30
CFR 733.5 because the language at
revised 30 CFR 733.12 is sufficiently
broad to address whatever SMCRA
program deficiency needs correction,
and the regulation at final 30 CFR
733.12(b)(1) requires the action plan to
‘‘be written with specificity to identify
the State regulatory program issue
. . . .’’ Thus, any SMCRA provision or
implementing regulation that is the
subject of the program issue will be
identified at that time. As to the
suggestion to require the return of the
affected area to pre-project conditions,
there is no provision in SMCRA that
requires the return of a mine site to its
pre-project condition. Instead, SMCRA
requires permit applicants to reclaim
the mine site as required by the Act and
the State or Federal program. 30 U.S.C.
1260(b)(2). SMCRA further requires, for
example, restoration of the land affected
by mining ‘‘to a condition capable of
supporting the uses which it was
capable of supporting prior to any
mining, or higher or better uses of which
there is a reasonable likelihood . . . .’’
30 U.S.C. 1265(b)(2) (emphasis added).
The commenter’s suggestion is directly
contrary to these provisions of SMCRA;
therefore, OSMRE rejects this comment.
OSMRE agrees with the commenter
that specific criteria should be included
as part of each action plan so that
OSMRE can evaluate whether the
problem has been remedied. OSMRE,
however, declines to adopt the specific
language proposed by the commenter
because, as proposed and finalized
today, 30 CFR 733.12(b)(3)(iii) already
includes language requiring actions
plans to contain ‘‘[e]xplicit criteria for
establishing when complete resolution
[of the State regulatory program issue]
will be achieved.’’
Comment: A commenter suggested
that OSMRE not adopt ‘‘Early
identification and corrective action to
address State regulatory program
issues’’ at proposed § 733.12 and instead
incorporate OSMRE’s suggested changes
into existing OSMRE Directive REG–23.
The commenters suggested varying
degrees of positive and negative
experiences with State-OSMRE action
plans and their effectiveness.
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Response: OSMRE declines to make
this change. The enhanced 30 CFR part
733 process that OSMRE is finalizing
today is an important part of clarifying
when OSMRE will use its authority
under 30 U.S.C. 1271(a) and when it
will use its authority under 30 U.S.C.
1271(b). Codifying this procedure in the
Federal regulations versus an internal
guidance document will give OSMRE a
transparent mechanism that has gone
through public review and comment to
resolve State regulatory program issues.
OSMRE acknowledges the commenter’s
varying experiences with action plans,
but OSMRE is expecting to obtain
positive results from this regulatory
process as adopted in this final rule.
Comment: A commenter made several
specific suggestions to OSMRE’s
wording in proposed 30 CFR 733.12.
These suggestions included wording
related to actions taken by the Director
to make some actions mandatory rather
than discretionary and adding terms
related to timing, such as
‘‘immediately’’ and ‘‘without delay.’’
The commenter also suggested reducing
the specific timeframe in which State
regulatory program issues need to be
resolved to 30 days calendar days as
opposed to the 180 days as proposed by
OSMRE.
Response: The purpose behind
OSMRE’s proposed new 30 CFR 733.12
is to give OSMRE a new tool, the
development of an ‘‘action plan,’’ to use
to ensure that systemic issues with State
regulatory programs are addressed in a
measured, but no less accountable,
manner. This tool provides OSMRE
with another means to better manage
situations where a SMCRA problem may
exist but does not require immediate
action under the TDN process, though it
needs to be addressed in a shorter time
frame than the traditional 733 process.
An action plan is the vehicle to use in
these situations. Adoption of the
commenter’s suggested changes to
proposed § 733.12 would result in the
loss of flexibility, which is the purpose
of this section; thus, OSMRE is not
making the suggested changes.
Comment: A group of commenters
requested that OSMRE revise proposed
§ 733.12(a)(2) to ‘‘fully reflect the
flexibility in the Part 733 process and
avoid any inference that OSM[RE] can
skip steps in the process.’’ The
commenters suggested that paragraph
(a)(2) should be revised as follows
(commenters’ suggested language in
italics):
If the Director has reason to believe [as
opposed to ‘‘concludes’’ in the proposed
rule] that the State regulatory authority is not
effectively implementing, administering,
enforcing, or maintaining all or a portion of
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its State regulatory program, the Director may
initiate proceedings to substitute Federal
enforcement of a State regulatory program or
withdraw approval of a State regulatory
program as provided in Part 733.
Response: OSMRE declined to make
the requested changes because final 30
CFR 733.12 will allow for the
development of action plans to resolve
State regulatory program issues; in
contrast, the complete 30 CFR part 733
process is aimed at larger programmatic
issues. An action plan is designed to
prompt action before the full process for
substituting Federal enforcement or
withdrawing a part or whole State
program occurs as outlined in existing
30 CFR part 733 is necessary or
initiated. To include the steps
associated with existing § 733.12 would
muddy the distinction between an
action plan used to resolve regulatory
program issues, which can be at the
permit level, and a programmatic
problem involving a deeper systemic
issue.
Comment: One commenter suggested
revisions to proposed 30 CFR
733.12(b)(3) and (4) to specify that
OSMRE notify the public when OSMRE
identifies a State regulatory program
issue by posting all relevant documents
on OSMRE’s website. The commenter
further requested that the regulation be
revised to allow public review and
comment on action plans before they are
adopted. Finally, the commenter
suggested revising the regulation to
require OSMRE to post action plans and
State regulatory authority Annual
Evaluation reports on OSMRE’s website.
Response: As addressed above, the
proposed regulation at 30 CFR
733.12(c), which is adopted with
modifications in this final rule, will
provide that ‘‘[a]ll identified State
regulatory program issues and any
associated action plan must be tracked
and reported in the applicable State
regulatory authority’s Annual
Evaluation report.’’ OSMRE already
posts Annual Evaluation reports on
OSMRE’s website. See https://
www.odocs.osmre.gov/. OSMRE also
intended to post any action plans
developed between OSMRE and a State
regulatory authority on OSMRE’s
website. Therefore, OSMRE is revising
the final rule to provide that OSMRE
will make all Annual Evaluation reports
available on OSMRE’s website and at
the applicable OSMRE office. Thus, the
public will be notified of each identified
State regulatory program issue and
associated action plan.
While public participation is an
essential and routine part of many
aspects of OSMRE’s regulatory program,
public input in the development of an
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action plan would hamper OSMRE’s
ability to timely address identified State
regulatory program issues. Even though
OSMRE’s process of developing an
action plan does not include a public
comment element, the inclusion of the
term ‘‘any source’’ in revised 30 CFR
733.12(a)(1) makes it clear that a citizen,
an organization, or any other source
may provide information to OSMRE that
could lead the Director to conclude that
there may be a State regulatory program
issue, which could result in an ‘‘action
plan.’’
Comment: A commenter
recommended the deletion of proposed
§ 733.12(d) because it would allow
OSMRE to take an oversight
enforcement action before a violation
exists. The commenter referred to the
portion of the proposed rule that read,
‘‘may imminently result in an on-theground violation.’’ Emphasis in original.
Response: OSMRE declines to make
this change. Under this final rule,
OSMRE retains the right to issue a TDN
to a State regulatory authority if a
previously identified State regulatory
program issue has not been adequately
addressed and results in an actual or
imminent violation of the approved
State program. In the final rule, as
discussed in the section-by-section
analysis, OSMRE has removed the
reference to ‘‘on-the-ground violation’’
and replaced it with ‘‘a violation of the
approved State program.’’ OSMRE
recognizes that these violations often
manifest as an on-the-ground impact,
but OSMRE also recognizes that these
violations may manifest by other means.
For example, a permittee’s failure to
submit required monitoring reports or
submit annual certifications may be a
site-specific violation of the approved
State program. Specific to the comment,
when OSMRE determines that a
violation of the approved State program
is imminent, it makes sense for OSMRE
to take action to prevent actual
problems. One of the primary purposes
of SMCRA is to protect society and the
environment from the harmful effects of
surface coal mining operations, and
OSMRE will be able to fulfill that
purpose, in part, under § 733.12(d),
which is being adopted in this final
rule.
I. Interrelationship of 30 CFR Part 733
and 30 CFR Part 842
Despite the distinct processes
outlined in 30 U.S.C. 1271(a) and (b) for
handling site-specific violations and
those violations of a programmatic
nature, the reality of OSMRE
enforcement is that, in practice, the
nature of these violations may
sometimes blur. This overlap may occur
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as a result of circumstances,
stakeholders conflating the processes,
and complicated issues associated with
coal mining. Thus, although a multistate governmental organization
commenter found OSMRE’s inclusion of
reference to one distinct process when
discussing the other process to be
‘‘perplexing,’’ OSMRE’s experience—
and other comments received on this
topic—demonstrate that the
interrelationship must be considered.
Comment: Similar to a comment
discussed above in Section II., H., a
group of commenters claimed that the
use of the proposed 30 CFR part 733
process to deal with any on-the-ground
issue is inconsistent with SMCRA and
will be more disruptive than using a
TDN as directed by 30 CFR part 842.
This group of commenters also claimed
that a TDN is needed when a State
regulatory authority fails to act on a
violation.
Response: OSMRE agrees with the
commenters that existing 30 CFR
733.12, now redesignated as 30 CFR
733.13 in this final rule, and entitled,
‘‘Procedures for substituting Federal
enforcement of State programs or
withdrawing approval of State
programs,’’ does not quickly effectuate
change. However, OSMRE notes that
this is a distinct process that must be
implemented carefully and prudently.
To bridge this gap, OSMRE proposed 30
CFR 733.12, which is being finalized
today, as an early identification process
for a prompter resolution of State
regulatory program issues than under
the existing regulations. This
enhancement to the 30 CFR part 733
process serves to identify issues before
the issues warrant the rare remedies of
substitution of Federal enforcement or
withdrawal of an approved State
program. As previously discussed, the
development and use of action plans in
30 CFR 733.12, as finalized, will resolve
State regulatory program issues. In
addition, even when OSMRE and a State
regulatory authority are engaged in an
action plan process, OSMRE will still
take appropriate enforcement actions to
address imminent harm situations and
will issue TDNs for actual or imminent
violations of an approved State program,
such as those that have on-the-ground
impacts. State regulatory program issues
may also result in a direct Federal
enforcement action under revised
§ 733.12(d) if the State regulatory
authority does not address issues as
outlined in the action plan and there is
an actual or imminent violation of the
approved State program.
Comment: OSMRE received a number
of comments on what constitutes a
‘‘State regulatory program issue.’’ A
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commenting group requested that
OSMRE clearly express the delineation
between a ‘‘violation’’ as used in section
521 of SMCRA and a ‘‘State regulatory
program issue’’ as proposed in § 733.5
and redesignated as § 733.12. The group
further suggested that OSMRE consider
adding language to the definition of
State regulatory program issue that
states that State regulatory program
issues are not ‘‘violations’’ in the
context of section 521(a)(1) of SMCRA.
Response: OSMRE declines to make
this requested delineation and
associated change because OSMRE is
afforded a degree of discretion to
determine if something is a State
regulatory program issue that should be
addressed under the enhanced and
finalized 30 CFR part 733 process or is
site-specific with on-the-ground impacts
that fall under the TDN process outlined
in part 842. Moreover, finalized
§ 733.12(d) continues to grant OSMRE
the authority to take enforcement action
to address an actual or imminent
violation of an approved State program
that often manifests as an on-the-ground
impact. To do as the commenter
suggests, i.e., the wholesale exclusion of
State regulatory program issues from the
TDN process, would create a regulatory
loophole and be inconsistent with
congressional intent. Further, as stated
previously, what constitutes a violation
is well understood by OSMRE, State
regulatory authorities, and permittees.
Thus, no change to the definition of
State regulatory program issue is
needed.
Comment: A commenter suggested
that OSMRE overtly state that State
regulatory program issues are not the
basis for a TDN.
Response: While at least initially, a
State regulatory program issue will not
result in the issuance of a TDN, OSMRE
is reserving the right to conduct Federal
enforcement in accordance with final
rule § 733.12(d) in the event that a State
regulatory authority does not adhere to
an action plan or if a State regulatory
program issue results in an actual or
imminent violation of the approved
State program that often manifests as an
on-the-ground impact. Therefore,
OSMRE declines to make the overt
statement that the commenter requested.
Comment: A commenter group
requested that OSMRE reconsider
defining ‘‘appropriate action’’ for a
‘‘State regulatory program issue’’ under
§ 842.11 as an ‘‘appropriate action’’ in
response to a TDN under 30 CFR part
842. The group noted that OSMRE spent
considerable time in preamble text
delineating OSMRE’s authority for the
TDN process under 30 U.S.C. 1271(a)
and 30 CFR part 842 and the 30 CFR
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75175
part 733 process as required by 30
U.S.C. 1271(b). The group further
suggested that State regulatory program
issues are not to be the basis for a TDN;
therefore, the inclusion of an action
plan to address a State regulatory
program issue, as an element of the TDN
process, seemed to conflate the apparent
distinction OSMRE was making
between the TDN and 30 CFR part 733
processes.
Response: As OSMRE understands the
comment and associated request,
OSMRE declines to accept this change.
If a State regulatory authority, operating
under final § 733.12, including
development of an action plan, does not
address the program issues identified in
the action plan in the manner, and in
accordance with the dates, outlined in
the action plan, OSMRE may need to
institute Federal enforcement to address
the issue if there is an actual or
imminent violation of the approved
State program. The action plan process
in final § 733.12 is not a vehicle to avoid
Federal enforcement; instead, it is a tool
to address State regulatory program
issues promptly.
Comment: Several commenters
challenged the use of the 30 CFR part
733 process, as it existed in the preexisting regulations and with the
enhancements finalized today, to
address State regulatory program issues
that result from State permitting
deficiencies. Various commenters
asserted that OSMRE has used TDNs
(under 30 CFR part 842) for years to
address such State regulatory program
issues. One commenter opined that an
‘‘enormous loophole’’ will be created by
addressing all State regulatory program
issues through the 30 CFR part 733
process instead of through the TDN
process.
Response: OSMRE disagrees with
these comments. OSMRE has
acknowledged that, at various times, it
has addressed State permitting issues
through the TDN process. When it did
so, OSMRE followed internal policies.
Under this final rule, OSMRE is
clarifying that it will not use the TDN
process for alleged issues with a State
regulatory authority’s implementation of
its approved State program, unless there
is an actual or imminent violation of the
approved State program. In OSMRE’s
experience, these violations often
manifest in on-the-ground impacts.
Instead, OSMRE will initially address
such issues through the enhanced 30
CFR part 733 process. After all, if a
permittee obtained a permit from the
State regulatory authority on the basis of
an accurate and complete application,
the permittee has initially fulfilled the
requirements of SMCRA and the State
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regulatory program. See, e.g., Coal River
Mountain Watch v. Republic Energy,
LLC, No. 5:18–CV–01449, 2019 WL
3798219, at *8 (S.D.W. Va. Aug. 12,
2019). However, as this final rule
provides, even if OSMRE and the State
regulatory authority are engaged in the
State regulatory program issue or action
plan processes, the State and OSMRE
can still take appropriate enforcement
actions if a violation of the approved
State program has occurred or is
imminent. By using action plans as an
additional regulatory tool, the intent of
sections 504 and 521 of SMCRA will be
met without any damage to the
environment or to the detriment of
permittees. As described and contained
in this final rule, action plans are
regulatory instruments to accomplish
specific objectives and have required
timelines to resolve issues at hand. If a
State regulatory program issue cannot be
resolved through an action plan, the
issue could result in a Federal
substitution or takeover of a State
regulatory program. The State regulatory
program issue and action plan processes
in this final rule, coupled with the TDN
process, should ensure a more complete
and timely enforcement of State
regulatory programs.
Comment: One commenter stated that
violations emanating from ‘‘permit
defects’’ should be handled through the
TDN process set forth in 30 CFR part
842 and not under the proposed early
identification and corrective action
process outlined in the enhancements to
30 CFR part 733 or through the existing
30 CFR part 733 process. One
commenter expressed concern that
excluding the State regulatory authority
from the TDN process undermines the
balance between primacy and Federal
oversight and the intent of Congress.
Other commenters, pointing to past
OSMRE decisions reviewing requests for
Federal inspections related to State
permitting decisions, requested that
OSMRE clearly state that permit defects
are totally excluded from the TDN
process.
Response: In general, OSMRE
interprets the term ‘‘permit defect’’ to be
a deficiency in a permit-related action
taken by a State regulatory authority.
The term does not appear in SMCRA
and is not contained in the existing
regulations. Rather, OSMRE has used
the term in internal documents over the
years, though OSMRE no longer uses the
term in its existing Directive INE–35,
entitled ‘‘Ten-Day Notices’’ and dated
May 3, 2019. Section 521(a)(1) of
SMCRA refers to ‘‘reason to believe any
person is in violation of any
requirement of [SMCRA]. . . .’’ As
explained in the proposed rule, 85 FR
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at 28906–07, and in this final rule, ‘‘any
person,’’ in the context of 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. OSMRE
acknowledges that the term ‘‘any
person’’ also appears earlier in the same
sentence of 30 U.S.C. 1271(a), but, in
that context, SMCRA is referring to ‘‘any
person’’ that provides information to the
Secretary about possible violations; the
term in that context is broader and can
include a State regulatory authority.
Under this final rule, OSMRE generally
will not issue a TDN to a State
regulatory authority for an identified
State regulatory program issue. More
specific to the context of this comment,
under this final rule, a so-called ‘‘permit
defect’’ will typically be handled as a
State regulatory program issue, unless
there is an actual or imminent violation
of the approved State program. OSMRE
will continue to take an appropriate
direct enforcement action under the
TDN or imminent harm processes, even
if the impact stems from an underlying
State regulatory program issue.
Under this final rule, OSMRE will
follow the statutory delineation of
sections 521(a) (the site-specific TDN
process at 30 CFR part 842) and 521(b)
(the State regulatory program issue 30
CFR part 733 process) with respect to
Federal enforcement. Although OSMRE
has taken varying positions over the
years, the best reading of SMCRA is that
Congress intended the section 521(a)
TDN process to be limited to violations
at a specific site. In contrast, State
regulatory program issues, which are
more systemic in nature and could
include alleged issues related to one or
more permits issued by a State
regulatory authority but do not result in
site-specific violations of the approved
State program, should be addressed
under section 521(b) and the process
outlined in finalized 30 CFR 733.12. In
the proposed rule, OSMRE proposed to
retain the ability to take Federal
enforcement action if any issue being
addressed as a State regulatory program
issue, as outlined in redesignated 30
CFR 733.12, results in, or may
imminently result in, on-the-ground
violation. OSMRE is adopting this
proposal in this final rule but has
changed the terminology in § 733.12(b)
to read, ‘‘in violation of the approved
State program.’’ OSMRE has made this
modification in response to public
comments and because this change best
addresses identified issues that are not
specific to an individual site but are
more systemic in nature. This is
important because OSMRE will still take
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appropriate enforcement action for
actual or imminent violations of an
approved State program that often
manifest as on-the-ground impacts even
while OSMRE and a State regulatory
authority are pursuing corrective actions
for State regulatory program issues. A
multi-state governmental organization
representing the natural resource and
related environmental protection
interests of its 27 member States agreed
that OSMRE can ‘‘issue a TDN for an
alleged permit defect that has resulted
in an on-the-ground violation of a
performance standard at a mine.’’ Under
§ 733.12 of this final rule, OSMRE will
use any number of compliance
strategies, including action plans when
appropriate, to address regulatory
program issues that result from State
regulatory authority permitting actions
while also preserving OSMRE’s ability
to take enforcement action in the event
that a previously identified State
regulatory program issue results in or
may imminently result in a violation of
the approved State program. As a
commenter pointed out, the 30 CFR part
733 process has historically been used
after back and forth discussions between
OSMRE and a State regulatory authority
to identify and institute any necessary
changes to a State program. The last
resort in this situation, which is
unaffected by this final rule, is for
Federal substitution or withdrawal of all
or part of a State regulatory program
under the existing 30 CFR part 733
process. In OSMRE’s view, the
introduction of a definition for the
phrase ‘‘State regulatory program issue,’’
combined with various compliance
strategies, including action plans when
appropriate, is an intermediary step
between a Federal substitution or
withdrawal of a State regulatory
program under the part 733 process and
the section 521(a) TDN process. An
action plan, with associated issuespecific time frames, serves as a
beneficial and productive middle
ground. It is important to keep the goals
of regulatory oversight in mind: Address
issues as they arise while causing
correction and minimization of on-theground impacts as soon as possible. The
revisions to 30 CFR parts 733 and 842
in this final rule achieve those goals by
providing OSMRE with more tools to
more appropriately, efficiently, and
quickly address the range of regulatory
issues that arise.
Comment: A commenter opined that
the citizen complaint process contained
in 30 CFR part 842 should not be used
to challenge state permitting issues
under the guise of a ‘‘violation of the
Act or program.’’
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Response: As has been previously
stated, Congress intended public
participation in the implementation and
enforcement of SMCRA and specifically
added section 521(a) to the statute to
account for that participation. The
language of 30 U.S.C. 1271(a)(1) is clear
that the TDN process should be used for
a non-imminent harm situation when
‘‘the Secretary has reason to believe that
any person is in violation of any
requirement of this Act or any permit
condition required by this Act. . . .’’
However, if the alleged violation
satisfies the definition of ‘‘State
regulatory program issue,’’ which could
include issues related to State
permitting, OSMRE will use the process
set forth in 30 CFR 733.12, as finalized,
to address the issue. If it is not clear, at
the time the citizen complaint is
received, whether the alleged violation
is actually a State regulatory program
issue, OSMRE, if it has the requisite
‘‘reason to believe,’’ will still issue a
TDN to a State regulatory authority. If,
after review of the information provided
in the State’s response to the TDN, it
turns out that the alleged violation is
properly characterized as a State
regulatory program issue, under revised
30 CFR 842.11(b)(1)(ii)(B)(3), the State
will have taken appropriate action in
response to the TDN by working with
OSMRE to resolve the issue; thus,
OSMRE will not conduct a Federal
inspection. Of course, under finalized
30 CFR 733.12(d), if the State regulatory
program issue manifests itself as a
violation of the approved State program
that often results in an on-the-ground
impact, OSMRE can still take direct
enforcement action.
Comment: A commenting group
suggested that OSMRE revise the
proposed definition of ‘‘State regulatory
program issue’’ to exclude all
programmatic and permitting issues
from the TDN process found in 30 CFR
part 842. The group also offered
language at specific sections in
proposed 30 CFR part 842 to effectuate
this understanding. The suggested
changes included adding a definition
section to 30 CFR part 842 that defines
the following phrases and terms: ‘‘State
regulatory program issue’’ and
‘‘violation’’ as used in 30 CFR parts 733
and 842. The commenter also suggested
deleting the proposed revisions to the
term ‘‘appropriate action’’ regarding
joint inspections and to the term ‘‘good
cause,’’ which references 30 CFR part
733 State regulatory program issues.
OSMRE infers from the comments that
these suggested changes are presumably
to indicate that State regulatory program
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issues are not appropriate subjects for a
TDN.
Response: OSMRE declines to make
these changes because, as already stated
in this preamble, under this final rule,
OSMRE will not follow the process in
30 CFR 842.11 for State regulatory
program issues, unless there is an actual
or imminent violation of the approved
State program. However, as noted above,
sometimes OSMRE may initially issue a
TDN for something that turns out to be
a State regulatory program issue.
J. Specific Responses to Other
Comments Received About the Proposed
Rule
Comment: One commenter questioned
the validity of OSMRE’s intention for
clarifying the existing regulations.
Specifically, this commenter alleged
that despite OSMRE’s rationale, the true
rationale behind the proposed
rulemaking is to ‘‘reduce the workload
of federal and state regulatory
authorities due to lack of adequate
funding to implement the Act as
Congress intended it be done.’’
Response: The commenter provided
no evidence that the State regulatory
authorities have insufficient funding to
carry out their obligations under
SMCRA. For this and many other
reasons stated throughout the proposed
rule and this final rule preamble,
OSMRE disagrees with the commenter.
To the contrary, this rulemaking is
intended to add transparency to
OSMRE’s oversight responsibilities;
promote regulatory certainty for State
regulatory authorities, regulated entities,
and the public; enhance OSMRE’s
relationship with the State regulatory
authorities; reduce redundancy in
inspection and enforcement; and
streamline the process for notifying
State regulatory authorities of possible
violations and other issues. With respect
to the commenter’s allegation that
insufficient funding is provided to State
regulatory authorities, OSMRE notes
that Federal administration and
enforcement grants are awarded to State
regulatory authorities based, in part, on
the anticipated workload, such as
permitting and inspection, that is
necessary for State regulatory
authorities to administer and enforce
their approved State programs under
SMCRA. See 30 CFR part 735 and
OSMRE’s Federal Assistance Manual,
Chapter 5–200, The Application Process
for a Regulatory Grant. In the event that
OSMRE has reason to believe that a
State regulatory authority is not
effectively implementing,
administering, maintaining, or enforcing
any part of its approved program—
including not sufficiently funding the
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approve State program, OSMRE may
initiate procedures for substituting
Federal enforcement of State programs
or withdrawing approval of State
programs as detailed in redesignated 30
CFR 733.13.
Comment: A commenter expressed
concern that the proposed change from
‘‘shall’’ to ‘‘will’’ in 30 CFR 842.11(b)(1)
converts a previously mandatory duty
into a discretionary duty.
Response: As explained in the
preamble to the proposed rule, the
purpose of changing ‘‘shall’’ to ‘‘will’’ in
30 CFR 842.11(b)(1) was to clarify
potential ambiguity with the word
‘‘shall.’’ 85 FR at 28907. As Justice
Ginsburg explained in Gutierrez de
Martinez v. Lamagna, ‘‘[t]hough ‘shall’
generally means ‘must,’ legal writers
sometimes use, or misuse, ‘shall’ to
mean ‘should,’ ‘will,’ or even ‘may.’ ’’
515 U.S. 417, 432–33, n.9 (1995). Even
in an enforcement provision like this
one, the use of the word ‘‘shall’’ does
not necessarily give rise to a mandatory,
nondiscretionary duty. See, e.g., Heckler
v. Chaney, 470 U.S. 821, 835 (1985);
Sierra Club v. Jackson, 724 F. Supp. 2d
33, 38 n.l (D.D.C. 2010) (‘‘the mandatory
meaning of ‘shall’ has not been applied
in cases involving administrative
enforcement decisions’’); Fed. R. Civ. P.
1, Advisory Committee Notes (2007)
(‘‘The restyled rules minimize the use of
inherently ambiguous words. For
example, the word ‘‘shall’’ can mean
‘‘must,’’ ‘‘may,’’ or something else,
depending on context. The potential for
confusion is exacerbated by the fact that
‘‘shall’’ is no longer generally used in
spoken or clearly written English.’’).
To guard against this potential
ambiguity, OSMRE proposed to replace
the word ‘‘shall’’ with the word ‘‘will’’
because ‘‘will’’ indicates an event (i.e.,
a Federal inspection) that is to occur in
the future under specific circumstances
(i.e., when the OSMRE authorized
representative issues a TDN, and the
State regulatory authority fails to
respond with good cause or appropriate
action). This word choice clarification
was not intended to render the action at
30 CFR 842.11(b)(1) as anything but
mandatory. However, in consideration
of the comment, OSMRE is adopting
this suggestion to remove any ambiguity
over the mandatory nature of the
authorized representative’s
responsibility to issue a TDN when
‘‘reason to believe’’ is formulated.
However, instead of replacing ‘‘shall’’
with ‘‘will,’’ as proposed, OSMRE will
substitute the word ‘‘shall’’ with ‘‘must’’
in order to more affirmatively
communicate the mandatory
requirement. The Federal Register
Document Drafting Handbook provides,
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‘‘use ‘must’ instead of ‘shall’ to impose
a legal obligation to your reader.’’
Additionally, the Federal Plain
Language Guidelines—referred to in the
Federal Plain Writing Act of 2010—also
direct Federal agencies to use ‘‘must’’
not ‘‘shall’’ to indicate requirements.
Comment: A commenting group
suggested that OSMRE incorporate
regulatory language that defines the
term ‘‘violation.’’ The commenter
asserted that, in the TDN context, a
violation only occurs in the context of
on-the-ground violations of a State
regulatory program, rather than to
infractions of SMCRA generally.
Response: OSMRE disagrees that
changes to the existing regulations are
necessary. The term ‘‘violation’’ has
been used for greater than 40 years in
SMCRA enforcement and has a common
understanding that is not a subject of
this rulemaking. However, as explained
in the proposed rule, ‘‘[a] reasonable
reading of section 521(a)(1) is that the
referenced violations are those that
permittees, and related entities or
persons, commit in contravention of
State regulatory programs. Therefore,
within the context of section 521(a) of
SMCRA and the TDN regulations, the
proposed rule would clarify that
OSMRE will not send TDNs to State
regulatory authorities based on
allegations or other information that
indicates that a State regulatory
authority may have taken an improper
action under the State’s regulatory
program.’’ 85 FR at 28907. OSMRE
reasserts that position here. OSMRE did
not propose to define the term violation
and finds that such a definition is
unnecessary.
Further, OSMRE agrees that it will
issue TDNs to State regulatory
authorities only when it has reason to
believe there is a violation of the
applicable State program, but this result
is already clear in the existing
regulations. In other words, when
OSMRE is determining whether it has
reason to believe that there is a violation
of SMCRA in the TDN context, it makes
that determination under the
requirements of the approved State
program. This longstanding practice
does not require regulatory clarification.
Of course, State programs must consist
of elements that are no less stringent
than SMCRA and no less effective than
its implementing regulations. See 30
CFR 732.15(a) (a State program must be
‘‘in accordance with’’ SMCRA and
‘‘consistent with’’ the Federal
regulations) and 30 CFR 730.5 (defining
‘‘in accordance with’’ and ‘‘consistent
with’’). As such, if there would be a
violation under SMCRA and the Federal
regulations, a violation of an approved
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State program is also likely. However, if
OSMRE discovers that a State program
is not as stringent as SMCRA, it will
take appropriate action, such as
requiring a State program amendment
under 30 CFR 732.17. With regard to the
commenter’s reference to ‘‘on-theground violations,’’ that issue is
discussed elsewhere in this final rule.
Comment: A commenter requested
that OSMRE modify existing § 842.11 to
ensure deference is given to the State
regulatory authority when OSMRE is
evaluating alleged violations, especially
those stemming from what the
commenter characterizes as ‘‘permit
defects.’’ While the commenter noted
that the existing regulations contain an
‘‘arbitrary and capricious’’ standard, the
commenter suggested that OSMRE and
the Department’s Office of Hearings and
Appeals (OHA) often ignore or pay lip
service to the standard. The commenter
suggested that OSMRE amend 30 CFR
842.11(b)(1)(ii)(B)(2) to make certain
that deference is given to the State
regulatory authority by adding a second
sentence to read as follows: ‘‘[t]he
authorized representative will accord
the State regulatory authority
substantial deference in evaluating
whether the response is arbitrary
capricious or an abuse of discretion
under the State program.’’
Response: As explained above, under
this final rule, OSMRE will not address
problems with a State-issued permit
through the TDN process, unless there
is an actual or imminent violation of the
approved State program. OSMRE agrees
with the commenter that OSMRE should
afford substantial deference to State
regulatory authorities during the TDN
process. This is a practice that OSMRE
has routinely followed in conformity
with the various provisions of SMCRA
relevant to this issue. Under the
‘‘arbitrary, capricious, or an abuse of
discretion’’ standard in the existing
regulations, which is not affected by this
final rule, OSMRE already affords
substantial deference to State regulatory
authorities that the commenter seeks,
which is consistent with SMCRA’s
cooperative federalism model. After all,
in primacy States, the State is the
primary SMCRA regulatory authority,
and OSMRE’s role is one of oversight.
Because the existing regulations already
recognize the States’ significant role in
enforcing SMCRA, and OSMRE is
appropriately deferential to the States,
no change to the regulations is
necessary to accomplish the
commenter’s goal. OSMRE also notes
that, contrary to the commenter’s
assertion, neither OHA nor OSMRE is
free to ignore or merely pay lip service
to requirements in duly promulgated
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regulations. Likewise, OSMRE
acknowledges that it must follow
applicable provisions of SMCRA and
relevant administrative and judicial case
law. OSMRE already recognizes and
applies the requisite deference owed to
State regulatory authorities during the
TDN process, and the TDN regulations
and OSMRE’s practice are fully in
accord with SMCRA and court
decisions.
Comment: A commenter questioned
why OSMRE proposed changes to four
of the five examples of what can
constitute ‘‘good cause’’ at 30 CFR
842.11(b)(1)(ii)(B)(4) and made no
changes to one of the five elements. The
commenter also questioned OSMRE’s
proposal to include the term
‘‘demonstrates’’ in paragraphs (b)(1)(iii)
and (iv) because it did not appear to
change the meaning of the provisions.
Response: OSMRE has found it
difficult to substantiate State regulatory
authority’s jurisdictional claims under
existing paragraph (b)(1)(iii) and claims
of preclusion to act under existing
paragraph (b)(1)(iv). OSMRE does not
intend to change the meaning of these
provisions or its interpretation of what
constitutes good cause for not taking an
action under these subparagraphs.
OSMRE added ‘‘demonstrate’’ to these
subparagraphs of § 842.11(b)(1)(ii)(B)(4)
to ask State regulatory authorities to
provide OSMRE with a measure of
certainty for their claims of good cause
for not taking an action to correct a
violation.
Comment: One commenter indicated
general support for the proposed
clarifications of ‘‘good cause’’ as set
forth in 30 CFR 842.11(b)(1)(ii)(B)(4).
However, the commenter recommended
that the provisions related to good cause
could be made more effective with the
addition of language requiring the State
regulatory authority to demonstrate it
has ‘‘dedicated all resources necessary
to complete the investigation as soon as
possible.’’
Response: OSMRE understands that
the commenter is requesting a defined
time frame for the State regulatory
authority to complete an investigation
into a possible violation as outlined in
30 CFR 842.11(b)(1)(ii)(B)(4)(ii) and also
is requesting that the State regulatory
authority make an affirmative showing
that all resources necessary are used to
complete the investigation. OSMRE
does not accept the suggestion made by
the commenter as it would place
general, unreasonable expectations on
the State regulatory authority to
complete often complicated and factspecific investigations. To be clear, the
existing regulations require that when a
State regulatory authority requires
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additional time to analyze the
allegations in a TDN, this must be
performed in a ‘‘reasonable and
specified additional time.’’ The
proposed rule, as finalized today, also
contains this limit on a State regulatory
authority’s investigation time frame and
takes a further step to ensure
expeditious resolution of possible
violations. In an effort to express the
urgency of promptly resolving alleged
violations, the final rule grants the
OSMRE authorized representative
discretion to ‘‘determine how long the
State regulatory authority should
reasonably be given to complete its
investigation . . . and [the authorized
representative] will communicate to the
State regulatory authority the date by
which the investigation must be
completed.’’ At the conclusion of the
specified time, the OSMRE authorized
representative will re-evaluate the State
regulatory authority’s response. This
reflects an appropriate balance of the
State regulatory authority’s knowledge
of specific issues, the need to
thoroughly gather information necessary
to evaluate a possible violation, and the
prompt resolution of possible violations.
Furthermore, it does not place
unreasonable expectations on State
regulatory authorities to dedicate ‘‘all
resources’’ to one issue.
Comment: One commenter suggested
revisions to the ‘‘good cause’’ provisions
in proposed § 842.11(b)(1)(ii)(B)(4)(iv) to
address what the commenter has
characterized as a shortcoming in the
existing and proposed language that was
identified during recent coal company
bankruptcy proceedings. According to
the commenter, during bankruptcy
proceedings, evidence was discovered
of collusion between State officials and
coal companies that were self-bonded.
The commenter alleged that either
through this alleged collusion, or by
direct action of the State officials,
judicial action was taken to shield these
companies from complying with the
requirements of 30 CFR 800.16(e)
(General terms and conditions of bond)
and 30 CFR 800.23(g) (Self-bonding).
The commenter surmised that these
alleged actions could be prevented by
revising § 842.11(b)(1)(ii)(B)(4)(iv) to
include the requirement that the State
regulatory authority ‘‘demonstrate that
no state official has coordinated with
the mining company and or acted
independently to secure an
administrative review body or court of
competent jurisdiction to preclude the
State regulatory authority from taking
action on the violation.’’
Response: OSMRE declines to accept
this suggestion because this proposed
revision to the good cause requirements
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of 30 CFR part 842 is outside the scope
of this rulemaking as OSMRE did not
propose to substantively change the
requirement in
§ 842.11(b)(1)(ii)(B)(4)(iv). OSMRE notes
that if OSMRE discovers, at any time,
that a State regulatory authority is
failing to adequately implement,
administer, maintain, or enforce a part
or all of a State program, including
enforcing the general bonding and selfbonding requirements established in 30
U.S.C. 1259 and 30 CFR part 800,
OSMRE may initiate the existing 30 CFR
part 733 process in accordance with 30
U.S.C. 1271(b).
Comment: A multi-state governmental
organization that characterizes itself as
supporting the natural resource and
related environmental protection and
mine safety and health interests of its 27
member States suggested that OSMRE
develop a more thorough discussion of
why the proposed regulations at 30 CFR
parts 733 and 842 represent OSMRE’s
interpretation of SMCRA with respect to
the procedures for substituting Federal
enforcement of State programs or
withdrawing approval of State programs
and the TDN process.
Response: OSMRE has already
discussed the clarifying changes to 30
CFR parts 733 and 842 in the preamble
to the proposed rule (85 FR 28904).
These two rule sections have also been
the subject of several previous
rulemakings and associated Federal
Register notices. See, e.g., 44 FR 14902
(March 13, 1979), 47 FR 35620 (Aug. 16,
1982), 52 FR 34050 (Sept. 9, 1987), and
53 FR 26728 (July 14, 1988).
Additionally, OSMRE has expanded
upon the rationale for its clarifying
changes, above.
Comment: A coal industry group
comprised of several companies in an
Appalachian Basin-based coal State
offered its support for OSMRE’s
proposed clarification that OSMRE will
not send TDNs to State regulatory
authorities based on allegations that the
State regulatory authority itself has
acted improperly under the approved
State program.
Response: As discussed briefly above,
OSMRE agrees with the commenter’s
observations. Specifically, the
commenter accurately recognizes that
within the context of section 521(a)(1) of
SMCRA, a State regulatory authority
should not be considered ‘‘any person’’
who may be ‘‘in violation of any
requirement of this Act.’’ 30 U.S.C.
1271(a)(1). As discussed in the proposed
rule, but not commented upon, in this
context, ‘‘any person’’ does not include
OSMRE, State regulatory authorities, or
employees or agents thereof, unless they
are acting as permit holders. To be clear,
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75179
OSMRE will not issue a TDN to a State
regulatory authority for an alleged
violation by the State regulatory
authority, unless the State regulatory
authority is acting as a permit holder
because it is operating a surface coal
mining operation or the State regulatory
authority is standing in the shoes of the
permittee due to bond forfeiture or any
other unforeseen reason. This
interpretation is consistent with the
plain language of 30 U.S.C. 1271(a) that
differentiates between ‘‘any person’’
providing information and ‘‘any person
[that] is in violation of any requirement
of this Act. . . .’’ However, OSMRE
cautions that this interpretation does
nothing to diminish OSMRE’s authority
to act if OSMRE becomes aware that
there is a State regulatory program issue.
Specifically, if OSMRE becomes aware
that there is a State regulatory program
issue that undermines a State regulatory
authority’s effective administration,
maintenance, implementation, or
enforcement of its State regulatory
program, even with respect to a single
operation, OSMRE may address the
issue programmatically under the
enhanced 30 CFR part 733 that is being
finalized in this rulemaking while also
taking enforcement action as prescribed
by 30 U.S.C. 1271(a)(1) when there is a
violation of the approved State program.
Comment: A citizen commenter
suggested that OSMRE should define
the terms ‘‘readily available
information’’ and ‘‘effective
documentation.’’
Response: Definitions for these two
terms are unnecessary as the terms have
generally accepted definitions and no
specialized technical meaning in this
rule. For example, ‘‘readily’’ is defined
as ‘‘without hesitating; without much
difficulty.’’ Readily, Merriam Webster
Online Dictionary, available at merriamwebster.com/dictionary/readily (last
accessed August 4, 2020). Moreover, as
OSMRE explained in the preamble to
the proposed rule, OSMRE considers
‘‘any information that is accessible
without unreasonable delay’’ to be
‘‘readily available information.’’ 85 FR
at 28907. Furthermore, OSMRE’s
authorized representative needs the
flexibility to use his or her best
professional judgment to determine
what information is readily available
based on the specific facts of each
situation.
Similarly, it is also not necessary for
OSMRE to define ‘‘effective
documentation’’ as it is used in
§ 842.11(b)(2) to describe the type of
information referenced in 43 U.S.C.
1271(a)(1) that a complainant should
submit to OSMRE to show a possible
violation because determining what
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constitutes ‘‘simple and effective
documentation’’ will be a fact-specific
consideration that OSMRE will take into
account in formulating reason to believe
on a case-by-case basis. Congress, when
enacting SMCRA, recognized that
OSMRE’s authorized representative will
consider ‘‘a snapshot of an operation in
violation or other simple and effective
documentation of a violation’’ in order
to formulate reason to believe before
issuing a TDN. H.R. Rep. No. 95–128, at
129 (April 22, 1977) (emphasis added).
As used in the final rule at 30 CFR
842.11(b)(2), OSMRE adopts the
language proffered by Congress; thus,
OSMRE’s authorized representative will
be assessing both whether the
complainant has submitted ‘‘simple and
effective documentation’’ and whether
‘‘facts that are otherwise known to the
authorized representative’’ constitute
simple and effective documentation
before formulating whether there is
reason to believe a violation exists.
However, that simple and effective
documentation can also come from any
other readily available source, in
addition to the complainant. This may
include, for example, information in
OSMRE’s files, from the public domain,
provided by a State regulatory authority,
or in a citizen complaint. Depending on
the alleged violation, simple and
effective documentation could also be a
photograph of the alleged violation,
boundary identifiers, water monitoring
reports, or any other information readily
available to OSMRE’s authorized
representative.
Comment: A citizen commenter stated
that the proposed changes to
§ 842.11(b)(2) coupled with the ‘‘new
proposed ‘reason to believe’ standard’’
will make it more likely that legitimate
complaints will be rejected because the
complaint may not include ‘‘simple and
effective documentation.’’ Further, the
commenter reasoned that the term
‘‘simple and effective documentation’’ is
a new term that is undefined and that
will place an unreasonable burden on
citizens seeking to file a citizen
complaint.
Response: OSMRE disagrees with this
comment and notes that § 842.11(b)(2)
states the authorized representative will
be able to formulate reason to believe ‘‘if
the facts that a complainant alleges, or
facts that are otherwise known to the
authorized representative, constitute
simple and effective documentation of
the alleged violation, condition, or
practice.’’ (Emphasis added). The
commenter has missed the portion of
this provision that allows the authorized
representative to rely on facts that are
otherwise known to the authorized
representative that may constitute
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simple and effective documentation, in
addition to the facts that the
complainant submits. Moreover, as
OSMRE noted in response to a previous
comment, the concept of ‘‘simple and
effective documentation’’ was first
introduced in 1977 when SMCRA was
being drafted by Congress. This phrase
was used to describe the type of
information that could be used to
document a possible violation. OSMRE
is not imposing a new requirement or a
burden on citizens when filing a citizen
complaint and views this standard as a
low bar describing the nature of
documentation that may be used to
show that a violation has taken or is
taking place. In addition, OSMRE has
clarified in this final rule that it will
consider any ‘‘simple and effective
documentation’’—including readily
available information from the State
regulatory authority or any other
source—when formulating reason to
believe.
Comment: OSMRE received several
comments suggesting that OSMRE does
not have statutory authority to issue a
notice of violation (NOV) in a primacy
State due to the construction and
relationship between sections 504(b)
and 521(b) of SMCRA. One of these
commenters further suggested that once
a State program is approved, and the
State earns primacy, the approved State
program becomes the operative law;
therefore, Federal actions against a State
permittee amount to a Federal takeover
of the approved State program. Another
one of these commenters echoed the
same sentiment and added that Federal
oversight in a primacy State created an
unfair playing field relative to States
that have not achieved primacy and
therefore have only Federal
enforcement. A commenter further
suggested that OSMRE repeal the
regulation authorizing NOVs in primacy
states (30 CFR 843.12) and initiate a
rulemaking to do so.
Response: The issue of OSMRE’s
statutory authority to issue NOVs is
well-settled, and nothing in OSMRE’s
proposed rule suggested that OSMRE
was reconsidering whether it has
authority to issue NOVs in primacy
States. See 48 FR 9199 (Mar. 3, 1983)
(‘‘[u]pon examination of the issue, the
Department has concluded that the
regulation contained at 30 CFR
843.12(a)(2) was properly and lawfully
promulgated; therefore there is no need
to reconsider the issue.’’); see also 44 FR
14902. Over thirty years ago, OSMRE
considered a rulemaking petition, which
sought the repeal of all of the
regulations ‘‘authorizing Federal notices
of violation in States with approved
regulatory programs . . . .’’ 52 FR at
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21598. OSMRE denied this petition. 52
FR at 21601 (‘‘After careful
consideration of the Act, the legislative
history, and public comments. . . ,
OSMRE determined that it has the
authority to issue Federal NOV’s in
primacy States.’’); see also Nat’l Min.
Ass’n v. U.S. Dep’t of Interior, 70 F.3d
1345, 1353 (D.C. Cir. 1995) (upholding
OSMRE’s rulemaking petition denial).
Given OSMRE’s longstanding
interpretation of its authority and the
lack of anything in the proposed rule
that would indicate a change to this
position, OSMRE considers this
comment to be outside the scope of this
rulemaking, and OSMRE is not adopting
the suggestions made by these
commenters.
Comment: One commenter suggested
that OSMRE repeal 30 CFR 842.15(d)
pertaining to formal appeals to OHA of
the Director’s informal review of an
inspector’s decision in response to a
request for a Federal inspection. The
commenter opined that SMCRA
authorizes informal review of an
authorized representative’s decision to
not inspect or not take enforcement
action, but SMCRA does not authorize
formal appeals, as the existing OSMRE
regulations authorize. The commenter
further stated that these ‘‘formal’’
appeals of OSMRE decisions not to
inspect or enforce often languish for
years while being resolved through the
administrative litigation process of the
OHA and the appellate administrative
board, the Interior Board of Land and
Appeals. In support of this proposed
revision, the commenter cited efficiency
and points out that long resolution
times unnecessarily prolong uncertainty
for operators and State regulatory
authorities.
Response: OSMRE did not propose
any revisions to 30 CFR 842.15 in
response to this comment. OSMRE
considers this comment to be outside
the scope of this rulemaking and is not
making any changes to the final rule as
a result. Changes to the administrative
review process for informal review
decisions were neither proposed by
OSMRE in the proposed rule nor would
be a logical outgrowth of the current
rulemaking effort. Therefore, OSMRE
will not be addressing this comment or
including the provisions proposed by
the commenter in this final rule.
Comment: One individual
commenter, representing the interests of
a citizens’ group, cites data from the
U.S. Energy Information Administration
(EIA) that predicts a 25 percent decline
in domestic coal production from 2019
through 2020 and the ‘‘financial demise
of the coal industry’’ as a rationale for
why OSMRE should maintain
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appropriate regulations to safeguard and
protect the environment from ‘‘careless
mining endeavors.’’
Response: OSMRE agrees that it
should maintain appropriate regulations
to safeguard the environment and
asserts that this final rule and the other
Federal regulations accomplish that
goal. Fundamentally, this final rule will
enhance OSMRE’s and the State
regulatory authorities’ ability to
adequately administer and enforce
SMCRA. To clarify, EIA estimates that
U.S. coal consumption will decrease by
26 percent in 2020 and increase by 20
percent in 2021. Further, EIA estimates
that coal production in 2020 will
decrease by 29 percent from 2019 levels.
See U.S. Energy Information
Administration, ‘‘Short-Term Energy
Outlook,’’ available at https://
www.eia.gov/outlooks/steo/(last
accessed August 10, 2020). OSMRE’s
obligations under SMCRA are informed
by its purposes outlined at 30 U.S.C.
1202. SMCRA’s purposes are not
dependent upon the amount of coal
consumption or production. Regardless
of the amount of consumption or
production of coal, OSMRE’s oversight
and enforcement responsibilities remain
the same. Therefore, the estimated
annual variance in coal production does
not impact OSMRE’s statutory
obligations, which include, most
relevant to this final rule,
‘‘administer[ing] the programs for
controlling surface coal mining
operations. . .’’ and ‘‘cooperat[ing] with
other Federal agencies and State
regulatory authorities to minimize
duplication of inspections, enforcement,
and administration of [SMCRA].’’ See 30
U.S.C. 1211(c)(1) and (12). This final
rule will enhance administration and
enforcement of SMCRA and State
regulatory programs and also enhance
cooperation between OSMRE and the
State regulatory authorities.
Further, the commenter’s recognition
of decreased coal production, at least in
the short term, supports the need for
this rulemaking. As coal production
decreases, coal mine operators may
revise their mine plans or permanently
cease operations and either commence
final reclamation or, in the event of
financial insolvency, forfeit their
reclamation bond. In such cases, State
regulatory authority workloads may
initially increase due to higher volumes
of permit revisions, inspection and
enforcement activities, bond releases,
and potential actions surrounding
permit revocation and bond forfeiture.
Due to the structure of the SMCRA
program, the State regulatory authority
will have permitting and inspection
obligations on every mine site for a
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minimum of five to ten years after coal
production ceases. Only after final bond
release may a permit be terminated and
the State regulatory authority relieved of
its responsibilities. Federal
administration and enforcement grants
awarded by OSMRE to State regulatory
authorities are based, in part, on the
anticipated workload, such as
permitting and inspection, that is
necessary for State regulatory
authorities to administer and enforce
their approved State programs under
SMCRA. See 30 CFR part 735 and
OSMRE’s Federal Assistance Manual,
Chapter 5–200, The Application Process
for a Regulatory Grant. As production
decreases, permitting and associated
costs may decrease over time; thus,
State regulatory authorities may not
receive the same level of funding as they
do currently. This highlights the need to
be more efficient with the resources that
are available. This final rule should help
to increase efficiency in inspections and
enforcement.
Comment: Several commenters
questioned the authority of Casey
Hammond, serving in his capacity as
Principal Deputy Assistant Secretary, to
issue the proposed rulemaking.
Response: Mr. Hammond acted within
the authority of the Assistant Secretary
for Land and Minerals Management
(ASLM) authority that was properly
delegated to him when signing the
proposed rulemaking. Reorganization
Plan No. 3 of 1950 provides that ‘‘all
functions of all other officers of the
Department of the Interior . . . .’’ are
‘‘transferred to the Secretary of the
Interior. . . .’’ 64 Stat. 1262 at section
1. The Secretary may then ‘‘make such
provisions as he shall deem appropriate
authorizing the performance by any
other officer, or by any agency or
employee, of the Department of the
Interior of any function of the Secretary,
including any function transferred to
the Secretary by the provisions of this
reorganization plan.’’ Id. at section 2.
Indeed, Congress codified and affirmed
the Secretary’s ability to transfer ‘‘all’’
functions to ‘‘any’’ officer or employee
of the Department in 1984 via Public
Law 98–532.
SMCRA authorizes the Secretary to
promulgate rules and regulations
necessary to carry out the Act. See 30
U.S.C. 1211(c)(2). The Secretary has
delegated this responsibility to the
ASLM. 209 Departmental Manual (DM)
7.1.A. The Secretary delegated ‘‘all
functions, duties, and responsibilities’’
of the ASLM to Mr. Hammond via
Secretary’s Order 3345 Amendment No.
32 on May 5, 2020, two weeks before he
signed the proposed rulemaking. This
delegation of authority excludes
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functions and duties that are required
by statute or regulation to be performed
only by the ASLM. The signing of the
proposed rulemaking is not such an
exclusive function or duty. Although
the Secretary and OSMRE Director also
have such authority (216 DM 1.1.B), that
does not divest the ASLM from his
properly delegated authority. 200 DM
1.9. Therefore, Mr. Hammond properly
exercised the delegated authority of the
Secretary in signing this proposed
rulemaking. Mr. Hammond continues to
exercise the delegable, non-exclusive
functions, duties, and responsibilities of
the ASLM pursuant to a Succession
Order signed by the Secretary (latest
version signed June 3, 2020).
Comment: One citizens’ group
representing many national citizen
organizations and ‘‘thousands of
individuals’’ across the country
contends that the proposed rule
required an Environmental Impact
Statement (EIS) or Environmental
Assessment (EA) to comply with the
National Environmental Policy Act
(NEPA). 42 U.S.C. 4321 et seq. In
support of this assertion, the citizens’
group states that the proposed rule
would result in unabated violations due
to an alleged delay in TDN issuance.
Response: We disagree with the
premise of this comment. This final rule
is designed to allow a State regulatory
authority and OSMRE the ability to
more efficiently address alleged
violations at surface coal mining
operations. As stated in the proposed
rule, the final rule will allow a State
regulatory authority to investigate an
alleged violation before needing to
divert resources away to respond to a
TDN. 85 FR at 28907. As a result, any
violations should be abated more
quickly and more efficiently than under
the existing rules.
Moreover, as discussed further in
‘‘Procedural Determinations’’ below,
OSMRE has re-evaluated its compliance
with NEPA after reviewing the
comments received on the proposed
rule. OSMRE still finds that this
rulemaking falls within the
Department’s categorical exclusion at 43
CFR 46.210(i) because the clarifications
of 30 CFR part 842 and enhancement of
30 CFR part 733 are of an administrative
and procedural nature. Fundamentally,
this final rule clarifies aspects of the
procedures that OSMRE uses to evaluate
citizen complaints to determine if it
should issue a TDN and adds
procedures for State regulatory
authorities to take corrective action of
State regulatory program issues.
However, as explained above in
response to other comments, none of
these clarifications or enhancements
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materially alters OSMRE’s enforcement
of SMCRA in primacy states. Therefore,
this rulemaking falls within this
categorical exclusion. In addition, no
extraordinary circumstances exist that
would prevent OSMRE from using the
categorical exclusion. 43 CFR 46.215.
It is true that the last time OSMRE
proposed to substantively revise the
TDN regulations, it did not use a
categorical exclusion but instead
prepared an environmental assessment.
See 1987 Environmental Assessment
entitled, U.S. Department of the Interior,
Office of Surface Mining Reclamation
and Enforcement, Environmental
Assessment for Amending Rules in 30
CFR 842.11 and 843.12 on Evaluation of
State Responses to Ten-Day-Notices.
Similar to OSMRE’s final rule today, the
1988 final rule was aimed at improving
cooperative federalism. Specifically, in
the 1987 environmental assessment,
OSMRE found, ‘‘[t]o the extent that the
revised procedures foster a better
working relationship between OSMRE
and the States in implementing SMCRA,
the environmental consequences of the
proposed action should be positive.’’
Moreover, in the 1987 environmental
assessment, OSMRE concluded that no
significant environmental impacts were
associated with the action. Id. This past
analysis supports OSMRE’s
determination that no extraordinary
circumstances apply that would
preclude OSMRE’s use of an applicable
categorial exclusion. It also is consistent
with the Department’s goals of
streamlining its NEPA reviews. See, e.g.,
Secretarial Order No. 3355 (Aug. 31,
2017); see also Council for
Environmental Quality, Memorandum,
Establishing, Applying, and Revising
Categorial Exclusions under the
National Environmental Policy Act
(Nov. 23, 2010), at 2–3 (‘‘[C]ategorical
exclusions provide an efficient tool to
complete the NEPA environmental
review process for proposals that
normally do not require more resourceintensive EAs or EISs. The use of
categorial exclusions can reduce
paperwork and delay, so that EAs or
EISs are targeted toward proposed
actions that truly have the potential to
cause significant environmental
effects.’’).
V. Discussion of the Final Rule and
Section-by-Section Analysis
This part of the preamble provides a
section-by-section analysis of the
regulations promulgated in this final
rule.
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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
OSMRE proposed to revise the title
for this part and to redesignate certain
sections of the existing part to
accommodate the addition of a
definitional section at 30 CFR 733.5 and
OSMRE’s proposed enhancement to the
30 CFR part 733 process—a new
proposed § 733.12, entitled, ‘‘Early
identification and corrective action to
address State regulatory program
issues.’’
The existing regulations at 30 CFR
part 733 establish requirements for the
maintenance of State programs and the
procedures for substituting Federal
enforcement of State programs and
withdrawing approval of State
programs. Citing OSMRE’s 40-plus years
of implementing and overseeing
SMCRA and State regulatory programs,
OSMRE proposed to add an
enhancement to this part—the
codification of an existing OSMRE
internal policy aimed at early
identification of and corrective action to
address State regulatory program issues.
When formulating the proposed rule,
OSMRE reasoned that if issues remain
unaddressed, these issues may result in
a State regulatory authority’s ineffective
implementation, administration,
enforcement, or maintenance of its State
regulatory program. To prevent this
from occurring and to encourage a more
complete and more efficient
implementation of SMCRA, OSMRE
proposed to enhance existing 30 CFR
part 733 by adding § 733.5 that would
define the terms ‘‘action plan’’ and
‘‘State regulatory program issue.’’
Additionally, OSMRE proposed to
redesignate existing § 733.12 as
§ 733.13, redesignate existing § 733.13
as § 733.14, and add a new § 733.12 to
address how early identification of and
corrective action for State regulatory
program issues can be achieved.
Further, in the sections proposed to be
added or revised throughout 30 CFR
part 733, OSMRE proposed to add the
term ‘‘regulatory’’ between the terms
‘‘State’’ and ‘‘program’’ for consistency
purposes. As discussed in the specific
sections below, all of these changes are
not substantive and are made for the
purpose of clarity to differentiate
between a regulatory program
administered by OSMRE and a State
regulatory program that is administered
by a State that has achieved primacy
after approval by OSMRE.
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As discussed above in response to
specific comments, OSMRE considers
the enhancements to the existing
regulations at 30 CFR part 733 to be
beneficial for early identification,
evaluation, and resolution of potential
issues that may impact a State
regulatory authority’s ability to
effectively implement, administer,
enforce, or maintain its State regulatory
program. Further, OSMRE finds that
these mechanisms should avoid
unnecessary substitution of Federal
enforcement or withdrawal of State
regulatory programs and minimize the
number of on-the-ground impacts.
Therefore, OSMRE is adopting, with
minor modifications, based upon
comments received from the public and
further OSMRE analysis, the proposal to
enhance 30 CFR part 733.
Final Rule § 733.5 Definitions
OSMRE proposed to add a definition
section to 30 CFR part 733 that would
define the terms ‘‘action plan’’ and
‘‘State regulatory program issue.’’ In
short, under the proposed definition,
the term ‘‘action plan’’ would mean ‘‘a
detailed schedule OSMRE prepares to
identify specific requirements a
regulatory authority must achieve in a
timely manner to resolve State
regulatory program issues identified
during oversight of State regulatory
programs.’’ OSMRE proposed to define
the term ‘‘State regulatory program
issue’’ to mean an issue OSMRE
identifies during oversight of a State or
Tribal regulatory program that could
result in a State regulatory authority not
effectively implementing,
administering, enforcing, or maintaining
all or any portion of its State regulatory
program, including instances when a
State regulatory authority has not
adopted and implemented program
amendments that are required under 30
CFR 732.17 and 30 CFR subchapter T,
and issues related to the requirement in
section 510(b) of the Act that a State
regulatory authority must not approve a
permit or revision to a permit unless the
State regulatory authority finds that the
application is accurate and complete
and that the application is in
compliance with all requirements of the
Act and the State regulatory program.
As discussed above in OSMRE’s
responses to public comments, OSMRE
received many comments on the
enhanced 30 CFR part 733 process in
general, including comments on the
proposed definitions. As OSMRE
explained in response to specific
comments, the proposed definitions are
appropriate and it is adopting 30 CFR
733.5 as proposed, with one minor
exception. In the definition of ‘‘action
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plan,’’ OSMRE is inserting the word
‘‘State’’ between ‘‘a’’ and ‘‘regulatory
authority’’ to be consistent with the
remainder of the Part and to
differentiate between situations when
OSMRE is the regulatory authority.
Thus, the final definition will read,
‘‘[a]ction plan means a detailed
schedule OSMRE prepares to identify
specific requirements a State regulatory
authority must achieve in a timely
manner to resolve State regulatory
program issues identified during
oversight of State regulatory programs.’’
OSMRE most frequently identifies
issues that it will now classify as State
regulatory program issues during
oversight of a State regulatory program,
but OSMRE may also be alerted to a
State regulatory program issue from a
citizen complaint or a request for a
Federal inspection. State regulatory
program issues are those that may result
in a State regulatory authority not
adhering to its approved State
regulatory program. Other examples of a
State regulatory program issue include
when a State regulatory authority does
not adopt and implement program
amendments that are required under 30
CFR 732.17 and 30 CFR subchapter T.
The proposed definition of State
regulatory program issue, which
OSMRE is finalizing in this rule,
includes issues related to the
requirement in SMCRA section 510(b),
30 U.S.C. 1260(b), that a State regulatory
authority must not approve a permit or
permit revision, unless the State
regulatory authority finds that the
application is accurate and complete
and is in compliance with all of
SMCRA’s requirements and those of the
State regulatory program.
To provide greater context in which
the term ‘‘State regulatory program
issue’’ is used, the next two paragraphs
will describe how the State regulatory
program issues covered by 30 CFR part
733 sometimes overlap with the TDN
and Federal inspection process
provided for in 30 CFR part 842. As
discussed below in relation to finalized
30 CFR part 842, the TDN and Federal
inspection process in section 521(a) of
SMCRA and the State regulatory
program enforcement provisions in
section 521(b) of SMCRA, along with
the existing implementing regulations,
differentiate between issues related to a
State regulatory authority’s failure to
implement, administer, maintain, and
enforce all or a part of a State regulatory
program and possible violations that
could lead to a TDN or Federal
inspection. Most notably, the State
regulatory program enforcement
provisions of section 521(b) of SMCRA
generally address systemic
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programmatic problems with a State
regulatory program, not specific
violations exclusive to an individual
operation or permit as detailed in
section 521(a) of SMCRA. However,
citizens sometimes identify State
regulatory program issues in citizen
complaints under section 521(a) of
SMCRA and 30 CFR part 842 that may
result in a TDN. OSMRE may also
become aware of a State regulatory
program issue while overseeing
enforcement of specific operations or
permits.
SMCRA and the existing regulations
provide a remedy for systemic
programmatic issues at 30 CFR part 733
by identifying procedures for
substituting Federal enforcement of
State regulatory programs or
withdrawing approval of State
regulatory programs. The proposed
addition of early identification and
corrective action plans to address State
regulatory program issues that OSMRE
is adopting under this final rule will
enhance OSMRE’s ability to ensure
prompt resolution of issues, which, if
unattended, may result in OSMRE
exercising the rare remedy of
substituting Federal enforcement or
withdrawing a State program. The
definition of ‘‘action plan,’’ as finalized
in § 733.5, will dovetail in practice with
the concept of ‘‘appropriate action’’
found in § 842.11(b)(1)(ii)(B)(3), in that
a State regulatory authority’s action plan
may qualify as appropriate action in
response to a TDN under that finalized
§ 842.11(b)(1)(ii)(B)(3). In addition, the
definition of ‘‘State regulatory program
issue,’’ as finalized in § 733.5, helps to
further clarify the differences between
the types of violations or issues that will
be addressed under the TDN and
Federal inspection process in section
521(a) and the State regulatory program
enforcement provisions in section
521(b) of SMCRA, respectively.
Final Rule § 733.10 Information
Collection
OSMRE is adopting this section as
proposed. As discussed more fully in
the Procedural Determinations below,
no additional burden is placed on the
public as a result of the enhancements
to 30 CFR part 733. Moreover, no public
comments were received on this section.
Final Rule § 733.12 Early
Identification and Corrective Action To
Address State Regulatory Program
Issues
OSMRE proposed to redesignate
certain sections of existing 30 CFR part
733 to accommodate both the proposed
new definition section at 30 CFR 733.5,
discussed above, and the enhancement
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to 30 CFR part 733, proposed to be
added as § 733.12 entitled, ‘‘Early
identification and corrective action to
address State regulatory program
issues.’’ This redesignation is being
adopted as proposed because both
sections—Definitions and Early
identification and corrective action to
address State regulatory program
issues—are being finalized.
Final § 733.12 contains substantive
mechanisms and compliance strategies
that OSMRE may use to resolve a State
regulatory program issue (as defined in
finalized 30 CFR 733.5). Although
OSMRE and State regulatory authorities
have historically worked closely and
used similar approaches, incorporating
these approaches into the regulations
provides a clear mechanism for early
identification and resolution of issues
that will enable OSMRE to achieve
regulatory certainty and uniform
implementation of the procedures
among State regulatory authorities. This
addition to the regulations includes
procedures for developing an action
plan so that OSMRE can ensure that
State regulatory program issues are
timely resolved. When OSMRE
identifies a State regulatory program
issue, final § 733.12(a) provides that the
OSMRE Director should take action to
make sure that the issue is corrected as
soon as possible in order to ensure that
it does not escalate into an issue that
would give the Director reason to
believe that the State regulatory
authority is not effectively
implementing, administering, enforcing,
or maintaining all or a portion of its
State regulatory program. The
unresolved issue could otherwise trigger
the process that might lead to
substituting Federal enforcement of a
State regulatory program or
withdrawing approval of a State
regulatory program as provided in 30
CFR part 733.
OSMRE is finalizing § 733.12(a)(1) as
proposed with one minor modification.
As proposed, this paragraph provided
that ‘‘[t]he Director may become aware
of State regulatory program issues
through oversight of State regulatory
programs or as a result of information
received from any person.’’ In response
to public comments, discussed in more
detail above, OSMRE has substituted
‘‘any source’’ for the proposed language
‘‘any person.’’ OSMRE agrees with the
commenter that this terminology is
more expansive and inclusive and will
likely result in OSMRE considering any
information, no matter the source, about
an alleged State regulatory program
issue.
In general, final § 733.12(b) allows the
OSMRE Director, or his or her delegate,
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as set forth in OSMRE’s guidance, to
‘‘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.’’ This finalized
language reflects a minor, grammatical
change from the proposed rule. OSMRE
has added ‘‘a’’ before ‘‘State regulatory
program’’ and removed the ‘‘s’’ from
‘‘issues’’ to clarify the meaning of the
sentence and place the sentence in the
singular tense.
OSMRE has made another change to
final § 733.12(b). This change is in the
second sentence that, as proposed, read:
‘‘However, if the Director or delegate
does not expect that the State regulatory
authority will resolve the State
regulatory program issue within 180
days after identification or that it is
likely to result in an on-the-ground
violation, then the Director or delegate
will develop and institute an action
plan.’’ In the final rule, OSMRE has
modified the second sentence to read:
‘‘However, if the Director or delegate
does not expect that the State regulatory
authority will resolve the State
regulatory program issue within 180
days after identification or that it is
likely to result in a violation of the
approved State program, then the
Director or delegate will develop and
institute an action plan.’’ (Emphasis
added to show the revised language).
OSMRE has adopted this final language
due to the variety of comments,
discussed above, raising concerns about
OSMRE’s differentiation between
violations outlined in 30 U.S.C.
1271(a)—subject to the 30 CFR part 842
TDN process—and violations outlined
in 30 U.S.C. 1271(b)—subject to 30 CFR
part 733. Specifically, many
commenters raised questions about how
OSMRE would treat what the
commenters characterized as ‘‘permit
defects,’’ which might be informally
viewed, as mentioned above, as a
deficiency in a permit-related action
taken by a State regulatory authority or
problems in a permit that do not align
with the approved State regulatory
program. However, OSMRE is not
defining the term ‘‘permit defects’’ in
this preamble or in the final rule and it
is not defined in SMCRA, OSMRE
regulations, or current internal OSMRE
policies and should not be viewed as a
distinct form of violation. To avoid
confusion and the possibility of creating
further ambiguity by introducing the
new term ‘‘on-the-ground violation’’
into OSMRE regulations, OSMRE is
removing this proposed phrase. The
term ‘‘on-the-ground violation’’ is also
not defined in SMCRA, OSMRE
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regulations, or OSMRE internal
documents and OSMRE declines to
define this term as it may be
misconstrued as a distinct type of
violation. Therefore, OSMRE has
decided, in response to comments, that
it is best to substitute the phrase
‘‘violation of the approved State
program’’ for the proposed phrase ‘‘onthe-ground violation.’’ The finalized
phrase comports with the existing and
finalized regulations at 30 CFR part 842
and bridges the gap between violations
identified during the 30 U.S.C. 1271(a)
TDN process that may actually be
systemic in nature (and thus addressed
in the 30 CFR part 733 State regulatory
program issue process as finalized and
authorized by 30 U.S.C. 1271(b)), but
later results in a site-specific violation
of an approved State program. OSMRE
acknowledges that a site-specific
violation of an approved State program
often manifests as an on-the-ground
impact. However, these violations may
also manifest in other ways, such as a
permittee’s failure to submit required
design plans, monitoring reports, or
annual certifications. OSMRE offers
these as examples and not as an
exhaustive list of potential violations of
the approved State program that may
result in OSMRE exercising site-specific
enforcement under 30 U.S.C. 1271(a),
rather than continuing to address them
as State regulatory program issues under
30 U.S.C. 1271(b).
As proposed, § 733.12(b)(1)–(3)
provided details about requirements of
action plans. OSMRE is substantively
adopting the proposed requirements for
an action plan. Specifically, OSMRE
will prepare a written action plan with
‘‘specificity to identify the State
regulatory program issue and an
effective mechanism for timely
correction.’’ When OSMRE is preparing
the action plan, OSMRE will consider
any input it receives from the State
regulatory authority. When selecting
corrective measures to integrate into the
action plan, OSMRE may consider any
established or innovative solutions,
including the compliance strategies
referenced above. Additionally,
finalized § 733.12(b)(2), states that an
action plan will identify any necessary
technical or other assistance that the
Director or his or her delegate can
provide and remedial measures that a
State regulatory authority must take
immediately. Moreover, final
§ 733.12(b)(3), describes the contents of
an action plan. To ensure that OSMRE
can adequately track action plans and
that the underlying State regulatory
program issue is resolved, each action
plan, under the proposed rule, was to
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include: ‘‘An action plan identification
number’’; ‘‘A concise title and
description of the State regulatory
program issue’’; ‘‘Explicit criteria for
establishing when complete resolution
will be achieved’’; ‘‘Explicit and orderly
sequence of actions the State regulatory
authority must take to remedy the
problem’’; ‘‘A schedule for completion
of each action in the sequence’’; and ‘‘A
clear explanation that if the action plan,
upon completion, does not result in
correction of the State regulatory
program issue, the provisions of 30 CFR
733.13 may be triggered.’’ The only
modification OSMRE is making to final
paragraphs 30 CFR 733.12(b)(1)–(3) is to
add the preposition ‘‘an’’ before ‘‘action
plan’’ and remove the plural tense of
action plan at the beginning of
paragraphs (b)(1)–(3) to be
grammatically correct and reflect the
singular tense.
OSMRE has made modifications to
final § 733.12(c) in response to a request
by a NGO commenter to affirmatively
state that OSMRE will track all
identified State regulatory program
issues and any associated action plans.
Although it was OSMRE’s intention to
track and report both, OSMRE did not
specifically state in the proposed rule
that any action plan associated with
identified a State regulatory program
issue would be tracked and reported in
the applicable State regulatory
authority’s Annual Evaluation report.
OSMRE has removed this ambiguity by
stating in the final rule that ‘‘any
associated action plan’’ must also be
tracked and reported in addition to the
State regulatory program issues. Also, in
response to the NGO commenter’s
request, OSMRE is including a
requirement that the ‘‘State regulatory
authority Annual Evaluation reports
will be accessible thorough OSMRE’s
website and at the applicable OSMRE
office.’’ OSMRE agrees with the
commenter that this modification to the
proposed rule promotes transparency
and accountability.
OSMRE is adopting § 733.12(d) as
proposed with one modification to
comport with the change discussed
above in relationship to final
§ 733.12(b). Specifically, final
§ 733.12(d) states that nothing in
§ 733.12 ‘‘prevents a State regulatory
authority from taking direct
enforcement action in accordance with
its State regulatory program, or OSMRE
from taking appropriate oversight
enforcement action, in the event that a
previously identified State regulatory
program issue results in or may
imminently result in a violation of the
approved State program.’’ OSMRE relies
on the same rationale described above
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for the removal of the term ‘‘on-theground violation’’ and the substitution
of the phrase, ‘‘a violation of the
approved State program.’’ In the context
of finalized § 733.12(d), determining
whether a violation is imminent
depends on the circumstances, and
OSMRE will rely on the authorized
representative to use his or her
professional judgment to determine
whether a violation of the approved
State program is imminent in a given
situation.
In sum, finalized 30 CFR part 733 will
ensure a more complete enforcement of
SMCRA and provide guidance on early
detection of potential problems that
may, if left unaddressed, escalate to the
point that OSMRE considers instituting
the process that might result in OSMRE
substituting Federal enforcement or
withdrawing all or a portion a State
program as outlined in finalized 30 CFR
733.13 through 733.14 while preserving
(through 30 CFR 733.12(d)) the ability to
take direct enforcement action in the
event that a previously identified State
regulatory program issue results in or
may imminently result in a violation of
the approved State program.
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Final Rule Part 736 Federal Program
for a State
OSMRE is updating the crossreference in finalized § 736.11(a)(2) as
proposed to account for the
redesignation of existing ‘‘§ 733.12’’ to
finalized ‘‘§ 733.13.’’
Final Rule § 842.11(b)(1)
In the proposed rule, OSMRE
explained that existing 30 CFR
842.11(b)(1) describes the circumstances
when OSMRE ‘‘shall’’ conduct a Federal
inspection, but the paragraph primarily
focuses on the process leading up to a
Federal inspection, including the
process for OSMRE’s issuance of a TDN
to a State regulatory authority. In
general, consistent with section 521(a)
of SMCRA, when there is no imminent
harm situation and OSMRE issues a
TDN to a State regulatory authority,
OSMRE evaluates the State regulatory
authority’s response to the TDN before
deciding whether to conduct a Federal
inspection. Consistent with the existing
regulations, and the regulations
finalized today, OSMRE will issue a
TDN to a State regulatory authority only
when an authorized representative of
OSMRE has reason to believe that there
is a violation of SMCRA, the
implementing regulations, the
applicable State regulatory program, or
any condition of a permit or an
exploration approval. In general,
OSMRE will also conduct a Federal
inspection whenever there is any
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condition, practice, or violation that
creates an imminent danger to the
health or safety of the public or is
causing, or that OSMRE reasonably
expects to cause, a significant,
imminent, environmental harm to land,
air, or water resources. In the latter
situation, OSMRE bypasses the TDN
process and proceeds directly to a
Federal inspection, if the person
supplying the information provides
adequate proof that there is an
imminent danger to the public health
and safety or a significant, imminent
environmental harm and that the State
regulatory authority has failed to take
appropriate action.
OSMRE proposed to alter the
introductory sentence at existing 30 CFR
842.11(b)(1), by replacing the word
‘‘shall’’ with the word ‘‘will.’’ However,
after consideration of public comments,
discussed in more detail above, and
based on OSMRE’s own expertise and
analysis, OSMRE has determined that
the word ‘‘must’’ is more appropriate
because it explains an action that
OSMRE is obligated to institute as
prescribed by SMCRA under the
circumstances described in 30 CFR
842.11(b)(1). Therefore, the final rule
substitutes the word ‘‘must’’ for ‘‘will’’
to better communicate the mandatory
nature of the authorized representative’s
action.
Final Rule § 842.11(b)(1)(i)
In the proposed rule, OSMRE also
proposed to clarify that when an
authorized representative assesses
whether he or she has reason to believe
a violation exists, the authorized
representative will make that
determination on the basis of ‘‘any
information readily available to him or
her.’’ This clarification is consistent
with section 521(a)(1) of SMCRA, which
sets forth that OSMRE can formulate
reason to believe ‘‘on the basis of any
information available to [the Secretary],
including receipt of information from
any person.’’ 30 U.S.C. 1271(a)(1). Based
on SMCRA’s plain language, such
information is not restricted to
information OSMRE receives from a
citizen complainant. Rather, the
information includes any information
OSMRE receives from a citizen, the
applicable State regulatory authority, or
any other information OSMRE is aware
exists. Also, the final rule and the
preamble discussion above that is
associated with this section clarifies that
such information must be readily
available, so that the process will
proceed as quickly as possible and will
not become open-ended. OSMRE is
adopting this section as proposed, with
one exception. In response to several
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75185
comments, discussed in more detail
above, OSMRE is further clarifying this
section by adding to the final rule the
phrase, ‘‘from any source, including any
information a citizen complainant or the
relevant State regulatory authority
submits, . . .’’ This addition to the
final rule now makes § 842.11(b)(1)(i)
harmonize with final rule § 842.11(b)(2)
that now includes the same
phraseology.
Final Rule § 842.11(b)(1)(ii)(A)
Existing 30 CFR 842.11(b)(1)(ii)(A)
reads as follows: ‘‘There is no State
regulatory authority or the Office is
enforcing the State program under
section 504(b) or 521(b) of the Act and
part 733 of this chapter[.]’’ OSMRE
proposed only minor grammatical and
conformity changes to this section.
Specifically, OSMRE proposed to add
the word ‘‘regulatory’’ between the
words ‘‘State’’ and ‘‘program’’ to
promote consistency throughout this
rulemaking and clarify that OSMRE is
referring to State regulatory programs.
OSMRE has finalized this section as
proposed.
Final Rule § 842.11(b)(1)(ii)(B)(1)–(4)
OSMRE proposed non-substantive
changes to existing 30 CFR
842.11(b)(1)(ii)(B)(1) for readability,
including capitalizing ‘‘State’’ when
referring to the ‘‘State regulatory
authority’’ and adding a comma after
‘‘notification’’, and changing the word
‘‘shall’’ to ‘‘will’’. These changes have
been adopted as proposed. OSMRE did
not propose any modification to the
existing regulation at 30 CFR
842.11(b)(1)(ii)(B)(2), but the provision
is discussed above to provide context
related to the proposed clarifications in
30 CFR 842.11(b)(1)(ii)(B)(3), which
describes the term ‘‘appropriate action,’’
and 30 CFR 842.11(b)(1)(ii)(B)(4), which
describes the term ‘‘good cause.’’
Likewise, OSMRE is not altering
§ 842.11(b)(1)(ii)(B)(1).
Final Rule § 842.11(b)(1)(ii)(B)(3)
OSMRE proposed to add a provision
to existing 30 CFR 842.11(b)(1)(ii)(B)(3),
that appropriate action ‘‘may include
OSMRE and the State regulatory
authority immediately and jointly
initiating steps to implement corrective
action to resolve any issue that the
authorized representative and
applicable Field Office Director identify
as a State regulatory program issue, as
defined in 30 CFR part 733.’’ OSMRE is
finalizing this subsection as proposed.
The final rule gives the responsibility
for identification of State regulatory
program issues to the authorized
representative and applicable Field
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Office Director, as these officials possess
significant knowledge of the specific
requirements of and responsibilities
under the applicable State regulatory
program. Although OSMRE has
historically allowed programmatic
resolution of State regulatory program
issues, such as implementation of
remedies under 30 CFR part 732, to
constitute ‘‘appropriate action’’ in a
given situation, the regulations prior to
this addition did not explain resolution
of State regulatory program issues
through corrective actions. In order to
avoid confusion or uncertainty for the
regulated community, State regulatory
authorities, and the public at large, the
finalized rule seeks to remove ambiguity
and definitively states that ‘‘appropriate
action’’ may include corrective action to
resolve State regulatory program issues.
This fits well with the finalized part 733
because final § 733.12(a)(2) reaffirms
that, if OSMRE concludes that the State
regulatory authority is not effectively
implementing, administering, enforcing,
or maintaining all or a portion of its
State regulatory program, OSMRE may
substitute Federal enforcement of the
State regulatory program or withdraw
approval. Additionally, in accordance
with finalized § 733.12(d), OSMRE
reserves the right to reinstitute
enforcement if, subsequent to a finding
of appropriate action based upon a
corrective action consistent with
proposed 30 CFR part 733, a violation
of the approved State program occurs or
may imminently occur.
Final Rule § 842.11(b)(1)(ii)(B)(4)
OSMRE is adopting this subsection as
proposed. Specifically, the final rule
makes minor clarifications to the
examples of what constitutes good cause
as found in the existing regulations.
First, final § 842.11(b)(1)(ii)(B)(4)(i)
makes non-substantive changes for
readability and consistency by adding
the word ‘‘regulatory’’ between ‘‘State’’
and ‘‘program’’ and switching the
position of two phrases in the provision.
Second, the final rule revises
§ 842.11(b)(1)(ii)(B)(4)(ii) to provide that
good cause includes: ‘‘The State
regulatory authority has initiated an
investigation into a possible violation
and as a result has determined that it
requires a reasonable, specified
additional amount of time to determine
whether a violation exists.’’ The final
rule explains that an OSMRE authorized
representative has discretion to
determine how long the State regulatory
authority should reasonably be given to
complete its investigation of a possible
violation. Also, under the final rule the
authorized representative will
communicate to the State regulatory
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authority the date by which the State
regulatory authority’s investigation must
be completed. This revision promotes
prompt identification and resolution of
possible violations.
As proposed, the final rule makes a
minor revision to
§ 842.11(b)(1)(ii)(B)(4)(iii). A State
regulatory authority will demonstrate
that it lacks jurisdiction over the
possible violation to qualify for this
good cause showing.
Similarly, as proposed, the final rule
makes a minor, non-substantive
modifications to
§ 842.11(b)(1)(ii)(B)(4)(iv) for readability
and to clarify that, in order to show
good cause, the State regulatory
authority will demonstrate that an order
from an administrative review body or
court of competent jurisdiction
precludes it from taking action on the
possible violation.
Finally, as proposed, the final rule
makes minor, non-substantive
modifications to
§ 841.11(b)(1)(ii)(B)(4)(v) to enhance
readability and clarity. Specifically, the
final rule reads: ‘‘Regarding abandoned
sites, as defined in 30 CFR 840.11(g), the
State regulatory authority is diligently
pursuing or has exhausted all
appropriate enforcement provisions of
the State regulatory program.’’
Final Rule § 842.11(b)(2)
Section 842.11(b)(2) defines what is
‘‘reason to believe’’ when an authorized
representative is determining if a
possible violation exists as presented by
a citizen complainant.
Because there was ambiguity
surrounding this term, OSMRE
proposed to revise this section to
provide that an authorized
representative will have reason to
believe that a violation, condition, or
practice referred to in paragraph (b)(1)(i)
exists if the facts that a complainant
alleges, or facts that are otherwise
known to the authorized representative,
constitute simple and effective
documentation of the alleged violation,
condition, or practice. In making this
determination, the authorized
representative will consider any
information readily available to him or
her, including any information a citizen
complainant or the relevant regulatory
authority submits to the authorized
representative.
As discussed in great detail in
response to comments above, OSMRE is
adopting this section as proposed, with
one exception. Consistent with this
approach, the final rule modifies
§ 842.11(b)(2) to clarify that OSMRE will
consider any information readily
available and not only the facts alleged
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in a citizen complaint when
determining whether it has reason to
believe a violation exists. Nothing in
SMCRA requires OSMRE to accept
alleged facts as true in a vacuum.
Rather, information that a citizen
provides is usually only a portion of the
readily available information that
OSMRE would consider when deciding
whether to initiate the TDN process.
Moreover, the inclusion of the phrase
‘‘reason to believe’’ in section 521(a)(1)
of SMCRA indicates that Congress
intended for OSMRE to use discretion in
determining whether to issue a TDN to
a State regulatory authority. With the
changes finalized today, after OSMRE
receives an allegation of a violation and
assess all readily available information,
OSMRE will apply independent,
professional judgment to determine
whether OSMRE has reason to believe a
violation exists. Congress created
OSMRE to be the expert agency that
administers SMCRA. Therefore, OSMRE
should not be acting as a mere conduit
for transmitting a citizen complaint to a
State regulatory authority in the form of
a TDN.
In response to a few commenters,
OSMRE has added the phrase ‘‘from any
source’’ in the last sentence of the
finalized section. Specifically, the last
sentence, will now read, ‘‘[i]n making
this determination, the authorized
representative will consider any
information readily available to him or
her, from any source, including any
information a citizen complainant or the
relevant regulatory authority submits to
the authorized representative’’
(emphasis added to show the revised
language). This change is to clarify that
an authorized representative may
consider any information readily
available, regardless of where the
information originates.
In summary, final § 842.11(b)(2)
comports with finalized
§ 842.11(b)(1)(i), which allows OSMRE
to consider ‘‘any information readily
available’’ when making a ‘‘reason to
believe’’ determination. Being able to
read these two provisions in harmony
should reduce or eliminate any conflict
or confusion that the existing provisions
created.
Final § 842.12(a)
OSMRE is adopting § 842.12(a) as
proposed. Specifically, 30 CFR 842.12(a)
identifies the process to request a
Federal inspection. This finalized
provision states that a person may
request a Federal inspection by
submitting a signed, written statement
(or an oral report followed by a signed
written statement) giving the authorized
representative reason to believe that a
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violation, condition or practice referred
to in § 842.11(b)(1)(i) exists and that the
State regulatory authority has been
notified in writing about the violation.
The final rule includes the minor, nonsubstantive modifications to the
provision as proposed. These provisions
provide that when any person requests
a Federal inspection, the person’s
written statement ‘‘must also set forth
the fact that the person has notified the
State regulatory authority, if any, in
writing, of the existence of the possible
violation, condition, or practice’’ and
the requirement that the person’s
statement must also include ‘‘the basis
for the person’s assertion that the State
regulatory authority has not taken action
with respect to the possible violation.’’
These provisions reflect the fact that,
most often, a State regulatory authority
will address a potential violation when
the State regulatory authority is made
aware of the situation.
Finalized 30 CFR 842.12(a)
complements the clarifications outlined
above in the discussion of finalized
§ 842.11(b)(1)’s ‘‘reason to believe’’
standard. Specifically, the final rule
modifies the existing language in
§ 842.12(a) to clarify that, when a person
requests a Federal inspection, the
person’s request must include,
‘‘information that, along with any other
readily available information, may give
the authorized representative reason to
believe that a violation, condition, or
practice referred to in § 842.11(b)(1)(i)
exists.’’
OSMRE reiterates that under finalized
§ 842.12(a), when OSMRE determines
whether a violation exists for purposes
of issuing a TDN or determining
whether to conduct a Federal
inspection, a State regulatory program
issue will not qualify as a possible
violation unless there is an actual or
imminent violation of an approved State
program. Similarly, OSMRE will not
consider a State regulatory authority’s
failure to enforce its State regulatory
program as a violation that warrants a
TDN or Federal inspection. The TDN
and Federal inspection process in
section 521(a) applies to oversight
enforcement about site-specific
violations. Congress differentiated this
type of individual operation oversight
from the State regulatory program
enforcement provisions of section
521(b). Based on this distinction, the
existing 30 CFR part 733 addresses State
regulatory program issue enforcement
identified in section 521(b).
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VI. Procedural Determinations
A. Statutes
1. Congressional Review Act
Pursuant to the Congressional Review
Act, 5 U.S.C. 801 et seq., the Office of
Information and Regulatory Affairs
(OIRA) of the Office of Management and
Budget (OMB) has determined that this
rulemaking is not major rulemaking, as
defined by 5 U.S.C. 804(2), because this
rulemaking has not resulted in, and is
unlikely to result in: (1) An annual
effect on the economy of $100,000,000
or more; (2) a major increase in costs or
prices for consumers, individual
industries, Federal, State, or local
government, or geographic regions; or
(3) significant adverse effects on
competition, employment, investment,
productivity, innovation, or on the
ability of United States-based
enterprises to compete with foreignbased enterprises in domestic and
export markets.
2. Data Quality Act
In developing this rule, OSMRE did
not conduct or use a study, experiment,
or survey requiring peer review under
the Data Quality Act (Pub. L. 106–544,
app. C, sec. 515, 114 Stat. 2763, 2763A–
153–154).
3. National Environmental Policy Act
OSMRE has determined that the nonsubstantive changes finalized in this
rulemaking are categorically excluded
from environmental review under
NEPA. 42 U.S.C. 4321 et seq.
Specifically, OSMRE has determined
that the final rule is administrative or
procedural in nature in accordance with
the Department of the Interior’s NEPA
regulations at 43 CFR 46.210(i). The
regulation provides a categorical
exclusion for, ‘‘[p]olicies, directives,
regulations, and guidelines: That are of
an administrative, financial, legal,
technical, or procedural nature; or
whose environmental effects are too
broad, speculative, or conjectural to
lend themselves to meaningful
analysis. . . .’’ The final rule primarily
clarifies how OSMRE formulates reason
to believe in the TDN context and the
information OSMRE considers in this
analysis. It also enhances a process, the
development of an action plan, that
already exists in an internal agency
document so that OSMRE can better
ensure that a State regulatory authority
adequately implements, administers,
enforces, and maintains its approved
State program. As such, the final rule
merely clarifies and enhances OSMRE’s
existing processes. Therefore, OSMRE
deems these changes to be
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75187
administrative and procedural in nature.
These clarifications and enhancements
are aimed at improving efficiency and
enhanced collaboration among State
regulatory authorities and OSMRE.
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.
4. National Technology Transfer and
Advancement Act
Section 12(d) of the National
Technology Transfer and Advancement
Act (NTTAA) (15 U.S.C. 3701 note et
seq.) directs Federal agencies to use
voluntary consensus standards when
implementing regulatory activities
unless to do so would be inconsistent
with applicable law or otherwise
impractical. This 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 the requirements
would not be applicable to this final
rulemaking.
5. Paperwork Reduction Act
The Paperwork Reduction Act (PRA)
(44 U.S.C. 3501–3521) provides that an
agency may not conduct or sponsor, and
a person is not required to respond to,
a ‘‘collection of information’’, unless the
collection of information is approved by
OMB, and it displays a currently valid
OMB control number. Of the existing
regulations impacted by the final rule
(30 CFR parts 733, 736, and 842), 30
CFR parts 733 and 842 have existing
OMB control numbers. However, after
research and input from State regulatory
authorities, no additional burden is
imposed by the enhancement of 30 CFR
part 733—specifically the codification
of 30 CFR 733.12—Early identification
of corrective action and corrective
action to address State regulatory
program issues. Additionally, as
explained herein the only modification
of 30 CFR part 736 is to revise a crossreference to be consistent with the
redesignation of provisions within 30
CFR part 733. Existing 30 CFR part 842
requires an OMB information collection
because it allows citizens to submit a
written request for a Federal inspection
using an OMB-approved form. See OMB
No. 1029–0118 available on OSMRE’s
website. https://www.osmre.gov/
resources/forms/OMB1029-0118.pdf.
This final rule will not alter the PRA
obligations under 30 CFR part 842.
Similar to the research performed by
OSMRE in relationship to 30 CFR part
733 as finalized, OSMRE has discovered
that the clarification of 30 CFR part 842
will not place any additional burden on
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the public, including, ‘‘individuals,
businesses, and State, local, and Tribal
governments’’ as defined in the PRA. In
fact, under this final rule, the burden
will be reduced. Therefore, this final
rule will not impose an additional
collection of information burden, as
defined by 44 U.S.C. 3502, upon any
entity defined in the PRA. Moreover, no
public comments were received on this
matter.
6. Regulatory Flexibility Act
The Regulatory Flexibility Act
generally requires Federal agencies to
prepare a regulatory flexibility analysis
for rules that are subject to the noticeand-comment rulemaking requirements
under the Administrative Procedure Act
(5 U.S.C. 553), if the rule would have a
significant economic impact on a
substantial number of small entities. See
5 U.S.C. 601–612. Based on OSMRE’s
collaboration with State regulatory
authorities and years of experience,
OSMRE certifies that this final 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.).
7. Small Business Regulatory
Enforcement Fairness Act
This final rule is not a major rule
under the Small Business Regulatory
Enforcement Fairness Act. 5 U.S.C.
804(2). Specifically, the final rule: (1)
Will not have an annual effect on the
economy of $100 million or more; (2)
will not cause a major increase in costs
or prices for consumers, individual
industries, Federal, State, or local
government agencies, or geographic
regions; and (3) will not have significant
adverse effects on competition,
employment, investment, productivity,
innovation, or on the ability of UnitedStates based enterprises to compete with
foreign-based enterprises in domestic
and export markets.
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8. Unfunded Mandates Reform Act
This final rule does not impose an
unfunded mandate or have a significant
or unique effect on State, local, or Tribal
governments, or the private sector, that
will result in the expenditure of funds
by State, local, or Tribal governments, in
the aggregate, or by the private sector of
$100 million or more in any one year.
To the contrary, as discussed herein,
this final rule is aimed at eliminating
duplication of resources and processes
between Federal and State agencies and
enhancing cooperation between OSMRE
and State regulatory authorities.
Therefore, a statement containing the
information required by the Unfunded
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Mandates Reform Act (2 U.S.C. 1531 et
seq.) is not required.
B. Executive Orders
1. Executive Order 12630—
Governmental Actions and Interference
With Constitutionally Protected
Property Rights
This final rule does not effect a taking
of private property or otherwise have
takings implications under E.O. 12630.
The final rule primarily concerns
Federal oversight of State regulatory
programs and enforcement when
permittees and operators are not
complying with the law. Therefore, the
final rule will not result in private
property being taken for public use
without just compensation. A takings
implication assessment is not required.
2. Executive Order 12866—Regulatory
Planning and Review and Executive
Order 13563—Improving Regulation
and Regulatory Review
E.O. 12866 provides that OIRA in the
OMB will review all significant rules.
Despite being specifically briefed on
this rulemaking as proposed and as
finalized, both in writing and verbally,
OIRA has not deemed this final rule
significant because it will not have a
$100 million annual impact on the
economy, raise novel legal issues, or
create significant impacts. The final rule
primarily clarifies and enhances the
existing regulations and OSMRE’s
processes to reduce the burden upon the
regulated community and preserve
resources by allowing for greater
cooperation between OSMRE and State
regulatory authorities.
E.O. 13563 reaffirms the principles of
E.O. 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. E.O. 13563 emphasizes
further that agencies must base
regulations on the best available science
and that the rulemaking process must
allow for public participation and an
open exchange of ideas. This final rule
has been developed in a manner
consistent with and will further these
requirements.
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3. Executive Order 12988—Civil Justice
Reform
This final rule complies with the
requirements of E.O. 12988. Among
other things, this rule:
(a) Satisfies the criteria of Section 3(a)
requiring that all regulations be
reviewed to eliminate drafting errors
and ambiguity; be written to minimize
litigation; and provide clear legal
standards for affected conduct; and
(b) satisfies the criteria of Section 3(b)
requiring that all regulations be written
in clear language and contain clear legal
standards.
4. Executive Order 13045—Protection of
Children From Environmental Health
Risks and Safety Risks
E.O. 13045 requires that
environmental and related rules
separately evaluate the potential impact
to children. However, this final rule is
not subject to E.O. 13045 because this is
not an economically significant
regulatory action as defined by E.O.
12866; and this action will not concern
environmental health or safety risks
disproportionately affecting children.
5. Executive Order 13132—Federalism
Under the criteria in Section 1 of E.O.
13132, this final rule does not have
sufficient federalism implications to
warrant the preparation of a federalism
summary impact statement. While
OSMRE’s clarification and enhancement
of the existing regulations and processes
in this final rule will have a direct effect
on OSMRE’s relationship with the
States, this effect is not significant as it
neither imposes substantial
unreimbursed compliance costs on
States nor preempts State law.
Furthermore, this final rule does not
have a significant effect on the
distribution of power and
responsibilities among the various
levels of government. In fact, the final
rule will reduce burdens on State
regulatory authorities and more closely
align the regulations to SMCRA.
Therefore, a federalism summary impact
statement is not required.
6. Executive Order 13175—Consultation
and Coordination With Indian Tribal
Governments
The Department of the Interior strives
to strengthen its government-togovernment 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
final rule under the Department’s
consultation policy and under the
criteria in E.O. 13175 and has
determined that it will not have
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substantial direct effects on federally
recognized Tribes and that consultation
under the Department’s tribal
consultation policy is not required.
Currently, no Tribes have achieved
primacy; therefore, OSMRE regulates all
surface coal mining and reclamation
operations on Indian lands with tribal
input and assistance. Currently, OSMRE
works in conjunction with the Crow,
Hopi, and Navajo regarding enforcement
of surface coal mining and reclamation
operations. This final rulemaking will
not directly impact the Tribes. However,
because these three Tribes have
expressed interest in perhaps having
their own regulatory programs in the
future, OSMRE has coordinated with the
Crow, Hopi, and Navajo to inform them
of, and to provide updates on the final
rulemaking. OSMRE attended quarterly
meetings of the Tribes in order to
provide an overview of the proposed
rule, provide updates on the rulemaking
process, and address questions posed by
the Tribes.
7. Executive Order 13211—Actions
Concerning Regulations That
Significantly Affect Energy Supply,
Distribution, or Use
E.O. 13211 requires agencies to
prepare a Statement of Energy Effects for
a rule that is: (1) Considered significant
under E.O. 12866, and (2) likely to have
a significant adverse effect on the
supply, distribution, or use of energy; or
is designated as a significant energy
action by OMB. Because this final rule
is not deemed significant under E.O.
12866 and is not expected to have a
significant adverse effect on the supply,
distribution, or use of energy, a
Statement of Energy Effects is not
required.
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8. Executive Order 13771—Reducing
Regulation and Controlling Regulatory
Costs
E.O. 13771 directs Federal agencies to
reduce the regulatory burden on
regulatory entities and control
regulatory costs. Consistent with E.O.
13771 and the April 5, 2017, Guidance
Implementing E.O. 13771, the final rule
will have total costs less than zero.
Moreover, this final rule operates to
reduce the burden on State regulatory
authorities by promoting coordination
between OSMRE and States, eliminating
duplication of processes, and increasing
efficiency in resolving State regulatory
authority program issues. In addition,
this final rule provides compliance
clarity to the regulatory community.
Therefore, this final rule is a
deregulatory action.
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9. Executive Order 13783—Promoting
Energy Independence and Economic
Growth
Section 2 of E.O. 13783 requires
agencies to ‘‘review all existing
regulations, orders, guidance
documents, policies, and any other
similar agency actions’’ with the goal of
eliminating provisions that impede
domestic energy production. Section
2(a) exempts agency actions ‘‘that are
mandated by law, necessary for the
public interest, and consistent with the
policy [to remove unnecessary
regulatory burdens on domestic energy
production while promoting clean air
and water within the constraints of
current statutes].’’ OSMRE, in
conjunction with its State regulatory
authority partners, has determined that
this final rule promotes coordination
‘‘with other Federal agencies and State
regulatory authorities to minimize
duplication of inspections, enforcement,
and administration of [SMCRA]’’ as
specified by 30 U.S.C. 1211(c)(12) while
also furthering the purposes of SMCRA
including, but not limited to, assuring
that surface coal mining operations are
so conducted as to protect the
environment and to strike the
appropriate balance ‘‘between
protection of the environment and
agricultural productivity and the
Nation’s need for coal as an essential
source of energy.’’ See 30 U.S.C. 1202(d)
and (f). In sum, OSMRE finds that this
final rule satisfies the requirements of
E.O. 13783 by appropriately removing
unnecessary duplication of Federal and
State efforts that impedes efficient
oversight and enforcement of SMCRA
and that may otherwise divert valuable
time and monetary resources and
impede or burden domestic energy
production.
List of Subjects
30 CFR Part 733
Intergovernmental relations, Surface
mining, Underground mining.
30 CFR Part 736
Coal mining, Intergovernmental
relations, Surface mining, Underground
mining.
30 CFR Part 842
Law enforcement, Surface mining,
Underground mining.
David L. Bernhardt,
Secretary, U.S. Department of the Interior.
For the reasons set out in the
preamble, the Department of the
Interior, acting through OSMRE, amends
30 CFR parts 733, 736, and 842 as
follows:
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75189
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
1. The authority citation for part 733
is revised to read as follows:
■
Authority: 30 U.S.C. 1201 et seq.
2. The heading of part 733 is revised
to read as set forth above.
■ 3. Add § 733.5 to read as follows:
■
§ 733.5
Definitions.
As used in this part, the following
terms have the specified meanings:
Action plan means a detailed
schedule OSMRE prepares to identify
specific requirements a State regulatory
authority must achieve in a timely
manner to resolve State regulatory
program issues identified during
oversight of State regulatory programs.
State regulatory program issue means
an issue OSMRE identifies during
oversight of a State or Tribal regulatory
program that could result in a State
regulatory authority not effectively
implementing, administering, enforcing,
or maintaining all or any portion of its
State regulatory program, including
instances when a State regulatory
authority has not adopted and
implemented program amendments that
are required under 30 CFR 732.17 and
30 CFR subchapter T, and issues related
to the requirement in section 510(b) of
the Act that a State regulatory authority
must not approve a permit or revision
to a permit unless the State regulatory
authority finds that the application is
accurate and complete and that the
application is in compliance with all
requirements of the Act and the State
regulatory program.
■ 4. Revise § 733.10 to read as follows:
§ 733.10
Information collection.
The information collection
requirement contained in § 733.13(a)(2)
has been approved by the Office of
Management and Budget under 44
U.S.C. 3507 and assigned clearance
number 1029–0025. The information
required is needed by OSMRE to verify
the allegations in a citizen request to
evaluate a State program and to
determine whether an evaluation should
be undertaken.
§§ 733.12 and 733.13 [Redesignated as
§§ 733.13 and 733.14]
5. Redesignate §§ 733.12 and 733.13
as §§ 733.13 and 733.14, respectively.
■
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6. Add a new § 733.12 to read as
follows:
■
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§ 733.12 Early identification and corrective
action to address State regulatory program
issues.
(a) When the Director identifies a
State regulatory program issue, he or she
should take action to make sure the
identified State regulatory program
issue is corrected as soon as possible in
order to ensure that it does not escalate
into an issue that would give the
Director reason to believe that the State
regulatory authority is not effectively
implementing, administering, enforcing,
or maintaining all or a portion of its
State regulatory program.
(1) The Director may become aware of
State regulatory program issues through
oversight of State regulatory programs or
as a result of information received from
any source.
(2) If the Director concludes that the
State regulatory authority is not
effectively implementing,
administering, enforcing, or maintaining
all or a portion of its State regulatory
program, the Director may substitute
Federal enforcement of a State
regulatory program or withdraw
approval of a State regulatory program
as provided in this part.
(b) The Director or his or her delegate
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. However, if the
Director or delegate does not expect that
the State regulatory authority will
resolve the State regulatory program
issue within 180 days after
identification or that it is likely to result
in a violation of the approved State
program, then the Director or delegate
will develop and institute an action
plan.
(1) An action plan will be written
with specificity to identify the State
regulatory program issue and an
effective mechanism for timely
correction.
(2) An action plan will identify any
necessary technical or other assistance
that the Director or his or her delegate
can provide and remedial measures that
a State regulatory authority must take
immediately.
(3) An action plan must also include:
(i) An action plan identification
number;
(ii) A concise title and description of
the State regulatory program issue;
(iii) Explicit criteria for establishing
when complete resolution will be
achieved;
(iv) Explicit and orderly sequence of
actions the State regulatory authority
must take to remedy the problem;
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18:53 Nov 23, 2020
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(v) A schedule for completion of each
action in the sequence; and
(vi) A clear explanation that if the
action plan, upon completion, does not
result in correction of the State
regulatory program issue, the provisions
of § 733.13 may be triggered.
(c) All identified State regulatory
program issues and any associated
action plan must be tracked and
reported in the applicable State
regulatory authority’s Annual
Evaluation report. These State
regulatory authority Annual Evaluation
reports will be accessible through
OSMRE’s website and at the applicable
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 appropriate
oversight enforcement action, in the
event that a previously identified State
regulatory program issue results in or
may imminently result in a violation of
the approved State program.
PART 736—FEDERAL PROGRAM FOR
A STATE
7. The authority citation for part 736
continues to read as follows:
■
Authority: 30 U.S.C. 1201 et seq., as
amended; and Pub. L. 100–34.
8. Revise § 736.11(a)(2) to read as
follows:
■
§ 736.11
General procedural requirements.
(a) * * *
(2) The Director shall promulgate a
complete Federal program for a State
upon the withdrawal of approval of an
entire State program under 30 CFR
733.13.
*
*
*
*
*
PART 842—FEDERAL INSPECTIONS
AND MONITORING
9. The authority citation for part 842
continues to read as follows:
■
Authority: 30 U.S.C. 1201 et seq.
10. Amend § 842.11 by revising
paragraphs (b)(1) introductory text,
(b)(1)(i), (b)(1)(ii)(A), (b)(1)(ii)(B)(1), (3),
and (4), and (b)(2) to read as follows:
■
§ 842.11 Federal inspections and
monitoring.
*
*
*
*
*
(b)(1) An authorized representative of
the Secretary must immediately conduct
a Federal inspection:
(i) When the authorized
representative has reason to believe on
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Fmt 4701
Sfmt 4700
the basis of any information readily
available to him or her, from any source,
including any information a citizen
complainant or the relevant State
regulatory authority submits (other than
information resulting from a previous
Federal inspection), that there exists a
violation of the Act, this chapter, the
State regulatory program, or any
condition of a permit or an exploration
approval, or that there exists any
condition, practice, or violation that
creates an imminent danger to the
health or safety of the public or is
causing or could reasonably be expected
to cause a significant, imminent
environmental harm to land, air, or
water resources; and
(ii)(A) There is no State regulatory
authority or the Office is enforcing the
State regulatory program under section
504(b) or 521(b) of the Act and part 733
of this chapter; or
(B)(1) The authorized representative
has notified the State regulatory
authority of the possible violation and
more than ten days have passed since
notification, and the State regulatory
authority has not taken appropriate
action to cause the violation to be
corrected or to show good cause for not
doing so, or the State regulatory
authority has not provided the
authorized representative with a
response. After receiving a response
from the State regulatory authority, but
before a Federal inspection, the
authorized representative will
determine in writing whether the
standards for appropriate action or good
cause have been satisfied. A State
regulatory authority’s failure to respond
within ten days does not prevent the
authorized representative from making a
determination, and will constitute a
waiver of the State regulatory
authority’s right to request review under
paragraph (b)(1)(iii) of this section.
*
*
*
*
*
(3) Appropriate action includes
enforcement or other action authorized
under the approved State program to
cause the violation to be corrected.
Appropriate action may include OSMRE
and the State regulatory authority
immediately and jointly initiating steps
to implement corrective action to
resolve any issue that the authorized
representative and applicable Field
Office Director identify as a State
regulatory program issue, as defined in
30 CFR part 733.
(4) Good cause includes:
(i) The possible violation does not
exist under the State regulatory
program;
(ii) The State regulatory authority has
initiated an investigation into a possible
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violation and as a result has determined
that it requires a reasonable, specified
additional amount of time to determine
whether a violation exists. When
analyzing the State regulatory
authority’s response for good cause, the
authorized representative has discretion
to determine how long the State
regulatory authority should reasonably
be given to complete its investigation of
the possible violation and will
communicate to the State regulatory
authority the date by which the
investigation must be completed. At the
conclusion of the specified additional
time, the authorized representative will
re-evaluate the State regulatory
authority’s response including any
additional information provided;
(iii) The State regulatory authority
demonstrates that it lacks jurisdiction
over the possible violation under the
State regulatory program;
(iv) The State regulatory authority
demonstrates that it is precluded from
taking action on the possible violation
because an administrative review body
or court of competent jurisdiction has
issued an order concluding that the
possible violation does not exist or that
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18:53 Nov 23, 2020
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the temporary relief standards of the
State regulatory program counterparts to
section 525(c) or 526(c) of the Act have
been satisfied; or
(v) Regarding abandoned sites, as
defined in 30 CFR 840.11(g), the State
regulatory authority is diligently
pursuing or has exhausted all
appropriate enforcement provisions of
the State regulatory program.
*
*
*
*
*
(2) An authorized representative will
have reason to believe that a violation,
condition, or practice referred to in
paragraph (b)(1)(i) of this section exists
if the facts that a complainant alleges, or
facts that are otherwise known to the
authorized representative, constitute
simple and effective documentation of
the alleged violation, condition, or
practice. In making this determination,
the authorized representative will
consider any information readily
available to him or her, from any source,
including any information a citizen
complainant or the relevant State
regulatory authority submits to the
authorized representative.
*
*
*
*
*
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75191
11. Revise § 842.12(a) to read as
follows:
■
§ 842.12
Requests for Federal inspections.
(a) Any person may request a Federal
inspection under § 842.11(b) by
providing to an authorized
representative a signed, written
statement (or an oral report followed by
a signed written statement) setting forth
information that, along with any other
readily available information, may give
the authorized representative reason to
believe that a violation, condition, or
practice referred to in § 842.11(b)(1)(i)
exists. The statement must also set forth
the fact that the person has notified the
State regulatory authority, if any, in
writing, of the existence of the possible
violation, condition, or practice, and the
basis for the person’s assertion that the
State regulatory authority has not taken
action with respect to the possible
violation. The statement must set forth
a phone number, address, and, if
available, an email address where the
person can be contacted.
*
*
*
*
*
[FR Doc. 2020–24137 Filed 11–23–20; 8:45 am]
BILLING CODE 4310–05–P
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]]>Agencies
[Federal Register Volume 85, Number 227 (Tuesday, November 24, 2020)]
[Rules and Regulations]
[Pages 75150-75191]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-24137]
[[Page 75149]]
Vol. 85
Tuesday,
No. 227
November 24, 2020
Part III
Department of the Interior
-----------------------------------------------------------------------
Office of Surface Mining Reclamation and Enforcement
-----------------------------------------------------------------------
30 CFR Parts 733, 736 and 842
Clarification of Provisions Related to the Issuance of Ten-Day Notices
to State Regulatory Authorities and Enhancement of Corrective Action
for State Regulatory Program Issues; Final Rule
Federal Register / Vol. 85 , No. 227 / Tuesday, November 24, 2020 /
Rules and Regulations
[[Page 75150]]
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Parts 733, 736 and 842
[Docket ID: OSM-2019-0010; S1D1S SS08011000 SX064A000 212S180110; S2D2S
SS08011000 SX064A00 21XS501520]
RIN 1029-AC77
Clarification of Provisions Related to the Issuance of Ten-Day
Notices to State Regulatory Authorities and Enhancement of Corrective
Action for State Regulatory Program Issues
AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: On May 14, 2020, the Office of Surface Mining Reclamation and
Enforcement (OSMRE) published a proposal to clarify the Federal
regulations about how OSMRE notifies State regulatory authorities, via
issuance of a ten-day notice (TDN), of possible violations of any
requirement of the Surface Mining Control and Reclamation Act of 1977
(SMCRA). This final rule adopts, with minor adjustments, much of
OSMRE's proposals to streamline the process for OSMRE's coordination
with State regulatory authorities in order to minimize duplication of
inspections, enforcement, and administration of SMCRA. This final rule
comports with the specific language of SMCRA, remedies internal
disparate application of existing regulations, and will operate to
ensure more effective enforcement of SMCRA. Additionally, the final
rule will enhance the procedures for early identification of, and
implementation of corrective action to address, State regulatory
program issues.
DATES: This rule is effective on December 24, 2020.
FOR FURTHER INFORMATION CONTACT: Kathleen G. Vello, OSMRE, Division of
Regulatory Support, 1849 C Street NW, Mail Stop 4558, Washington, DC
20240, telephone number: (202) 208-1908. If you use a
telecommunications device for the deaf (TDD), call the Federal Relay
Service at: (800) 877-8339.
SUPPLEMENTARY INFORMATION:
Preamble Table of Contents
I. Background and Overview of the Final Rule
A. Background
B. Key Provisions of the Final Rule
C. Summary of Changes Since the Proposed Rule
II. Summary of Public Comments
A. Overview of Comments
B. OSMRE Provided an Adequate Period To Comment on the Proposed
Rule, and Hearings Were Not Necessary
C. The Final Rule is Properly Characterized as a Clarification
D. This Final Rule Neither Inhibits a Citizen's Ability To
Report Violations to OSMRE Nor Limits OSMRE's Ability To Exercise
Oversight Enforcement
E. OSMRE's Authorized Representative Will Continue To Formulate
``Reason To Believe'' As Mandated by SMCRA; This Includes Using Best
Professional Judgment
F. It is Important To Clarify That ``Any Information'' Under 30
U.S.C. 1271(a) Includes Information From the State Regulatory
Authority
G. Citizens' Ability To Request Federal Inspections Is Not
Diminished
H. OSMRE's Enhancement to the Existing 30 CFR Part 733 Process
is Aimed at Addressing State Regulatory Program Issues Early and
Promptly Resolving the Issues
I. Interrelationship of 30 CFR Part 733 and 30 CFR Part 842
J. Specific Responses to Other Comments Received About the
Proposed Rule
III. Discussion of the Final Rule and Section-by-Section Analysis
IV. Procedural Determinations
A. Statutes
1. Congressional Review Act
2. Data Quality Act
3. National Environmental Policy Act
4. National Technology Transfer and Advancement Act
5. Paperwork Reduction Act
6. Regulatory Flexibility Act
7. Small Business Regulatory Enforcement Fairness Act
8. Unfunded Mandates Reform Act
B. Executive Orders
1. Executive Order 12630--Governmental Actions and Interference
With Constitutionally Protected Property Rights
2. Executive Order 12866--Regulatory Planning and Review and
Executive Order 13563--Improving Regulation and Regulatory Review
3. Executive Order 12988--Civil Justice Reform
4. Executive Order 13045--Protection of Children From
Environmental Health Risks and Safety Risks
5. Executive Order 13132--Federalism
6. Executive Order 13175--Consultation and Coordination With
Indian Tribal Governments
7. Executive Order 13211--Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
8. Executive Order 13771--Reducing Regulation and Controlling
Regulatory Costs
9. Executive Order 13783--Promoting Energy Independence and
Economic Growth
I. Background and Overview of the Final Rule
A. Background
SMCRA requires the Secretary of the Interior, acting through OSMRE,
to, among other things, ``publish and promulgate such rules and
regulations as may be necessary to carry out the provisions of
[SMCRA]'' and to ``cooperate with . . . State regulatory authorities to
minimize duplication of inspections, enforcement, and administration of
[SMCRA].'' 30 U.S.C. 1211(c)(2) and (12). Consistent with these
statutory obligations, based on OSMRE's 43 years of experience
administering SMCRA, after consultation with OSMRE's State regulatory
authority partners, and after consideration of public comments received
on the proposed rule, OSMRE is finalizing its proposal to enhance the
early identification of State regulatory program issues and clarify the
regulations found at 30 CFR 842.11 and 842.12 to state, among other
things, that, before issuing a notification to a State regulatory
authority when a possible violation exists, OSMRE will consider any
information readily available. OSMRE's final rule will reduce
inefficiencies by ensuring that, before OSMRE issues a TDN to a State
regulatory authority, OSMRE considers any readily available information
about the alleged violation, including information that a State
regulatory authority may provide. OSMRE's consideration of this
information is critical because a State regulatory authority has
primary enforcement responsibility under its State regulatory program.
Thus, the final rule eliminates duplication of inspection and
enforcement under SMCRA by clarifying that OSMRE's authorized
representative will consider all readily available information, from
any source, including any information provided by the State regulatory
authority, before issuing a notification of an alleged violation, in
the form of a TDN, to that State regulatory authority. Also, the final
rule clarifies the meaning of the statutory terms ``appropriate
action'' and ``good cause,'' as used in 30 CFR 842.11, to better
describe the State regulatory authority's action that will qualify as
``appropriate action'' or scenarios in which a State regulatory
authority's inaction may have ``good cause'' after OSMRE notification
that a possible violation exists. Examples of what constitutes a State
regulatory authority's ``appropriate action'' in response to a TDN or
``good cause'' for not taking an action in response to a TDN are in the
existing regulations;
[[Page 75151]]
however, in OSMRE's experience, the existing examples and explanations
of what qualify as an ``appropriate action'' or ``good cause'' for
inaction are not exhaustive and do not fully reflect the array of in-
the-field scenarios.
In addition, because OSMRE must evaluate whether a State regulatory
authority has taken appropriate action or has good cause for inaction
with respect to a possible violation, OSMRE has observed that not all
issues that are raised in the TDN process warrant a Federal
inspection,\1\ but they may require further evaluation and action as
they may raise issues with how a State is implementing its approved
State regulatory program. To address these issues comprehensively and
to ensure more complete and efficient enforcement of SMCRA, OSMRE has
expanded 30 CFR part 733 to add procedures for corrective action of
State regulatory program issues, including implementation of action
plans. As finalized, 30 CFR part 733 includes definitions of the terms
``action plan'' and ``State regulatory program issue'' and adopts a
mechanism for early identification and corrective action to address
State regulatory program issues. We refer to these added procedures and
definitions in this preamble as the ``enhanced Part 733 process.''
---------------------------------------------------------------------------
\1\ A Federal inspection in the context of 30 U.S.C. 1271(a) is
an inspection of a surface coal mining and reclamation operation
conducted by an OSMRE authorized representative.
---------------------------------------------------------------------------
The final rule is consistent with SMCRA and will add transparency
to OSMRE's oversight responsibilities; promote regulatory certainty for
State regulatory authorities, regulated entities, and the public;
enhance OSMRE's relationship with the State regulatory authorities;
reduce redundancy in inspection and enforcement; and streamline the
process for notifying State regulatory authorities of possible
violations.
B. Key Provisions of the Final Rule
OSMRE is adopting the following key provisions from the proposed
rule in this final rule:
Enhancement of 30 CFR part 733: Early Identification and
Corrective Action.
The regulations at existing 30 CFR part 733 establish requirements
for the maintenance of State regulatory programs, as well as the
procedures for the rare remedy of substituting Federal enforcement for
State enforcement of State regulatory programs and withdrawing approval
of State regulatory programs. In coordination with State regulatory
authorities, OSMRE has determined that mechanisms exist for addressing
identified State regulatory program issues to avoid the need to
substitute Federal enforcement for State enforcement of a State
regulatory program. In this final rule at Sec. 733.12, OSMRE is
codifying this existing OSMRE practice of identifying State regulatory
program issues and ensuring that prompt corrective action is taken.
Clarification of Distinction Between OSMRE Enforcement
Actions under 30 U.S.C. 1271(a) and (b).
The TDN and Federal inspection process in 30 U.S.C. 1271(a) applies
to oversight enforcement of alleged violations at specific sites. In
this preamble, we refer to these types of OSMRE oversight actions (TDNs
and Federal inspections) that OSMRE may take under 30 U.S.C. 1271(a) as
``site-specific'' enforcement actions. Congress differentiated these
site-specific enforcement actions from the type of actions that OSMRE
may take under the State regulatory program enforcement provisions of
30 U.S.C. 1271(b), which are aimed at ensuring that a State regulatory
authority is properly enforcing its approved State program. This type
of OSMRE oversight action under 30 U.S.C. 1271(b) is intended to
address what we will refer to in this preamble as a ``State regulatory
program issue'' and which could, in the most serious circumstances,
result in revocation of all or part of a State program. OSMRE
recognizes that its review of State regulatory authority permit
issuance guidelines and practices generally are systemic in nature and
that those guidelines and practices squarely fall within a State
regulatory authority's implementation, administration, enforcement, and
maintenance of an approved program. In this final rule, OSMRE further
clarifies the distinction between the situations to which 30 U.S.C.
1271(a) and (b) apply, while also recognizing that there may be
situations in which OSMRE becomes aware of a State regulatory authority
that is not adequately implementing, administering, maintaining, or
enforcing a part or all of a State program (governed by 30 U.S.C.
1271(b) and the implementing regulations at 30 CFR part 733) in the
course of OSMRE's oversight enforcement of alleged violations at
specific mine sites (governed by 30 U.S.C. 1271(a) and the implementing
regulations at 30 CFR part 842). In acknowledgement of OSMRE's
obligation to resolve 30 U.S.C. 1271(a) site-specific violations and 30
U.S.C. 1271(b) State regulatory program issues using two separate
mechanisms, this final rule clarifies in 30 CFR 842.11(b)(1)(ii)(B)(3)
that a State regulatory authority may be deemed to have taken
appropriate action in response to a TDN if corrective action to resolve
an identified State regulatory program issue has been initiated
consistent with the final rule Sec. 733.12.
Nothing in This Final Rule Prevents OSMRE From Issuing A
TDN for a Site-Specific Violation.
Despite the two separate enforcement mechanisms outlined in 30
U.S.C. 1271(a) and (b), these SMCRA enforcement provisions may still
overlap in practice. As alluded to above, and discussed more thoroughly
in response to public comments below, OSMRE maintains its legal
position that SMCRA authorizes OSMRE to issue a TDN to a State
regulatory authority, if a State regulatory program issue results in or
may imminently result in a violation of an approved State program.
Specifically, in these situations, under final Sec. 733.12(d), OSMRE
may still take a direct site-specific enforcement action.
Before Issuing a TDN, OSMRE Will Consider All Readily
Available Information From Any Source.
OSMRE proposed to clarify that when formulating a decision about
whether there is reason to believe that a possible violation exists for
purposes of direct enforcement under 30 U.S.C. 1271(a)(1), it will
consider all readily available information, including information it
receives from the State regulatory authority, about an alleged
violation. (Throughout this preamble, we will, at times, use an
abbreviated way of referring to this decision-making process about
whether there is reason to believe that a possible violation exists as
``formulating reason to believe'' or simply as ``reason to believe'' in
quotation marks.) OSMRE is adopting this clarification in this final
rule, with a minor modification, which specifies that OSMRE will
consider all readily available information it receives from ``any
source'' in order to promote more efficient and effective enforcement
of SMCRA.
C. Summary of Changes Since the Proposed Rule
OSMRE has made 11 revisions to the proposed rule in preparing this
final rule. These revisions are based on a process of reasoned
decision-making, including reliance on over 43 years of OSMRE
experience overseeing the implementation of SMCRA, including review of
past OSMRE data and practices, meaningful consideration of the 93
comments received from the public, and adherence to plain language
principles to ensure regulatory clarity. Specific details of the final
rule are
[[Page 75152]]
discussed in finer detail in the section-by-section analysis below. For
the ease of the public, a summary of the changes from the proposed rule
to the rule being finalized today (organized by section, brief summary
of the change, and succinct rationale for change) include:
----------------------------------------------------------------------------------------------------------------
Section No. Brief summary of change Rationale
----------------------------------------------------------------------------------------------------------------
30 CFR 733.5 (definition of ``Action Insert ``State'' before ``regulatory OSMRE maintaining consistency
plan''). authority''. and clarity.
30 CFR 733.12(a)(1).................. Substitute ``any source'' for ``any Accommodate citizen comments
person''. to allow the subsection to
be more inclusive consistent
with the intent of the
proposed rule.
30 CFR 733.12(b)..................... Change ``State regulatory program issues'' OSMRE maintaining consistency
to singular ``a State regulatory program and clarity.
issue''.
30 CFR 733.12(b)..................... Substitute ``a violation of the approved Accommodate citizen comments
State program'' for ``an on-the-ground and OSMRE evaluation to
violation''. ensure OSMRE preserves the
ability to take enforcement
action.
30 CFR 733.12(b)(1)-(3).............. Change ``action plans'' to singular OSMRE maintaining consistency
``action plan'' in three instances. and clarity.
30 CFR 733.12(c)..................... Insert ``any associated action plan'' OSMRE evaluation and
after ``State regulatory program accommodates citizen
issues''. comments requesting
transparency and review of
action plans that are found
in Annual Evaluation
reports.
30 CFR 733.12(c)..................... Acknowledge that Annual Evaluations Accommodate citizen comments
reports will be accessible on OSMRE's and OSMRE evaluation to
website and at the applicable OSMRE ensure transparency to the
office. public.
30 CFR 733.12(d)..................... Substitute ``a violation of the approved OSMRE evaluation and
State program'' for ``an on-the-ground accommodates citizen
violation''. comments about State
regulatory program issues
that may also result in a
site-specific violation.
30 CFR 842.11(b)(1).................. Substitute ``must'' for ``will''. OSMRE maintaining consistency
with the Federal Register
and Plain Language Act.
30 CFR 842.11(b)(1)(i)............... Add, ``from any source, including any OSMRE evaluation to
information a citizen complainant or the specifically state the
relevant State regulatory authority intention of the
submits,''. clarification.
30 CFR 842.11(b)(2).................. Change to conform to 30 CFR Accommodate citizen comments
842.11(b)(1)(i). requesting consistency
between this subsection and
30 CFR 842.11(b)(1)(i).
----------------------------------------------------------------------------------------------------------------
II. Summary of Public Comments
A. Overview of Comments
OSMRE received 93 written comments on the proposed rule, consisting
of hundreds of pages of text. The majority of the comments received
were from individuals, who reside in many different States, including
some States that do not have coal mining. The States in which these
commenters reside include: Alaska, California, Colorado, Illinois,
Indiana, Kentucky, Massachusetts, Missouri, Montana, New Mexico, North
Carolina, North Dakota, Pennsylvania, Tennessee, Texas, Utah, Vermont,
Virginia, Washington, West Virginia, and Wyoming. The majority of the
individual comments originated from citizens residing in Montana. The
39 comments received from Montana residents were almost identical in
nature. As discussed further below, these commenters generally objected
to the proposed rule, requested an extended comment period, and
suggested that public hearings should be held in the ``4 coal regions''
within the United States. Additionally, several other individual
commenters referenced support for non-governmental organizations (NGOs)
within their comments that generally disapproved of the proposed rule
without giving specific rationale. For example, six commenters
supported Coal River Mountain Watch and provided very similar comments
opposed to the proposed rule.
Additionally, many comments either supported other comments and
incorporated them by reference or were submitted on behalf of multiple
parties. Most of the comments representing multiple parties were
submitted on behalf of NGOs. OSMRE received comments from the following
NGOs: Alaska Center, Alaska Community Action on Toxics, Appalachian
Citizens' Law Center, Appalachian Mountain Advocates, Appalachian
Voices, Black Warrior Riverkeeper, Inc., Castle Mountain Coalition,
Center for Biological Diversity (CBD), Citizens Against Longwall
Mining, Citizens Coal Council (CCC), Coal River Mountain Watch,
Conservation Council for Hawaii, Cook Inlet Keeper, Dakota Resource
Council, Earthworks, Eastern Pennsylvania Coalition for Abandoned Mine
Reclamation, Endangered Habitats League, Foundation for Pennsylvania
Watersheds, Gila Resources Information Project, Great Old Broads for
Wilderness, Heartwood, Kentuckians for the Commonwealth, Kentucky
Resources Council, Inc., National Wildlife Federation, Native Plant
Conservation Campaign, NH Audubon, Northern Plains Resource Council,
NY4WHALES, Ohio Valley Environmental Coalition, Oil Change
International, Powder River Basin Resource Council, Save Our Sky Blue
Waters, Save the Scenic Santa Ritas, Sierra Club, Stand Up to Coal, The
Lands Council, Trustees for Alaska, Turtle Island Restoration Network,
West Virginia Highlands Conservancy, West Virginia Rivers Coalition,
Western Nebraska Resources Council, Western Organization of Resource
Councils, Western Watersheds Project, WildEarth Guardians, and
Wilderness Workshop. With few exceptions, most of these commenters
generally objected to the proposed rule, requested that the comment
period be extended, and advocated for public hearings. A few of these
commenters made suggestions on how to improve the proposed rule. As
discussed in detail below, OSMRE has considered these suggestions and,
in some circumstances, is adopting the suggestions in the final rule.
[[Page 75153]]
The following industry and trade groups submitted comments: Indiana
Coal Council, Kentucky Coal Association, National Mining Association
(NMA), and Virginia Coal and Energy Alliance. Generally, as discussed
more fully below, these commenters supported the proposed rule and made
suggestions for improvements. In some circumstances, OSMRE is
incorporating suggestions made by these organizations in the final
rule.
A few State and quasi-governmental organizations provided comments,
including the Central Illinois Healthy Community Alliance and the
Interstate Mining Compact Commission (IMCC) representing the following
27 States: Alabama, Alaska, Arizona, Arkansas, Colorado, Illinois,
Indiana, Kentucky, Louisiana, Maryland, Mississippi, Missouri, Montana,
New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma,
Pennsylvania, South Carolina, Tennessee, Texas, Utah, Virginia, West
Virginia, and Wyoming. One of these commenters was generally opposed to
the proposed rule, while the other, IMCC, supported the proposed rule.
B. OSMRE Provided an Adequate Period To Comment on the Proposed Rule
and Hearings Were Not Necessary
OSMRE provided a 30-day comment period for the proposed rule. OSMRE
received many comments requesting an extension of the comment period
from an additional 30 days to an additional 180 days. One commenter,
citing one of the purposes of SMCRA at 30 U.S.C. 1202(i), essentially
suggested that the alleged absence of ``a reasonable comment period''
deprived the public of meaningful participation in this rulemaking.
OSMRE is aware of this statutory provision, but, as explained below,
finds that the 30-day comment period was adequate for meaningful
participation in this rulemaking. In contrast to the other commenters,
a commenter stated that this rule was ``long overdue'' and that
``additional time is not necessary for the formulation and submittal of
comments on a 14-page Federal Register notice.'' Additionally, many
commenters requested that public hearings--virtual or in person when
``safe''--be held, and many of those commenters, particularly the 39
commenters from Montana, requested that at least four public hearings
be held in different coal regions across the country. Other commenters
suggested that SMCRA requires OSMRE to offer to hold public hearings
for rulemakings affecting SMCRA's permanent regulatory program. These
commenters opine that holding public hearings has been the standard and
expected practice.
Section 553(c) of the Administrative Procedure Act (APA) requires
that agencies, such as OSMRE, provide ``interested persons an
opportunity to participate in the rule making through submission of
written data, views, or arguments with or without an opportunity for
oral presentation.'' 5 U.S.C. 553(c). Notably, the APA does not contain
a requirement to hold public hearings. It is squarely within OSMRE's
discretion to decline to either extend the comment period or offer
public hearings or meetings. Additionally, the Office of the Federal
Register states that comment periods generally last 30 to 60 days. See
Office of the Federal Register, ``A Guide to the Rulemaking Process,''
available at https://www.federalregister.gov/uploads/2011/01/the_rulemaking_process.pdf (last accessed August 12, 2020). As
discussed above, OSMRE received a diverse set of substantive comments
from a diverse set of commenters within the 30-day comment period.
Based on this and several other reasons, regardless of what other
agencies have done with regard to extension requests, the public had a
meaningful opportunity to comment with sufficient time to prepare their
comments.
First, OSMRE's proposed revisions would not significantly alter
OSMRE's implementation of the SMCRA program. As stated in the proposed
rule, the proposed changes were primarily intended to clarify a
potential ambiguity in OSMRE's existing regulations, eliminate
duplicative efforts of OSMRE and the State regulatory authorities when
responding to citizen complaints, and enhance procedures for corrective
action of State regulatory program issues. See, e.g., 85 FR at 28905,
28910. Previously, OSMRE has addressed these issues through guidance
documents, such as the memorandum from Director Joseph G. Pizarchik to
Regional Directors regarding Application of the Ten-Day Notice Process
and Federal Enforcement to Permitting Issues Under Approved Regulatory
Programs, which were issued without any opportunity for advance public
comment. Memorandum from Director Joseph G. Pizarchik (Nov. 15, 2010).
By addressing these issues through the APA rulemaking process, OSM has
provided the public an opportunity to comment.
Second, the proposed rule proposed to make only limited changes to
the Federal regulations. The changes OSMRE proposed primarily occurred
in three sections--30 CFR 733.12, 842.11, and 842.12. The other
proposed changes were conforming changes. If this rule was significant,
the Office of Information and Regulatory Affairs (OIRA) in the Office
of Management and Budget (OMB) would have classified it as such;
however, it has not because this final rule is not expected to have a
$100 million annual impact on the economy, raise novel legal issues, or
create significant impacts. See ``Procedural Determinations'' below.
Third, as stated in section 6(a)(1) of Executive Order (E.O.)
12866, ``before issuing a notice of proposed rulemaking, each agency
should, where appropriate, seek the involvement of those who are
intended to benefit from and those expected to be burdened by any
regulation (including, specifically, State, local, and tribal
officials).'' The State regulatory authorities were the parties most
likely to be affected if the changes in the proposed rule were
finalized. As such, before publishing the proposed rule, OSMRE involved
the State regulatory authorities by seeking their suggestions on what
the proposed rule should accomplish. For example, as part of a program
efficiency work group, OSMRE requested that State regulatory
authorities provide information about the number of citizen complaints
received; the number of TDNs received; whether duplication exists
between citizen complaints the State regulatory authority receives
directly from citizens and TDNs received from OSMRE; and the amount of
time State regulatory authority personnel expend responding to TDNs and
citizen complaints that the State regulatory authority receives
directly from citizens. In addition, OSMRE directly engaged with its
State regulatory authority partners by requesting input on the
development of internal OSMRE guidance about TDNs, which, when
finalized, were made publicly available on OSMRE's website at https://www.osmre.gov/lrg/directives.shtm.
Comment: Although most of the commenters seeking extensions of time
or public hearings were general in nature, some of the commenters
provided specific rationales for the requests for extensions of time or
public hearings. In most circumstances, these specific requests for
extensions of time or hearings were prompted by the impacts of the
COVID-19 pandemic, including the potential for lack of access to the
internet due to library closures and obligations associated with caring
for family members infected with COVID-19. Some of these commenters
cited other Federal agencies' decisions to extend comment periods
because of COVID-19. Other commenters supported an extension of the
comment
[[Page 75154]]
period because the 30-day comment period included the Memorial Day
holiday. Finally, as indicated above, a group of commenters suggested
that 30 U.S.C. 1251(b), through its reference to section 1251(a),
requires OSMRE to offer to hold public hearings for rulemakings
affecting SMCRA's permanent regulatory program. These commenters also
opine that holding public hearings has been the standard and expected
practice.
Response: OSMRE recognizes that the comment period for this rule
occurred during the COVID-19 pandemic, which may have changed the
manner in which people and organizations would have traditionally
reviewed and submitted comments on the proposed rule. Although it is
true that the pandemic may have changed operating procedures, it is
also true that OIRA recognized that ``work on behalf of the American
people must continue during this period, including work on regulations
. . . .'' See Memorandum from Paul J. Ray, OIRA Administrator (March
23, 2020). OIRA, therefore, declined to issue a ``wholesale extension
of the comment periods of pending notices of proposed rulemakings . . .
.'' Id. Despite the hardships posed by the pandemic and the existence
of a Federal holiday within the comment period, OSMRE received 93
comments from a representative group of interests. In total, these
comments presented a thorough examination of the limited number of
changes proposed, and the commenters did not appear to be hampered by
the length of the comment period.
In addition, OSMRE disagrees with the comment that SMCRA, at 30
U.S.C. 1251(b), requires OSMRE to offer to hold public hearings for
rulemakings such as this one. On its face, section 1251(b) applies to
the permanent regulatory program that OSMRE promulgated long ago. While
OSMRE can still hold public hearings with regard to proposed rules that
are published after the permanent program regulations were promulgated,
it is not required to do so. For many of the same reasons a 30-day
comment period was adequate, including receipt of a diverse set of
substantive comments from a diverse set of commenters within the 30-day
comment period, OSMRE also finds that public hearings were not
necessary to inform OSMRE of the various issues and viewpoints at play.
Instead, as explained above, OSMRE obtained a full range of comments
from a diverse group of commenters. In sum, OSMRE values public
participation in its rulemaking efforts and finds that there was
reasonable and adequate public participation in this particular
rulemaking.
Comment: A few commenters stated that OSMRE should extend the
comment period beyond 30 days because Federal employees' teleworking
arrangements as a result of the COVID-19 pandemic impinged on the
commenting process.
Response: Despite the challenges posed by the COVID-19 pandemic,
OSMRE has been diligent in responding to inquiries regarding the
proposed rulemaking either via email or telephone. As previously
stated, OIRA has made clear that ``work on behalf of the American
people must continue during this period, including work on regulations
. . . .'' See Memorandum from Paul J. Ray, OIRA Administrator (March
23, 2020). OSMRE did not shut down or stop its work on behalf of the
American people as a result of the COVID-19 pandemic. As is its
customary practice, OSMRE specified the methods for submitting comments
in the proposed rule. 85 FR at 28904. This included submission of
comments via regulations.gov or hard copy. The submission of comments
on regulations.gov was not affected by the pandemic, and OSMRE
personnel still regularly collected the comments that were submitted in
hard copy.
Comment: A few commenters cited the Native American population as
being disproportionally affected by the COVID-19 pandemic. According to
commenters, many of these same population centers are located adjacent
to coal mine sites, are affected by the coal mine operations, and need
to voice their comments on the proposed rulemaking. Commenters cited
the lack of developed information technology infrastructure and
widespread COVID-19 illnesses within the Native American community as
sufficient reasons to extend the comment period. OSMRE appreciates the
commenters' focus on, and is sensitive to, the COVID-19 pandemic's
effect on Native American populations.
Response: No Tribe currently has primacy to regulate surface coal
mining operations within its jurisdiction. Because this rule relates to
OSMRE's enforcement in primacy States, these revisions will have no
direct impact on any Tribe. Once a Tribe obtains primacy, that Tribe
would be in the same position as a State regulatory authority. 30
U.S.C. 1300(j). Therefore, OSMRE would consider information from a
Tribal regulatory authority, just as OSMRE considers information from a
State regulatory authority, in determining whether to issue a TDN to
the Tribal regulatory authority. Despite this final rule not affecting
any Tribe directly, OSMRE directly engaged with the three Indian Tribes
that have either expressed an interest in achieving primacy or that
have traditionally had surface coal mining operations--the Navajo
Nation and the Hopi and Crow Tribes. See ``Procedural Determinations,''
E.O. 13175--Consultation and Coordination With Indian Tribal
Governments, below. In addition, Tribes were able to comment on the
proposed rule. To the extent the commenters were concerned about the
rule's effects on individual Native Americans, as opposed to Indian
Tribes, OSMRE's final rule will not hamper any citizen's ability to
submit a citizen complaint to OSMRE. Thus, any citizen, including a
Tribal member, can continue to raise concerns to OSMRE about potential
SMCRA violations.
Comment: One commenter cites the ongoing improvements to
regulations.gov, one of the methods of submitting comments on the
proposed rule to OSMRE, as a rationale for extending the comment
period.
Response: OSMRE is aware that regulations.gov has been undergoing
beta testing since July 2019, and it is fully cooperating with the U.S.
General Services Administration (GSA) in its ongoing efforts to improve
the experience of a user while participating in the Federal government
rulemaking process. Contrary to the commenter's assertions, the core
functionality of regulations.gov has not been affected by the beta
testing. In fact, the regulations.gov site has merely been updated to
be more accessible to the public and improve the public interface. GSA
has characterized the beta testing and associated improvements as
efforts to create transparency and expose the public to improvements
contemplated for the website and to solicit feedback. See Beta
Frequently Asked Questions available at https://beta.regulations.gov/faq?type=beta (last accessed August 17, 2020). Moreover, the standard
regulations.gov site is still available, and users may choose the
``classic'' version if they prefer. Id. Therefore, the improvement
process for regulations.gov was not a basis for extending the comment
period.
For all of these reasons, including the limited nature of this
rulemaking and the sufficient time available to provide meaningful
comment, as evidenced by the diverse and thorough comments received,
neither an extension of time nor public hearings were warranted.
[[Page 75155]]
C. This Final Rule is Properly Characterized as a Clarification
In the proposed rule, OSMRE characterized the provisions related to
30 CFR part 842 as clarifications because OSMRE primarily sought to
remove ambiguity as to what information should be considered by the
OSMRE authorized representative when formulating reason to believe that
any person is in violation of any requirement of [SMCRA] or any permit
condition required by [SMCRA].'' 30 U.S.C. 1271(a). Many commenters
objected to OSMRE's use of the term clarification to describe the
changes to part 842; however, some industry commenters supported this
characterization. OSMRE maintains that clarification is an appropriate
descriptor. As discussed in more detail in specific comment responses
below, several citizen group commenters alleged that OSMRE invented
ambiguity in the existing regulations where none existed to justify the
regulatory changes. OSMRE strongly disagrees with this assertion.
Due to the complex nature of SMCRA, and coal mining in general,
ambiguity has arisen about how OSMRE should perform some of its
oversight functions. Through this final rulemaking, OSMRE is seeking to
end any ambiguity. Notably, over the years, OSMRE has had varying
interpretations of how to administer 30 U.S.C. 1271(a) and the
implementing regulations at 30 CFR part 842. An example of disparate
implementation of the existing regulations by OSMRE is evidenced by the
fact that OSMRE has revised its primary Directive on the TDN process,
INE-35, eight times in 33 years--an average of approximately once every
four years--each time without taking prior public comment. Tellingly,
the various interpretations documented within OSMRE policy have the
common theme of attempting to define the right balance of expertise and
professional discretion and due diligence. With this final rulemaking,
OSMRE has achieved better balance. In proposing this rule, OSMRE
closely examined the concepts of expertise and professional discretion
and due diligence in its enforcement of SMCRA. For example, when
considering an early draft of SMCRA, the House of Representatives
recognized the importance of formulating ``reasonable belief'' based on
available information.
When the Secretary receives information from any source that
would give rise to a reasonable belief that the standards of the Act
are being violated, the Secretary must respond by either ordering an
inspection by Federal inspectors during the interim period or, after
the interim, notice to the States in the follow-up inspection that
the State's response is inadequate. It is anticipated that
``reasonable belief'' could be established by a snapshot of an
operation in violation or other simple and effective documentation
of a violation.
H.R. Rep. No. 93-1072, at 11 (May 20, 1974).
If OSMRE simply passes along a citizen complaint without
considering available information, it is not establishing the requisite
reasonable belief that was Congress' intent. Congress recognized the
value of relying on the professional competence and capacity of OSMRE
staff to ensure effective and efficient processing of citizen
complaints. In fact, the Senate Report recognized the importance of
OSMRE experts in achieving the twin goals of efficiency and
effectiveness for State enforcement programs:
Efficient enforcement is central to the success for the surface
mining control program contemplated by S.7. For a number of
predictable reasons--including insufficient funding and the tendency
for State agencies to be protective of local industry--State
enforcement has in the past often fallen short of the vigor
necessary to assure adequate protection of the environment. The
Committee believes, however, that the implementation of minimal
Federal standards, the availability of Federal funds, and the
assistance of the experts in the Office of Surface Mining
Reclamation and Enforcement in the Department of Interior, will
combine to greatly increase the effectiveness of State enforcement
programs operating under the Act. While it is confident that the
delegation of primary regulatory authority to the States will result
in adequate State enforcement, the Committee is also of the belief
that a limited Federal oversight role as well as increased
opportunity for citizens to participate in the enforcement program
are necessary to assure that the old patterns of minimal enforcement
are not repeated.
S. Rep. No. 95-128, at 90 (May 10, 1977). These factors have
weighed heavily in OSMRE's analysis and the formulation of this final
rule. In order to achieve an effective balance of these concepts, OSMRE
has always focused on the mandates of SMCRA, including expeditious
enforcement. In the final rule, OSMRE's clarifications act to resolve
the internal struggle to exercise expertise and professional judgment
and due diligence to best implement the existing regulations at 30 CFR
part 842, despite the potential ambiguities contained within those
regulations. Strategies employed in versions of the INE-35 Directive
have included various interpretations of the ``reason to believe''
standard, what constitutes appropriate action, and how to address
various types of violations. The regulations that OSMRE is finalizing
today aim to remove the potential ambiguity related to the ``reason to
believe'' standard that made those various interpretations possible.
OSMRE's final rule is crafted to create a more uniform, efficient, and
transparent process for resolving citizen complaints. These changes do
not diminish the public's access to enforcement or reinvent the TDN
process.
In response to a commenter's suggestion that OSMRE should provide
objective support for this rule, including data, OSMRE notes that it
proposed this rulemaking to clarify issues raised by State regulatory
authorities and identified by OSMRE's own experience. Additionally, a
goal of the proposed rulemaking is to ensure OSMRE uniformly applies
the statute and regulations and no disparate application occurs within
the agency. Recognizing that there may have been inconsistent
application of the existing regulations, analysis of past data is not
germane to the rulemaking as the commenter suggests. For example, if
various OSMRE authorized representatives applied the existing
regulatory language inconsistently, relying on data related to the
number of citizen complaints that led to the issuance of TDNs would not
illustrate how those authorized representatives might have interpreted
the existing regulations in formulating ``reason to believe''. Because
ensuring that information from the State regulatory authority is
considered when formulating ``reason to believe'' is a major component
of this final rule, revisiting individual TDN analyses under previous
interpretations of the existing regulations or internal OSMRE policies
is not useful or informative.
OSMRE's clarifications harmonize the implementing regulations with
congressional intent. These improvements were needed because one
possible interpretation of 30 CFR 842.11(b)(2) was that OSMRE's
authorized representative was required to find that reason to believe
that a violation exists whenever any information submitted to OSMRE
would, if true, constitute a violation. Under this possible
interpretation, OSMRE would merely serve as a conduit to the State
regulatory authority, eviscerating the authority bestowed upon OSMRE by
Congress to act with ``professional competence and capacity to
administer the provisions of [SMCRA].'' 30 U.S.C. 1211(a). In practice,
if this interpretation were implemented, OSMRE would almost always be
required to immediately issue a TDN to the State regulatory authority.
[[Page 75156]]
This interpretation removes any aspect of an OSMRE authorized
representative's discretion and prevents the authorized representative
from exercising best professional judgment. OSMRE's clarification
reduces ambiguity in the regulations that could lead to this
unwarranted interpretation. Instead, the final rule makes clear that
OSMRE's authorized representative, a qualified, trained, professional
with SMCRA expertise, is in the best position to consider all readily
available information available to him or her before making a
determination about whether there is reason to believe a violation
exists before deciding whether to issue a TDN. Instead of simply
accepting what is submitted to OSMRE as true, under this final rule,
OSMRE's authorized representative can review all readily available
information, regardless of the source of that information. This change
also better aligns the Federal regulations with the carefully crafted
language of 30 U.S.C. 1271(a), and, as explained below, reduces
duplication of effort between OSMRE and a State regulatory authority as
mandated by 30 U.S.C. 1211(c)(12).
The ambiguity in the regulations was leading to inconsistent
interpretations of the ``reason to believe'' standard in the
regulations. As discussed more thoroughly below, the comments to the
proposed rule illustrate the inconsistent interpretations that existed
within OSMRE and among the State regulatory authorities, citizens, and
industry. Some have interpreted the regulatory standard in a way that
would make OSMRE a mere conduit of citizen complaints to the State
regulatory authority while others interpreted the regulatory ``reason
to believe'' standard to evoke more discretion, in the form of OSMRE's
authorized representative exercising professional judgment.
Additionally, there have been varying views about the type of
information that OSMRE's authorized representative should consider and
from whom that information originates, with some groups claiming that
OSMRE should only consider citizen information while others found it
essential that OSMRE also consider information provided by the State
regulatory authority--the primary SMCRA enforcement authority under
approved State programs. This inconsistency has manifested itself in
the various internal directives that OSMRE has issued throughout the
years, which have contained various interpretations of the regulations
regarding, among other things, what information should be considered
when determining if the OSMRE authorized representative has a ``reason
to believe.''
With the assistance and comments of OSMRE's State regulatory
authority partners, citizens, and industry, OSMRE identified these
inconsistent interpretations as significant enough to warrant a
resolution through a clarifying rulemaking.
Comment: A commenter expressed concern that the current TDN process
was not working and gave an example of a TDN that seemingly took many
years to resolve. The commenter further opined that the proposed
rulemaking was not a step in the right direction and will result in
``protracted delays'' of enforcement to correct on-the-ground issues.
Response: OSMRE agrees with the commenter that the existing process
needed to be clarified to avoid unnecessary delays, and that is one of
the reasons why OSMRE is issuing this final rule. OSMRE notes that this
final rule will improve the TDN process by, among other things,
increasing collaboration and coordination between OSMRE and the State
regulatory authorities. OSMRE acknowledges that, historically, there
have been challenges associated with the TDN process, and sometimes TDN
issues were not resolved as quickly as OSMRE would have liked. However,
while this final rule will not eliminate all future delays in TDN
outcomes, just as the existing regulations did not, this final rule is
intended to enhance the overall efficiency of the TDN process going
forward in addressing violations. Because State regulatory program
issues will be more appropriately addressed through the enhanced Part
733 process, rather than through the TDN process, OSMRE and the State
regulatory authorities will be able to focus more quickly on site-
specific violations that arise.
To be clear, neither the proposed rule nor the final rule
substantively impacts the TDN process. Instead, in the final rule,
OSMRE removes ambiguity by clarifying that the OSMRE authorized
representative can review information received from any source,
including the State regulatory authority, when deciding whether he or
she has reason to believe a violation exists as contemplated by SMCRA.
30 U.S.C. 1271(a). When an OSMRE authorized representative has reason
to believe a violation exists, the information about the alleged
violation will continue to be transmitted to the State regulatory
authority via a TDN. The distinction between the existing regulations
and the final rule is that, under the final rule, the OSMRE authorized
representative will consider all readily available information when
formulating reason to believe. Most importantly, all readily available
information includes information that the OSMRE authorized
representative may receive from the State regulatory authority.
OSMRE also notes that some of the other revisions that OSMRE
proposed and is finalizing today, namely the enhancement to 30 CFR part
733 related to State regulatory authority action plans to address State
regulatory program issues, are a variation of an administrative process
that has been contained in OSMRE's Directives REG-8 and REG-23 since as
early as 1988. Given OSMRE's longstanding use of these action plans,
the changes to these regulations also are not a material alteration of
the administrative process that OSMRE has already used to interact with
State regulatory authorities to enforce SMCRA. OSMRE is codifying these
practices to avoid ambiguity about when these State regulatory
authority corrective action plans are appropriate to use.
In summary, Merriam-Webster Dictionary defines clarify as, ``to
make understandable; to free from confusion.'' See Clarification,
Merriam Webster Online Dictionary, available at merriam-webster.com/dictionary/clarification (last accessed August 14, 2020). Because of
the varying interpretations of what information may be considered when
formulating reason to believe, not only by SMCRA stakeholders, but by
OSMRE itself, a clarification is certainly warranted. Moreover,
codifying the enhancements to early identification of corrective action
to address State regulatory program issues will remove ambiguity as to
when this process should be applied. OSMRE finds it essential to be
transparent and make the regulations ``understandable'' and ``free from
confusion'' so that the TDN process pursuant to 30 U.S.C. 1271(a) and
the enhanced 30 CFR part 733 process pursuant to 30 U.S.C. 1271(b) work
efficiently and effectively. This clarification is necessary to remove
ambiguity.
D. This Final Rule Neither Inhibits a Citizen's Ability To Report
Violations to OSMRE Nor Limits OSMRE's Ability To Exercise Oversight
Enforcement
OSMRE received comments that evidence a misconception by many
commenters that the changes OSMRE proposed, if finalized, would alter
the obligations of 30 U.S.C. 1271. As discussed below, in response to
specific comments, the statutory obligations under SMCRA are not
altered by this rulemaking, and OSMRE will continue
[[Page 75157]]
to take action on citizen complaints and engage in oversight
enforcement consistent with statutory mandates and the Federal
regulations.
Comment: Many commenters, including citizen group commenters,
suggested that the proposed rule clarification would eliminate the
ability of the public to report violations directly to OSMRE. According
to several commenters, the proposed clarification would alter the
process citizens would use to report alleged violations, make it
prohibitively difficult, impair enforcement, and would lengthen the
amount of time for a State regulatory authority to respond to a TDN
from 10 days to unlimited, and make a TDN response from the State
regulatory authority discretionary instead of mandatory. A commenter
also opined that the clarification of the TDN process that OSMRE
proposed explicitly contradicts the letter and intent of SMCRA.
Similarly, another commenter suggested that, under the proposal, OSMRE
would be able to simply ignore complaints against mining companies.
Response: OSMRE disagrees with the premise of these comments. The
rule, as proposed and finalized today, does not materially alter the
manner in which OSMRE already enforces SMCRA. Specifically, OSMRE
disagrees with the commenters who suggested that the proposed
provisions and clarifications in 30 CFR parts 733 and 842 would impair,
weaken, or eliminate the ability of the public to report violations
directly to OSMRE. To the contrary, the public will be able to continue
to report possible violations directly to OSMRE, and OSMRE will
continue to take such complaints seriously and issue a TDN to the State
regulatory authority when appropriate. OSMRE's consideration of all
readily available information before issuing a TDN will make the
process more efficient and effective by making correction of the
violation the objective.
Indeed, the purpose of this final rule is to ensure that both
alleged violations and potential State regulatory program issues are
corrected promptly and effectively. After working closely with State
regulatory authority partners for over 40 years, OSMRE has learned
that, within the cooperative federalism framework established by SMCRA,
effective enforcement requires close cooperation with primacy states.
Furthermore, OSMRE notes that the United States Supreme Court has
recognized that SMCRA has established a system of cooperative
federalism involving an essential relationship between OSMRE in an
oversight capacity and State regulatory authorities. In Hodel v. Va.
Surface Mining and Reclamation Ass'n, 452 U.S. 264, 289 (1981) (citing
In re Permanent Surface Min. Regulation Litigation, 617 F.2d 807, 808
(1980)), the Supreme Court explained that SMCRA ``established a program
of cooperative federalism that allows the States, within limits
established by federal minimum standards, to enact and administer their
own regulatory programs, structured to meet their own particular
needs.'' Given the unique nature of cooperative federalism embodied in
SMCRA, coupled with the specific requirements within SMCRA to consider
``any information available'' when formulating reason to believe in the
TDN context, it makes sense for OSMRE to consider available information
from the State regulatory authority. 30 U.S.C. 1271(a)(1).
OSMRE's clarification in the final rule to provide explicitly that
OSMRE will consider all ``readily available information,'' including
any information that a State regulatory authority provides, promotes
the goal of ensuring that the entities with primary jurisdiction over
respective State programs supply OSMRE with information essential to
its assessment of alleged violations. After OSMRE considers readily
available information, including any information that a State
regulatory authority provides, OSMRE will continue to make an
independent assessment regarding whether it has reason to believe a
possible violation exists. Further, the basic principle of SMCRA and
the implementing regulations at 30 CFR 842.11 remains unchanged--OSMRE
will continue to issue a TDN to a State regulatory authority when it
concludes there is reason to believe a violation exists. As OSMRE
explained in the proposed rule, and as embodied in this final rule, any
information that OSMRE considers must be ``readily'' available to
ensure that the process proceeds as quickly as possible and does not
become open-ended.
The existing regulations at 30 CFR 842.12(a) already require that,
if a citizen requests a Federal inspection, then the citizen is
required to notify a State regulatory authority of a possible violation
before or simultaneously with notification to OSMRE. In fact, OSMRE's
proposal, and ultimately this final rule, is fundamentally no different
from the existing rule because it retains language that requires
citizens to notify the State regulatory authority prior to, or
simultaneously with, reporting violations to OSMRE. The language in
existing 30 CFR 842.12(a) requires citizens, as part of a request for
Federal inspection, to do several things, including furnishing OSMRE
with ``a signed, written statement . . . giving the authorized
representative reason to believe that a violation, condition or
practice referred to in Sec. 842.11(b)(1)(i) exists and that the State
regulatory authority, if any, has been notified . . . .''
Moreover, contrary to some commenters' assertions that this
proposed rule clarification would institute a new requirement for
citizen complainants to contact the State regulatory authority before
requesting a Federal inspection under section 842.12, the requirement
for citizens to contact the State regulatory authority, before or
simultaneously with a request to OSMRE for a Federal inspection, has
been in 30 CFR 842.12(a) since August 16, 1982. 47 FR 35620. Because
OSMRE continues to believe, as OSMRE has since 1982, that most alleged
violations will be resolved by a State regulatory authority without
intrusion by OSMRE (47 FR at 35628), OSMRE strongly encourages a
citizen also to report a violation to the State regulatory authority
first. However, neither the proposed rule nor the final rule mandates
that a citizen report an alleged violation to the State regulatory
authority before reporting it to OSMRE. The proposed rule
clarification, which is adopted in this final rule, does not change or
alter the requirement for citizen complainants to contact the State
regulatory authority before or simultaneously with requesting a Federal
inspection from OSMRE.
SMCRA confers exclusive jurisdiction upon a State regulatory
authority after that State has achieved primacy. See Bragg v. W. Va.
Coal Ass'n, 248 F.3d 275, 288 (4th Cir. 2001) (explaining that once a
State achieves primacy, it has `` `exclusive jurisdiction over the
regulation of surface coal mining' within its borders'') (citing 30
U.S.C. 1253(a)). However, a State's exclusive jurisdiction is subject
to the statutory exceptions outlined in SMCRA sections 521 and 523 and
Title IV of SMCRA, 30 U.S.C. 1271, 1273, and 1231-1244. Given the
prominent role that the States play in administering and enforcing
SMCRA, OSMRE has found, in its experience, that including a State
regulatory authority early in the process is advantageous to both the
State regulatory authority and OSMRE because it reduces duplicative
efforts to address potential violations. In OSMRE's experience, when a
citizen first contacts the State regulatory authority, violations are
often promptly and effectively resolved without OSMRE's direct
involvement.
In OSMRE's experience implementing SMCRA, it has witnessed
instances
[[Page 75158]]
when citizens filed complaints for the same or similar alleged
violations on the same permit with both the State regulatory authority
and OSMRE. Resolution of the violation was not efficient or effective
because the State regulatory authority was simultaneously trying to use
the same resources to respond to the citizen complaints and the various
TDNs issued by OSMRE. For example, in one instance, OSMRE issued six
TDNs on the same permit in less than six months. Instead of focusing
directly on correcting the alleged violations at the site, both OSMRE
and the State regulatory authority were subsumed by the paperwork
exercise of issuing TDNs, responding to TDNs, and evaluating the
State's responses to the TDNs; correcting the alleged violations became
secondary to following the TDN process. Specifically, under one
interpretation of the ``reason to believe'' standard in the existing
regulations, the OSMRE authorized representative considered information
in OSMRE's possession but ultimately issued separate TDNs,
automatically assuming the allegations in the complaints to be true and
without considering all readily available information--most
importantly, the information that the State regulatory authority, with
primary regulatory authority over the mine site, had available. Because
the State regulatory authority knows its specific permits best, this is
a perfect example of why considering any information the State
regulatory authority provides is essential. In the anecdote above, had
the State regulatory authority provided all ``readily available
information'' to OSMRE up front, both OSMRE and the State regulatory
authority could have better understood the alleged violations,
cooperated effectively, and spent valuable time and resources
addressing the alleged violations and not simply generating duplicative
paperwork. Tellingly, in this example, the OSMRE field office
ultimately found no violations of the approved program. The citizens
filed a request for informal review with an OSMRE regional director,
and, ultimately, the regional director affirmed the OSMRE field
office's original decision. This duplication of effort unnecessarily
diminished OSMRE and State regulatory authority resources that could
have better been directed to resolving real issues, not merely
preparing and exchanging paperwork. Thus, under this final rule, OSMRE
must consider all readily available information, including any
information the State regulatory may provide, when the authorized
representative determines whether there is reason to believe that a
violation exists.
As noted above, the removal of the language that essentially
required OSMRE to automatically accept citizen complaints as true
removes a potential ambiguity in the existing regulations and clarifies
the information OSMRE can consider in forming a ``reason to believe.''
Finalizing the rule in this manner does not hinder the ability of
citizens to report a violation directly to OSMRE. Because the
regulations continue to require that the citizen notify the State
regulatory authority before or simultaneously with requesting that
OSMRE initiate a Federal inspection, a primacy State will have an
opportunity to address an alleged violation before OSMRE, which is
advantageous because the State regulatory authorities are more familiar
with the operations in their States and can typically respond to
alleged violations faster than OSMRE. This is consistent with primacy,
as described by a U.S. Court of Appeals:
the Secretary is initially to decide whether the proposed state
program is capable of carrying out the provisions of the Act but is
not directly involved in local decision making after the program has
been approved.
In re Permanent Surface Min. Regulation Litigation, 653 F.2d 514, 518
(D.C. Cir. 1981). The court further stated that:
[o]nce a state program has been approved, 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.
Id. at 523. Although a State plays the major role in enforcing its
State program, the court did note that: ``Ultimate responsibility for
guaranteeing effective state enforcement of uniform nationwide minimum
standards lies with the Secretary.'' Id. States are expected to fully
implement their programs, including all applicable enforcement
provisions. OSMRE will exercise its oversight responsibility, in part,
through this final rule and will continue to issue TDNs when it has
reason to believe a possible violation exists; the relevant provisions
of this final rule clarify the process that OSMRE will use to arrive at
a ``reason to believe.'' Further, if a State does not effectively
enforce its State program, Congress authorized OSMRE to address such
inadequacies in the State's implementation through SMCRA section
521(b). 30 U.S.C. 1271(b).
Some commenters asserted that the time frames for responding to
TDNs have been extended or made indefinite by the proposed rule. While
it is true that there is no time frame set forth in the final rule for
OSMRE's authorized representative to make a determination about whether
they have reason to believe a violation exists, it is also true that
there has never been a stringent time frame imposed. Further, as OSMRE
explained in the proposed rule, OSMRE proposed, and is finalizing,
inclusion of the word ``readily'' to the revised regulations at 30 CFR
842.11(b)(1)(i) to modify the phrase ``available information'' to
ensure that the process proceeds as quickly as possible and does not
become open-ended. 85 FR at 28907; see also OSMRE's response to a
request to specifically define ``readily available.'' Once OSMRE's
authorized representative has determined that they have reason to
believe that a possible violation exists, the State regulatory
authority will still have only ten days to respond to the TDN. See 30
CFR 842.11(b)(1)(ii)(B)(1). Thus, this rule ensures that reported
alleged violations will be responded to in a reasonable amount of time.
Finally, this rule neither makes a State regulatory authority's
response to a TDN discretionary nor impinges on OSMRE's ability to
perform oversight of a State regulatory program. OSMRE is not changing
the nondiscretionary requirement that a State regulatory authority must
respond to a TDN with good cause for inaction or by taking appropriate
action within ten days. 30 CFR 842.11(b)(1)(ii)(B)(1). OSMRE is,
however, revising its regulations to ensure a more uniform and
efficient process when OSMRE receives a citizen complaint. The revised
regulation clarifies what the OSMRE authorized representative should
consider when they receive a citizen complaint, which eliminates the
possibility that different OSMRE offices will apply different standards
when determining whether to issue a TDN. This revised process also
ensures that the OSMRE authorized representative who receives a citizen
complaint is able to apply their independent, professional judgment to
determine whether they have reason to believe a possible violation
exists based on all readily available information before them. Once an
OSMRE authorized representative determines that they have ``reason to
believe,'' they must issue a TDN to the State regulatory authority. See
30 CFR 842.11(b)(1). Therefore, OSMRE's oversight of alleged violations
is not materially altered.
Comment: Very similar to the comment addressed above, a citizens'
group commenter expressed the opinion that the rule gives the coal
industry a free pass to break environmental laws
[[Page 75159]]
and provides no meaningful way for citizens to bring potential
violations to the attention of OSMRE. As evidence for this claim, the
commenter references a statement by OSMRE in regard to the spirit of
cooperative federalism, at 85 FR at 28905 in the preamble of the
proposed rule, ``to alleviate unnecessary regulatory burden''
consistent with E.O. 13777.
Response: This rulemaking does not, and could not, alter OSMRE's
statutory responsibilities to enforce SMCRA. Moreover, this rulemaking
does not impair, weaken, or eliminate OSMRE's ability to enforce SMCRA
and the implementing regulations or the public's ability to report
alleged violations directly to OSMRE. See also OSMRE's further
explanations in this section.
To the extent that OSMRE referred to the spirit of cooperative
federalism in the preamble, it was a recognition of the fundamental
importance of cooperative federalism to SMCRA's administrative and
enforcement framework. See, e.g., Bragg, 248 F.3d at 288 (SMCRA
``accomplishes [its] purposes through [ ] `cooperative federalism,' in
which responsibility for the regulation of surface coal mining in the
United States is shared between the U.S. Secretary of the Interior and
State regulatory authorities.''). It was in this spirit that we
coordinated with our State regulatory partners as we conceptualized
this rulemaking. This spirit also informed how we chose to clarify any
potential ambiguities in the existing regulations and develop a more
efficient process for addressing alleged violations of SMCRA within the
limits of our statutory authority. Cooperative federalism does not mean
that OSMRE will no longer perform its statutory duty to oversee a State
regulatory authority's implementation, administration, enforcement, and
maintenance of its State program. Instead, it means that, given the
prominent role that the States play in administering and enforcing
SMCRA, including State regulatory authorities early in the process is
advantageous to both the State regulatory authority and OSMRE because
it reduces duplicative efforts to address potential violations. Also,
as stated above, in OSMRE's experience, when a citizen first contacts
the State regulatory authority, violations are often promptly and
effectively resolved without OSMRE's direct involvement.
Likewise, the fact that this action is consistent with E.O. 13777
and helps to alleviate unnecessary regulatory burdens does not mean
that OSMRE will fail to perform its statutory responsibilities set
forth in SMCRA--including its oversight responsibilities. It simply
means that by removing a potential ambiguity from the Federal
regulations and creating a more uniform process for OSMRE authorized
representatives to follow when determining whether they have ``reason
to believe,'' OSMRE is reducing the likelihood of duplicative processes
between OSMRE and the State regulatory authorities. It does not mean
that permittees will be held to a lesser standard for abating SMCRA
violations when they occur.
Comment: In the same vein, a citizen commenter states that United
States citizens and taxpayers have a right to seek accountability for
violations of mining laws that protect citizens and the environment. As
a rationale for not finalizing the proposed rule, the commenter also
cites to a State constitution and asserts that there is a provision
that is aimed at protecting citizens' rights to a ``clean and healthful
environment.''
Response: Nothing in this final rule diminishes a citizen's ability
to bring potential violations of SMCRA or State counterparts to SMCRA
to OSMRE's attention. Further, when OSMRE has reason to believe that a
violation exists, OSMRE will continue to send a TDN to the relevant
State regulatory authority and take appropriate enforcement action.
This final rule is fully authorized by SMCRA. In order for a State to
be granted primacy of an approved SMCRA State program, the State must
follow the procedures of section 503 of SMCRA, 30 U.S.C. 1253; however,
``[n]o State law or regulation . . . shall be superseded by any
provision of [SMCRA] or any regulation issued pursuant thereto, except
insofar as such State law or regulation is inconsistent with the
provisions of [SMCRA],'' and State laws and regulations may be more
stringent than SMCRA and its implementing regulations. See 30 U.S.C.
1255. Therefore, nothing in SMCRA prevents any State from adopting laws
and regulations related to surface coal mining operations that are more
stringent than SMCRA or its implementing regulations, including this
final rule. Moreover, this final rule is consistent with SMCRA's
purpose of protecting society and the environment from the adverse
effect of surface coal mining operations, which is similar to the State
constitutional provision cited by the commenter.
Comment: A citizen commenter expressed concern that OSMRE's
proposed rule, if finalized, would reduce the efficacy of OSMRE's
oversight of approved State programs. Similarly, another commenter
opined that the proposed rule, if finalized, would reduce or hinder
OSMRE's ability to conduct oversight of State regulatory programs.
Response: OSMRE disagrees with these commenters' characterization
of the impacts of the regulatory clarification that OSMRE proposed and
is finalizing today. As explained in response to other comments within
this section, OSMRE drafted the regulatory revisions to improve the
efficiency and effectiveness of OSMRE's oversight by focusing State and
OSMRE resources on addressing alleged violations and not on simply
generating paperwork. Nothing in the final rule prevents OSMRE from
exercising the full panoply of oversight actions that Congress
authorized in SMCRA. To the contrary, OSMRE's regulatory revisions seek
to build on the oversight responsibilities at 30 U.S.C. 1254(b) and
1271(b), which authorize OSMRE to provide Federal enforcement when a
State is not enforcing all or part of its approved program or to take
over all or part of a State regulatory program if the State regulatory
authority fails to enforce the approved State program. Specifically,
OSMRE is adding the concept of action plans to 30 CFR 733.12, which
enhances the tools available to OSMRE to ensure the approved State
program continues to be effectively implemented, maintained, enforced,
and administered. This addition will codify an existing OSMRE practice
and result in more accurate and concise solutions to State regulatory
program issues.
Comment: One citizen commenter expressed concerns that SMCRA does
not intend the citizen complaint process to be so complicated that it
would impair citizens' access to filing complaints or inhibit citizens
from filing complaints. This citizen was particularly concerned that
the clarification as proposed would make the filing of a citizen
complaint more difficult for those who are not experts in SMCRA and
SMCRA procedures. For example, the citizen alleges that, as proposed,
the clarification would be similar to a legal filing instead of an
informational filing as SMCRA intended. Similarly, another citizen
commenter expressed concern that the proposed requirement to specify
the basis for the person's assertion that the State regulatory
authority has not taken action with respect to the possible violation
is too burdensome upon the public and will reduce the number of Federal
inspections.
Response: OSMRE disagrees with the commenters' views; the
clarification adopted in this final rule has very little practical
effect on how citizens may file
[[Page 75160]]
complaints and places no additional burden on the citizen complaint
process from a complainant's perspective. The majority of the proposal
finalized today only affects OSMRE's process after receipt of a citizen
complaint. For a citizen, the finalized regulation at 30 CFR 842.12(a)
reconfirms the requirement in existing 30 CFR 842.12(a) that, when
requesting a Federal inspection, the citizen must include a statement
that the citizen has informed the State regulatory authority of the
existence of the possible violation, condition, or practice. As
proposed, the final rule will also require the citizen to provide the
basis for the citizen's assertion that the State regulatory authority
has not taken action with respect to the possible violation. OSMRE
finds this necessary because any information the citizen can provide to
OSMRE about the State regulatory authority's response would be very
helpful in OSMRE's efforts to efficiently resolve the alleged
violation. OSMRE is not suggesting that a citizen complainant enter a
mine to verify whether or not the State regulatory authority has acted
on the possible violation. To the contrary, OSMRE asks citizens not to
do so and is merely asking the requester of the Federal inspection to
provide any information he or she may have about the State regulatory
authority's action or inaction. By no means is this requirement aimed
at reducing requests for Federal inspections; it is intended to ensure
that OSMRE has all readily available information.
Furthermore, OSMRE does not expect a citizen to provide the level
of information that would be required for a legal filing. For instance,
just as in the existing regulations, under the final regulation at 30
CFR 842.12(a), OSMRE specifies that an oral report is sufficient for
submitting a citizen complaint that requests a Federal inspection as
long as it is followed up by a written statement. Of course, the more
detail that a citizen can provide to OSMRE, the more information the
authorized representative will have when he or she determines whether
there is reason to believe there is a violation, which could expedite
the correction of any violation that the citizen complaint brings to
OSMRE's attention. However, OSMRE recognizes that obtaining significant
information is frequently beyond most citizens' ability, and the final
rule does not require any more information than the citizen has
available, such as information explaining why the citizen believes
there is a violation, that the State regulatory authority was notified,
and, possibly, the State regulatory authority's response.
Comment: One commenter interpreted OSMRE's preamble statement at 85
FR at 28910 that ``OSMRE should never be acting as a mere conduit for
transmitting a citizen complaint to a State regulatory authority in the
form of a TDN'' to mean that OSMRE's proposed rule would eliminate the
ability of a citizen to seek Federal relief.
Response: As explained in the response immediately above, citizens
can still avail themselves of the citizen complaint process set forth
in 30 U.S.C. 1267(h)(1). This rule does not materially alter the
ability of a citizen to contact OSMRE about an alleged violation. OSMRE
included the language quoted by the commenter in the preamble of the
proposed rule because 30 U.S.C. 1271(a)(1) requires OSMRE's authorized
representative to use their discretion to make an independent,
professional judgment based on all readily available information,
including information provided by a citizen, to determine if they have
reason to believe a violation exists before issuing a TDN. In other
words, OSMRE has the discretion to determine whether it has reason to
believe a violation exists. See, e.g., Castle Mountain Coal. v. OSMRE,
No. 3:15-CV-00043, 2016 WL 3688424, at *6 (D. Alaska July 7, 2016) (30
U.S.C. 1271(a)(1) ``does not assign any non-discretionary duties to the
agency unless and until the Secretary has found `reason to believe'
that a violation exists.''). Once OSMRE determines it has reason to
believe a violation exists, the final rule still recognizes that OSMRE
has a mandatory duty to issue a TDN to a State regulatory authority.
This comment, in fact, highlights one of the reasons that OSMRE is
revising its regulations--to clarify a potential ambiguity in its
existing regulations. This commenter appears to interpret OSMRE's
existing ambiguous regulations as requiring OSMRE to automatically
issue a TDN every time it receives a citizen complaint. To the extent
that this is the case, the commenter is not alone. The ambiguity in the
existing regulations has, in some instances, created the impression
that the existing regulation at 30 CFR 842.12(a) means that OSMRE will
be merely serving as a conduit for a citizen complaint, i.e.,
automatically issuing a TDN anytime it receives a citizen complaint.
See, e.g., W. Va. Highlands Conservancy, 152 IBLA 158, 187 (Apr. 25,
2000) (When examining the existing regulations, the IBLA stated: ``[W]e
agree with appellants that the regulations do not envision `fact-
finding' to determine if a violation exists before deciding whether a
`possible' violation may exist. Rather, the preamble language to the
1982 rule makes clear that the possibility of a violation triggers the
regulatory requirements to notify the State.'' (emphasis added)). To
the extent that our existing regulations were interpreted, by the
Interior Board of Land Appeals and others, to mandate a TDN on receipt
of every citizen complaint, that interpretation is in clear contrast
with the language of 30 U.S.C. 1271(a)(1), which requires an OSMRE
authorized representative to use his or her discretion to determine
whether there is ``reason to believe'' before issuing a TDN. Therefore,
the revised regulations seek to eliminate any possible ambiguity--it is
now clear, consistent with the plain language of 30 U.S.C. 1271(a)(1),
that the OSMRE authorized representative has discretion to determine
whether to issue a TDN based on whether they have ``reason to believe''
based on all readily available information. Any other interpretation
would change OSMRE's role from an independent, professional expert on
mining to that of a clerical worker without the discretion to discern
facts underlying a complaint and that is not contemplated by SMCRA.
Comment: A commenter, providing input on behalf of a citizens'
group, expressed concern that the proposed changes to OSMRE's
regulations would undermine OSMRE's ability to perform its oversight
role and prevent public participation in the process. The commenter
stressed the importance of OSMRE's ability to hold mine operators
accountable in addition to what the States do to protect the public and
the environment.
Response: OSMRE appreciates the commenter's recognition of the
important role that OSMRE plays in ensuring public safety and
environmental protection. However, in a primacy State, OSMRE is
secondary to the State regulatory authority. Section 503(a) of SMCRA
specifies that in a primacy State, the State has ``exclusive
jurisdiction over the regulation of surface coal mining and reclamation
operations, except as provided in sections 521 and 523 and title IV''
of SMCRA. 30 U.S.C. 1253(a). Thus, in a primacy State, OSMRE's role is
limited to those functions specified in sections 521 and 523 and Title
IV (30 U.S.C. 1271, 1273, and 1231-1244). Most relevant to this
rulemaking, section 521 sets forth the circumstances in which OSMRE may
exercise its oversight enforcement authority in a primacy
[[Page 75161]]
State. This authority operates to better assure that the goals of SMCRA
are met.
Although OSMRE's enforcement authority in a primacy State is
limited to that authorized by 30 U.S.C. 1271, OSMRE disagrees that the
rule, as proposed, would further limit OSMRE's ability to enforce SMCRA
and to protect the public and the environment. OSMRE also disagrees
that the proposed rule would, in any way, prevent public participation.
Public participation is an important tenet of SMCRA. As the U.S. Court
of Appeals for the Fourth Circuit stated:
SMCRA is designed in part to ``assure that appropriate
procedures are provided for the public participation in the
development, revision, and enforcement of regulations, standards,
reclamation plans, or programs established by the Secretary or any
State under [the Act].'' [30 U.S.C.] 1202(i). One of the
``appropriate procedures'' to assure public participation in
enforcing SMCRA standards allows any adversely affected person to
notify OSM[RE] of the existence of a SMCRA violation at any surface
mining operation. Id. Sec. 1267(h). The notification is commonly
known as a ``citizen complaint.''
W. Va. Highlands Conservancy, Inc. v. Norton, 343 F.3d 239, 242 (4th
Cir. 2003).
The final rule does not change the public's ability to submit a
citizen complaint. A citizen may still submit a complaint to OSMRE just
as he or she has been able to do for more than 40 years.
The final rule clarifies OSMRE's process after receipt of a citizen
complaint. Specifically, it provides that OSMRE will verify the
requirement that has been in our regulations since 1982 that, in a
primacy State, a citizen, when requesting a Federal inspection, must
notify the State regulatory authority of an alleged violation before or
simultaneously with notification to OSMRE. 47 FR at 35620. Also, as
described in response to comments about OSMRE's clarification that when
formulating a decision about whether there is ``reason to believe,''
``any information readily available'' includes information received
from the State regulatory authority, OSMRE is also removing the
potential ambiguity in the existing regulations about the information
that OSMRE's authorized representative will review before determining
whether he or she has reason to believe a violation exists. These
clarifications to OSMRE's process after receiving a citizen complaint
will allow both OSMRE and the State regulatory authority to dedicate
resources toward addressing any violation alleged by a citizen instead
of preparing superfluous paperwork for each other. The clarification
also enhances cooperation and minimizes duplication of administration
with the State regulatory authority as required by 30 U.S.C.
1211(c)(12).
OSMRE will continue to follow the requirements of 30 U.S.C. 1271(a)
and the implementing regulations found at 30 CFR parts 842 and 843 and
issue a TDN when appropriate. Therefore, the final rule does not
eliminate the existing TDN process or lessen OSMRE's overall oversight
authority, including OSMRE's ability to enforce violations in primacy
States, if that is necessary.
Comment: One citizen commenter emphasized that mining operations
must be held accountable for daily mining practices and reclamation to
ensure protection of the environment. The commenter did not support the
proposed regulation in any way without explicitly stating a rationale
or support for this position. Additionally, the commenter states that
costs for reclamation should be secured initially and ``no closure
should happen before all work and costs are absorbed by the company.''
The commenter also asserts that a mining company ``CEO should be paid
what is left if there is anything.''
Response: Although certain aspects of the comment are not entirely
clear or do not relate to the proposed rule, OSMRE agrees that mining
operations must be held accountable for their mining practices to
ensure that mining and reclamation are done in an environmentally
protective manner. One of the stated purposes of SMCRA is to ``assure
that surface coal mining operations are so conducted as to protect the
environment,'' 30 U.S.C. 1202(d), and OSMRE always has a duty to
further the purposes of SMCRA. Moreover, as stated elsewhere, this
final rule will enhance OSMRE's and the State regulatory authorities'
ability to identify and address alleged violations of State regulatory
programs so that any violations can be corrected as soon as possible.
Also, as we have stated in response to other comments, should a citizen
have information related to an alleged violation at a specific mining
operation, he or she is entitled to file a citizen complaint, and OSMRE
will address any citizen complaints it receives in accordance with
SMCRA and the relevant regulations to ensure that any violations are
timely corrected. In addition, information in a citizen complaint may
result in OSMRE identifying a State regulatory program issue, which
OSMRE will address under Sec. 733.12 of this final rule. A citizen may
also request that OSMRE evaluate a State program as outlined in
existing 30 CFR 733.12(a), that has been redesignated as 30 CFR
733.13(a) under this final rule. With regard to reclamation
requirements and the cost of reclamation, OSMRE notes that those issues
were not a part of the proposed rule, and this final rule does not
alter any of the existing reclamation regulations. Importantly, SMCRA
section 509, 30 U.S.C. 1259, and the existing regulations at 30 CFR
part 800, have bonding requirements to assure, among other things,
completion of reclamation plans.
Comment: One commenter asserted that State agency personnel have
been physically relocated farther from mine sites and have become less
effective. The commenter also notes that agency personnel have recently
changed, which has resulted in a loss of institutional memory.
Response: OSMRE recognizes that the loss of staff and their
institutional knowledge can be a problem for both OSMRE and State
regulatory authorities. Similarly, budget savings, which may have been
the reason that personnel from State regulatory authorities were
relocated, is a part of government. Both reasons, however, support
OSMRE revising its regulations, as OSMRE is doing here, to make them
more efficient and effective, and to avoid duplication of efforts
between a State regulatory authority and OSMRE. This final rule
enhances OSMRE's ability to engage in appropriate oversight of State
regulatory programs.
Comment: Several commenters offered examples of alleged OSMRE
oversight enforcement failures.
Response: To the extent the commenters believe there is a failure
of any State regulatory authority to implement, administer, enforce, or
maintain an approved program, OSMRE directs the citizens to the
provisions of existing 30 CFR 733.12(a) that are being redesignated as
30 CFR 733.13(a) pursuant to this final rule. Moreover, as to a concern
expressed by one commenter that the proposed rule would impact an
individual's ability to ``protest projects going through their own or
state/fed[eral] property,'' OSMRE's proposed rule clarification, as
adopted in this final rule, will not change a citizen's ability to
``protest'' or comment on proposed mining projects or permitting
actions of any individual mine located on private, State, or Federal
property. OSMRE did not propose to revise, and is not revising, 30 CFR
773.6, which details how citizens can participate in permit processing.
Thus, the opportunities for the public to comment on proposed mining
projects or permitting actions provided by SMCRA and further explained
in 30
[[Page 75162]]
CFR 773.6 remain unchanged, including the time to file objections to
individual mine permits on all property, regardless of ownership. In
conclusion, OSMRE will continue to take its oversight responsibilities
very seriously, in accordance with SMCRA and the implementing
regulations.
E. OSMRE's Authorized Representative Will Continue To Formulate
``Reason To Believe'' As Mandated by SMCRA; This Includes Using Best
Professional Judgment
Comment: One citizens' group representing many national citizen
organizations and ``thousands of individuals'' across the country
questioned OSMRE's assertion that the information used to formulate
``reason to believe'' has created ambiguity within the TDN process, in
particular related to on-the-ground violations. To support this
contention, the citizens' group states that ``a search of all [Interior
Board of Land Appeals (IBLA or the Board)] decisions fails to disclose
even one instance where the Board found the long-established OSMRE Ten
Day Notice procedure to be problematic.''
Response: As explained below, OSMRE disagrees with the commenter's
opinion that OSMRE is creating an ambiguity where it does not exist.
First, this rule is being promulgated to improve OSMRE's coordination
with State regulatory authorities to minimize duplication of
inspections, enforcement, and administration of SMCRA. Specifically,
this rule provides a streamlined, more uniform, and efficient process
for OSMRE to follow when it receives a citizen complaint. Because the
IBLA typically does not get involved until after OSMRE makes a decision
on whether to issue a TDN, conduct a Federal inspection, or issue a
notice of violation or cessation order, it is unsurprising that the
IBLA has not identified OSMRE's internal process leading to the
issuance of a TDN as a problem.
Second, some of the IBLA cases that the commenter cites illustrate
how the existing regulations may result in a disparate application of
OSMRE's various enforcement tools. For example, the commenter
highlights a decision in which the IBLA found OSMRE's decision to defer
violations for programmatic review under the 30 CFR part 733 process
was not in accordance with the existing regulations. W. Va. Highlands
Conservancy, et al., 152 IBLA at 193. While it is true that the
commenter accurately summarized the holding of this decision, it is
also true that the facts presented in that case demonstrate an OSMRE
internal inconsistency when applying the existing Federal regulations.
Specifically, the case focused on when it was appropriate for OSMRE to
use the different enforcement tools set forth in 30 U.S.C. 1271(a) and
(b) in response to complex citizen complaints. See, e.g., id. at 187-
188 (The Board rejected OSMRE's attempt to justify its failure to issue
TDNs on specific sites as required by 30 U.S.C. 1271(a) based upon its
use of the programmatic review process in 30 U.S.C. 1271(b)).
The rule OSMRE is finalizing today helps to clarify to agency
personnel and the public when each of the enforcement tools in 30
U.S.C. 1271(a) and (b) will be used and what information OSMRE will
rely on when it makes a determination that it has reason to believe a
violation exists. For instance, if a similar fact pattern to the one in
West Virginia Highlands Conservancy arose under the regulations
finalized today, OSMRE's authorized representative would make a
determination whether they have reason to believe a violation exists on
a specific site based on all readily available information available to
them. If they have ``reason to believe,'' they would then issue a TDN.
However, the revisions made to 30 CFR 842.11(b)(1)(ii)(B)(3) would also
allow the State regulatory authority to respond that it has taken
appropriate action because it, along with OSMRE, is immediately
implementing steps to correct a programmatic issue using the action
plan process set forth in revised 30 CFR 733.12. The revised
regulations also clarify that OSMRE may still take enforcement action
under 30 U.S.C. 1271(a) if the State regulatory program issue ``results
in or may imminently result in a violation of the approved State
program.'' Therefore, the revisions to the Federal regulations
finalized today should help reduce the ambiguity that lead to the West
Virginia Highlands Conservancy case.
Third, despite the cases cited by the commenters, there is no
judicial or administrative decision defining ``reason to believe'' as
used in 30 U.S.C. 1271(a). One case, Castle Mountain Coalition v.
OSMRE, explicitly recognizes that OSMRE does not have a mandatory duty
to act under 30 U.S.C. 1271(a) until it has determined there is reason
to believe that a violation exists. 2016 WL 3688424, at *6. In another
case, a court reviewed the ``reason to believe'' standard in 30 U.S.C.
1271(b) and concluded that a determination as to ``whether the
Secretary of the Interior ``has `reason to believe' a violation has
occurred is a matter committed to her discretion by law.'' Dacotah
Chapter of Sierra Club v. Jewell, No. 12-065, 2013 WL 12109410, at *8
(D.N.D. Oct. 22, 2013). The rulemaking that OSMRE is finalizing today
ensures that there is no debate that the OSMRE authorized
representative is allowed to use their independent, professional
discretion, based on all readily available information, to determine
whether they have ``reason to believe.'' This clarification is needed
because many of the comments received in response to the proposed
rulemaking show that the public misunderstands the discretion committed
to OSMRE's authorized representative by 30 U.S.C. 1271(a).
Comment: Many commenters, including industry groups that represent
operations that mine coal through surface and underground methods,
submitted questions and comments about the requisite information
necessary to establish reason to believe a violation exists under the
revisions to 30 CFR 842.11 and 842.12 adopted in this final rule.
Within this general category of comments, one commenter requested that
OSMRE include a provision in the final rule that the OSMRE authorized
representative should not base his or her decision to issue a TDN on
``bare allegations.'' This same commenter also requested that OSMRE
include language in the final rule that clarifies that the OSMRE
authorized representative will use and consider information obtained
from any source, including the permittee, to establish reason to
believe a violation exists.
Response: In accordance with 30 U.S.C. 1271(a), OSMRE can formulate
a decision about whether reason to believe that a violation exists ``on
the basis of any information available. . . , including receipt of
information from any person. . . .'' Emphasis added. Consistent with
this statutory provision, Sec. Sec. 842.11(b)(1)(i) and 842.12(a) of
this final rule specify that OSMRE's authorized representative will
consider any readily available information when he or she is deciding
whether there is reason to believe a violation exists, including
information from a citizen complainant and any information that the
relevant State regulatory authority submits to the authorized
representative. Any readily available information includes information
from any person, including the permittee, and is not limited to
information that OSMRE receives from a citizen or State regulatory
authority. In addition, as OSMRE stated in the preamble to the proposed
rule, other examples of sources of readily available information
include permit files or public records. 85 FR at 28911. However, based
on this
[[Page 75163]]
commenter's suggestion for clarification and other commenters' similar
suggestions, in the rule OSMRE is finalizing, OSMRE includes the phrase
``from any source'' within 30 CFR 842.11(b)(1)(i) and (b)(2). This
addition will further remove any ambiguity relevant to information an
OSMRE authorized representative considers when formulating reason to
believe and reinforces internal consistency in the Federal regulations.
Moreover, as OSMRE explained in the proposed rule preamble, OSMRE
considers ``any information that is accessible without unreasonable
delay'' to be ``readily available information.'' 85 FR at 28907. In the
proposed rule, OSMRE chose the phrase ``readily available'' purposely
``so that the process will proceed as quickly as possible and will not
become open-ended.'' Id. OSMRE agrees with the commenter that the
authorized representative should not base the decision to issue a TDN
on ``bare allegations.'' SMCRA establishes a firm foundation for an
authorized representative to exercise professional judgment when
formulating reason to believe a violation exists. Thus, under this
final rule, OSMRE's authorized representative, while using best
professional judgment, will make the ``reason to believe''
determination based upon readily available information, rather than
bare allegations.
Comment: One commenter suggested that an authorized representative
should not have discretion to use his or her best professional judgment
when evaluating alleged violations. The commenter also suggested that,
in lieu of the authorized representative, the most appropriate person
to determine that ``reason to believe'' a violation exists should be a
qualified OSMRE career staff employee, who should have a degree in
engineering, geology, environmental science, or a related field.
Response: This comment appears to focus on OSMRE's authorized
representative's formulating ``reason to believe.'' OSMRE agrees with
the commenter that an OSMRE authorized representative should be a
qualified individual with the appropriate educational background and
specialized experience required to be certified by the Director of
OSMRE to serve as an authorized representative. However, OSMRE
disagrees with the commenter's suggestion that an authorized
representative should not have discretion to use his or her best
professional judgment when evaluating alleged violations. The use of
best professional judgment is essential for an authorized
representative.
When enacting SMCRA, Congress mandated that OSMRE ``shall have a
Director who shall be appointed by the President. . . .'' 30 U.S.C.
1211(b). Congress required the Director to, among other things, ``make
those investigations and inspections necessary to [e]nsure compliance
with this Act[.]'' 30 U.S.C. 1211(c)(1). Integral to the Director
carrying out these obligations is hiring appropriate, qualified
employees within OSMRE. To this point, Congress mandated that
``[e]mployees of the Office shall be recruited on the basis of their
professional competence and capacity to administer the provisions of
the Act.'' 30 U.S.C. 1211(b). Ultimately, it is the OSMRE Director who
must ensure that employees of OSMRE--including a designated authorized
representative--have the ``professional competence and capacity'' to
undertake the ``investigations and inspections necessary'' to ensure
compliance with SMCRA. See 30 U.S.C. 1211(b) and (c). Only an OSMRE
employee who is certified as an authorized representative with
inspection authority may issue a TDN pursuant to section 521(a)(1) of
SMCRA. 30 U.S.C. 1271(a)(1). An employee who is certified as an
authorized representative receives a badge and identification
credentials that he or she carries when on duty. Outside the context of
this rulemaking, only these same authorized representatives may
undertake inspection and enforcement actions under section 517 of
SMCRA. 30 U.S.C. 1267. OSMRE promulgated regulations specific to these
tasks at 30 CFR parts 842 and 843. Additionally, as set forth in
OSMRE's Directive INE-18, ``Authorized Representatives'', OSMRE has
established a rigorous process to ensure that the best qualified
candidates are selected for positions as authorized representatives and
that these individuals have the ``professional competence and
capacity'' to appropriately issue TDNs based on their best professional
judgment, consistent with 30 U.S.C. 1211(b). See https://www.osmre.gov/LRG/docs/directive958.pdf (last accessed Aug. 23, 2020). Based on
established OSMRE practice and procedure, the Director (or approved
designee) may certify an OSMRE employee as an authorized representative
only upon satisfactory completion of significant training and
certification requirements. Furthermore, the Director (or approved
designee) may suspend or withdraw the certification of any authorized
representative. Each authorized representative with authority to issue
TDNs is required to hold a four-year college degree with major study in
the areas of hydrology, agronomy, geology, range conservation,
forestry, ecology, civil engineering, mining engineering, natural
science, biological sciences, natural resources, environmental
planning, or earth sciences as required by the U.S. Office of Personnel
Management's Federal Position Classification and Qualifications. See
https://www.opm.gov/policy-data-oversight/classification-qualifications/general-schedule-qualification-standards/1800/surface-mining-reclamation-specialist-1801/ (last accessed Aug. 23, 2020).
Authorized representatives with authority to issue TDNs are highly
educated, highly trained individuals who must also undergo a
progressive on-the-job training and mentoring plan before becoming an
authorized representative. The OSMRE Director (or designee) approves
the training and mentoring plan to ensure competency and capacity to
administer SMCRA. This information is documented in the authorized
representative's personnel file.
In sum, OSMRE authorized representatives are highly educated,
trained, and qualified individuals who OSMRE hires precisely because of
their ability to exercise professional judgment. Specific to this final
rule, these individuals are uniquely qualified, based upon their
professional judgment, to determine whether there is reason to believe
a violation exists, issue TDNs when necessary, and ensure that
violations of a State regulatory program are corrected in a timely
manner.
Comment: Several citizen commenters oppose the clarification of the
TDN process, alleging that the proposed rule would no longer treat
citizen complaints as true. These commenters state that the proposed
rule would result in citizen complaints not being formally investigated
within 10 days of the complaint being filed. The commenters state that
the proposed rule would result in OSMRE dismissing public concerns and
ignoring mining violations. Many commenters also suggested that the
proposed rule was not simply a clarification of existing rules.
Response: OSMRE disagrees with these characterizations of the
proposed rule and notes that, under this final rule, OSMRE will
continue to take citizen complaints seriously, in recognition of the
important role citizens play in the SMCRA enforcement process. When
OSMRE issues a TDN to a State regulatory authority, the TDN may be
based upon information that OSMRE initially received in a citizen
complaint. However, to fully address this comment, OSMRE will explain
the existing TDN
[[Page 75164]]
process as authorized by section 521(a)(1) of SMCRA, 30 U.S.C. 1271(a),
and implemented in OSMRE's existing regulations at 30 CFR 842.11.
Section 521(a)(1) provides that the ``reason to believe''
determination in the TDN context is based upon ``any information
available to [the Secretary], including receipt of information from any
person.'' Likewise, under the existing regulations at section
842.11(b)(1)(i), as they pertain to the TDN process, OSMRE's authorized
representative's determination of whether he or she has ``reason to
believe'' is based upon ``information available.'' Moreover, under
existing Sec. 842.11(b)(2), upon receipt of a citizen complaint,
OSMRE's authorized representative transmits the citizen complaint to
the State regulatory authority as a TDN after the authorized
representative has formulated reason to believe that a violation,
condition or practice exists.'' The OSMRE authorized representative's
formulation of reason to believe includes analysis based on SMCRA and
the Federal regulations, surface coal mining expertise, and any
information readily available. OSMRE explained in the proposed rule
that some might have interpreted existing Sec. 842.11(b)(2) to mean
that all OSMRE has to do is determine whether the facts alleged in a
citizen complaint would constitute a violation before issuing a TDN.
However, the existing regulations are not designed to have OSMRE merely
serve as a conduit to the State regulatory authority. OSMRE's
authorized representative must analyze the information. In the proposed
rule, OSMRE explained that when the authorized representative performs
the analysis necessary to formulate reason to believe, he or she should
consider all readily available information--including information
ascertained from the State regulatory authority and any additional
information that citizens provide. While it is accurate that OSMRE
proposed to remove the phrase ``if true'' from existing Sec.
842.11(b)(2), and has adopted that change in this final rule, the
proposed rule was not intended to weaken the TDN rules with respect to
an OSMRE authorized representative's analysis of whether he or she has
``reason to believe'' that a violation exists. In fact, in the proposed
rule, OSMRE proposed that the authorized representative would consider
information that is vital to understanding and examining an alleged
violation. OSMRE's authorized representative must weigh the evidence in
front of him or her, especially if some of that evidence is
contradictory--this is part of the OSMRE authorized representative's
exercise of professional judgment based upon readily available
information in determining whether he or she has reason to believe a
violation exists.
In this final rule, the removal of the phrase ``if true'' from 30
CFR 842.11(b)(2) coupled with the insertion of the phrase ``on the
basis of any information readily available'' found at proposed 30 CFR
842.11(b)(1)(i) removes ambiguity in the existing TDN process,
increases efficiency, and allows OSMRE's authorized representative to
more fully exercise his or her professional judgment. This approach is
consistent with SMCRA and even OSMRE's existing regulations at Sec.
842.11(b)(1)(i). In this regard, the relevant provisions that OSMRE is
adopting in this final rule are a clarification of the existing
regulations. However, this clarification is necessary to remove any
confusion that was created by the ``if true'' language.
Moreover, Congress created OSMRE as the expert agency that
administers SMCRA, 30 U.S.C. 1211(a) and (c), and requires that
``[e]mployees of [OSMRE] shall be recruited on the basis of their
professional competence and capacity to administer the provisions of
this Act'' (30 U.S.C. 1211(b)). Thus, it stands to reason that OSMRE,
through its authorized representative, must apply expertise and
professional judgment in determining whether ``reason to believe''
exists. Interpreting SMCRA in a manner that relegates the OSMRE
authorized representative to a position of a mere conduit of a citizen
complaint to the State regulatory authority is not supported by SMCRA
or its implementing regulations. Therefore, the commenters' assumption
that a citizen complaint must be treated ``as true'' ignores OSMRE's
expertise in administering SMCRA and does not comport with SMCRA or
even OSMRE's existing TDN regulations and practice. Nothing in SMCRA
requires OSMRE to accept alleged facts as true in a vacuum; the
totality of readily available information must be considered in order
to prevent issuing an unwarranted TDN to a State regulatory authority,
which would needlessly waste OSMRE's and the State regulatory
authority's time and resources.
For these precise reasons, the proposed clarification, which OSMRE
is adopting in this final rule, removes any unnecessary conflict
between OSMRE and the State regulatory authority. OSMRE's experience
has shown that when OSMRE works cooperatively with State regulatory
authorities, the TDN process works best, and problems are resolved more
efficiently, furthering the purposes of SMCRA. See generally, 30 U.S.C.
1202(a) and (d). For example, under the existing TDN process, OSMRE
does not always receive important information from the State regulatory
authority that would inform the ``reason to believe'' inquiry, but it
may receive such information from a citizen. Under this final rule,
OSMRE must consider information the State regulatory authority provides
about an alleged violation, eliminating duplication of resources and
processes between Federal and State agencies. Cooperation between OSMRE
and State regulatory authorities is mandated by SMCRA to ``minimize
duplication of inspections, enforcement, and administration of the
Act.'' 30 U.S.C. 1211(c)(12). This final rule does just that. Once
OSMRE formulates reason to believe that a possible violation exists and
sends a TDN to a State regulatory authority, the State will continue to
have ten days to take appropriate action to cause the alleged violation
to be corrected or to demonstrate good cause for not correcting the
alleged violation. Thus, the regulations OSMRE is adopting in this
final rule will continue to be in conformity with section 521(a)(1) of
SMCRA.
Comment: Several commenters suggested that the proposed rule
clarification would provide states with unlimited time to review and
respond to citizen complaints. Further, these commenters alleged that
the proposed rule provision would render action on citizen complaints
discretionary. According to one commenter, the proposed rule would
undermine SMCRA at section 521(a) by changing the specified response
time and eliminating a mandated deadline.
Response: These characterizations neither accurately reflect the
proposed rule nor reflect a proper understanding of SMCRA. The proposed
rule was aimed at enhancing the coordination process between OSMRE and
its State regulatory program partners to ensure that all information
readily available is considered by the authorized representative before
deciding whether there is reason to believe that a violation exists.
The existing regulations do not specifically state that the authorized
representative may consider information that a State regulatory
authority provides in his or her determination of whether there is
reason to believe a violation exists. Explicitly stating that
information from the State regulatory authority may be considered will
remove ambiguity and ensure that all stakeholders are aware of the
information that OSMRE can consider
[[Page 75165]]
when its authorized representative formulates reason to believe.
Moreover, there may have been inconsistent levels of review of
information across the bureau. Specifically stating that OSMRE will
consider readily available information when formulating reason to
believe will also ensure that it uniformly considers all simple and
effective documentation of the alleged violation, condition, or
practice. Historically, while OSMRE typically considered information in
its possession, the potential ambiguity in OSMRE's existing regulations
may have resulted in OSMRE accepting allegations in a complaint as true
without the benefit of any information that the State regulatory
authority may have chosen to provide. The practice of issuing TDNs
without the benefit of information from the State regulatory authority
increasingly resulted in the issuance of TDNs when the State regulatory
authority was already investigating the issue or had previously
determined that there was not a violation of the approved State
regulatory program. As described in response to other comments, this is
inefficient and has resulted in duplicative processes for both OSMRE
and the State regulatory authorities. OSMRE does not always receive
important information from a citizen that would inform the ``reason to
believe'' inquiry, but it may receive such information from the State
regulatory authority, and the OSMRE authorized representative should be
afforded this opportunity.
By way of example, a recent complaint received by an OSMRE field
office involved blasting related to road construction. This complaint
was ultimately found to be unrelated to a SMCRA permit. Simply
generating a TDN, without considering all information readily
available, resulted in a waste of OSMRE and State regulatory authority
resources and taxpayer money and time; it also unnecessarily redirected
resources and time away from true SMCRA-related issues. These
inefficiencies could easily have been avoided by considering all
readily available information, including any information the State
regulatory authority chose to provide. Again, it is a basic requirement
of SMCRA that OSMRE must ``cooperate with . . . State regulatory
authorities to minimize duplication of inspections, enforcement, and
administration of [SMCRA].'' 30 U.S.C. 1211(c)(12). Furthermore, as
noted above, the Supreme Court in Hodel, 452 U.S. at 289, explained
that: ``[SMCRA] establishes a program of cooperative federalism that
allows the States, within limits established by federal minimum
standards, to enact and administer their own regulatory programs,
structured to meet their own particular needs.''
The removal of the potential inconsistency between existing Sec.
842.11(b)(1)(i) and existing Sec. 842.11(b)(2) in this final rule
properly enhances the cooperative federalism intended by Congress when
it enacted SMCRA by allowing OSMRE to consider information that a State
regulatory authority chooses to provide when OSMRE is assessing whether
it has reason to believe that a violation exists. Furthermore, removing
the phrase ``if true'' eliminates any perception that OSMRE is a mere
conduit to the State regulatory authority when in reality OSMRE should
exercise best professional judgment when formulating reason to believe.
The objective of the rulemaking is to minimize, to the extent possible,
duplication of efforts associated with inspections, enforcement, and
administration of SMCRA, while also ensuring that the public is
involved in the enforcement process, which will allow potential
violations of SMCRA and approved State programs to be identified and
addressed as soon as possible. Of course, after the revisions to the
existing regulations that OSMRE is adopting in this final rule take
effect, OSMRE will continue to exercise the oversight of State
regulatory programs that SMCRA requires.
OSMRE disagrees with the commenters' suggestion that the rule
change OSMRE is adopting will result in a State regulatory authority
having unlimited review time. The final rule does not alter the SMCRA-
mandated ten days that a State regulatory authority has to respond once
OSMRE issues a TDN. 30 U.S.C. 1271(a)(1). However, the clarification
does afford OSMRE an opportunity to consider all readily information,
including any information the State regulatory chooses to provide, when
formulating reason to believe before issuing any TDN to the State
regulatory authority. Under existing Sec. 842.11(b)(1)(i), the
authorized representative already has the authority to consider
``information available'' before determining that reason to believe
exists. In the proposed rule, OSMRE explained that information that the
authorized representative considers must be ``readily available, so
that the process will proceed as quickly as possible and will not
become open-ended.'' Thus, considering ``readily available
information'' under this final rule may create, at most, only a modest
increase in the amount of time it takes the authorized representative
to decide whether he or she has ``reason to believe.'' Further,
affording OSMRE the opportunity to easily ascertain if the State
regulatory authority has been appropriately put on notice of a request
for Federal inspection, including the possible violation--as is already
required under the existing regulations at 30 CFR 842.12(a)--and
whether or not the State regulatory authority has investigated or is
actively investigating the subject of the complaint eliminates
duplication and redundancy of State and Federal enforcement activities.
For example, if OSMRE obtains readily available information that
demonstrates that the State regulatory authority is actively
investigating a citizen complaint, the OSMRE authorized representative
may, using professional judgment, consider the State regulatory
authority's action before determining whether reason to believe exists.
In summary, this final rule clarifies the existing TDN regulations
set forth at 30 CFR 842.11 and 842.12. Nothing in this final rule
nullifies the statutory requirements that OSMRE must issue a TDN when
it determines that there is reason to believe that a violation exists
and that a State regulatory authority has ten days to respond. As is
true with the existing regulations, the final rule requires that there
are only two possible outcomes when an authorized representative
reviews a citizen complaint: (1) The authorized representative issues a
TDN because there is reason to believe a possible violation exists, or
(2) the authorized representative declines to issue a TDN because he or
she does not have reason to believe a possible violation exists. Under
this final rule, the authorized representative does not have discretion
to not issue a TDN to the State regulatory authority once he or she
determines, based on professional judgment, that there is reason to
believe that a violation exists; issuance of a TDN then becomes
mandatory. If the information in the citizen complaint, along with any
other readily available information, is not sufficient to formulate
reason to believe, the authorized representative will not issue a TDN.
Finally, to ensure transparency, OSMRE will continue the practice of
sending a letter to the citizen complainant explaining the decision to
issue or not issue a TDN and the rationale for this decision. It is
standard OSMRE practice, absent a citizen complainant's request for
confidentiality, to also provide the State
[[Page 75166]]
regulatory authority a copy of the letter to facilitate collaboration.
F. It is Important To Clarify That ``Any Information'' Under 30 U.S.C.
1271(a) Includes Information From the State Regulatory Authority
Comment: A coal industry group comprised of several companies in an
Appalachian Basin-based coal State offered significant support for
OSMRE's proposed clarification of the existing regulations related to
the issuance of TDNs and the proposed enhancement of corrective action
for State regulatory program issues. This group remarked that the
proposed clarification to the existing regulations would allow
regulatory authorities to use more information as part of their
decision-making. Because, under the proposal, the regulations would
clearly set forth that OSMRE will consider all readily available
information prior to issuing a TDN, the commenter expressed that view
that the proposed clarification would provide more transparency about
the TDN process and allow for more cooperation between the State
regulatory authority and OSMRE. The commenter also noted that the
enhanced cooperation between OSMRE and the State regulatory authority
would ensure that mine operations comply with SMCRA.
The coal industry group commenter noted that allowing State
regulatory authorities to provide information that is directly relevant
to citizen complaints before OSMRE issues TDNs is positive and improves
the process. The commenter pointed out that the clarification would be
an improvement and would promote efficiency because the existing
process may result in the issuance of a TDN despite the fact that the
State regulatory authority has valuable information that is directly
related to the alleged violation. The commenter noted that without
relevant information from the State regulatory authority, OSMRE may not
have an opportunity to consider the totality of the situation in
advance, and such an omission decreases efficiency. The commenter also
noted that frequently the State regulatory authority and OSMRE receive
the same complaint resulting in both agencies undertaking duplicative
investigations, which the commenter claimed is in contravention of
section 201(c)(12) of SMCRA, 30 U.S.C. 1211(c)(12).
Response: OSMRE concurs with these comments as they highlight the
value of coordination between the primary SMCRA regulatory authority,
which is the State regulatory authority, and OSMRE as the oversight
authority. Although, in the TDN context, OSMRE is exercising oversight
of State regulatory authorities, there is still room for up front
cooperation between OSMRE and the State regulatory authority to
minimize duplication of inspections, enforcement, and administration of
SMCRA, as section 201(c)(12) of SMCRA, 30 U.S.C. 1211(c)(12),
contemplates. Most importantly, OSMRE values the commenter's
recognition of the positive impacts of the clarification OSMRE is
adopting in this final rule as it will improve compliance with SMCRA by
promoting cooperative federalism and ensuring that OSMRE considers all
readily available information. For four decades OSMRE has observed that
protecting society and the environment from the adverse effects of
surface coal mining operations is accomplished more effectively and
efficiently when State regulatory authorities--that have direct
authority to administer SMCRA within their borders--and OSMRE work
cooperatively, rather than working in isolation, to ensure timely
resolution of issues. Not only does this coordination promote the
cooperative federalism construct established within SMCRA, it more
effectively achieves the purposes of SMCRA as outlined in section 102
of SMCRA, 30 U.S.C. 1202. Specifically, considering a State regulatory
authority's unique position to assess its approved State program, it
makes sense to consult with the State regulatory authority to determine
if steps have already been taken or are underway to address alleged
violations. This commenter understands that, with OSMRE's consideration
of all readily available information, including information provided by
the State regulatory authority, the existing process is improved.
However, OSMRE notes that being able to consider ``readily available
information'' is not the same as being able to consider ``the totality
of the situation in advance.'' Considering only ``readily available
information'' up front will allow the process to proceed relatively
quickly. Even with this distinction, OSMRE is confident that the
clarification that OSMRE is adopting in this final rule will achieve
the intended result of greater cooperation and a more efficient and
effective enforcement of SMCRA.
Comment: Several commenters objected to OSMRE's proposal to add
``readily available'' to provisions at 30 CFR 842.11(b)(1)(i) and
(b)(2) and 842.12(a), raising concerns that information that is not
currently in OSMRE's possession and that has to be gathered does not
constitute ``readily available information.'' Furthermore, one of these
commenters opined that any delay resulting from gathering information
was not acceptable and directly conflicts with the ``shall
immediately'' order a Federal inspection language found in 30 U.S.C.
1271(a)(1) and the existing regulations. Another commenter suggested
that OSMRE's explanation of the proposed provision inserts more
uncertainty into the TDN process because it does not define what OSMRE
deems ``accessible without unreasonable delay.'' A commenter further
opined that the language ``shall immediately'' in 30 U.S.C. 1271(a)
requires OSMRE to accept only information submitted in a citizen
complaint, rather than readily available information, to establish
reason to believe that a violation exists.
Response: With respect to the information OSMRE can consider when
making a ``reason to believe'' determination, the statutory language is
not as specific as the commenter suggests. As explained throughout this
final rule notice, SMCRA grants the Secretary, acting through OSMRE,
the authority to promulgate regulations that may be necessary to carry
out the purposes and provisions of SMCRA. 30 U.S.C. 1211(c)(2). OSMRE
is using SMCRA's rulemaking authority, in part, to specify the
information that OSMRE's authorized representative can obtain and
consider when making a ``reason to believe'' determination. The
proposed rule language, which OSMRE is adopting in this final rule, is
consistent with the statutory language at 30 U.S.C. 1271(a)(1) and
allows an authorized representative to review information that is
readily available. A more detailed discussion of the information that
OSMRE considers to be ``readily available'' is contained elsewhere in
the proposed rule preamble (85 FR at 28911) and in this final rule, but
most certainly includes information that the OSMRE authorized
representative can easily and promptly access, such as permit
documentation about the specific mine site, OSMRE's inspection history,
and data retrieved from the State regulatory authority. Fundamentally,
as to the commenter's other point about the ``shall immediately''
language in 30 U.S.C. 1271(a), OSMRE notes that the statute provides,
absent an imminent harm scenario, that OSMRE ``shall immediately order
Federal inspection'' in a primacy State only after it issues a TDN to
the State regulatory authority, and OSMRE finds that a violation
remains uncorrected at the conclusion of the TDN process. The aspect of
the final rule that the commenters take issue
[[Page 75167]]
with--OSMRE's consideration of readily available information as part of
the ``reason to believe'' determination--occurs before OSMRE issues a
TDN to a State regulatory authority and is therefore consistent with
SMCRA. Importantly, at the conclusion of the TDN process, OSMRE will
immediately undertake a Federal inspection if it finds that a violation
continues to exist.
Moreover, accepting only information contained in a citizen
complaint as the basis for a ``reason to believe'' determination is not
in accordance with prudent regulatory implementation as explained in
the proposed rule. 85 FR at 28908, 28910-11. If OSMRE were to accept
only information contained in a citizen complaint to establish ``reason
to believe,'' OSMRE could be in a situation of issuing a TDN to a State
regulatory authority when a complainant lacks information or knowledge
concerning the possible violation that OSMRE may be able to readily
ascertain under this final rule. OSMRE could also be in a situation of
concluding that the citizen complaint does not establish ``reason to
believe'' and refusing to issue a TDN, but for readily available
information from the State regulatory authority that might otherwise
establish ``reason to believe.'' Moreover, if OSMRE considers only
information in a citizen complaint, the complaint process could be
misused, unwittingly or otherwise, resulting in frivolous and unfounded
allegations and unnecessary TDNs. Also, a fair reading of the
legislative history supporting the passage of SMCRA indicates that
considering only information in a citizen complaint when formulating
reason to believe in association with the TDN process is not consistent
with congressional intent. This issue was addressed in 1977 in House
Report 95-218: ``[i]t is anticipated that `reasonable belief' could be
established by a snapshot of an operation or other simple and effective
documentation of a violation.'' Emphasis added. As noted in the
proposed rule, while this passage from the legislative history appears
to be referring to information that a citizen may provide, it is
reasonable to apply the same principle to 30 U.S.C. 1271(a)(1), as
enacted. This final rule is consistent with congressional intent in the
formulation of SMCRA, and, more importantly, consistent with SMCRA, as
enacted, with respect to information that can be used to establish
reason to believe that a violation exists.
Comment: A commenter indicated that OSMRE should consider all
available information, not just readily available information, and
should include information from any person and not just the State
regulatory authority.
Response: OSMRE has considered this comment and agrees that OSMRE
should consider information from any source; however, as explained
below, OSMRE disagrees that it should consider ``all available
information'' rather than readily available information. OSMRE has
revised the final rule text at 30 CFR 842.11(b)(1)(i) to further
clarify that the authorized representative will consider all readily
available information ``from any source, including any information a
citizen complainant or the relevant State regulatory authority
submits[.]'' This change reflects OSMRE's intent with respect to
readily available information obtained from any source. For
consistency, OSMRE has also incorporated the phrase ``from any source''
into revised 30 CFR 842.11(b)(2). The plain language of this revised
text makes clear that OSMRE will consider information from any source
and not just the two possible sources of information that OSMRE
proposed to list as examples of sources--the State regulatory authority
and a citizen. As OSMRE stated in the preamble to the proposed rule,
other examples of sources of readily available information may also
include permit files or other public records. 85 FR at 28911.
The only limitation as to the source of information that OSMRE's
authorized representative can consider is that the information must be
readily available. As stated in the proposed rule, inclusion of the
word ``readily available'' to modify ``any information'' is important
to ensure that the process of making a ``reason to believe''
determination proceeds as quickly as possible and does not become open-
ended. 85 FR at 28907; see also OSMRE's other responses in this
section. If OSMRE were to delay its ``reason to believe'' determination
until all available information was discovered, there could be
substantial delays in the process, which would be contrary to the
process Congress set forth in 30 U.S.C. 1271(a)(1). Substantial delays
in determining ``reason to believe'' would also be contrary to a goal
of this rulemaking--ensuring that alleged violations are addressed
quickly, effectively, and efficiently. Thus, OSMRE is not making a
change to its proposed rule to consider all information that could
possibly be obtained; OSMRE will consider only that information which
is readily available.
Comment: One commenter expressed doubt about OSMRE's rationale for
clarifying that a State regulatory authority should be a source of
information necessary to formulate reason to believe. Specifically, the
commenter expressed doubt that OSMRE and the State regulatory
authorities are inundated with duplicative complaints.
Response: SMCRA provides that OSMRE will issue a TDN ``[w]henever,
on the basis of any information available to him, including receipt of
information from any person, the Secretary has reason to believe that
any person is in violation of any requirement of this Act. . . .'' 30
U.S.C. 1271(a)(1) (emphasis added). A plain reading of this provision
is that OSMRE can consider any information it has available regardless
of the source. It is only natural that a State regulatory authority
could be a source of information that OSMRE's authorized representative
uses to formulate reason to believe.
OSMRE has not claimed that it is ``inundated'' with citizen
complaints that have also been issued to the State regulatory
authority. However, OSMRE has experienced many instances where it has
received a citizen complaint that was identical to a citizen complaint
received by a State regulatory authority. When this has occurred,
oftentimes OSMRE has learned that the State regulatory authority was
either already investigating the alleged violation or had reached a
decision about the alleged violation. Such information would be useful
to OSMRE in formulating reason to believe. It has been a regulatory
requirement since 1982 that, when requesting a Federal inspection,
citizens are required to submit complaints to the State regulatory
authority before or simultaneously with submitting the complaint to
OSMRE. 47 FR at 35628. In OSMRE's experience, and based upon data
acquired over 43 years of implementing SMCRA, it has become obvious, as
OSMRE expected in 1982, that ``if citizens contact the State initially,
most problems will be resolved satisfactorily without the need for
intrusion by the Federal government.'' Id. Thus, it only makes sense
for OSMRE to revise the SMCRA implementing regulations to allow OSMRE's
authorize representative to consider readily available information from
the State regulatory authority that is relevant to the possible
violation before OSMRE issues a TDN. That way, OSMRE and the State
regulatory authority can avoid an unnecessary exchange of paperwork
instead of resolving alleged violations. This simple change will make
the process more
[[Page 75168]]
effective and will conserve scarce government resources.
Comment: A commenter supported the proposed rule clarification at
30 CFR 842.11(b)(1)(i) and (b)(2) that would allow OSMRE to consider
any information readily available when determining whether there is
reason to believe that a violation exists. The commenter, which
represents the coal industry, added that it is appropriate for OSMRE to
provide these clarifications to the process so that OSMRE can determine
whether information submitted in a citizen complaint constitutes
documentation of alleged violations; the commenter also notes that
OSMRE must have the authority to evaluate information objectively in
order to determine the validity of allegations. Further, the commenter
supports OSMRE's ability to review readily available information, from
any source, including information that may be available to the State
regulatory authorities. The commenter finds that this would allow OSMRE
to more accurately identify the specific nature of an alleged violation
or program issue identified by a citizen. Moreover, the commenter
stated that the clarification would provide OSMRE an opportunity to
apply a remedy that most appropriately corresponds to the alleged
violation--whether it is a permit specific violation, on-the-ground
violation, or is better characterized as a State regulatory program
issue.
Response: OSMRE agrees with the commenter that it is necessary for
the OSMRE authorized representative to consider any information readily
available when formulating reason to believe. This clarification
specifies that information provided by the State regulatory authority
is included in the ``any information'' that an OSMRE authorized
representative may consider, consistent with 30 U.S.C. 1271(a), while
also highlighting the importance of timely formulation of reason to
believe to ensure prompt resolution of a possible violation. The latter
point is clarified by OSMRE adopting the proposal to include the word
``readily'' in 30 CFR 842.11(b)(1)(i) and (b)(2). Also, the
clarification of 30 CFR 842.11(b)(2), which OSMRE is adopting in this
final rule, codifies OSMRE's flexibility to more appropriately analyze
and identify the existence of violations, and, if necessary, to issue a
TDN or use the enhanced part 733 process for a State regulatory program
issue. The ability to efficiently and effectively differentiate between
violations addressed under revised section Sec. 842.11 and State
regulatory program issues, as defined in this final rule and addressed
under revised Sec. 733.12, is an important point. As the regulations
currently exist, there is ambiguity related to these two distinct
resolutions of problems that may be alleged in citizen complaints--
those outlined in section 521(a) of SMCRA (site-specific) and those
outlined in section 521(b) of SMCRA (program issue). As the commenter
notes, it is important to clearly differentiate between site-specific
alleged violations governed by section 521(a) and 30 CFR part 842,
under which the TDN process is invoked, and State regulatory program
issues related to a State regulatory authority's alleged failure to
implement, administer, maintain, or enforce its approved program
governed by section 521(b) of SMCRA and 30 CFR part 733. In this final
rule, OSMRE is seeking to eliminate this ambiguity and afford OSMRE the
discretion to resolve site-specific violations and program issues by
the most appropriate method while working in coordination with the
State regulatory authority.
G. Citizens' Ability To Request Federal Inspections Is Not Diminished
As discussed throughout OSMRE's responses to comments received,
several commenters expressed concern over the impact of the proposed
rule on Federal inspections, while other commenters offered suggestions
for further altering the regulations related to requesting Federal
inspections pursuant to 30 CFR 842.12.
Comment: A commenter challenged OSMRE's proposed language in Sec.
842.12(a) requiring a citizen, when requesting a Federal inspection, to
provide the basis for their assertion that a State regulatory authority
failed to act upon an alleged violation.
Response: As proposed and finalized in this rule, this provision
will not be overly burdensome for a citizen complainant. For example,
if the complainant notifies the State regulatory authority
simultaneously with filing a complaint with OSMRE, the basis for the
person's assertion could be as simple as restating the allegations in
the complaint made to the State regulatory authority, coupled with the
action, if any, taken by the State regulatory authority in response.
However, OSMRE notes that a citizen complainant should provide as much
information as possible, as that information will inform the OSMRE
authorized representative's ``reason to believe'' determination. In all
cases, OSMRE's authorized representative will consider readily
available information, in addition to any information that the
complainant may provide, as part of the authorized representative's
``reason to believe'' determination. As noted previously, requiring the
citizen complainant to notify the State regulatory authority before or
simultaneously with filing a request for a Federal inspection with
OSMRE will give the State regulatory authority an opportunity to
address the issue raised. This requirement is not unreasonable and
should help prevent duplicative efforts.
Comment: A commenter requested that OSMRE amend Sec. 842.12(a) to
incorporate text contained in 30 U.S.C. 1267(h)(1) by inserting the
phrase ``at the surface mining site'' after the word ``exists'' in the
first sentence in proposed Sec. 842.12(a), so that it would read: Any
person may request a Federal inspection under Sec. 842.11(b) by
providing to an authorized representative a signed, written statement
(or an oral report followed by a signed written statement) setting
forth information that, along with any other readily available
information, may give the authorized representative reason to believe
that a violation, condition, or practice referred to in Sec.
842.11(b)(1)(i) exists [at the surface mining site]. The commenter
suggested that the same change be made to proposed Sec.
842.11(b)(1)(i) by inserting the same phrase in the first sentence
after the first appearance of the word ``exists'' and before the term
``a violation'' in the middle of the first sentence to limit citizen
complaints, and any accompanying inspection, to on-the-ground impacts.
Response: OSMRE declines to make the suggested change because SMCRA
does not include this language in 30 U.S.C. 1271(a). As explained
elsewhere in this final rule, if a citizen complainant makes OSMRE
aware of a State regulatory program issue that has not resulted in
actual or imminent violation of the approved State program that often
manifests as an on-the-ground impact at a specific site, OSMRE will
handle the issue initially through the enhancements to the 30 CFR part
733 process adopted in this final rule. However, as noted repeatedly,
OSMRE will still initiate an appropriate Federal enforcement action,
such as issuance of a TDN, if the State regulatory program issue
results in, or may imminently result in, a violation of the approved
State program.
Comment: A commenter requested that OSMRE clarify that a request
for a Federal inspection under 30 CFR 842.12 may be denied if it is
clear that the request is a repeat of substantially identical requests
made by the same person on the same issue.
[[Page 75169]]
Response: This rulemaking does not provide that OSMRE will
automatically deny a request for a Federal inspection simply because a
substantially identical request has been made previously. Instead, this
rulemaking requires OSMRE to make a fact-specific determination each
time it receives a citizen complaint or other allegation of a
violation.
First, the OSMRE authorized representative must determine whether
the alleged violation would constitute imminent harm. If so, OSMRE will
bypass the TDN process and will proceed directly to a Federal
inspection if the person supplying the information (usually in the form
of a citizen complaint) provides adequate proof that there is an
imminent danger to the public health and safety or a significant,
imminent environmental harm and the State has failed to take
appropriate action. See 30 U.S.C. 1271(a)(1) and (2). Nothing in this
final rule is intended to modify these essential provisions of SMCRA
and the existing regulations, which are aimed at immediately
identifying and correcting imminent harm scenarios.
Second, the OSMRE authorized representative must issue a TDN to a
State regulatory authority whenever he or she has reason to believe a
violation exists. 30 U.S.C. 1271(a)(1) and 30 CFR 842.11(b)(1). The
final rule makes clear that when determining whether he or she has
``reason to believe,'' OSMRE's authorized representative must make a
fact-specific inquiry based on readily available information. 30 CFR
842.11(b)(1)(i). If OSMRE has already received a similar citizen
complaint or if a substantially identical complaint has been filed with
the State regulatory authority, and the State regulatory authority has
investigated the matter, OSMRE may have more information readily
available to determine if it has reason to believe a violation exists.
Such information could lead the OSMRE authorized representative to
determine that he or she does not have ``reason to believe'' because
earlier, similar complaints had not revealed a violation. Similarly, if
OSMRE has already issued a TDN based on a previously received similar
complaint, it is unlikely that OSMRE will have reason to believe that
another violation exists; without the requisite ``reason to believe,''
the authorized representative will not issue another TDN. Instead, as
has been OSMRE's practice, OSMRE will inform the citizen in writing
that subsequent citizen complaints are already being resolved through
an existing TDN process, and a new TDN process will not be initiated.
OSMRE will retain all citizen complaints in the record of the existing
TDN process. It is also possible, however, that the OSMRE authorized
representative will review what seems to be a similar complaint and
formulate reason to believe that a different or renewed violation
exists. In that scenario, the OSMRE authorized representative will
issue a new TDN. Although many variations are possible, the OSMRE
authorized representative will consider the facts alleged in each
citizen complaint and any other readily available information before
deciding if he or she has reason to believe a violation exists.
Comment: A commenter suggested that OSMRE clarify the final rule
text at 30 CFR 842.12 to require citizens to exhaust all remedies
afforded to them under each respective State regulatory program before
requesting a Federal inspection. The commenter further opined that
OSMRE should better delineate between the process it will follow when
it receives a request for a Federal inspection in a State where OSMRE
operates a Federal program and a primacy State. For primacy States, the
commenter states that OSMRE should defer to the State process under
which the alleged violation occurs, including the exhaustion of all
State remedies.
Response: Nothing in SMCRA authorizes OSMRE to require that a
citizen exhaust their remedies under a State regulatory program before
requesting a Federal inspection. See 30 U.S.C. 1267(h)(1) and
1271(a)(1). Thus, OSMRE did not propose and is not finalizing a rule
that would require a citizen to exhaust its remedies under a State
program before requesting a Federal inspection from OSMRE. OSMRE notes,
however, that by clarifying that OSMRE's authorized representative can
review information from a State regulatory authority before determining
whether he or she has ``reason to believe,'' OSMRE is recognizing that
a State regulatory authority, as the primary SMCRA enforcement agency
within its jurisdiction, is likely to have relevant information.
Although the OSMRE authorized representative will make an independent
determination of his or her ``reason to believe,'' this change better
recognizes the State regulatory authority's expertise.
In response to the commenter's suggestion that OSMRE should
delineate between situations where the State regulatory authority is
the primacy enforcement authority--as in most situations--and when
OSMRE is the primary regulatory authority, such as in the State of
Tennessee, OSMRE reviewed its regulations and concluded that 30 CFR
part 842, as finalized today, clearly distinguishes between OSMRE's
oversight function in monitoring and evaluating the administration of
approved State programs, including inspections and enforcement of
Federal programs. Compare 30 CFR 842.11(b)(1)(ii)(A) (Federal program
states) with 30 CFR 842.11(b)(1)(ii)(B) (primacy states). As specified
in these regulations, the TDN process does not apply to Federal
programs, where OSMRE is the regulatory authority.
Comment: One commenter supported the proposed addition to 30 CFR
842.12(a) requiring that a citizen provide an email address, if the
citizen possesses one, when submitting the statement required to
accompany a request for a Federal inspection.
Response: OSMRE agrees and is adopting this proposal in the final
rule to allow for a more expeditious manner to contact citizen
complainants, if necessary.
H. OSMRE's Enhancement to the Existing 30 CFR Part 733 Process is Aimed
at Addressing State Regulatory Program Issues Early and Promptly
Resolving the Issues
Comment: Several commenters opine that the 30 CFR part 733 process
is an inadequate method of dealing with State regulatory program issues
because it creates a delay in enforcement. These same commenters also
claim that the existing 30 CFR part 733 process does not require prompt
action by the State regulatory authority because of the public notice
requirement found in existing 30 CFR 733.12(d).
Response: OSMRE agrees with the commenters that use of the existing
30 CFR part 733 process can take more time than is warranted to address
issues requiring a timely response. However, the use of action plans as
described in the finalized and redesignated Sec. 733.12 does not have
the same time requirements that are associated with existing Sec.
733.12, which will be redesignated as 30 CFR 733.13 under this final
rule. This will promote more prompt resolution of State regulatory
program issues, as these issues will be identified prior to the issues
escalating to the point where substitution of Federal enforcement or
withdrawing part or all of a State program are necessary. Moreover, as
OSMRE has repeatedly noted, even if OSMRE and the State regulatory
authority are engaged in the corrective action process, including
developing an action plan pursuant to the enhanced provisions of 30 CFR
part 733, finalized in this rulemaking, the State regulatory authority
and OSMRE will still take an
[[Page 75170]]
appropriate enforcement action if there is an actual or imminent
violation of the approved State program. In OSMRE's experience, a
violation of the approved State program often manifests itself as an
on-the-ground impact, but may also manifest by other means, such as a
failure to submit a required certification or monitoring report.
Comment: A few commenters asserted that the existing process
outlined in 30 CFR part 733 has only been used 10 times in the history
of SMCRA.
Response: OSMRE agrees with the commenters that OSMRE has used the
30 CFR part 733 process infrequently since the inception of SMCRA.
Prior to the enhancements to 30 CFR part 733, finalized in this
rulemaking, the existing 30 CFR part 733 process, which was limited to
substituting Federal enforcement of State programs or withdrawing
approval of part or all of a State program, was a lengthy process that
involved significant OSMRE and State regulatory authority interaction
over a long period. The seriousness of substitution or withdrawal of
State regulatory programs (whether in whole or in part), when
necessary, should not be minimized, and OSMRE continues to find that
this process is prudent. However, this type of enforcement mechanism is
not well-suited to smaller, non-imminent harm issues that may require a
much shorter time frame to effectuate resolution. This final rule does
not change the fact that imminent harm issues will continue to be
addressed promptly through Federal enforcement, as appropriate, to
protect public health and safety. OSMRE's proposal to use early
identification of State regulatory program issues and implement
corrective action through action plans and to use Federal enforcement
for site-specific violations bridges the two enforcement mechanisms of
the existing 30 CFR part 733 process, as outlined in 30 U.S.C. 1271(b),
and the TDN process, as outlined in 30 U.S.C. 1271(a). Development of a
definition of ``State regulatory program issue'' and the use of
compliance strategies and action plans to address State regulatory
program issues before these issues develop into a more systemic, and
potentially more environmentally harmful program issue requiring
substitution of Federal enforcement or withdrawal of a State program,
is much more efficient, addresses issues earlier, and potentially
reduces the need to invoke the rare remedies of existing 30 CFR part
733. The intermediate process adopted in this final rule should
minimize or prevent any unnecessary burdens as OSMRE and the State
regulatory authority promptly resolve the State regulatory program
issue.
Comment: A commenter supported the proposed addition at 30 CFR
733.5 of the definition of ``action plan'' and the explanation in the
proposed rule that an ``action plan'' would be an efficient means of
addressing State regulatory program issues. The commenter also favors
the concept of identifying these issues early to avoid OSMRE exercising
its oversight authority in the form of substitution or withdrawal of an
approved State program.
Response: OSMRE agrees with these comments because, overall,
OSMRE's final rule clarifications and enhancements at 30 CFR parts 733
and 842 will enable OSMRE to more quickly identify whether an alleged
violation requires more immediate resolution through 30 CFR part 842
and the potential issuance of a TDN or whether the problem should be
more appropriately and effectively handled through the 30 CFR part 733
process because it is a State regulatory program issue, as defined in
this final rule, or a systemic problem within the approved program.
This is a necessary distinction as set forth in SMCRA at 30 U.S.C.
1271(a) and (b). The latter statutory provision--30 U.S.C. 1271(b)--is
aimed at correcting systemic, programmatic issues with State programs.
Under this final rule, OSMRE will handle State regulatory program
issues under the authority of section 1271(b). It is imperative for the
Federal regulations to comport with this distinction. One of the
reasons OSMRE proposed to specifically define the term ``State
regulatory program issue'' is that, after four decades of oversight
enforcement, citizens have sometimes conflated the provisions of
sections 1271(a) and 1271(b), resulting in frustration, duplication,
and unnecessary complication of the TDN process, which was designed to
quickly address on-the-ground impacts. Moreover, not properly
distinguishing the actions available under 30 U.S.C. 1271 has resulted
in inefficient use of Federal and State resources, as it frequently
resulted in duplication of State and OSMRE efforts without any clear
environmental benefit. OSMRE's enhancements and clarifications in this
final rule that distinguish features of the remedies for potential
violations and State regulatory program issues will improve efficiency
and effectiveness by appropriately narrowing the focus of 30 CFR part
842 because, under this final rule, State regulatory program issues
will be addressed using the ``action plan'' process in final 30 CFR
733.12. OSMRE's ``action plan'' concept, which OSMRE is adopting in
this final rule through the definition of ``action plan'' at 30 CFR
733.5 and the regulatory provisions at 30 CFR 773.12(b), will enhance
OSMRE's ability to resolve programmatic issues as quickly as possible,
resulting in better implementation of SMCRA. Furthermore, the addition
of this enhancement will result in OSMRE taking action in advance of
the rare remedies of withdrawal or substitution of an approved State
program.
Comment: Similar to other commenters, as discussed above, that
recognize the value in the enhancement of the existing 30 CFR part 733
process, a commenter also agrees with the proposed rule clarification
that would allow programmatic concerns that OSMRE may identify
involving a State regulatory authority to be handled outside the TDN
process because programmatic concerns are more appropriately addressed
under section 521(b) of SMCRA, 30 U.S.C. 1271(b), and the Federal
regulations implementing that section. The commenter also supports
OSMRE's proposed, minor revision to the circumstances that constitute
``good cause'' at existing Sec. 842.11(b)(1)(ii)(B)(4) and OSMRE's
proposed clarification of what constitutes ``reason to believe'' at
existing Sec. 842.11(b)(2). The commenter supported the proposed,
minor revisions to the ``good cause'' provisions at existing 30 CFR
842.11(b)(1)(ii)(B)(4)(ii) because, after OSMRE issues a TDN to a State
regulatory authority, ``good cause'' for the State regulatory authority
not taking appropriate action to cause an alleged violation to be
corrected includes a State regulatory authority's initiation of an
investigation into the alleged violation, and a reasonable amount of
time is required to complete that investigation before OSMRE initiates
a Federal inspection.
Response: OSMRE agrees with the commenter's statements about how
the proposed rule would clarify the terms ``reason to believe'' and
``good cause,'' which should greatly reduce the number of situations
when these terms, as implemented under the existing regulations, may
have thwarted successful collaboration between OSMRE and the relevant
State regulatory authority. OSMRE appreciates the commenter's support
for the provision that OSMRE is adopting in this final rule that allows
initiation of an investigation into an alleged violation to establish
good cause. Moreover, successful collaboration between OSMRE and the
State regulatory
[[Page 75171]]
authority is a lynchpin to successful enforcement of SMCRA and State
regulatory programs and is necessary under SMCRA's cooperative
federalism framework. The provisions OSMRE is adopting in this final
rule will enhance OSMRE's ability to consult with the State regulatory
authority to efficiently and effectively solve problems. Implementation
of OSMRE's proposed changes, which OSMRE is adopting in this final
rule, will result in OSMRE being able to act more quickly to
differentiate between violations that need immediate attention, and
systemic program problems that are appropriately addressed through the
existing 30 CFR part 733 process. In OSMRE's experience, OSMRE has
observed that the existing TDN process frequently results in a State
regulatory authority and OSMRE engaging in unnecessary duplication of
effort and processes rather that working cooperatively to quickly
resolve problems. This is contrary to the intent of section 201(c)(12)
of SMCRA, which requires OSMRE to ``cooperate with . . . State
regulatory authorities to minimize duplication of inspections,
enforcement, and administration of [SMCRA].'' 30 U.S.C. 1211(c)(12).
Furthermore, the implementation of the relevant clarifications in
OSMRE's proposed rule, which OSMRE is adopting in this final rule, is
consistent with E.O. 13777 of February 24, 2017, 82 FR 12285 (March 1,
2017). E.O. 13777 is aimed at alleviating unnecessary regulatory
burdens placed on the American people, and this final rule achieves
that goal by removing unwarranted duplication of processes by OSMRE and
State regulatory authorities.
Comment: Unlike other commenters supporting the enhancement of 30
CFR part 733, regarding OSMRE's proposal to codify the process of early
identification and corrective action to address State regulatory
program issues as authorized by 30 U.S.C. 1271(b), a citizen commenter
asserts that historically OSMRE had stronger oversight capabilities and
that the proposed rule clarification is an attempt to redress OSMRE's
alleged loss of oversight authority to resolve problems with State
regulatory enforcement and recapture OSMRE oversight capabilities after
State primacy is achieved. The citizen commenter expressed the concern
that the 30 CFR part 733 process is like using a club to fix what is
wrong with State enforcement. As an alternative, the commenter suggests
repealing OSMRE's Directive REG-8 as a more effective tool than trying
to enhance 30 CFR part 733. The commenter provided an example of the
alleged slowness of a State regulatory authority's response to a
recently filed citizen complaint. The commenter also asserts that OSMRE
is attempting to address on-the-ground violations through the 30 CFR
part 733 process, not through the TDN process. Notably, the citizen
acknowledges that the rationale for citizens to notify both the State
regulatory authority and OSMRE serves a positive purpose--essentially
to ensure checks and balances resulting in more prompt resolution of
issues.
Response: SMCRA and the implementing regulations provide OSMRE with
two primary tools to ensure that a State regulatory authority is
enforcing its approved program appropriately. First, SMCRA provides
that, in certain circumstances, OSMRE may issue a notice of violation
or cessation order directly to a permittee in a primacy State; the
circumstances in which OSMRE can exercise direct Federal enforcement
are outlined in 30 U.S.C. 1271(a) and 30 CFR parts 842 and 843. One
relevant example of OSMRE's ability to engage in direct Federal
enforcement is OSMRE performing a Federal inspection after determining
that the State regulatory authority lacked good cause or did not take
appropriate action to cause a violation to be corrected after OSMRE
reviews the State regulatory authority's response to a TDN. 30 U.S.C.
1271(a)(1) and 30 CFR 842.11. The second tool OSMRE can use is outlined
in 30 U.S.C. 1254(b), 1271(b), and 30 CFR part 733. This tool allows
OSMRE to address a failure of a State to effectively enforce all or
part of its State program. Under these provisions, OSMRE may substitute
Federal enforcement for all or part of a State regulatory program or
withdraw approval of all or part of a State program.
These two mechanisms are distinct and should not be conflated--one
involves potential violations at specific sites, and one involves more
systemic issues in State program enforcement. While it is true that,
sometimes, a systemic issue with a State program can manifest itself in
a violation at a site, it is also true that the TDN process is not the
appropriate tool for resolving systemic, programmatic issues. Instead,
the TDN process is designed to address alleged violations associated
with individual permits. Importantly, however, Sec. 733.12(d), as
proposed and adopted in this final rule, provides that nothing in Sec.
733.12 ``prevents a State regulatory authority from taking direct
enforcement action in accordance with its State regulatory program, or
OSMRE from taking appropriate oversight enforcement action, in the
event that a previously identified State regulatory program issue
results in or may imminently result in a violation of the approved
State program.'' This provision will ensure that actual or imminent
violations of an approved State program that often manifest in on-the-
ground impacts, but may manifest by other means, are properly addressed
even as OSMRE and a State regulatory authority are working to correct
State regulatory program issues.
Despite the distinction between a site-specific violation and a
systemic issue, OSMRE has received citizen complaints (i.e., the site-
specific process) that allege a State regulatory program issue (i.e., a
systemic issue). The regulatory revisions that OSMRE proposed, and that
OSMRE is finalizing today, help to clarify the distinction between when
OSMRE will use specific oversight tools--such as direct enforcement
through the TDN process as opposed to an action plan under revised
Sec. 733.12. Specifically, the revision to the description of
``appropriate action'' at 30 CFR 842.11(b)(1)(ii)(B)(3) clarifies that,
if OSMRE issues a TDN, and the State responds that it is working with
OSMRE to ``immediately and jointly'' initiate steps to correct the
systemic State regulatory program issue under 30 CFR 733.12, that
response will be considered appropriate action, and OSMRE will not
continue with the direct Federal enforcement process and will not
perform a Federal inspection. Instead, OSMRE and the State regulatory
authority will work to develop an action plan as set forth in revised
30 CFR 733.12 to address the underlying State regulatory program issue.
To the extent that a systemic problem has resulted in a violation of
the approved State program at a particular site, OSMRE will continue to
use its direct Federal enforcement authority, including the TDN
process, if warranted, to ensure such violation is corrected. This
final rule serves to differentiate more accurately between the two
distinct processes of oversight outlined in 30 CFR part 733 and 30 CFR
parts 842 and 843. OSMRE's existing approach has demonstrated that a
clarification of the distinction between these two processes is
necessary to ensure that proper enforcement of SMCRA is achieved.
OSMRE understands the commenter's concern that 30 CFR
842.11(b)(1)(ii)(B)(3) refers to 30 CFR part 733, and OSMRE agrees with
the commenter that, traditionally, using the existing part 733 process
to cause the Federal enforcement of State regulatory programs or the
withdrawal of approval of State regulatory programs is fairly
[[Page 75172]]
severe and has been rarely used. However, OSMRE also proposed, and is
finalizing, the addition of Sec. 733.5 that specifically defines
``action plan'' and ``State regulatory program issue'' as used in final
Sec. 733.12, which specifically provides a process for OSMRE and a
State regulatory authority to enter into an action plan to address
systemic problems. The addition of the action plan process will allow
OSMRE 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. This addition is 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.
The commenter also suggested that repealing OSMRE's Directive REG-8
would be a more effective tool for ensuring enforcement of SMCRA than
the proposed revisions to 30 CFR part 733. OSMRE's Directive REG-8 is a
detailed instructional document advising OSMRE staff on best practices
for performing oversight consistent with 30 U.S.C. 1271. Within
Directive REG-8, OSMRE identifies two types of regular oversight
activities it uses to ensure a State regulatory authority is
effectively administering, implementing, maintaining, and enforcing its
approved regulatory program consistent with 30 U.S.C. 1271(b) and 30
CFR part 733. First, OSMRE prepares a report annually evaluating each
State regulatory program. As set forth in Directive REG-8, each year,
OSMRE uses certain fixed topics, such as off-site impacts and
reclamation success, to evaluate the State regulatory authority. Each
year, OSMRE also selects special topics for review. These special
topics are chosen, in part, based on suggestions from the public.
Second, OSMRE conducts inspections of surface coal mining and
reclamation operations as necessary to monitor and evaluate the
administration of approved State programs in accordance with 30 CFR
part 842. This Directive is an internal document that OSMRE uses to
ensure consistency across the bureau and to provide transparency to
stakeholders on how OSMRE operates with respect to its routine
evaluation of State regulatory authorities. Elimination of Directive
REG-8 would increase the likelihood that various OSMRE offices would
approach annual evaluation reports and oversight inspections
differently, which could result in a lack of clarity for the public.
For this reason, elimination of Directive REG-8 would not be a more
effective method to implement change.
The regulations, as finalized, better distinguish between the
distinct oversight tools authorized by 30 U.S.C. 1271, by better
explaining when OSMRE will use each tool. As such, the finalized
regulations encourage efficiency and effectiveness when resolving
alleged violations and State regulatory program issues by categorizing
them appropriately and eliminating wasteful administrative processes
that may hinder prompt resolution.
OSMRE also acknowledges that citizens may determine that filing
citizen complaints with both OSMRE and a State regulatory authority may
be beneficial. However, in OSMRE's experience, State regulatory
authorities are typically in a better position to respond quickly and
ensure that violations are corrected. OSMRE has long since acknowledged
that ``if citizens contact the State initially, most problems will be
resolved satisfactorily without the need for intrusion by the Federal
government.'' 47 FR at 35628. That is why, since 1982, OSMRE has
required that a citizen notify a State regulatory authority ``in
writing, of the existence of the violation, condition or practice''
before or simultaneously with notifying OSMRE of a request for Federal
inspection. OSMRE still finds, as it did in 1982, that ``this citizen
notification requirement will enhance the protection of citizens by
giving the State an earlier opportunity to act. Information from a
person can be transmitted to a State regulatory authority quickly and
accurately when a citizen communicates directly with the State.'' Id.
Thus, OSMRE has maintained the requirement in 30 CFR 842.12(a) to
require a citizen, when requesting a Federal inspection, to inform
OSMRE that the citizen has contacted the State regulatory authority.
Additionally, OSMRE is finalizing the proposal that a citizen, when
requesting a Federal inspection, also provide a basis for why the
citizen asserts that the State regulatory authority has not taken
action. This information will help OSMRE's authorized representative
better ascertain whether the citizen followed the regulation by
notifying the State regulatory authority and what information may exist
that would be useful in determining whether the authorized
representative has reason to believe a violation exists.
Comment: One commenter opined that OSMRE needs to codify the
process for the action plan.
Response: Through this rulemaking, OSMRE is codifying the process
for developing and using action plans to correct systemic State
regulatory program issues. Currently, OSMRE uses a variation of this
process as set forth in its Directives REG-8 and REG-23. As long as
they are not arbitrary and capricious or contrary to SMCRA's specific
statutory language, section 201(c)(2) of SMCRA confers on the Secretary
of the Interior broad authority to ``publish and promulgate such rules
and regulations as may be necessary to carry out the purposes and
provision of this Act.'' 30 U.S.C 1211(c)(2); see also In re Permanent
Surface Min. Regulation Litig., 653 F.2d 514, 523 (D.C. Cir. 1981) (en
banc)); Nat'l Min. Ass'n v. U.S. Dep't of the Interior, 105 F.3d 691,
695 (D.C. Cir. 1997).
Section 521(b) of SMCRA provides that ``[w]henever on the basis of
information available to him, the Secretary has reason to believe that
violations of all or any part of an approved State program result from
a failure of the State to enforce such State program or any part
thereof effectively,'' the Secretary must initiate a process that could
result in OSMRE substituting Federal enforcement for all or part of a
State regulatory program or withdrawing approval of all or part of a
State regulatory program. 30 U.S.C. 1271(b); see also 30 U.S.C.
1254(a). This rulemaking is not contrary to these provisions of SMCRA
because it allows OSMRE to work with a State to correct a systemic
issue that OSMRE has identified with a State program. The mere fact
that a State is willing to work with OSMRE in good faith to correct a
problem shows that it is working to adequately implement, administer,
enforce, and maintain its approved program. Logically then, OSMRE would
not have ``reason to believe'' under 30 U.S.C. 1271(b) that the State
is failing to enforce its program effectively. Thus, no statutory
change is needed for OSMRE to promulgate this regulation.
Comment: One commenter suggested specific changes to OSMRE's
proposed definition of ``action plan'' at 30 CFR 733.5 to mean a
``detailed list of specific actions and the schedule OSMRE prepares to
identify specific actions . . . .'' The suggested definition of
``action plan'' would also list examples of specific actions such as:
Compliance with what the commenter has classified as ``Federal
environmental regulations'' that the commenter later defines as
``Federal regulations,'' but which actually consist of Federal
[[Page 75173]]
environmental statutes, that include, among others, the Migratory Bird
Treaty Act and the Clean Water Act; public notification and
involvement; and dates in which State regulatory issues are to be
resolved. The commenter requested that its proposed definition of
``action plan'' include ``specific information on compliance measures
including timelines, success criteria, and contingency plans in the
event the success criteria are not reached.'' The commenter also
suggested the addition of new definitions at Sec. 733.5 for many of
the terms included in its proposed definition of ``action plan,'' such
as ``adequate funding'' and ``public notification and involvement.''
According to the commenter, these definitions would work in conjunction
with the commenter's suggested revisions to the term ``action plan.''
For instance, the commenter indicated that an ``adequate funding''
definition would be useful to ensure that the State regulatory
authority has sufficient funds to carry out compliance and mitigation
measures described in the action plan. Likewise, the commenter
suggested that the addition of ``public notification and involvement''
would include a list of various public notification methods and
techniques relating to notifying the public.
Response: OSMRE disagrees that the appropriate location for the
items suggested by the commenter is within the definitions at 30 CFR
733.5. OSMRE proposed most of the items suggested by the commenter at
revised 30 CFR 733.12(b), which details what should be included in an
action plan, such as the requirements that an action plan contain
specific dates and timelines of when the State regulatory program issue
is to be resolved and contingency plans if success is not achieved.
As to the suggested definition of ``adequate funding,'' State
regulatory authorities must demonstrate that they have ``sufficient
funding to enable the State to regulate surface coal mining and
reclamation operations in accordance with the requirements of this
Act.'' 30 U.S.C. 1253(a)(3). OSMRE provides administration and
enforcement grants to State regulatory programs annually. 30 U.S.C.
1295(a). In addition, OSMRE conducts an annual oversight review of each
State program, and, if necessary, OSMRE can evaluate the sufficiency of
a State regulatory authority's funding, including the sufficiency of
funding to carry out any action plans. For these reasons, OSMRE
declines to add a definition of ``adequate funding'' to 30 CFR 733.5.
OSMRE also disagrees with the need to include a definition for
``public notification and involvement.'' Any definition of this term in
30 CFR 733.5 would only be applicable to the sections of part 733;
OSMRE's general definitions for its permanent regulatory program are
found in 30 CFR 700.5 and 701.5 and neither contains a definition of
public notification and involvement or a similar term. SMCRA contains
many provisions related to public participation. See, e.g., W. Va.
Highlands Conservancy, Inc. v. Norton, 343 F.3d at 242. SMCRA's public
notification and participation procedures have long been understood in
the context of their usage and as part of each State's approved
regulatory program. Moreover, while OSMRE's regulations do not provide
for public involvement in the development of an action plan, revised 30
CFR 733.12(c) requires each State regulatory program issue, and
benchmarks related to the resolution of that issue, to be tracked in
each State's Annual Evaluation report, which is a public document
published on OSMRE's website. Thus, the public will have access to any
action plans that are developed.
Comment: A commenter suggested that OSMRE add a definition in Sec.
733.5 for ``Federal regulations.'' The suggested definition makes
reference to several Federal environmental regulations with which a
State regulatory authority must comply, including the Endangered
Species Act of 1973, the Migratory Bird Treaty Act, the Clean Water
Act, and the Archaeological Resources Protection Act. The commenter
also suggests the addition of a definition in Sec. 733.5 for ``Listed
species'' and refers to the meaning of the term under the Endangered
Species Act of 1973. The commenter also requested that OSMRE define
``Migratory bird'' and make reference to the meaning of the term under
the Migratory Bird Treaty Act. The same commenter also suggested adding
a sentence to the end of OSMRE's definition of ``State regulatory
program issue.'' The added sentence would state that ``State regulatory
program issue'' would include ``the potential failure to comply with or
completely implement Federal regulations.''
Response: These terms exist outside of SMCRA and are not part of
this rulemaking effort. States must comply with all applicable Federal
and State laws. For these reasons, OSMRE declines to include them in
this rule.
Comment: Similar to the comment above, the same commenter,
representing an NGO, suggested that OSMRE list specific Federal
regulations that could result in a State regulatory program issue and a
subsequent action plan in the commenter's proposed definition of
``Federal regulations.'' This commenter also suggested rule changes to
reflect inclusion in the action plan of any mitigation measures ``that
are necessary to return the affect[ed] area to pre-project
conditions.'' The commenter also suggested that OSMRE include specific
criteria to determine if the State regulatory program issue has been
remedied or mitigated.
Response: OSMRE declines to add a definition of ``Federal
regulations'' to 30 CFR 733.5 because the language at revised 30 CFR
733.12 is sufficiently broad to address whatever SMCRA program
deficiency needs correction, and the regulation at final 30 CFR
733.12(b)(1) requires the action plan to ``be written with specificity
to identify the State regulatory program issue . . . .'' Thus, any
SMCRA provision or implementing regulation that is the subject of the
program issue will be identified at that time. As to the suggestion to
require the return of the affected area to pre-project conditions,
there is no provision in SMCRA that requires the return of a mine site
to its pre-project condition. Instead, SMCRA requires permit applicants
to reclaim the mine site as required by the Act and the State or
Federal program. 30 U.S.C. 1260(b)(2). SMCRA further requires, for
example, restoration of the land affected by mining ``to a condition
capable of supporting the uses which it was capable of supporting prior
to any mining, or higher or better uses of which there is a reasonable
likelihood . . . .'' 30 U.S.C. 1265(b)(2) (emphasis added). The
commenter's suggestion is directly contrary to these provisions of
SMCRA; therefore, OSMRE rejects this comment.
OSMRE agrees with the commenter that specific criteria should be
included as part of each action plan so that OSMRE can evaluate whether
the problem has been remedied. OSMRE, however, declines to adopt the
specific language proposed by the commenter because, as proposed and
finalized today, 30 CFR 733.12(b)(3)(iii) already includes language
requiring actions plans to contain ``[e]xplicit criteria for
establishing when complete resolution [of the State regulatory program
issue] will be achieved.''
Comment: A commenter suggested that OSMRE not adopt ``Early
identification and corrective action to address State regulatory
program issues'' at proposed Sec. 733.12 and instead incorporate
OSMRE's suggested changes into existing OSMRE Directive REG-23. The
commenters suggested varying degrees of positive and negative
experiences with State-OSMRE action plans and their effectiveness.
[[Page 75174]]
Response: OSMRE declines to make this change. The enhanced 30 CFR
part 733 process that OSMRE is finalizing today is an important part of
clarifying when OSMRE will use its authority under 30 U.S.C. 1271(a)
and when it will use its authority under 30 U.S.C. 1271(b). Codifying
this procedure in the Federal regulations versus an internal guidance
document will give OSMRE a transparent mechanism that has gone through
public review and comment to resolve State regulatory program issues.
OSMRE acknowledges the commenter's varying experiences with action
plans, but OSMRE is expecting to obtain positive results from this
regulatory process as adopted in this final rule.
Comment: A commenter made several specific suggestions to OSMRE's
wording in proposed 30 CFR 733.12. These suggestions included wording
related to actions taken by the Director to make some actions mandatory
rather than discretionary and adding terms related to timing, such as
``immediately'' and ``without delay.'' The commenter also suggested
reducing the specific timeframe in which State regulatory program
issues need to be resolved to 30 days calendar days as opposed to the
180 days as proposed by OSMRE.
Response: The purpose behind OSMRE's proposed new 30 CFR 733.12 is
to give OSMRE a new tool, the development of an ``action plan,'' to use
to ensure that systemic issues with State regulatory programs are
addressed in a measured, but no less accountable, manner. This tool
provides OSMRE with another means to better manage situations where a
SMCRA problem may exist but does not require immediate action under the
TDN process, though it needs to be addressed in a shorter time frame
than the traditional 733 process. An action plan is the vehicle to use
in these situations. Adoption of the commenter's suggested changes to
proposed Sec. 733.12 would result in the loss of flexibility, which is
the purpose of this section; thus, OSMRE is not making the suggested
changes.
Comment: A group of commenters requested that OSMRE revise proposed
Sec. 733.12(a)(2) to ``fully reflect the flexibility in the Part 733
process and avoid any inference that OSM[RE] can skip steps in the
process.'' The commenters suggested that paragraph (a)(2) should be
revised as follows (commenters' suggested language in italics):
If the Director has reason to believe [as opposed to
``concludes'' in the proposed rule] 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 proceedings to substitute Federal enforcement
of a State regulatory program or withdraw approval of a State
regulatory program as provided in Part 733.
Response: OSMRE declined to make the requested changes because
final 30 CFR 733.12 will allow for the development of action plans to
resolve State regulatory program issues; in contrast, the complete 30
CFR part 733 process is aimed at larger programmatic issues. An action
plan is designed to prompt action before the full process for
substituting Federal enforcement or withdrawing a part or whole State
program occurs as outlined in existing 30 CFR part 733 is necessary or
initiated. To include the steps associated with existing Sec. 733.12
would muddy the distinction between an action plan used to resolve
regulatory program issues, which can be at the permit level, and a
programmatic problem involving a deeper systemic issue.
Comment: One commenter suggested revisions to proposed 30 CFR
733.12(b)(3) and (4) to specify that OSMRE notify the public when OSMRE
identifies a State regulatory program issue by posting all relevant
documents on OSMRE's website. The commenter further requested that the
regulation be revised to allow public review and comment on action
plans before they are adopted. Finally, the commenter suggested
revising the regulation to require OSMRE to post action plans and State
regulatory authority Annual Evaluation reports on OSMRE's website.
Response: As addressed above, the proposed regulation at 30 CFR
733.12(c), which is adopted with modifications in this final rule, will
provide that ``[a]ll identified State regulatory program issues and any
associated action plan must be tracked and reported in the applicable
State regulatory authority's Annual Evaluation report.'' OSMRE already
posts Annual Evaluation reports on OSMRE's website. See https://www.odocs.osmre.gov/. OSMRE also intended to post any action plans
developed between OSMRE and a State regulatory authority on OSMRE's
website. Therefore, OSMRE is revising the final rule to provide that
OSMRE will make all Annual Evaluation reports available on OSMRE's
website and at the applicable OSMRE office. Thus, the public will be
notified of each identified State regulatory program issue and
associated action plan.
While public participation is an essential and routine part of many
aspects of OSMRE's regulatory program, public input in the development
of an action plan would hamper OSMRE's ability to timely address
identified State regulatory program issues. Even though OSMRE's process
of developing an action plan does not include a public comment element,
the inclusion of the term ``any source'' in revised 30 CFR 733.12(a)(1)
makes it clear that a citizen, an organization, or any other source may
provide information to OSMRE that could lead the Director to conclude
that there may be a State regulatory program issue, which could result
in an ``action plan.''
Comment: A commenter recommended the deletion of proposed Sec.
733.12(d) because it would allow OSMRE to take an oversight enforcement
action before a violation exists. The commenter referred to the portion
of the proposed rule that read, ``may imminently result in an on-the-
ground violation.'' Emphasis in original.
Response: OSMRE declines to make this change. Under this final
rule, OSMRE retains the right to issue a TDN to a State regulatory
authority if a previously identified State regulatory program issue has
not been adequately addressed and results in an actual or imminent
violation of the approved State program. In the final rule, as
discussed in the section-by-section analysis, OSMRE has removed the
reference to ``on-the-ground violation'' and replaced it with ``a
violation of the approved State program.'' OSMRE recognizes that these
violations often manifest as an on-the-ground impact, but OSMRE also
recognizes that these violations may manifest by other means. For
example, a permittee's failure to submit required monitoring reports or
submit annual certifications may be a site-specific violation of the
approved State program. Specific to the comment, when OSMRE determines
that a violation of the approved State program is imminent, it makes
sense for OSMRE to take action to prevent actual problems. One of the
primary purposes of SMCRA is to protect society and the environment
from the harmful effects of surface coal mining operations, and OSMRE
will be able to fulfill that purpose, in part, under Sec. 733.12(d),
which is being adopted in this final rule.
I. Interrelationship of 30 CFR Part 733 and 30 CFR Part 842
Despite the distinct processes outlined in 30 U.S.C. 1271(a) and
(b) for handling site-specific violations and those violations of a
programmatic nature, the reality of OSMRE enforcement is that, in
practice, the nature of these violations may sometimes blur. This
overlap may occur
[[Page 75175]]
as a result of circumstances, stakeholders conflating the processes,
and complicated issues associated with coal mining. Thus, although a
multi-state governmental organization commenter found OSMRE's inclusion
of reference to one distinct process when discussing the other process
to be ``perplexing,'' OSMRE's experience--and other comments received
on this topic--demonstrate that the interrelationship must be
considered.
Comment: Similar to a comment discussed above in Section II., H., a
group of commenters claimed that the use of the proposed 30 CFR part
733 process to deal with any on-the-ground issue is inconsistent with
SMCRA and will be more disruptive than using a TDN as directed by 30
CFR part 842. This group of commenters also claimed that a TDN is
needed when a State regulatory authority fails to act on a violation.
Response: OSMRE agrees with the commenters that existing 30 CFR
733.12, now redesignated as 30 CFR 733.13 in this final rule, and
entitled, ``Procedures for substituting Federal enforcement of State
programs or withdrawing approval of State programs,'' does not quickly
effectuate change. However, OSMRE notes that this is a distinct process
that must be implemented carefully and prudently. To bridge this gap,
OSMRE proposed 30 CFR 733.12, which is being finalized today, as an
early identification process for a prompter resolution of State
regulatory program issues than under the existing regulations. This
enhancement to the 30 CFR part 733 process serves to identify issues
before the issues warrant the rare remedies of substitution of Federal
enforcement or withdrawal of an approved State program. As previously
discussed, the development and use of action plans in 30 CFR 733.12, as
finalized, will resolve State regulatory program issues. In addition,
even when OSMRE and a State regulatory authority are engaged in an
action plan process, OSMRE will still take appropriate enforcement
actions to address imminent harm situations and will issue TDNs for
actual or imminent violations of an approved State program, such as
those that have on-the-ground impacts. State regulatory program issues
may also result in a direct Federal enforcement action under revised
Sec. 733.12(d) if the State regulatory authority does not address
issues as outlined in the action plan and there is an actual or
imminent violation of the approved State program.
Comment: OSMRE received a number of comments on what constitutes a
``State regulatory program issue.'' A commenting group requested that
OSMRE clearly express the delineation between a ``violation'' as used
in section 521 of SMCRA and a ``State regulatory program issue'' as
proposed in Sec. 733.5 and redesignated as Sec. 733.12. The group
further suggested that OSMRE consider adding language to the definition
of State regulatory program issue that states that State regulatory
program issues are not ``violations'' in the context of section
521(a)(1) of SMCRA.
Response: OSMRE declines to make this requested delineation and
associated change because OSMRE is afforded a degree of discretion to
determine if something is a State regulatory program issue that should
be addressed under the enhanced and finalized 30 CFR part 733 process
or is site-specific with on-the-ground impacts that fall under the TDN
process outlined in part 842. Moreover, finalized Sec. 733.12(d)
continues to grant OSMRE the authority to take enforcement action to
address an actual or imminent violation of an approved State program
that often manifests as an on-the-ground impact. To do as the commenter
suggests, i.e., the wholesale exclusion of State regulatory program
issues from the TDN process, would create a regulatory loophole and be
inconsistent with congressional intent. Further, as stated previously,
what constitutes a violation is well understood by OSMRE, State
regulatory authorities, and permittees. Thus, no change to the
definition of State regulatory program issue is needed.
Comment: A commenter suggested that OSMRE overtly state that State
regulatory program issues are not the basis for a TDN.
Response: While at least initially, a State regulatory program
issue will not result in the issuance of a TDN, OSMRE is reserving the
right to conduct Federal enforcement in accordance with final rule
Sec. 733.12(d) in the event that a State regulatory authority does not
adhere to an action plan or if a State regulatory program issue results
in an actual or imminent violation of the approved State program that
often manifests as an on-the-ground impact. Therefore, OSMRE declines
to make the overt statement that the commenter requested.
Comment: A commenter group requested that OSMRE reconsider defining
``appropriate action'' for a ``State regulatory program issue'' under
Sec. 842.11 as an ``appropriate action'' in response to a TDN under 30
CFR part 842. The group noted that OSMRE spent considerable time in
preamble text delineating OSMRE's authority for the TDN process under
30 U.S.C. 1271(a) and 30 CFR part 842 and the 30 CFR part 733 process
as required by 30 U.S.C. 1271(b). The group further suggested that
State regulatory program issues are not to be the basis for a TDN;
therefore, the inclusion of an action plan to address a State
regulatory program issue, as an element of the TDN process, seemed to
conflate the apparent distinction OSMRE was making between the TDN and
30 CFR part 733 processes.
Response: As OSMRE understands the comment and associated request,
OSMRE declines to accept this change. If a State regulatory authority,
operating under final Sec. 733.12, including development of an action
plan, does not address the program issues identified in the action plan
in the manner, and in accordance with the dates, outlined in the action
plan, OSMRE may need to institute Federal enforcement to address the
issue if there is an actual or imminent violation of the approved State
program. The action plan process in final Sec. 733.12 is not a vehicle
to avoid Federal enforcement; instead, it is a tool to address State
regulatory program issues promptly.
Comment: Several commenters challenged the use of the 30 CFR part
733 process, as it existed in the pre-existing regulations and with the
enhancements finalized today, to address State regulatory program
issues that result from State permitting deficiencies. Various
commenters asserted that OSMRE has used TDNs (under 30 CFR part 842)
for years to address such State regulatory program issues. One
commenter opined that an ``enormous loophole'' will be created by
addressing all State regulatory program issues through the 30 CFR part
733 process instead of through the TDN process.
Response: OSMRE disagrees with these comments. OSMRE has
acknowledged that, at various times, it has addressed State permitting
issues through the TDN process. When it did so, OSMRE followed internal
policies. Under this final rule, OSMRE is clarifying that it will not
use the TDN process for alleged issues with a State regulatory
authority's implementation of its approved State program, unless there
is an actual or imminent violation of the approved State program. In
OSMRE's experience, these violations often manifest in on-the-ground
impacts. Instead, OSMRE will initially address such issues through the
enhanced 30 CFR part 733 process. After all, if a permittee obtained a
permit from the State regulatory authority on the basis of an accurate
and complete application, the permittee has initially fulfilled the
requirements of SMCRA and the State
[[Page 75176]]
regulatory program. See, e.g., Coal River Mountain Watch v. Republic
Energy, LLC, No. 5:18-CV-01449, 2019 WL 3798219, at *8 (S.D.W. Va. Aug.
12, 2019). However, as this final rule provides, even if OSMRE and the
State regulatory authority are engaged in the State regulatory program
issue or action plan processes, the State and OSMRE can still take
appropriate enforcement actions if a violation of the approved State
program has occurred or is imminent. By using action plans as an
additional regulatory tool, the intent of sections 504 and 521 of SMCRA
will be met without any damage to the environment or to the detriment
of permittees. As described and contained in this final rule, action
plans are regulatory instruments to accomplish specific objectives and
have required timelines to resolve issues at hand. If a State
regulatory program issue cannot be resolved through an action plan, the
issue could result in a Federal substitution or takeover of a State
regulatory program. The State regulatory program issue and action plan
processes in this final rule, coupled with the TDN process, should
ensure a more complete and timely enforcement of State regulatory
programs.
Comment: One commenter stated that violations emanating from
``permit defects'' should be handled through the TDN process set forth
in 30 CFR part 842 and not under the proposed early identification and
corrective action process outlined in the enhancements to 30 CFR part
733 or through the existing 30 CFR part 733 process. One commenter
expressed concern that excluding the State regulatory authority from
the TDN process undermines the balance between primacy and Federal
oversight and the intent of Congress. Other commenters, pointing to
past OSMRE decisions reviewing requests for Federal inspections related
to State permitting decisions, requested that OSMRE clearly state that
permit defects are totally excluded from the TDN process.
Response: In general, OSMRE interprets the term ``permit defect''
to be a deficiency in a permit-related action taken by a State
regulatory authority. The term does not appear in SMCRA and is not
contained in the existing regulations. Rather, OSMRE has used the term
in internal documents over the years, though OSMRE no longer uses the
term in its existing Directive INE-35, entitled ``Ten-Day Notices'' and
dated May 3, 2019. Section 521(a)(1) of SMCRA refers to ``reason to
believe any person is in violation of any requirement of [SMCRA]. . .
.'' As explained in the proposed rule, 85 FR at 28906-07, and in this
final rule, ``any person,'' in the context of 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. OSMRE
acknowledges that the term ``any person'' also appears earlier in the
same sentence of 30 U.S.C. 1271(a), but, in that context, SMCRA is
referring to ``any person'' that provides information to the Secretary
about possible violations; the term in that context is broader and can
include a State regulatory authority. Under this final rule, OSMRE
generally will not issue a TDN to a State regulatory authority for an
identified State regulatory program issue. More specific to the context
of this comment, under this final rule, a so-called ``permit defect''
will typically be handled as a State regulatory program issue, unless
there is an actual or imminent violation of the approved State program.
OSMRE will continue to take an appropriate direct enforcement action
under the TDN or imminent harm processes, even if the impact stems from
an underlying State regulatory program issue.
Under this final rule, OSMRE will follow the statutory delineation
of sections 521(a) (the site-specific TDN process at 30 CFR part 842)
and 521(b) (the State regulatory program issue 30 CFR part 733 process)
with respect to Federal enforcement. Although OSMRE has taken varying
positions over the years, the best reading of SMCRA is that Congress
intended the section 521(a) TDN process to be limited to violations at
a specific site. In contrast, State regulatory program issues, which
are more systemic in nature and could include alleged issues related to
one or more permits issued by a State regulatory authority but do not
result in site-specific violations of the approved State program,
should be addressed under section 521(b) and the process outlined in
finalized 30 CFR 733.12. In the proposed rule, OSMRE proposed to retain
the ability to take Federal enforcement action if any issue being
addressed as a State regulatory program issue, as outlined in
redesignated 30 CFR 733.12, results in, or may imminently result in,
on-the-ground violation. OSMRE is adopting this proposal in this final
rule but has changed the terminology in Sec. 733.12(b) to read, ``in
violation of the approved State program.'' OSMRE has made this
modification in response to public comments and because this change
best addresses identified issues that are not specific to an individual
site but are more systemic in nature. This is important because OSMRE
will still take appropriate enforcement action for actual or imminent
violations of an approved State program that often manifest as on-the-
ground impacts even while OSMRE and a State regulatory authority are
pursuing corrective actions for State regulatory program issues. A
multi-state governmental organization representing the natural resource
and related environmental protection interests of its 27 member States
agreed that OSMRE can ``issue a TDN for an alleged permit defect that
has resulted in an on-the-ground violation of a performance standard at
a mine.'' Under Sec. 733.12 of this final rule, OSMRE will use any
number of compliance strategies, including action plans when
appropriate, to address regulatory program issues that result from
State regulatory authority permitting actions while also preserving
OSMRE's ability to take enforcement action in the event that a
previously identified State regulatory program issue results in or may
imminently result in a violation of the approved State program. As a
commenter pointed out, the 30 CFR part 733 process has historically
been used after back and forth discussions between OSMRE and a State
regulatory authority to identify and institute any necessary changes to
a State program. The last resort in this situation, which is unaffected
by this final rule, is for Federal substitution or withdrawal of all or
part of a State regulatory program under the existing 30 CFR part 733
process. In OSMRE's view, the introduction of a definition for the
phrase ``State regulatory program issue,'' combined with various
compliance strategies, including action plans when appropriate, is an
intermediary step between a Federal substitution or withdrawal of a
State regulatory program under the part 733 process and the section
521(a) TDN process. An action plan, with associated issue-specific time
frames, serves as a beneficial and productive middle ground. It is
important to keep the goals of regulatory oversight in mind: Address
issues as they arise while causing correction and minimization of on-
the-ground impacts as soon as possible. The revisions to 30 CFR parts
733 and 842 in this final rule achieve those goals by providing OSMRE
with more tools to more appropriately, efficiently, and quickly address
the range of regulatory issues that arise.
Comment: A commenter opined that the citizen complaint process
contained in 30 CFR part 842 should not be used to challenge state
permitting issues under the guise of a ``violation of the Act or
program.''
[[Page 75177]]
Response: As has been previously stated, Congress intended public
participation in the implementation and enforcement of SMCRA and
specifically added section 521(a) to the statute to account for that
participation. The language of 30 U.S.C. 1271(a)(1) is clear that the
TDN process should be used for a non-imminent harm situation when ``the
Secretary has reason to believe that any person is in violation of any
requirement of this Act or any permit condition required by this Act. .
. .'' However, if the alleged violation satisfies the definition of
``State regulatory program issue,'' which could include issues related
to State permitting, OSMRE will use the process set forth in 30 CFR
733.12, as finalized, to address the issue. If it is not clear, at the
time the citizen complaint is received, whether the alleged violation
is actually a State regulatory program issue, OSMRE, if it has the
requisite ``reason to believe,'' will still issue a TDN to a State
regulatory authority. If, after review of the information provided in
the State's response to the TDN, it turns out that the alleged
violation is properly characterized as a State regulatory program
issue, under revised 30 CFR 842.11(b)(1)(ii)(B)(3), the State will have
taken appropriate action in response to the TDN by working with OSMRE
to resolve the issue; thus, OSMRE will not conduct a Federal
inspection. Of course, under finalized 30 CFR 733.12(d), if the State
regulatory program issue manifests itself as a violation of the
approved State program that often results in an on-the-ground impact,
OSMRE can still take direct enforcement action.
Comment: A commenting group suggested that OSMRE revise the
proposed definition of ``State regulatory program issue'' to exclude
all programmatic and permitting issues from the TDN process found in 30
CFR part 842. The group also offered language at specific sections in
proposed 30 CFR part 842 to effectuate this understanding. The
suggested changes included adding a definition section to 30 CFR part
842 that defines the following phrases and terms: ``State regulatory
program issue'' and ``violation'' as used in 30 CFR parts 733 and 842.
The commenter also suggested deleting the proposed revisions to the
term ``appropriate action'' regarding joint inspections and to the term
``good cause,'' which references 30 CFR part 733 State regulatory
program issues. OSMRE infers from the comments that these suggested
changes are presumably to indicate that State regulatory program issues
are not appropriate subjects for a TDN.
Response: OSMRE declines to make these changes because, as already
stated in this preamble, under this final rule, OSMRE will not follow
the process in 30 CFR 842.11 for State regulatory program issues,
unless there is an actual or imminent violation of the approved State
program. However, as noted above, sometimes OSMRE may initially issue a
TDN for something that turns out to be a State regulatory program
issue.
J. Specific Responses to Other Comments Received About the Proposed
Rule
Comment: One commenter questioned the validity of OSMRE's intention
for clarifying the existing regulations. Specifically, this commenter
alleged that despite OSMRE's rationale, the true rationale behind the
proposed rulemaking is to ``reduce the workload of federal and state
regulatory authorities due to lack of adequate funding to implement the
Act as Congress intended it be done.''
Response: The commenter provided no evidence that the State
regulatory authorities have insufficient funding to carry out their
obligations under SMCRA. For this and many other reasons stated
throughout the proposed rule and this final rule preamble, OSMRE
disagrees with the commenter. To the contrary, this rulemaking is
intended to add transparency to OSMRE's oversight responsibilities;
promote regulatory certainty for State regulatory authorities,
regulated entities, and the public; enhance OSMRE's relationship with
the State regulatory authorities; reduce redundancy in inspection and
enforcement; and streamline the process for notifying State regulatory
authorities of possible violations and other issues. With respect to
the commenter's allegation that insufficient funding is provided to
State regulatory authorities, OSMRE notes that Federal administration
and enforcement grants are awarded to State regulatory authorities
based, in part, on the anticipated workload, such as permitting and
inspection, that is necessary for State regulatory authorities to
administer and enforce their approved State programs under SMCRA. See
30 CFR part 735 and OSMRE's Federal Assistance Manual, Chapter 5-200,
The Application Process for a Regulatory Grant. In the event that OSMRE
has reason to believe that a State regulatory authority is not
effectively implementing, administering, maintaining, or enforcing any
part of its approved program--including not sufficiently funding the
approve State program, OSMRE may initiate procedures for substituting
Federal enforcement of State programs or withdrawing approval of State
programs as detailed in redesignated 30 CFR 733.13.
Comment: A commenter expressed concern that the proposed change
from ``shall'' to ``will'' in 30 CFR 842.11(b)(1) converts a previously
mandatory duty into a discretionary duty.
Response: As explained in the preamble to the proposed rule, the
purpose of changing ``shall'' to ``will'' in 30 CFR 842.11(b)(1) was to
clarify potential ambiguity with the word ``shall.'' 85 FR at 28907. As
Justice Ginsburg explained in Gutierrez de Martinez v. Lamagna,
``[t]hough `shall' generally means `must,' legal writers sometimes use,
or misuse, `shall' to mean `should,' `will,' or even `may.' '' 515 U.S.
417, 432-33, n.9 (1995). Even in an enforcement provision like this
one, the use of the word ``shall'' does not necessarily give rise to a
mandatory, nondiscretionary duty. See, e.g., Heckler v. Chaney, 470
U.S. 821, 835 (1985); Sierra Club v. Jackson, 724 F. Supp. 2d 33, 38
n.l (D.D.C. 2010) (``the mandatory meaning of `shall' has not been
applied in cases involving administrative enforcement decisions'');
Fed. R. Civ. P. 1, Advisory Committee Notes (2007) (``The restyled
rules minimize the use of inherently ambiguous words. For example, the
word ``shall'' can mean ``must,'' ``may,'' or something else, depending
on context. The potential for confusion is exacerbated by the fact that
``shall'' is no longer generally used in spoken or clearly written
English.'').
To guard against this potential ambiguity, OSMRE proposed to
replace the word ``shall'' with the word ``will'' because ``will''
indicates an event (i.e., a Federal inspection) that is to occur in the
future under specific circumstances (i.e., when the OSMRE authorized
representative issues a TDN, and the State regulatory authority fails
to respond with good cause or appropriate action). This word choice
clarification was not intended to render the action at 30 CFR
842.11(b)(1) as anything but mandatory. However, in consideration of
the comment, OSMRE is adopting this suggestion to remove any ambiguity
over the mandatory nature of the authorized representative's
responsibility to issue a TDN when ``reason to believe'' is formulated.
However, instead of replacing ``shall'' with ``will,'' as proposed,
OSMRE will substitute the word ``shall'' with ``must'' in order to more
affirmatively communicate the mandatory requirement. The Federal
Register Document Drafting Handbook provides,
[[Page 75178]]
``use `must' instead of `shall' to impose a legal obligation to your
reader.'' Additionally, the Federal Plain Language Guidelines--referred
to in the Federal Plain Writing Act of 2010--also direct Federal
agencies to use ``must'' not ``shall'' to indicate requirements.
Comment: A commenting group suggested that OSMRE incorporate
regulatory language that defines the term ``violation.'' The commenter
asserted that, in the TDN context, a violation only occurs in the
context of on-the-ground violations of a State regulatory program,
rather than to infractions of SMCRA generally.
Response: OSMRE disagrees that changes to the existing regulations
are necessary. The term ``violation'' has been used for greater than 40
years in SMCRA enforcement and has a common understanding that is not a
subject of this rulemaking. However, as explained in the proposed rule,
``[a] reasonable reading of section 521(a)(1) is that the referenced
violations are those that permittees, and related entities or persons,
commit in contravention of State regulatory programs. Therefore, within
the context of section 521(a) of SMCRA and the TDN regulations, the
proposed rule would clarify that OSMRE will not send TDNs to State
regulatory authorities based on allegations or other information that
indicates that a State regulatory authority may have taken an improper
action under the State's regulatory program.'' 85 FR at 28907. OSMRE
reasserts that position here. OSMRE did not propose to define the term
violation and finds that such a definition is unnecessary.
Further, OSMRE agrees that it will issue TDNs to State regulatory
authorities only when it has reason to believe there is a violation of
the applicable State program, but this result is already clear in the
existing regulations. In other words, when OSMRE is determining whether
it has reason to believe that there is a violation of SMCRA in the TDN
context, it makes that determination under the requirements of the
approved State program. This longstanding practice does not require
regulatory clarification. Of course, State programs must consist of
elements that are no less stringent than SMCRA and no less effective
than its implementing regulations. See 30 CFR 732.15(a) (a State
program must be ``in accordance with'' SMCRA and ``consistent with''
the Federal regulations) and 30 CFR 730.5 (defining ``in accordance
with'' and ``consistent with''). As such, if there would be a violation
under SMCRA and the Federal regulations, a violation of an approved
State program is also likely. However, if OSMRE discovers that a State
program is not as stringent as SMCRA, it will take appropriate action,
such as requiring a State program amendment under 30 CFR 732.17. With
regard to the commenter's reference to ``on-the-ground violations,''
that issue is discussed elsewhere in this final rule.
Comment: A commenter requested that OSMRE modify existing Sec.
842.11 to ensure deference is given to the State regulatory authority
when OSMRE is evaluating alleged violations, especially those stemming
from what the commenter characterizes as ``permit defects.'' While the
commenter noted that the existing regulations contain an ``arbitrary
and capricious'' standard, the commenter suggested that OSMRE and the
Department's Office of Hearings and Appeals (OHA) often ignore or pay
lip service to the standard. The commenter suggested that OSMRE amend
30 CFR 842.11(b)(1)(ii)(B)(2) to make certain that deference is given
to the State regulatory authority by adding a second sentence to read
as follows: ``[t]he authorized representative will accord the State
regulatory authority substantial deference in evaluating whether the
response is arbitrary capricious or an abuse of discretion under the
State program.''
Response: As explained above, under this final rule, OSMRE will not
address problems with a State-issued permit through the TDN process,
unless there is an actual or imminent violation of the approved State
program. OSMRE agrees with the commenter that OSMRE should afford
substantial deference to State regulatory authorities during the TDN
process. This is a practice that OSMRE has routinely followed in
conformity with the various provisions of SMCRA relevant to this issue.
Under the ``arbitrary, capricious, or an abuse of discretion'' standard
in the existing regulations, which is not affected by this final rule,
OSMRE already affords substantial deference to State regulatory
authorities that the commenter seeks, which is consistent with SMCRA's
cooperative federalism model. After all, in primacy States, the State
is the primary SMCRA regulatory authority, and OSMRE's role is one of
oversight. Because the existing regulations already recognize the
States' significant role in enforcing SMCRA, and OSMRE is appropriately
deferential to the States, no change to the regulations is necessary to
accomplish the commenter's goal. OSMRE also notes that, contrary to the
commenter's assertion, neither OHA nor OSMRE is free to ignore or
merely pay lip service to requirements in duly promulgated regulations.
Likewise, OSMRE acknowledges that it must follow applicable provisions
of SMCRA and relevant administrative and judicial case law. OSMRE
already recognizes and applies the requisite deference owed to State
regulatory authorities during the TDN process, and the TDN regulations
and OSMRE's practice are fully in accord with SMCRA and court
decisions.
Comment: A commenter questioned why OSMRE proposed changes to four
of the five examples of what can constitute ``good cause'' at 30 CFR
842.11(b)(1)(ii)(B)(4) and made no changes to one of the five elements.
The commenter also questioned OSMRE's proposal to include the term
``demonstrates'' in paragraphs (b)(1)(iii) and (iv) because it did not
appear to change the meaning of the provisions.
Response: OSMRE has found it difficult to substantiate State
regulatory authority's jurisdictional claims under existing paragraph
(b)(1)(iii) and claims of preclusion to act under existing paragraph
(b)(1)(iv). OSMRE does not intend to change the meaning of these
provisions or its interpretation of what constitutes good cause for not
taking an action under these subparagraphs. OSMRE added ``demonstrate''
to these subparagraphs of Sec. 842.11(b)(1)(ii)(B)(4) to ask State
regulatory authorities to provide OSMRE with a measure of certainty for
their claims of good cause for not taking an action to correct a
violation.
Comment: One commenter indicated general support for the proposed
clarifications of ``good cause'' as set forth in 30 CFR
842.11(b)(1)(ii)(B)(4). However, the commenter recommended that the
provisions related to good cause could be made more effective with the
addition of language requiring the State regulatory authority to
demonstrate it has ``dedicated all resources necessary to complete the
investigation as soon as possible.''
Response: OSMRE understands that the commenter is requesting a
defined time frame for the State regulatory authority to complete an
investigation into a possible violation as outlined in 30 CFR
842.11(b)(1)(ii)(B)(4)(ii) and also is requesting that the State
regulatory authority make an affirmative showing that all resources
necessary are used to complete the investigation. OSMRE does not accept
the suggestion made by the commenter as it would place general,
unreasonable expectations on the State regulatory authority to complete
often complicated and fact-specific investigations. To be clear, the
existing regulations require that when a State regulatory authority
requires
[[Page 75179]]
additional time to analyze the allegations in a TDN, this must be
performed in a ``reasonable and specified additional time.'' The
proposed rule, as finalized today, also contains this limit on a State
regulatory authority's investigation time frame and takes a further
step to ensure expeditious resolution of possible violations. In an
effort to express the urgency of promptly resolving alleged violations,
the final rule grants the OSMRE authorized representative discretion to
``determine how long the State regulatory authority should reasonably
be given to complete its investigation . . . and [the authorized
representative] will communicate to the State regulatory authority the
date by which the investigation must be completed.'' At the conclusion
of the specified time, the OSMRE authorized representative will re-
evaluate the State regulatory authority's response. This reflects an
appropriate balance of the State regulatory authority's knowledge of
specific issues, the need to thoroughly gather information necessary to
evaluate a possible violation, and the prompt resolution of possible
violations. Furthermore, it does not place unreasonable expectations on
State regulatory authorities to dedicate ``all resources'' to one
issue.
Comment: One commenter suggested revisions to the ``good cause''
provisions in proposed Sec. 842.11(b)(1)(ii)(B)(4)(iv) to address what
the commenter has characterized as a shortcoming in the existing and
proposed language that was identified during recent coal company
bankruptcy proceedings. According to the commenter, during bankruptcy
proceedings, evidence was discovered of collusion between State
officials and coal companies that were self-bonded. The commenter
alleged that either through this alleged collusion, or by direct action
of the State officials, judicial action was taken to shield these
companies from complying with the requirements of 30 CFR 800.16(e)
(General terms and conditions of bond) and 30 CFR 800.23(g) (Self-
bonding). The commenter surmised that these alleged actions could be
prevented by revising Sec. 842.11(b)(1)(ii)(B)(4)(iv) to include the
requirement that the State regulatory authority ``demonstrate that no
state official has coordinated with the mining company and or acted
independently to secure an administrative review body or court of
competent jurisdiction to preclude the State regulatory authority from
taking action on the violation.''
Response: OSMRE declines to accept this suggestion because this
proposed revision to the good cause requirements of 30 CFR part 842 is
outside the scope of this rulemaking as OSMRE did not propose to
substantively change the requirement in Sec.
842.11(b)(1)(ii)(B)(4)(iv). OSMRE notes that if OSMRE discovers, at any
time, that a State regulatory authority is failing to adequately
implement, administer, maintain, or enforce a part or all of a State
program, including enforcing the general bonding and self-bonding
requirements established in 30 U.S.C. 1259 and 30 CFR part 800, OSMRE
may initiate the existing 30 CFR part 733 process in accordance with 30
U.S.C. 1271(b).
Comment: A multi-state governmental organization that characterizes
itself as supporting the natural resource and related environmental
protection and mine safety and health interests of its 27 member States
suggested that OSMRE develop a more thorough discussion of why the
proposed regulations at 30 CFR parts 733 and 842 represent OSMRE's
interpretation of SMCRA with respect to the procedures for substituting
Federal enforcement of State programs or withdrawing approval of State
programs and the TDN process.
Response: OSMRE has already discussed the clarifying changes to 30
CFR parts 733 and 842 in the preamble to the proposed rule (85 FR
28904). These two rule sections have also been the subject of several
previous rulemakings and associated Federal Register notices. See,
e.g., 44 FR 14902 (March 13, 1979), 47 FR 35620 (Aug. 16, 1982), 52 FR
34050 (Sept. 9, 1987), and 53 FR 26728 (July 14, 1988). Additionally,
OSMRE has expanded upon the rationale for its clarifying changes,
above.
Comment: A coal industry group comprised of several companies in an
Appalachian Basin-based coal State offered its support for OSMRE's
proposed clarification that OSMRE will not send TDNs to State
regulatory authorities based on allegations that the State regulatory
authority itself has acted improperly under the approved State program.
Response: As discussed briefly above, OSMRE agrees with the
commenter's observations. Specifically, the commenter accurately
recognizes that within the context of section 521(a)(1) of SMCRA, a
State regulatory authority should not be considered ``any person'' who
may be ``in violation of any requirement of this Act.'' 30 U.S.C.
1271(a)(1). As discussed in the proposed rule, but not commented upon,
in this context, ``any person'' does not include OSMRE, State
regulatory authorities, or employees or agents thereof, unless they are
acting as permit holders. To be clear, OSMRE will not issue a TDN to a
State regulatory authority for an alleged violation by the State
regulatory authority, unless the State regulatory authority is acting
as a permit holder because it is operating a surface coal mining
operation or the State regulatory authority is standing in the shoes of
the permittee due to bond forfeiture or any other unforeseen reason.
This interpretation is consistent with the plain language of 30 U.S.C.
1271(a) that differentiates between ``any person'' providing
information and ``any person [that] is in violation of any requirement
of this Act. . . .'' However, OSMRE cautions that this interpretation
does nothing to diminish OSMRE's authority to act if OSMRE becomes
aware that there is a State regulatory program issue. Specifically, if
OSMRE becomes aware that there is a State regulatory program issue that
undermines a State regulatory authority's effective administration,
maintenance, implementation, or enforcement of its State regulatory
program, even with respect to a single operation, OSMRE may address the
issue programmatically under the enhanced 30 CFR part 733 that is being
finalized in this rulemaking while also taking enforcement action as
prescribed by 30 U.S.C. 1271(a)(1) when there is a violation of the
approved State program.
Comment: A citizen commenter suggested that OSMRE should define the
terms ``readily available information'' and ``effective
documentation.''
Response: Definitions for these two terms are unnecessary as the
terms have generally accepted definitions and no specialized technical
meaning in this rule. For example, ``readily'' is defined as ``without
hesitating; without much difficulty.'' Readily, Merriam Webster Online
Dictionary, available at merriam-webster.com/dictionary/readily (last
accessed August 4, 2020). Moreover, as OSMRE explained in the preamble
to the proposed rule, OSMRE considers ``any information that is
accessible without unreasonable delay'' to be ``readily available
information.'' 85 FR at 28907. Furthermore, OSMRE's authorized
representative needs the flexibility to use his or her best
professional judgment to determine what information is readily
available based on the specific facts of each situation.
Similarly, it is also not necessary for OSMRE to define ``effective
documentation'' as it is used in Sec. 842.11(b)(2) to describe the
type of information referenced in 43 U.S.C. 1271(a)(1) that a
complainant should submit to OSMRE to show a possible violation because
determining what
[[Page 75180]]
constitutes ``simple and effective documentation'' will be a fact-
specific consideration that OSMRE will take into account in formulating
reason to believe on a case-by-case basis. Congress, when enacting
SMCRA, recognized that OSMRE's authorized representative will consider
``a snapshot of an operation in violation or other simple and effective
documentation of a violation'' in order to formulate reason to believe
before issuing a TDN. H.R. Rep. No. 95-128, at 129 (April 22, 1977)
(emphasis added). As used in the final rule at 30 CFR 842.11(b)(2),
OSMRE adopts the language proffered by Congress; thus, OSMRE's
authorized representative will be assessing both whether the
complainant has submitted ``simple and effective documentation'' and
whether ``facts that are otherwise known to the authorized
representative'' constitute simple and effective documentation before
formulating whether there is reason to believe a violation exists.
However, that simple and effective documentation can also come from any
other readily available source, in addition to the complainant. This
may include, for example, information in OSMRE's files, from the public
domain, provided by a State regulatory authority, or in a citizen
complaint. Depending on the alleged violation, simple and effective
documentation could also be a photograph of the alleged violation,
boundary identifiers, water monitoring reports, or any other
information readily available to OSMRE's authorized representative.
Comment: A citizen commenter stated that the proposed changes to
Sec. 842.11(b)(2) coupled with the ``new proposed `reason to believe'
standard'' will make it more likely that legitimate complaints will be
rejected because the complaint may not include ``simple and effective
documentation.'' Further, the commenter reasoned that the term ``simple
and effective documentation'' is a new term that is undefined and that
will place an unreasonable burden on citizens seeking to file a citizen
complaint.
Response: OSMRE disagrees with this comment and notes that Sec.
842.11(b)(2) states the authorized representative will be able to
formulate reason to believe ``if the facts that a complainant alleges,
or facts that are otherwise known to the authorized representative,
constitute simple and effective documentation of the alleged violation,
condition, or practice.'' (Emphasis added). The commenter has missed
the portion of this provision that allows the authorized representative
to rely on facts that are otherwise known to the authorized
representative that may constitute simple and effective documentation,
in addition to the facts that the complainant submits. Moreover, as
OSMRE noted in response to a previous comment, the concept of ``simple
and effective documentation'' was first introduced in 1977 when SMCRA
was being drafted by Congress. This phrase was used to describe the
type of information that could be used to document a possible
violation. OSMRE is not imposing a new requirement or a burden on
citizens when filing a citizen complaint and views this standard as a
low bar describing the nature of documentation that may be used to show
that a violation has taken or is taking place. In addition, OSMRE has
clarified in this final rule that it will consider any ``simple and
effective documentation''--including readily available information from
the State regulatory authority or any other source--when formulating
reason to believe.
Comment: OSMRE received several comments suggesting that OSMRE does
not have statutory authority to issue a notice of violation (NOV) in a
primacy State due to the construction and relationship between sections
504(b) and 521(b) of SMCRA. One of these commenters further suggested
that once a State program is approved, and the State earns primacy, the
approved State program becomes the operative law; therefore, Federal
actions against a State permittee amount to a Federal takeover of the
approved State program. Another one of these commenters echoed the same
sentiment and added that Federal oversight in a primacy State created
an unfair playing field relative to States that have not achieved
primacy and therefore have only Federal enforcement. A commenter
further suggested that OSMRE repeal the regulation authorizing NOVs in
primacy states (30 CFR 843.12) and initiate a rulemaking to do so.
Response: The issue of OSMRE's statutory authority to issue NOVs is
well-settled, and nothing in OSMRE's proposed rule suggested that OSMRE
was reconsidering whether it has authority to issue NOVs in primacy
States. See 48 FR 9199 (Mar. 3, 1983) (``[u]pon examination of the
issue, the Department has concluded that the regulation contained at 30
CFR 843.12(a)(2) was properly and lawfully promulgated; therefore there
is no need to reconsider the issue.''); see also 44 FR 14902. Over
thirty years ago, OSMRE considered a rulemaking petition, which sought
the repeal of all of the regulations ``authorizing Federal notices of
violation in States with approved regulatory programs . . . .'' 52 FR
at 21598. OSMRE denied this petition. 52 FR at 21601 (``After careful
consideration of the Act, the legislative history, and public comments.
. . , OSMRE determined that it has the authority to issue Federal NOV's
in primacy States.''); see also Nat'l Min. Ass'n v. U.S. Dep't of
Interior, 70 F.3d 1345, 1353 (D.C. Cir. 1995) (upholding OSMRE's
rulemaking petition denial). Given OSMRE's longstanding interpretation
of its authority and the lack of anything in the proposed rule that
would indicate a change to this position, OSMRE considers this comment
to be outside the scope of this rulemaking, and OSMRE is not adopting
the suggestions made by these commenters.
Comment: One commenter suggested that OSMRE repeal 30 CFR 842.15(d)
pertaining to formal appeals to OHA of the Director's informal review
of an inspector's decision in response to a request for a Federal
inspection. The commenter opined that SMCRA authorizes informal review
of an authorized representative's decision to not inspect or not take
enforcement action, but SMCRA does not authorize formal appeals, as the
existing OSMRE regulations authorize. The commenter further stated that
these ``formal'' appeals of OSMRE decisions not to inspect or enforce
often languish for years while being resolved through the
administrative litigation process of the OHA and the appellate
administrative board, the Interior Board of Land and Appeals. In
support of this proposed revision, the commenter cited efficiency and
points out that long resolution times unnecessarily prolong uncertainty
for operators and State regulatory authorities.
Response: OSMRE did not propose any revisions to 30 CFR 842.15 in
response to this comment. OSMRE considers this comment to be outside
the scope of this rulemaking and is not making any changes to the final
rule as a result. Changes to the administrative review process for
informal review decisions were neither proposed by OSMRE in the
proposed rule nor would be a logical outgrowth of the current
rulemaking effort. Therefore, OSMRE will not be addressing this comment
or including the provisions proposed by the commenter in this final
rule.
Comment: One individual commenter, representing the interests of a
citizens' group, cites data from the U.S. Energy Information
Administration (EIA) that predicts a 25 percent decline in domestic
coal production from 2019 through 2020 and the ``financial demise of
the coal industry'' as a rationale for why OSMRE should maintain
[[Page 75181]]
appropriate regulations to safeguard and protect the environment from
``careless mining endeavors.''
Response: OSMRE agrees that it should maintain appropriate
regulations to safeguard the environment and asserts that this final
rule and the other Federal regulations accomplish that goal.
Fundamentally, this final rule will enhance OSMRE's and the State
regulatory authorities' ability to adequately administer and enforce
SMCRA. To clarify, EIA estimates that U.S. coal consumption will
decrease by 26 percent in 2020 and increase by 20 percent in 2021.
Further, EIA estimates that coal production in 2020 will decrease by 29
percent from 2019 levels. See U.S. Energy Information Administration,
``Short-Term Energy Outlook,'' available at https://www.eia.gov/outlooks/steo/(last accessed August 10, 2020). OSMRE's obligations
under SMCRA are informed by its purposes outlined at 30 U.S.C. 1202.
SMCRA's purposes are not dependent upon the amount of coal consumption
or production. Regardless of the amount of consumption or production of
coal, OSMRE's oversight and enforcement responsibilities remain the
same. Therefore, the estimated annual variance in coal production does
not impact OSMRE's statutory obligations, which include, most relevant
to this final rule, ``administer[ing] the programs for controlling
surface coal mining operations. . .'' and ``cooperat[ing] with other
Federal agencies and State regulatory authorities to minimize
duplication of inspections, enforcement, and administration of
[SMCRA].'' See 30 U.S.C. 1211(c)(1) and (12). This final rule will
enhance administration and enforcement of SMCRA and State regulatory
programs and also enhance cooperation between OSMRE and the State
regulatory authorities.
Further, the commenter's recognition of decreased coal production,
at least in the short term, supports the need for this rulemaking. As
coal production decreases, coal mine operators may revise their mine
plans or permanently cease operations and either commence final
reclamation or, in the event of financial insolvency, forfeit their
reclamation bond. In such cases, State regulatory authority workloads
may initially increase due to higher volumes of permit revisions,
inspection and enforcement activities, bond releases, and potential
actions surrounding permit revocation and bond forfeiture. Due to the
structure of the SMCRA program, the State regulatory authority will
have permitting and inspection obligations on every mine site for a
minimum of five to ten years after coal production ceases. Only after
final bond release may a permit be terminated and the State regulatory
authority relieved of its responsibilities. Federal administration and
enforcement grants awarded by OSMRE to State regulatory authorities are
based, in part, on the anticipated workload, such as permitting and
inspection, that is necessary for State regulatory authorities to
administer and enforce their approved State programs under SMCRA. See
30 CFR part 735 and OSMRE's Federal Assistance Manual, Chapter 5-200,
The Application Process for a Regulatory Grant. As production
decreases, permitting and associated costs may decrease over time;
thus, State regulatory authorities may not receive the same level of
funding as they do currently. This highlights the need to be more
efficient with the resources that are available. This final rule should
help to increase efficiency in inspections and enforcement.
Comment: Several commenters questioned the authority of Casey
Hammond, serving in his capacity as Principal Deputy Assistant
Secretary, to issue the proposed rulemaking.
Response: Mr. Hammond acted within the authority of the Assistant
Secretary for Land and Minerals Management (ASLM) authority that was
properly delegated to him when signing the proposed rulemaking.
Reorganization Plan No. 3 of 1950 provides that ``all functions of all
other officers of the Department of the Interior . . . .'' are
``transferred to the Secretary of the Interior. . . .'' 64 Stat. 1262
at section 1. The Secretary may then ``make such provisions as he shall
deem appropriate authorizing the performance by any other officer, or
by any agency or employee, of the Department of the Interior of any
function of the Secretary, including any function transferred to the
Secretary by the provisions of this reorganization plan.'' Id. at
section 2. Indeed, Congress codified and affirmed the Secretary's
ability to transfer ``all'' functions to ``any'' officer or employee of
the Department in 1984 via Public Law 98-532.
SMCRA authorizes the Secretary to promulgate rules and regulations
necessary to carry out the Act. See 30 U.S.C. 1211(c)(2). The Secretary
has delegated this responsibility to the ASLM. 209 Departmental Manual
(DM) 7.1.A. The Secretary delegated ``all functions, duties, and
responsibilities'' of the ASLM to Mr. Hammond via Secretary's Order
3345 Amendment No. 32 on May 5, 2020, two weeks before he signed the
proposed rulemaking. This delegation of authority excludes functions
and duties that are required by statute or regulation to be performed
only by the ASLM. The signing of the proposed rulemaking is not such an
exclusive function or duty. Although the Secretary and OSMRE Director
also have such authority (216 DM 1.1.B), that does not divest the ASLM
from his properly delegated authority. 200 DM 1.9. Therefore, Mr.
Hammond properly exercised the delegated authority of the Secretary in
signing this proposed rulemaking. Mr. Hammond continues to exercise the
delegable, non-exclusive functions, duties, and responsibilities of the
ASLM pursuant to a Succession Order signed by the Secretary (latest
version signed June 3, 2020).
Comment: One citizens' group representing many national citizen
organizations and ``thousands of individuals'' across the country
contends that the proposed rule required an Environmental Impact
Statement (EIS) or Environmental Assessment (EA) to comply with the
National Environmental Policy Act (NEPA). 42 U.S.C. 4321 et seq. In
support of this assertion, the citizens' group states that the proposed
rule would result in unabated violations due to an alleged delay in TDN
issuance.
Response: We disagree with the premise of this comment. This final
rule is designed to allow a State regulatory authority and OSMRE the
ability to more efficiently address alleged violations at surface coal
mining operations. As stated in the proposed rule, the final rule will
allow a State regulatory authority to investigate an alleged violation
before needing to divert resources away to respond to a TDN. 85 FR at
28907. As a result, any violations should be abated more quickly and
more efficiently than under the existing rules.
Moreover, as discussed further in ``Procedural Determinations''
below, OSMRE has re-evaluated its compliance with NEPA after reviewing
the comments received on the proposed rule. OSMRE still finds that this
rulemaking falls within the Department's categorical exclusion at 43
CFR 46.210(i) because the clarifications of 30 CFR part 842 and
enhancement of 30 CFR part 733 are of an administrative and procedural
nature. Fundamentally, this final rule clarifies aspects of the
procedures that OSMRE uses to evaluate citizen complaints to determine
if it should issue a TDN and adds procedures for State regulatory
authorities to take corrective action of State regulatory program
issues. However, as explained above in response to other comments, none
of these clarifications or enhancements
[[Page 75182]]
materially alters OSMRE's enforcement of SMCRA in primacy states.
Therefore, this rulemaking falls within this categorical exclusion. In
addition, no extraordinary circumstances exist that would prevent OSMRE
from using the categorical exclusion. 43 CFR 46.215.
It is true that the last time OSMRE proposed to substantively
revise the TDN regulations, it did not use a categorical exclusion but
instead prepared an environmental assessment. See 1987 Environmental
Assessment entitled, U.S. Department of the Interior, Office of Surface
Mining Reclamation and Enforcement, Environmental Assessment for
Amending Rules in 30 CFR 842.11 and 843.12 on Evaluation of State
Responses to Ten-Day-Notices. Similar to OSMRE's final rule today, the
1988 final rule was aimed at improving cooperative federalism.
Specifically, in the 1987 environmental assessment, OSMRE found, ``[t]o
the extent that the revised procedures foster a better working
relationship between OSMRE and the States in implementing SMCRA, the
environmental consequences of the proposed action should be positive.''
Moreover, in the 1987 environmental assessment, OSMRE concluded that no
significant environmental impacts were associated with the action. Id.
This past analysis supports OSMRE's determination that no extraordinary
circumstances apply that would preclude OSMRE's use of an applicable
categorial exclusion. It also is consistent with the Department's goals
of streamlining its NEPA reviews. See, e.g., Secretarial Order No. 3355
(Aug. 31, 2017); see also Council for Environmental Quality,
Memorandum, Establishing, Applying, and Revising Categorial Exclusions
under the National Environmental Policy Act (Nov. 23, 2010), at 2-3
(``[C]ategorical exclusions provide an efficient tool to complete the
NEPA environmental review process for proposals that normally do not
require more resource-intensive EAs or EISs. The use of categorial
exclusions can reduce paperwork and delay, so that EAs or EISs are
targeted toward proposed actions that truly have the potential to cause
significant environmental effects.'').
V. Discussion of the Final Rule and Section-by-Section Analysis
This part of the preamble provides a section-by-section analysis of
the regulations promulgated in this final rule.
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
OSMRE proposed to revise the title for this part and to redesignate
certain sections of the existing part to accommodate the addition of a
definitional section at 30 CFR 733.5 and OSMRE's proposed enhancement
to the 30 CFR part 733 process--a new proposed Sec. 733.12, entitled,
``Early identification and corrective action to address State
regulatory program issues.''
The existing regulations at 30 CFR part 733 establish requirements
for the maintenance of State programs and the procedures for
substituting Federal enforcement of State programs and withdrawing
approval of State programs. Citing OSMRE's 40-plus years of
implementing and overseeing SMCRA and State regulatory programs, OSMRE
proposed to add an enhancement to this part--the codification of an
existing OSMRE internal policy aimed at early identification of and
corrective action to address State regulatory program issues. When
formulating the proposed rule, OSMRE reasoned that if issues remain
unaddressed, these issues may result in a State regulatory authority's
ineffective implementation, administration, enforcement, or maintenance
of its State regulatory program. To prevent this from occurring and to
encourage a more complete and more efficient implementation of SMCRA,
OSMRE proposed to enhance existing 30 CFR part 733 by adding Sec.
733.5 that would define the terms ``action plan'' and ``State
regulatory program issue.'' Additionally, OSMRE proposed to redesignate
existing Sec. 733.12 as Sec. 733.13, redesignate existing Sec.
733.13 as Sec. 733.14, and add a new Sec. 733.12 to address how early
identification of and corrective action for State regulatory program
issues can be achieved. Further, in the sections proposed to be added
or revised throughout 30 CFR part 733, OSMRE proposed to add the term
``regulatory'' between the terms ``State'' and ``program'' for
consistency purposes. As discussed in the specific sections below, all
of these changes are not substantive and are made for the purpose of
clarity to differentiate between a regulatory program administered by
OSMRE and a State regulatory program that is administered by a State
that has achieved primacy after approval by OSMRE.
As discussed above in response to specific comments, OSMRE
considers the enhancements to the existing regulations at 30 CFR part
733 to be beneficial for early identification, evaluation, and
resolution of potential issues that may impact a State regulatory
authority's ability to effectively implement, administer, enforce, or
maintain its State regulatory program. Further, OSMRE finds that these
mechanisms should avoid unnecessary substitution of Federal enforcement
or withdrawal of State regulatory programs and minimize the number of
on-the-ground impacts. Therefore, OSMRE is adopting, with minor
modifications, based upon comments received from the public and further
OSMRE analysis, the proposal to enhance 30 CFR part 733.
Final Rule Sec. 733.5 Definitions
OSMRE proposed to add a definition section to 30 CFR part 733 that
would define the terms ``action plan'' and ``State regulatory program
issue.'' In short, under the proposed definition, the term ``action
plan'' would mean ``a detailed schedule OSMRE prepares to identify
specific requirements a regulatory authority must achieve in a timely
manner to resolve State regulatory program issues identified during
oversight of State regulatory programs.'' OSMRE proposed to define the
term ``State regulatory program issue'' to mean an issue OSMRE
identifies during oversight of a State or Tribal regulatory program
that could result in a State regulatory authority not effectively
implementing, administering, enforcing, or maintaining all or any
portion of its State regulatory program, including instances when a
State regulatory authority has not adopted and implemented program
amendments that are required under 30 CFR 732.17 and 30 CFR subchapter
T, and issues related to the requirement in section 510(b) of the Act
that a State regulatory authority must not approve a permit or revision
to a permit unless the State regulatory authority finds that the
application is accurate and complete and that the application is in
compliance with all requirements of the Act and the State regulatory
program.
As discussed above in OSMRE's responses to public comments, OSMRE
received many comments on the enhanced 30 CFR part 733 process in
general, including comments on the proposed definitions. As OSMRE
explained in response to specific comments, the proposed definitions
are appropriate and it is adopting 30 CFR 733.5 as proposed, with one
minor exception. In the definition of ``action
[[Page 75183]]
plan,'' OSMRE is inserting the word ``State'' between ``a'' and
``regulatory authority'' to be consistent with the remainder of the
Part and to differentiate between situations when OSMRE is the
regulatory authority. Thus, the final definition will read, ``[a]ction
plan means a detailed schedule OSMRE prepares to identify specific
requirements a State regulatory authority must achieve in a timely
manner to resolve State regulatory program issues identified during
oversight of State regulatory programs.''
OSMRE most frequently identifies issues that it will now classify
as State regulatory program issues during oversight of a State
regulatory program, but OSMRE may also be alerted to a State regulatory
program issue from a citizen complaint or a request for a Federal
inspection. State regulatory program issues are those that may result
in a State regulatory authority not adhering to its approved State
regulatory program. Other examples of a State regulatory program issue
include when a State regulatory authority does not adopt and implement
program amendments that are required under 30 CFR 732.17 and 30 CFR
subchapter T. The proposed definition of State regulatory program
issue, which OSMRE is finalizing in this rule, includes issues related
to the requirement in SMCRA section 510(b), 30 U.S.C. 1260(b), that a
State regulatory authority must not approve a permit or permit
revision, unless the State regulatory authority finds that the
application is accurate and complete and is in compliance with all of
SMCRA's requirements and those of the State regulatory program.
To provide greater context in which the term ``State regulatory
program issue'' is used, the next two paragraphs will describe how the
State regulatory program issues covered by 30 CFR part 733 sometimes
overlap with the TDN and Federal inspection process provided for in 30
CFR part 842. As discussed below in relation to finalized 30 CFR part
842, the TDN and Federal inspection process in section 521(a) of SMCRA
and the State regulatory program enforcement provisions in section
521(b) of SMCRA, along with the existing implementing regulations,
differentiate between issues related to a State regulatory authority's
failure to implement, administer, maintain, and enforce all or a part
of a State regulatory program and possible violations that could lead
to a TDN or Federal inspection. Most notably, the State regulatory
program enforcement provisions of section 521(b) of SMCRA generally
address systemic programmatic problems with a State regulatory program,
not specific violations exclusive to an individual operation or permit
as detailed in section 521(a) of SMCRA. However, citizens sometimes
identify State regulatory program issues in citizen complaints under
section 521(a) of SMCRA and 30 CFR part 842 that may result in a TDN.
OSMRE may also become aware of a State regulatory program issue while
overseeing enforcement of specific operations or permits.
SMCRA and the existing regulations provide a remedy for systemic
programmatic issues at 30 CFR part 733 by identifying procedures for
substituting Federal enforcement of State regulatory programs or
withdrawing approval of State regulatory programs. The proposed
addition of early identification and corrective action plans to address
State regulatory program issues that OSMRE is adopting under this final
rule will enhance OSMRE's ability to ensure prompt resolution of
issues, which, if unattended, may result in OSMRE exercising the rare
remedy of substituting Federal enforcement or withdrawing a State
program. The definition of ``action plan,'' as finalized in Sec.
733.5, will dovetail in practice with the concept of ``appropriate
action'' found in Sec. 842.11(b)(1)(ii)(B)(3), in that a State
regulatory authority's action plan may qualify as appropriate action in
response to a TDN under that finalized Sec. 842.11(b)(1)(ii)(B)(3). In
addition, the definition of ``State regulatory program issue,'' as
finalized in Sec. 733.5, helps to further clarify the differences
between the types of violations or issues that will be addressed under
the TDN and Federal inspection process in section 521(a) and the State
regulatory program enforcement provisions in section 521(b) of SMCRA,
respectively.
Final Rule Sec. 733.10 Information Collection
OSMRE is adopting this section as proposed. As discussed more fully
in the Procedural Determinations below, no additional burden is placed
on the public as a result of the enhancements to 30 CFR part 733.
Moreover, no public comments were received on this section.
Final Rule Sec. 733.12 Early Identification and Corrective Action To
Address State Regulatory Program Issues
OSMRE proposed to redesignate certain sections of existing 30 CFR
part 733 to accommodate both the proposed new definition section at 30
CFR 733.5, discussed above, and the enhancement to 30 CFR part 733,
proposed to be added as Sec. 733.12 entitled, ``Early identification
and corrective action to address State regulatory program issues.''
This redesignation is being adopted as proposed because both sections--
Definitions and Early identification and corrective action to address
State regulatory program issues--are being finalized.
Final Sec. 733.12 contains substantive mechanisms and compliance
strategies that OSMRE may use to resolve a State regulatory program
issue (as defined in finalized 30 CFR 733.5). Although OSMRE and State
regulatory authorities have historically worked closely and used
similar approaches, incorporating these approaches into the regulations
provides a clear mechanism for early identification and resolution of
issues that will enable OSMRE to achieve regulatory certainty and
uniform implementation of the procedures among State regulatory
authorities. This addition to the regulations includes procedures for
developing an action plan so that OSMRE can ensure that State
regulatory program issues are timely resolved. When OSMRE identifies a
State regulatory program issue, final Sec. 733.12(a) provides that the
OSMRE Director should take action to make sure that the issue is
corrected as soon as possible in order to ensure that it does not
escalate into an issue that would give the Director reason to believe
that the State regulatory authority is not effectively implementing,
administering, enforcing, or maintaining all or a portion of its State
regulatory program. The unresolved issue could otherwise trigger the
process that might lead to substituting Federal enforcement of a State
regulatory program or withdrawing approval of a State regulatory
program as provided in 30 CFR part 733.
OSMRE is finalizing Sec. 733.12(a)(1) as proposed with one minor
modification. As proposed, this paragraph provided that ``[t]he
Director may become aware of State regulatory program issues through
oversight of State regulatory programs or as a result of information
received from any person.'' In response to public comments, discussed
in more detail above, OSMRE has substituted ``any source'' for the
proposed language ``any person.'' OSMRE agrees with the commenter that
this terminology is more expansive and inclusive and will likely result
in OSMRE considering any information, no matter the source, about an
alleged State regulatory program issue.
In general, final Sec. 733.12(b) allows the OSMRE Director, or his
or her delegate,
[[Page 75184]]
as set forth in OSMRE's guidance, to ``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.'' This
finalized language reflects a minor, grammatical change from the
proposed rule. OSMRE has added ``a'' before ``State regulatory
program'' and removed the ``s'' from ``issues'' to clarify the meaning
of the sentence and place the sentence in the singular tense.
OSMRE has made another change to final Sec. 733.12(b). This change
is in the second sentence that, as proposed, read: ``However, if the
Director or delegate does not expect that the State regulatory
authority will resolve the State regulatory program issue within 180
days after identification or that it is likely to result in an on-the-
ground violation, then the Director or delegate will develop and
institute an action plan.'' In the final rule, OSMRE has modified the
second sentence to read: ``However, if the Director or delegate does
not expect that the State regulatory authority will resolve the State
regulatory program issue within 180 days after identification or that
it is likely to result in a violation of the approved State program,
then the Director or delegate will develop and institute an action
plan.'' (Emphasis added to show the revised language). OSMRE has
adopted this final language due to the variety of comments, discussed
above, raising concerns about OSMRE's differentiation between
violations outlined in 30 U.S.C. 1271(a)--subject to the 30 CFR part
842 TDN process--and violations outlined in 30 U.S.C. 1271(b)--subject
to 30 CFR part 733. Specifically, many commenters raised questions
about how OSMRE would treat what the commenters characterized as
``permit defects,'' which might be informally viewed, as mentioned
above, as a deficiency in a permit-related action taken by a State
regulatory authority or problems in a permit that do not align with the
approved State regulatory program. However, OSMRE is not defining the
term ``permit defects'' in this preamble or in the final rule and it is
not defined in SMCRA, OSMRE regulations, or current internal OSMRE
policies and should not be viewed as a distinct form of violation. To
avoid confusion and the possibility of creating further ambiguity by
introducing the new term ``on-the-ground violation'' into OSMRE
regulations, OSMRE is removing this proposed phrase. The term ``on-the-
ground violation'' is also not defined in SMCRA, OSMRE regulations, or
OSMRE internal documents and OSMRE declines to define this term as it
may be misconstrued as a distinct type of violation. Therefore, OSMRE
has decided, in response to comments, that it is best to substitute the
phrase ``violation of the approved State program'' for the proposed
phrase ``on-the-ground violation.'' The finalized phrase comports with
the existing and finalized regulations at 30 CFR part 842 and bridges
the gap between violations identified during the 30 U.S.C. 1271(a) TDN
process that may actually be systemic in nature (and thus addressed in
the 30 CFR part 733 State regulatory program issue process as finalized
and authorized by 30 U.S.C. 1271(b)), but later results in a site-
specific violation of an approved State program. OSMRE acknowledges
that a site-specific violation of an approved State program often
manifests as an on-the-ground impact. However, these violations may
also manifest in other ways, such as a permittee's failure to submit
required design plans, monitoring reports, or annual certifications.
OSMRE offers these as examples and not as an exhaustive list of
potential violations of the approved State program that may result in
OSMRE exercising site-specific enforcement under 30 U.S.C. 1271(a),
rather than continuing to address them as State regulatory program
issues under 30 U.S.C. 1271(b).
As proposed, Sec. 733.12(b)(1)-(3) provided details about
requirements of action plans. OSMRE is substantively adopting the
proposed requirements for an action plan. Specifically, OSMRE will
prepare a written action plan with ``specificity to identify the State
regulatory program issue and an effective mechanism for timely
correction.'' When OSMRE is preparing the action plan, OSMRE will
consider any input it receives from the State regulatory authority.
When selecting corrective measures to integrate into the action plan,
OSMRE may consider any established or innovative solutions, including
the compliance strategies referenced above. Additionally, finalized
Sec. 733.12(b)(2), states that an action plan will identify any
necessary technical or other assistance that the Director or his or her
delegate can provide and remedial measures that a State regulatory
authority must take immediately. Moreover, final Sec. 733.12(b)(3),
describes the contents of an action plan. To ensure that OSMRE can
adequately track action plans and that the underlying State regulatory
program issue is resolved, each action plan, under the proposed rule,
was to include: ``An action plan identification number''; ``A concise
title and description of the State regulatory program issue'';
``Explicit criteria for establishing when complete resolution will be
achieved''; ``Explicit and orderly sequence of actions the State
regulatory authority must take to remedy the problem''; ``A schedule
for completion of each action in the sequence''; and ``A clear
explanation that if the action plan, upon completion, does not result
in correction of the State regulatory program issue, the provisions of
30 CFR 733.13 may be triggered.'' The only modification OSMRE is making
to final paragraphs 30 CFR 733.12(b)(1)-(3) is to add the preposition
``an'' before ``action plan'' and remove the plural tense of action
plan at the beginning of paragraphs (b)(1)-(3) to be grammatically
correct and reflect the singular tense.
OSMRE has made modifications to final Sec. 733.12(c) in response
to a request by a NGO commenter to affirmatively state that OSMRE will
track all identified State regulatory program issues and any associated
action plans. Although it was OSMRE's intention to track and report
both, OSMRE did not specifically state in the proposed rule that any
action plan associated with identified a State regulatory program issue
would be tracked and reported in the applicable State regulatory
authority's Annual Evaluation report. OSMRE has removed this ambiguity
by stating in the final rule that ``any associated action plan'' must
also be tracked and reported in addition to the State regulatory
program issues. Also, in response to the NGO commenter's request, OSMRE
is including a requirement that the ``State regulatory authority Annual
Evaluation reports will be accessible thorough OSMRE's website and at
the applicable OSMRE office.'' OSMRE agrees with the commenter that
this modification to the proposed rule promotes transparency and
accountability.
OSMRE is adopting Sec. 733.12(d) as proposed with one modification
to comport with the change discussed above in relationship to final
Sec. 733.12(b). Specifically, final Sec. 733.12(d) states that
nothing in Sec. 733.12 ``prevents a State regulatory authority from
taking direct enforcement action in accordance with its State
regulatory program, or OSMRE from taking appropriate oversight
enforcement action, in the event that a previously identified State
regulatory program issue results in or may imminently result in a
violation of the approved State program.'' OSMRE relies on the same
rationale described above
[[Page 75185]]
for the removal of the term ``on-the-ground violation'' and the
substitution of the phrase, ``a violation of the approved State
program.'' In the context of finalized Sec. 733.12(d), determining
whether a violation is imminent depends on the circumstances, and OSMRE
will rely on the authorized representative to use his or her
professional judgment to determine whether a violation of the approved
State program is imminent in a given situation.
In sum, finalized 30 CFR part 733 will ensure a more complete
enforcement of SMCRA and provide guidance on early detection of
potential problems that may, if left unaddressed, escalate to the point
that OSMRE considers instituting the process that might result in OSMRE
substituting Federal enforcement or withdrawing all or a portion a
State program as outlined in finalized 30 CFR 733.13 through 733.14
while preserving (through 30 CFR 733.12(d)) the ability to take direct
enforcement action in the event that a previously identified State
regulatory program issue results in or may imminently result in a
violation of the approved State program.
Final Rule Part 736 Federal Program for a State
OSMRE is updating the cross-reference in finalized Sec.
736.11(a)(2) as proposed to account for the redesignation of existing
``Sec. 733.12'' to finalized ``Sec. 733.13.''
Final Rule Sec. 842.11(b)(1)
In the proposed rule, OSMRE explained that existing 30 CFR
842.11(b)(1) describes the circumstances when OSMRE ``shall'' conduct a
Federal inspection, but the paragraph primarily focuses on the process
leading up to a Federal inspection, including the process for OSMRE's
issuance of a TDN to a State regulatory authority. In general,
consistent with section 521(a) of SMCRA, when there is no imminent harm
situation and OSMRE issues a TDN to a State regulatory authority, OSMRE
evaluates the State regulatory authority's response to the TDN before
deciding whether to conduct a Federal inspection. Consistent with the
existing regulations, and the regulations finalized today, OSMRE will
issue a TDN to a State regulatory authority only when an authorized
representative of OSMRE has reason to believe that there is a violation
of SMCRA, the implementing regulations, the applicable State regulatory
program, or any condition of a permit or an exploration approval. In
general, OSMRE will also conduct a Federal inspection whenever there is
any condition, practice, or violation that creates an imminent danger
to the health or safety of the public or is causing, or that OSMRE
reasonably expects to cause, a significant, imminent, environmental
harm to land, air, or water resources. In the latter situation, OSMRE
bypasses the TDN process and proceeds directly to a Federal inspection,
if the person supplying the information provides adequate proof that
there is an imminent danger to the public health and safety or a
significant, imminent environmental harm and that the State regulatory
authority has failed to take appropriate action.
OSMRE proposed to alter the introductory sentence at existing 30
CFR 842.11(b)(1), by replacing the word ``shall'' with the word
``will.'' However, after consideration of public comments, discussed in
more detail above, and based on OSMRE's own expertise and analysis,
OSMRE has determined that the word ``must'' is more appropriate because
it explains an action that OSMRE is obligated to institute as
prescribed by SMCRA under the circumstances described in 30 CFR
842.11(b)(1). Therefore, the final rule substitutes the word ``must''
for ``will'' to better communicate the mandatory nature of the
authorized representative's action.
Final Rule Sec. 842.11(b)(1)(i)
In the proposed rule, OSMRE also proposed to clarify that when an
authorized representative assesses whether he or she has reason to
believe a violation exists, the authorized representative will make
that determination on the basis of ``any information readily available
to him or her.'' This clarification is consistent with section
521(a)(1) of SMCRA, which sets forth that OSMRE can formulate reason to
believe ``on the basis of any information available to [the Secretary],
including receipt of information from any person.'' 30 U.S.C.
1271(a)(1). Based on SMCRA's plain language, such information is not
restricted to information OSMRE receives from a citizen complainant.
Rather, the information includes any information OSMRE receives from a
citizen, the applicable State regulatory authority, or any other
information OSMRE is aware exists. Also, the final rule and the
preamble discussion above that is associated with this section
clarifies that such information must be readily available, so that the
process will proceed as quickly as possible and will not become open-
ended. OSMRE is adopting this section as proposed, with one exception.
In response to several comments, discussed in more detail above, OSMRE
is further clarifying this section by adding to the final rule the
phrase, ``from any source, including any information a citizen
complainant or the relevant State regulatory authority submits, . . .''
This addition to the final rule now makes Sec. 842.11(b)(1)(i)
harmonize with final rule Sec. 842.11(b)(2) that now includes the same
phraseology.
Final Rule Sec. 842.11(b)(1)(ii)(A)
Existing 30 CFR 842.11(b)(1)(ii)(A) reads as follows: ``There is no
State regulatory authority or the Office is enforcing the State program
under section 504(b) or 521(b) of the Act and part 733 of this
chapter[.]'' OSMRE proposed only minor grammatical and conformity
changes to this section. Specifically, OSMRE proposed to add the word
``regulatory'' between the words ``State'' and ``program'' to promote
consistency throughout this rulemaking and clarify that OSMRE is
referring to State regulatory programs. OSMRE has finalized this
section as proposed.
Final Rule Sec. 842.11(b)(1)(ii)(B)(1)-(4)
OSMRE proposed non-substantive changes to existing 30 CFR
842.11(b)(1)(ii)(B)(1) for readability, including capitalizing
``State'' when referring to the ``State regulatory authority'' and
adding a comma after ``notification'', and changing the word ``shall''
to ``will''. These changes have been adopted as proposed. OSMRE did not
propose any modification to the existing regulation at 30 CFR
842.11(b)(1)(ii)(B)(2), but the provision is discussed above to provide
context related to the proposed clarifications in 30 CFR
842.11(b)(1)(ii)(B)(3), which describes the term ``appropriate
action,'' and 30 CFR 842.11(b)(1)(ii)(B)(4), which describes the term
``good cause.'' Likewise, OSMRE is not altering Sec.
842.11(b)(1)(ii)(B)(1).
Final Rule Sec. 842.11(b)(1)(ii)(B)(3)
OSMRE proposed to add a provision to existing 30 CFR
842.11(b)(1)(ii)(B)(3), that appropriate action ``may include OSMRE and
the State regulatory authority immediately and jointly initiating steps
to implement corrective action to resolve any issue that the authorized
representative and applicable Field Office Director identify as a State
regulatory program issue, as defined in 30 CFR part 733.'' OSMRE is
finalizing this subsection as proposed. The final rule gives the
responsibility for identification of State regulatory program issues to
the authorized representative and applicable Field
[[Page 75186]]
Office Director, as these officials possess significant knowledge of
the specific requirements of and responsibilities under the applicable
State regulatory program. Although OSMRE has historically allowed
programmatic resolution of State regulatory program issues, such as
implementation of remedies under 30 CFR part 732, to constitute
``appropriate action'' in a given situation, the regulations prior to
this addition did not explain resolution of State regulatory program
issues through corrective actions. In order to avoid confusion or
uncertainty for the regulated community, State regulatory authorities,
and the public at large, the finalized rule seeks to remove ambiguity
and definitively states that ``appropriate action'' may include
corrective action to resolve State regulatory program issues. This fits
well with the finalized part 733 because final Sec. 733.12(a)(2)
reaffirms that, if OSMRE concludes that the State regulatory authority
is not effectively implementing, administering, enforcing, or
maintaining all or a portion of its State regulatory program, OSMRE may
substitute Federal enforcement of the State regulatory program or
withdraw approval. Additionally, in accordance with finalized Sec.
733.12(d), OSMRE reserves the right to reinstitute enforcement if,
subsequent to a finding of appropriate action based upon a corrective
action consistent with proposed 30 CFR part 733, a violation of the
approved State program occurs or may imminently occur.
Final Rule Sec. 842.11(b)(1)(ii)(B)(4)
OSMRE is adopting this subsection as proposed. Specifically, the
final rule makes minor clarifications to the examples of what
constitutes good cause as found in the existing regulations. First,
final Sec. 842.11(b)(1)(ii)(B)(4)(i) makes non-substantive changes for
readability and consistency by adding the word ``regulatory'' between
``State'' and ``program'' and switching the position of two phrases in
the provision. Second, the final rule revises Sec.
842.11(b)(1)(ii)(B)(4)(ii) to provide that good cause includes: ``The
State regulatory authority has initiated an investigation into a
possible violation and as a result has determined that it requires a
reasonable, specified additional amount of time to determine whether a
violation exists.'' The final rule explains that an OSMRE authorized
representative has discretion to determine how long the State
regulatory authority should reasonably be given to complete its
investigation of a possible violation. Also, under the final rule the
authorized representative will communicate to the State regulatory
authority the date by which the State regulatory authority's
investigation must be completed. This revision promotes prompt
identification and resolution of possible violations.
As proposed, the final rule makes a minor revision to Sec.
842.11(b)(1)(ii)(B)(4)(iii). A State regulatory authority will
demonstrate that it lacks jurisdiction over the possible violation to
qualify for this good cause showing.
Similarly, as proposed, the final rule makes a minor, non-
substantive modifications to Sec. 842.11(b)(1)(ii)(B)(4)(iv) for
readability and to clarify that, in order to show good cause, the State
regulatory authority will demonstrate that an order from an
administrative review body or court of competent jurisdiction precludes
it from taking action on the possible violation.
Finally, as proposed, the final rule makes minor, non-substantive
modifications to Sec. 841.11(b)(1)(ii)(B)(4)(v) to enhance readability
and clarity. Specifically, the final rule reads: ``Regarding abandoned
sites, as defined in 30 CFR 840.11(g), the State regulatory authority
is diligently pursuing or has exhausted all appropriate enforcement
provisions of the State regulatory program.''
Final Rule Sec. 842.11(b)(2)
Section 842.11(b)(2) defines what is ``reason to believe'' when an
authorized representative is determining if a possible violation exists
as presented by a citizen complainant.
Because there was ambiguity surrounding this term, OSMRE proposed
to revise this section to provide that an authorized representative
will have reason to believe that a violation, condition, or practice
referred to in paragraph (b)(1)(i) exists if the facts that a
complainant alleges, or facts that are otherwise known to the
authorized representative, constitute simple and effective
documentation of the alleged violation, condition, or practice. In
making this determination, the authorized representative will consider
any information readily available to him or her, including any
information a citizen complainant or the relevant regulatory authority
submits to the authorized representative.
As discussed in great detail in response to comments above, OSMRE
is adopting this section as proposed, with one exception. Consistent
with this approach, the final rule modifies Sec. 842.11(b)(2) to
clarify that OSMRE will consider any information readily available and
not only the facts alleged in a citizen complaint when determining
whether it has reason to believe a violation exists. Nothing in SMCRA
requires OSMRE to accept alleged facts as true in a vacuum. Rather,
information that a citizen provides is usually only a portion of the
readily available information that OSMRE would consider when deciding
whether to initiate the TDN process. Moreover, the inclusion of the
phrase ``reason to believe'' in section 521(a)(1) of SMCRA indicates
that Congress intended for OSMRE to use discretion in determining
whether to issue a TDN to a State regulatory authority. With the
changes finalized today, after OSMRE receives an allegation of a
violation and assess all readily available information, OSMRE will
apply independent, professional judgment to determine whether OSMRE has
reason to believe a violation exists. Congress created OSMRE to be the
expert agency that administers SMCRA. Therefore, OSMRE should not be
acting as a mere conduit for transmitting a citizen complaint to a
State regulatory authority in the form of a TDN.
In response to a few commenters, OSMRE has added the phrase ``from
any source'' in the last sentence of the finalized section.
Specifically, the last sentence, will now read, ``[i]n making this
determination, the authorized representative will consider any
information readily available to him or her, from any source, including
any information a citizen complainant or the relevant regulatory
authority submits to the authorized representative'' (emphasis added to
show the revised language). This change is to clarify that an
authorized representative may consider any information readily
available, regardless of where the information originates.
In summary, final Sec. 842.11(b)(2) comports with finalized Sec.
842.11(b)(1)(i), which allows OSMRE to consider ``any information
readily available'' when making a ``reason to believe'' determination.
Being able to read these two provisions in harmony should reduce or
eliminate any conflict or confusion that the existing provisions
created.
Final Sec. 842.12(a)
OSMRE is adopting Sec. 842.12(a) as proposed. Specifically, 30 CFR
842.12(a) identifies the process to request a Federal inspection. This
finalized provision states that a person may request a Federal
inspection by submitting a signed, written statement (or an oral report
followed by a signed written statement) giving the authorized
representative reason to believe that a
[[Page 75187]]
violation, condition or practice referred to in Sec. 842.11(b)(1)(i)
exists and that the State regulatory authority has been notified in
writing about the violation. The final rule includes the minor, non-
substantive modifications to the provision as proposed. These
provisions provide that when any person requests a Federal inspection,
the person's written statement ``must also set forth the fact that the
person has notified the State regulatory authority, if any, in writing,
of the existence of the possible violation, condition, or practice''
and the requirement that the person's statement must also include ``the
basis for the person's assertion that the State regulatory authority
has not taken action with respect to the possible violation.'' These
provisions reflect the fact that, most often, a State regulatory
authority will address a potential violation when the State regulatory
authority is made aware of the situation.
Finalized 30 CFR 842.12(a) complements the clarifications outlined
above in the discussion of finalized Sec. 842.11(b)(1)'s ``reason to
believe'' standard. Specifically, the final rule modifies the existing
language in Sec. 842.12(a) to clarify that, when a person requests a
Federal inspection, the person's request must include, ``information
that, along with any other readily available information, may give the
authorized representative reason to believe that a violation,
condition, or practice referred to in Sec. 842.11(b)(1)(i) exists.''
OSMRE reiterates that under finalized Sec. 842.12(a), when OSMRE
determines whether a violation exists for purposes of issuing a TDN or
determining whether to conduct a Federal inspection, a State regulatory
program issue will not qualify as a possible violation unless there is
an actual or imminent violation of an approved State program.
Similarly, OSMRE will not consider a State regulatory authority's
failure to enforce its State regulatory program as a violation that
warrants a TDN or Federal inspection. The TDN and Federal inspection
process in section 521(a) applies to oversight enforcement about site-
specific violations. Congress differentiated this type of individual
operation oversight from the State regulatory program enforcement
provisions of section 521(b). Based on this distinction, the existing
30 CFR part 733 addresses State regulatory program issue enforcement
identified in section 521(b).
VI. Procedural Determinations
A. Statutes
1. Congressional Review Act
Pursuant to the Congressional Review Act, 5 U.S.C. 801 et seq., the
Office of Information and Regulatory Affairs (OIRA) of the Office of
Management and Budget (OMB) has determined that this rulemaking is not
major rulemaking, as defined by 5 U.S.C. 804(2), because this
rulemaking has not resulted in, and is unlikely to result in: (1) An
annual effect on the economy of $100,000,000 or more; (2) a major
increase in costs or prices for consumers, individual industries,
Federal, State, or local government, or geographic regions; or (3)
significant adverse effects on competition, employment, investment,
productivity, innovation, or on the ability of United States-based
enterprises to compete with foreign-based enterprises in domestic and
export markets.
2. Data Quality Act
In developing this rule, OSMRE did not conduct or use a study,
experiment, or survey requiring peer review under the Data Quality Act
(Pub. L. 106-544, app. C, sec. 515, 114 Stat. 2763, 2763A-153-154).
3. National Environmental Policy Act
OSMRE has determined that the non-substantive changes finalized in
this rulemaking are categorically excluded from environmental review
under NEPA. 42 U.S.C. 4321 et seq. Specifically, OSMRE has determined
that the final rule is administrative or procedural in nature in
accordance with the Department of the Interior's NEPA regulations at 43
CFR 46.210(i). The regulation provides a categorical exclusion for,
``[p]olicies, directives, regulations, and guidelines: That are of an
administrative, financial, legal, technical, or procedural nature; or
whose environmental effects are too broad, speculative, or conjectural
to lend themselves to meaningful analysis. . . .'' The final rule
primarily clarifies how OSMRE formulates reason to believe in the TDN
context and the information OSMRE considers in this analysis. It also
enhances a process, the development of an action plan, that already
exists in an internal agency document so that OSMRE can better ensure
that a State regulatory authority adequately implements, administers,
enforces, and maintains its approved State program. As such, the final
rule merely clarifies and enhances OSMRE's existing processes.
Therefore, OSMRE deems these changes to be administrative and
procedural in nature. These clarifications and enhancements are aimed
at improving efficiency and enhanced collaboration among State
regulatory authorities and OSMRE. 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.
4. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act (NTTAA) (15 U.S.C. 3701 note et seq.) directs Federal agencies to
use voluntary consensus standards when implementing regulatory
activities unless to do so would be inconsistent with applicable law or
otherwise impractical. This 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 the requirements
would not be applicable to this final rulemaking.
5. Paperwork Reduction Act
The Paperwork Reduction Act (PRA) (44 U.S.C. 3501-3521) provides
that an agency may not conduct or sponsor, and a person is not required
to respond to, a ``collection of information'', unless the collection
of information is approved by OMB, and it displays a currently valid
OMB control number. Of the existing regulations impacted by the final
rule (30 CFR parts 733, 736, and 842), 30 CFR parts 733 and 842 have
existing OMB control numbers. However, after research and input from
State regulatory authorities, no additional burden is imposed by the
enhancement of 30 CFR part 733--specifically the codification of 30 CFR
733.12--Early identification of corrective action and corrective action
to address State regulatory program issues. Additionally, as explained
herein the only modification of 30 CFR part 736 is to revise a cross-
reference to be consistent with the redesignation of provisions within
30 CFR part 733. Existing 30 CFR part 842 requires an OMB information
collection because it allows citizens to submit a written request for a
Federal inspection using an OMB-approved form. See OMB No. 1029-0118
available on OSMRE's website. https://www.osmre.gov/resources/forms/OMB1029-0118.pdf. This final rule will not alter the PRA obligations
under 30 CFR part 842. Similar to the research performed by OSMRE in
relationship to 30 CFR part 733 as finalized, OSMRE has discovered that
the clarification of 30 CFR part 842 will not place any additional
burden on
[[Page 75188]]
the public, including, ``individuals, businesses, and State, local, and
Tribal governments'' as defined in the PRA. In fact, under this final
rule, the burden will be reduced. Therefore, this final rule will not
impose an additional collection of information burden, as defined by 44
U.S.C. 3502, upon any entity defined in the PRA. Moreover, no public
comments were received on this matter.
6. Regulatory Flexibility Act
The Regulatory Flexibility Act generally requires Federal agencies
to prepare a regulatory flexibility analysis for rules that are subject
to the notice-and-comment rulemaking requirements under the
Administrative Procedure Act (5 U.S.C. 553), if the rule would have a
significant economic impact on a substantial number of small entities.
See 5 U.S.C. 601-612. Based on OSMRE's collaboration with State
regulatory authorities and years of experience, OSMRE certifies that
this final 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.).
7. Small Business Regulatory Enforcement Fairness Act
This final rule is not a major rule under the Small Business
Regulatory Enforcement Fairness Act. 5 U.S.C. 804(2). Specifically, the
final rule: (1) Will not have an annual effect on the economy of $100
million or more; (2) will not cause a major increase in costs or prices
for consumers, individual industries, Federal, State, or local
government agencies, or geographic regions; and (3) will not have
significant adverse effects on competition, employment, investment,
productivity, innovation, or on the ability of United-States based
enterprises to compete with foreign-based enterprises in domestic and
export markets.
8. Unfunded Mandates Reform Act
This final rule does not impose an unfunded mandate or have a
significant or unique effect on State, local, or Tribal governments, or
the private sector, that will result in the expenditure of funds by
State, local, or Tribal governments, in the aggregate, or by the
private sector of $100 million or more in any one year. To the
contrary, as discussed herein, this final rule is aimed at eliminating
duplication of resources and processes between Federal and State
agencies and enhancing cooperation between OSMRE and State regulatory
authorities. Therefore, a statement containing the information required
by the Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq.) is not
required.
B. Executive Orders
1. Executive Order 12630--Governmental Actions and Interference With
Constitutionally Protected Property Rights
This final rule does not effect a taking of private property or
otherwise have takings implications under E.O. 12630. The final rule
primarily concerns Federal oversight of State regulatory programs and
enforcement when permittees and operators are not complying with the
law. Therefore, the final rule will not result in private property
being taken for public use without just compensation. A takings
implication assessment is not required.
2. Executive Order 12866--Regulatory Planning and Review and Executive
Order 13563--Improving Regulation and Regulatory Review
E.O. 12866 provides that OIRA in the OMB will review all
significant rules. Despite being specifically briefed on this
rulemaking as proposed and as finalized, both in writing and verbally,
OIRA has not deemed this final rule significant because it will not
have a $100 million annual impact on the economy, raise novel legal
issues, or create significant impacts. The final rule primarily
clarifies and enhances the existing regulations and OSMRE's processes
to reduce the burden upon the regulated community and preserve
resources by allowing for greater cooperation between OSMRE and State
regulatory authorities.
E.O. 13563 reaffirms the principles of E.O. 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. E.O. 13563 emphasizes further that agencies must
base regulations on the best available science and that the rulemaking
process must allow for public participation and an open exchange of
ideas. This final rule has been developed in a manner consistent with
and will further these requirements.
3. Executive Order 12988--Civil Justice Reform
This final rule complies with the requirements of E.O. 12988. Among
other things, this rule:
(a) Satisfies the criteria of Section 3(a) requiring that all
regulations be reviewed to eliminate drafting errors and ambiguity; be
written to minimize litigation; and provide clear legal standards for
affected conduct; and
(b) satisfies the criteria of Section 3(b) requiring that all
regulations be written in clear language and contain clear legal
standards.
4. Executive Order 13045--Protection of Children From Environmental
Health Risks and Safety Risks
E.O. 13045 requires that environmental and related rules separately
evaluate the potential impact to children. However, this final rule is
not subject to E.O. 13045 because this is not an economically
significant regulatory action as defined by E.O. 12866; and this action
will not concern environmental health or safety risks
disproportionately affecting children.
5. Executive Order 13132--Federalism
Under the criteria in Section 1 of E.O. 13132, this final rule does
not have sufficient federalism implications to warrant the preparation
of a federalism summary impact statement. While OSMRE's clarification
and enhancement of the existing regulations and processes in this final
rule will have a direct effect on OSMRE's relationship with the States,
this effect is not significant as it neither imposes substantial
unreimbursed compliance costs on States nor preempts State law.
Furthermore, this final rule does not have a significant effect on the
distribution of power and responsibilities among the various levels of
government. In fact, the final rule will reduce burdens on State
regulatory authorities and more closely align the regulations to SMCRA.
Therefore, a federalism summary impact statement is not required.
6. 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 final rule
under the Department's consultation policy and under the criteria in
E.O. 13175 and has determined that it will not have
[[Page 75189]]
substantial direct effects on federally recognized Tribes and that
consultation under the Department's tribal consultation policy is not
required. Currently, no Tribes have achieved primacy; therefore, OSMRE
regulates all surface coal mining and reclamation operations on Indian
lands with tribal input and assistance. Currently, OSMRE works in
conjunction with the Crow, Hopi, and Navajo regarding enforcement of
surface coal mining and reclamation operations. This final rulemaking
will not directly impact the Tribes. However, because these three
Tribes have expressed interest in perhaps having their own regulatory
programs in the future, OSMRE has coordinated with the Crow, Hopi, and
Navajo to inform them of, and to provide updates on the final
rulemaking. OSMRE attended quarterly meetings of the Tribes in order to
provide an overview of the proposed rule, provide updates on the
rulemaking process, and address questions posed by the Tribes.
7. Executive Order 13211--Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
E.O. 13211 requires agencies to prepare a Statement of Energy
Effects for a rule that is: (1) Considered significant under E.O.
12866, and (2) likely to have a significant adverse effect on the
supply, distribution, or use of energy; or is designated as a
significant energy action by OMB. Because this final rule is not deemed
significant under E.O. 12866 and is not expected to have a significant
adverse effect on the supply, distribution, or use of energy, a
Statement of Energy Effects is not required.
8. Executive Order 13771--Reducing Regulation and Controlling
Regulatory Costs
E.O. 13771 directs Federal agencies to reduce the regulatory burden
on regulatory entities and control regulatory costs. Consistent with
E.O. 13771 and the April 5, 2017, Guidance Implementing E.O. 13771, the
final rule will have total costs less than zero. Moreover, this final
rule operates to reduce the burden on State regulatory authorities by
promoting coordination between OSMRE and States, eliminating
duplication of processes, and increasing efficiency in resolving State
regulatory authority program issues. In addition, this final rule
provides compliance clarity to the regulatory community. Therefore,
this final rule is a deregulatory action.
9. Executive Order 13783--Promoting Energy Independence and Economic
Growth
Section 2 of E.O. 13783 requires agencies to ``review all existing
regulations, orders, guidance documents, policies, and any other
similar agency actions'' with the goal of eliminating provisions that
impede domestic energy production. Section 2(a) exempts agency actions
``that are mandated by law, necessary for the public interest, and
consistent with the policy [to remove unnecessary regulatory burdens on
domestic energy production while promoting clean air and water within
the constraints of current statutes].'' OSMRE, in conjunction with its
State regulatory authority partners, has determined that this final
rule promotes coordination ``with other Federal agencies and State
regulatory authorities to minimize duplication of inspections,
enforcement, and administration of [SMCRA]'' as specified by 30 U.S.C.
1211(c)(12) while also furthering the purposes of SMCRA including, but
not limited to, assuring that surface coal mining operations are so
conducted as to protect the environment and to strike the appropriate
balance ``between protection of the environment and agricultural
productivity and the Nation's need for coal as an essential source of
energy.'' See 30 U.S.C. 1202(d) and (f). In sum, OSMRE finds that this
final rule satisfies the requirements of E.O. 13783 by appropriately
removing unnecessary duplication of Federal and State efforts that
impedes efficient oversight and enforcement of SMCRA and that may
otherwise divert valuable time and monetary resources and impede or
burden domestic energy production.
List of Subjects
30 CFR Part 733
Intergovernmental relations, Surface mining, Underground mining.
30 CFR Part 736
Coal mining, Intergovernmental relations, Surface mining,
Underground mining.
30 CFR Part 842
Law enforcement, Surface mining, Underground mining.
David L. Bernhardt,
Secretary, U.S. Department of the Interior.
For the reasons set out in the preamble, the Department of the
Interior, acting through OSMRE, amends 30 CFR parts 733, 736, and 842
as follows:
PART 733--EARLY IDENTIFICATION OF CORRECTIVE ACTION, MAINTENANCE OF
STATE PROGRAMS, PROCEDURES FOR SUBSTITUTING FEDERAL ENFORCEMENT OF
STATE PROGRAMS, AND WITHDRAWING APPROVAL OF STATE PROGRAMS
0
1. The authority citation for part 733 is revised to read as follows:
Authority: 30 U.S.C. 1201 et seq.
0
2. The heading of part 733 is revised to read as set forth above.
0
3. Add Sec. 733.5 to read as follows:
Sec. 733.5 Definitions.
As used in this part, the following terms have the specified
meanings:
Action plan means a detailed schedule OSMRE prepares to identify
specific requirements a State regulatory authority must achieve in a
timely manner to resolve State regulatory program issues identified
during oversight of State regulatory programs.
State regulatory program issue means an issue OSMRE identifies
during oversight of a State or Tribal regulatory program that could
result in a State regulatory authority not effectively implementing,
administering, enforcing, or maintaining all or any portion of its
State regulatory program, including instances when a State regulatory
authority has not adopted and implemented program amendments that are
required under 30 CFR 732.17 and 30 CFR subchapter T, and issues
related to the requirement in section 510(b) of the Act that a State
regulatory authority must not approve a permit or revision to a permit
unless the State regulatory authority finds that the application is
accurate and complete and that the application is in compliance with
all requirements of the Act and the State regulatory program.
0
4. Revise Sec. 733.10 to read as follows:
Sec. 733.10 Information collection.
The information collection requirement contained in Sec.
733.13(a)(2) has been approved by the Office of Management and Budget
under 44 U.S.C. 3507 and assigned clearance number 1029-0025. The
information required is needed by OSMRE to verify the allegations in a
citizen request to evaluate a State program and to determine whether an
evaluation should be undertaken.
Sec. Sec. 733.12 and 733.13 [Redesignated as Sec. Sec. 733.13 and
733.14]
0
5. Redesignate Sec. Sec. 733.12 and 733.13 as Sec. Sec. 733.13 and
733.14, respectively.
[[Page 75190]]
0
6. Add a new Sec. 733.12 to read as follows:
Sec. 733.12 Early identification and corrective action to address
State regulatory program issues.
(a) When the Director identifies a State regulatory program issue,
he or she should take action to make sure the identified State
regulatory program issue is corrected as soon as possible in order to
ensure that it does not escalate into an issue that would give the
Director reason to believe that the State regulatory authority is not
effectively implementing, administering, enforcing, or maintaining all
or a portion of its State regulatory program.
(1) The Director may become aware of State regulatory program
issues through oversight of State regulatory programs or as a result of
information received from any source.
(2) If the Director concludes that the State regulatory authority
is not effectively implementing, administering, enforcing, or
maintaining all or a portion of its State regulatory program, the
Director may substitute Federal enforcement of a State regulatory
program or withdraw approval of a State regulatory program as provided
in this part.
(b) The Director or his or her delegate 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. However, if the Director or delegate does not expect that the
State regulatory authority will resolve the State regulatory program
issue within 180 days after identification or that it is likely to
result in a violation of the approved State program, then the Director
or delegate will develop and institute an action plan.
(1) An action plan will be written with specificity to identify the
State regulatory program issue and an effective mechanism for timely
correction.
(2) An action plan will identify any necessary technical or other
assistance that the Director or his or her delegate can provide and
remedial measures that a State regulatory authority must take
immediately.
(3) An action plan must also include:
(i) An action plan identification number;
(ii) A concise title and description of the State regulatory
program issue;
(iii) Explicit criteria for establishing when complete resolution
will be achieved;
(iv) Explicit and orderly sequence of actions the State regulatory
authority must take to remedy the problem;
(v) A schedule for completion of each action in the sequence; and
(vi) A clear explanation that if the action plan, upon completion,
does not result in correction of the State regulatory program issue,
the provisions of Sec. 733.13 may be triggered.
(c) All identified State regulatory program issues and any
associated action plan must be tracked and reported in the applicable
State regulatory authority's Annual Evaluation report. These State
regulatory authority Annual Evaluation reports will be accessible
through OSMRE's website and at the applicable 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 appropriate oversight
enforcement action, in the event that a previously identified State
regulatory program issue results in or may imminently result in a
violation of the approved State program.
PART 736--FEDERAL PROGRAM FOR A STATE
0
7. The authority citation for part 736 continues to read as follows:
Authority: 30 U.S.C. 1201 et seq., as amended; and Pub. L. 100-
34.
0
8. Revise Sec. 736.11(a)(2) to read as follows:
Sec. 736.11 General procedural requirements.
(a) * * *
(2) The Director shall promulgate a complete Federal program for a
State upon the withdrawal of approval of an entire State program under
30 CFR 733.13.
* * * * *
PART 842--FEDERAL INSPECTIONS AND MONITORING
0
9. The authority citation for part 842 continues to read as follows:
Authority: 30 U.S.C. 1201 et seq.
0
10. Amend Sec. 842.11 by revising paragraphs (b)(1) introductory text,
(b)(1)(i), (b)(1)(ii)(A), (b)(1)(ii)(B)(1), (3), and (4), and (b)(2) to
read as follows:
Sec. 842.11 Federal inspections and monitoring.
* * * * *
(b)(1) An authorized representative of the Secretary must
immediately conduct a Federal inspection:
(i) When the authorized representative has reason to believe on the
basis of any information readily available to him or her, from any
source, including any information a citizen complainant or the relevant
State regulatory authority submits (other than information resulting
from a previous Federal inspection), that there exists a violation of
the Act, this chapter, the State regulatory program, or any condition
of a permit or an exploration approval, or that there exists any
condition, practice, or violation that creates an imminent danger to
the health or safety of the public or is causing or could reasonably be
expected to cause a significant, imminent environmental harm to land,
air, or water resources; and
(ii)(A) There is no State regulatory authority or the Office is
enforcing the State regulatory program under section 504(b) or 521(b)
of the Act and part 733 of this chapter; or
(B)(1) The authorized representative has notified the State
regulatory authority of the possible violation and more than ten days
have passed since notification, and the State regulatory authority has
not taken appropriate action to cause the violation to be corrected or
to show good cause for not doing so, or the State regulatory authority
has not provided the authorized representative with a response. After
receiving a response from the State regulatory authority, but before a
Federal inspection, the authorized representative will determine in
writing whether the standards for appropriate action or good cause have
been satisfied. A State regulatory authority's failure to respond
within ten days does not prevent the authorized representative from
making a determination, and will constitute a waiver of the State
regulatory authority's right to request review under paragraph
(b)(1)(iii) of this section.
* * * * *
(3) Appropriate action includes enforcement or other action
authorized under the approved State program to cause the violation to
be corrected. Appropriate action may include OSMRE and the State
regulatory authority immediately and jointly initiating steps to
implement corrective action to resolve any issue that the authorized
representative and applicable Field Office Director identify as a State
regulatory program issue, as defined in 30 CFR part 733.
(4) Good cause includes:
(i) The possible violation does not exist under the State
regulatory program;
(ii) The State regulatory authority has initiated an investigation
into a possible
[[Page 75191]]
violation and as a result has determined that it requires a reasonable,
specified additional amount of time to determine whether a violation
exists. When analyzing the State regulatory authority's response for
good cause, the authorized representative has discretion to determine
how long the State regulatory authority should reasonably be given to
complete its investigation of the possible violation and will
communicate to the State regulatory authority the date by which the
investigation must be completed. At the conclusion of the specified
additional time, the authorized representative will re-evaluate the
State regulatory authority's response including any additional
information provided;
(iii) The State regulatory authority demonstrates that it lacks
jurisdiction over the possible violation under the State regulatory
program;
(iv) The State regulatory authority demonstrates that it is
precluded from taking action on the possible violation because an
administrative review body or court of competent jurisdiction has
issued an order concluding that the possible violation does not exist
or that the temporary relief standards of the State regulatory program
counterparts to section 525(c) or 526(c) of the Act have been
satisfied; or
(v) Regarding abandoned sites, as defined in 30 CFR 840.11(g), the
State regulatory authority is diligently pursuing or has exhausted all
appropriate enforcement provisions of the State regulatory program.
* * * * *
(2) An authorized representative will have reason to believe that a
violation, condition, or practice referred to in paragraph (b)(1)(i) of
this section exists if the facts that a complainant alleges, or facts
that are otherwise known to the authorized representative, constitute
simple and effective documentation of the alleged violation, condition,
or practice. In making this determination, the authorized
representative will consider any information readily available to him
or her, from any source, including any information a citizen
complainant or the relevant State regulatory authority submits to the
authorized representative.
* * * * *
0
11. Revise Sec. 842.12(a) to read as follows:
Sec. 842.12 Requests for Federal inspections.
(a) Any person may request a Federal inspection under Sec.
842.11(b) by providing to an authorized representative a signed,
written statement (or an oral report followed by a signed written
statement) setting forth information that, along with any other readily
available information, may give the authorized representative reason to
believe that a violation, condition, or practice referred to in Sec.
842.11(b)(1)(i) exists. The statement must also set forth the fact that
the person has notified the State regulatory authority, if any, in
writing, of the existence of the possible violation, condition, or
practice, and the basis for the person's assertion that the State
regulatory authority has not taken action with respect to the possible
violation. The statement must set forth a phone number, address, and,
if available, an email address where the person can be contacted.
* * * * *
[FR Doc. 2020-24137 Filed 11-23-20; 8:45 am]
BILLING CODE 4310-05-P
