[Federal Register Volume 62, Number 76 (Monday, April 21, 1997)]
[Rules and Regulations]
[Pages 19450-19461]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-10247]
[[Page 19449]]
_______________________________________________________________________
Part VI
Department of the Interior
_______________________________________________________________________
Office of Surface Mining Reclamation and Enforcement
_______________________________________________________________________
30 CFR Parts 773, 778, and 843
Ownership and Control; Permit Application Process; Improvidently Issued
Permits; Interim Final Rule
Federal Register / Vol. 62, No. 76 / Monday, April 21, 1997 / Rules
and Regulations
[[Page 19450]]
DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Parts 773, 778, and 843
RIN 1029-AB-91
Ownership and Control; Permit Application Process; Improvidently
Issued Permits
AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.
ACTION: Interim final rule.
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SUMMARY: The Office of Surface Mining Reclamation and Enforcement (OSM)
is amending its regulations governing permit application information
requirements; criteria for permit issuance; and criteria, procedures,
and sanctions for improvidently issued permits. The affected provisions
generally address ownership and control information and compliance
review requirements. This action is being taken in response to a
decision by the U.S. Court of Appeals for the District of Columbia
Circuit invalidating the previous rules as inconsistent with the
Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act).
The court held that SMCRA authorizes the regulatory authority to block
issuance of a permit only for unabated violations incurred by the
applicant or entities owned or controlled by the applicant, not, as
provided in the previous rules, for violations incurred by any person
who owns or controls the permittee. The rules being promulgated today
cure this defect. Because of the urgent need to fill the void created
by the court's decision, OSM is invoking the good cause exemptions of
the Administrative Procedure Act and is adopting these rules on an
interim final basis, effective April 3, 1997.
EFFECTIVE DATE: April 3, 1997.
FOR FURTHER INFORMATION CONTACT:
Nancy Broderick or Dennis Rice, Office of Surface Mining Reclamation
and Enforcement, U.S. Department of Interior, 1951 Constitution Ave.,
NW., Washington, DC 20240. Telephone: (202) 208-2700 or 2829. E-mail
address; nbroderi@osmre.gov or drice@osmre.gov. Additional information
concerning OSM, this rule, and related documents may be found on OSM's
home page at hhtp://www.osmre.gov.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Background.
II. Rationale for Invoking APA Good Cause Exemptions.
III. Discussion of Interim Final Rules.
A. Section 773.5-Definitions.
B. Section 773.15(b)--Permit Block.
C. Section 773.15(e)--Final Compliance Review.
D. Section 773.17(i)--Permit Condition.
E. Sections 773.20 and 773.21--Improvidently Issued Permits.
F. Section 778.10--Information Collection.
G. Section 778.13--Organizational and Ownership Information
Requirements for Permit Applications.
H. Section 778.14--Compliance Information Requirements for
Permit Applications.
I. Section 843.11(g)--Notification Following Issuance of
Cessation Order.
J. Section 843.21--Federal Procedures for Improvidently Issued
State Permits.
K. Effect in Federal Program States and on Indian Lands.
L. Effect on State Programs.
M. Comparison of Interim Final Rule Language with Prior Rule
Language.
IV. Procedural Matters.
I. Background
Section 510(c) of SMCRA, 30 U.S.C. 1260(c), requires that each
application for a permit to conduct surface coal mining operations
include a schedule listing ``any and all notices of violation of this
Act and any law, rule, or regulation of the United States, or of any
department or agency in the United States pertaining to air or water
environmental protection incurred by the applicant in connection with
any surface coal mining operation during the three-year period prior to
the date of application.'' It further specifies that ``[w]here the
schedule or other information available to the regulatory authority
indicates that any surface coal mining operation owned or controlled by
the applicant is currently in violation of this Act or such other laws
referred to in this subsection, the permit shall not be issued until
the applicant submits proof that such violation has been corrected, or
is in the process of being corrected to the satisfaction of the
regulatory authority, department, or agency which has jurisdiction over
such violation.'' Finally, it provides that ``no permit shall be issued
to an applicant after a finding by the regulatory authority, after
opportunity for hearing, that the applicant, or the operator specified
in the application, controls or has controlled mining operations with a
demonstrated pattern of willful violations of this Act of such nature
and duration with such resulting irreparable damage to the environment
as to indicate an intent not to comply with the provisions of this
Act.'' Id.
To implement these provisions of the Act, OSM adopted three sets of
regulations known respectively as the ownership and control rule (53 FR
38868, October 3, 1998), the permit information rule (54 FR 8982, March
2, 1989), and the improvidently issued permits rule, also known as the
permit rescission rule (54 FR 18438, April 28, 1989). The ownership and
control rule revised 30 CFR 773.15(b) to prohibit permit issuance on
the basis of unabated violations attributed to either the applicant or
any person who owns or controls the applicant. It also defined the
terms ``owns or controls'' and ``owned or controlled'' as used in that
rule and as the latter term is used in section 510(c) of SMCRA. The
permit information rule revised 30 CFR 778.13 and 778.14 to establish
permit application information and compliance review and reporting
requirements consistent with the new ownership and control definition
and the revisions that the ownership and control rule made to 30 CFR
773.15(b). The improvidently issued permits rule established criteria
and procedures for determining when an existing permit has been issued
improvidently; i.e., in violation of 30 CFR 773.15(b) and section
510(c) of the Act. This rule also included remedial measures for
improvidently issued permits.
The Applicant/Violator System procedures rule published on October
28, 1994 (59 FR 54306) modified several provisions of the ownership and
control, permit information, and improvidently issued permits rules. In
addition, the remining rule published on November 27, 1995 (60 FR
58480) added paragraph (b)(4) to 30 CFR 773.15. None of these revisions
was at issue in the litigation discussed below.
The National Mining Association and the National Wildlife
Federation filed suit challenging the validity of the ownership and
control, permit information, and improvidently issued permits rules on
a variety of grounds. On August 31, 1995, the U.S. District Court for
the District of Columbia granted summary judgment in favor of OSM on
all claims. See National Wildlife Fed'n v. Babbitt, Civ. Nos. 88-3117,
88-3464, 88-3470 (consolidated) (Aug. 31, 1995), slip op. at 25:
National Wildlife Fed'n v. Babbitt, Civ. Nos. 89-1130, 89-1167
(consolidated) (Aug. 31, 1995), slip op. at 12: National Wildlife Fed'n
v. Babbitt, Civ. Nos. 89-1751, 89-1811 (consolidated) (Aug. 31, 1995),
slip op. at 19.
On appeal, however, in a decision that took effect April 4, 1997,
the U.S. Court of Appeals for the District of Columbia Circuit found
the ownership and control rule to be ``unlawful'' because 30 CFR
773.15(b)(1) blocks
[[Page 19451]]
permit issuance for violations at operations owned or controlled by any
person who owns or controls the applicant, a provision that, according
to the court, ``conflicts with the plain meaning of section 510(c).''
National Minning Ass'n v. United States Dept. of the Interior, 105 F.3d
691, 694 (D.C. Cir. 1997) (``NMA--O&C''). The court ruled that section
510(c) is ``unmistakably clear'' in stating that a permit may not be
issued ``when `any surface coal mining operation owned or controlled by
the applicant' is currently in violation of SMCRA.'' In addition, the
court held, with little elaboration, that because the permit
information rule and the permit rescission (improvidently issued
permits) rule ``are centered on the ownership and control rule * * *,
they too must fall.'' Id. at 696.
Nothing is the court's decision eliminates the responsibility of
OSM and State regulatory authorities to implement the requirements of
sections 507(b) and 510(c) of the Act. Nor does it terminate the
Applicant/Violator System, the database that OSM and State regulatory
authorities use to track violations and violators, although it will
impact the use of that data. OSM has taken steps to modify system
reports and recommendations to reflect the court's decision. Today's
rulemaking action represents OSM's initial effort to conform its
regulations to the court's decision. OSM intends to propose further
regulatory revisions in the near future in accordance with standard
notice and comment procedures.
II. Rationale for Invoking APA Good Cause Exemptions
The court's action in striking the ownership and control, permit
information, and improvidently issued permits rules creates
considerable uncertainty with respect to permit application information
requirements and implementation of the statutory permit block sanction
in section 510(c). This sanction has proven to be one of the most
effective incentives for compliance with the requirements of the Act.
It has prevented persons who are either unable or unwilling to adhere
to the environmental protection standards of the Act from repeatedly
causing environmental problems on additional sites.
Under sections 101(f) and 503 of SMCRA, States have the primary
responsibility for regulating surface coal mining and reclamation
operations. Once a State attains primacy (an approved regulatory
program under section 503 of the Act), OSM's role is reduced to that of
assistance and oversight. At present, 24 of the 27 coal-producing
States have achieved primacy.
At least 5 State programs include provisions that automatically
repeal or require review of any State program counterpart to a Federal
rule remanded or otherwise invalidated by the courts. In addition,
another 7 States have laws or regulations that prohibit the
promulgation of regulations that are more stringent than Federal
requirements. If there are no Federal rules in place, OSM expects that
most of these States will suspend or otherwise remove the corresponding
State provisions. While removal of a State program rule, either
automatically or by legislative or administrative action, is often
rapid restoration through SMCRA's program amendment process is both
lengthy and complex, often requiring a number of years to accomplish.
Regardless of the mechanism by which the programmatic void comes into
being, the result will be an absence of information that will translate
into the issuance of permits to persons who are not entitled to receive
them under section 510(c) of the Act.
Prior to establishment of the Applicant/Violator System, OSM and
State regulatory authorities had few sources of information about
industry practices and enterprises except for disclosures in permit
applications. They also lacked a regulatory structure or centralized
data processing system to track persons or entities which owned or
controlled operations with unabated violations as they reincorporated
or renamed themselves, used a series of contract miners, or moved from
State to State. The lack of such a system is especially significant
since, as noted at 53 FR 38886 (October 3, 1988), over half of all
Federal permit applicants between March 1985 and April 1986 had
unabated violations, unpaid abandoned mine land reclamation fees, or
unpaid civil penalties, although some of these outstanding obligations
were under appeal. The problem was particularly difficult to address
when an applicant for a permit in one State owned or controlled an
operation with an unabated violation in another State, since there were
few mechanisms by which States exchanged information.
The effectiveness of the section 510(c) permit block sanction
depends upon maintenance of a reliable nationwide database (currently,
the Applicant/Violator System) on permit applicants, organizational
relationships, and violations. Otherwise, violators can simply move
from State to State and company to company to evade their reclamation
obligations and other responsibilities under the Act. States are
primarily responsible for inputting data into this system. Therefore,
it is imperative that the integrity of State programs, including permit
application information requirements, be maintained. State program
provisions are relatively easy to delete, but difficult and time-
consuming to restore.
The court's decision creates a regulatory gap that would result in
substantial uncertainty and confusion regarding permit application
information requirements, use of the Applicant/Violator System, and the
identification and handling of improvidently issued permits. Such
regulatory confusion would be contrary to the public interest because
issuance of permits to persons who are not entitled to receive them
under the Act, as would likely occur in the absence of consistent
permit application content, review, and reporting requirements, would
prove injurious to the environment and public health and safety. The
schedule for issuance of the court's mandate allows insufficient time
for public notice and comment on replacement regulations before the
regulatory gap occurs. Therefore, following normal notice and comment
procedures under the Administrative Procedure Act (APA) would be
impracticable and contrary to the public interest.
To avoid creation of a regulatory gap, OSM is now promulgating
replacement regulations on an interim final basis, as authorized by the
APA at 5 U.S.C. 553(b)(3)(B). This provision of the APA provides a
``good cause'' exemption that allows an agency to issue a rule without
prior notice or opportunity for public comment ``when the agency for
good cause finds (and incorporates the finding and a brief statement of
the reasons therefor in the rules issued) that notice and public
procedure thereon are impracticable, unnecessary, or contrary to the
public interest.'' As discussed above, promulgation of an interim final
rule without prior notice or opportunity to comment is in the public
interest because it avoids creation of a regulatory gap and the adverse
impacts associated with such a gap. The requirements and procedures in
the interim final rules have gained widespread acceptance among State
regulatory authorities. Furthermore, most provisions of the rules being
promulgated today are substantively identical to those previously
promulgated in accordance with the standard notice and comment
procedures of the APA. The only substantive changes are those that
address the specific provisions that the court found to be in conflict
with, or
[[Page 19452]]
potentially in conflict with, the ``unmistakably clear'' language of
section 510(c) of SMCRA.
Using the same rationale, OSM also is availing itself of the good
cause exemption at 5 U.S.C. 553(d)(3) to the APA requirement that rules
be published at least 30 days prior to their effective date. To avoid
any regulatory gap, the effective date of the rules being published
today is April 3, 1997.
The interim final rules being published today are only interim
measures intended to ensure that implementation of the court's decision
does not result in a regulatory gap or substantial confusion in the
regulatory community or the regulated industry. OSM is committed to
exploring various methods of implementing the court's observation in
NMA-O&C that ``OSM has leeway in determining who the `applicant' is.''
Id. at 695. The agency intends to seek public comment on any resulting
proposed regulatory changes.
III. Discussion of Interim Final Rules
The rulemaking actions that OSM is taking today remedy the defects
identified by the court in NMA-O&C. They also preserve those aspects of
the previous rules to which the court expressed no specific objection.
These measures are needed to fully and properly implement the permit
block sanction of section 510(c) of SMCRA and to flesh out other
statutory provisions, such as the permit application information
requirements of paragraphs (b)(4) and (b)(5) of section 507 of the Act.
Nothing in the following findings or the rules to which they
pertain affects the regulatory authority's power or responsibility to
determine whether the nominal applicant is the true applicant to which
the court refers. Nor do these findings or rules affect the regulatory
authority's power to pierce the corporate veil or to withhold a permit,
which, if issued, would violate a court order.
A. Section 773.5--Definitions
On October 3, 1988 (53 FR 38868), OSM amended its regulations at 30
CFR 773.5 by adding a definition of the terms ``owned or controlled''
and ``owns or controls.'' This definition determines, in part, what
type of information a permit applicant must submit under 30 CFR 778.13
and the circumstances under which the section 510(c) permit block
sanction would apply under 30 CFR 773.15(b).
The reach of the definition depends on the context in which these
terms are used in a specific regulation. For example, as revised and
repromulgated in this rulemaking in response to the court's decision,
30 CFR 773.15(b) refers only to persons owned or controlled by the
applicant or operations that the applicant controls or has controlled.
Therefore, in this context, the definition would be used only to
determine which entities the applicant owns or controls, not which
entities own or control the applicant. As another example, 30 CFR
778.13(c), as revised and repromulgated in this rulemaking, provides
that a permit application must include identifying information about
persons who own or control the applicant. In this context, the
definition would be used to determine which individuals or entities own
or control the applicant, not which entities are owned or controlled by
the applicant. This information is needed to verify the applicant's
statement under section 507(b)(5) of the Act concerning bond
forfeitures and permit revocations for operations under common control
with the applicant. It also incorporates the ownership and control
information requirements of section 507(b)(4) of SMCRA, which, the
court noted, requires information relevant to statutory provisions
other than the section 510(c) permit block sanction, such as the
individual civil penalty sanction of section 518(f) of the Act. This
information would not, however, be used for purposes of blocking permit
issuance under 30 CFR 773.15(b) in a manner inconsistent with the
court's decision.
Hence, the definition itself presents no conflict with the court's
interpretation of section 510(c) of the Act in NMA--O&C, and OSM is
repromulgating the definition without substantive change as part of the
rulemaking action being published today. The rationale for the text of
the definition is set forth in detail in the preamble to the 1988
rulemaking at 53 FR 38868-80 (October 3, 1988).
B. Section 773.15(b)--Permit Block
On October 3, 1988, OSM revised 30 CFR 773.15(b) to expand the
scope of the compliance review of permit applications and to expressly
require the withholding of a permit when persons who own or control the
applicant own or control operations with unabated violations. In NMA--
O&C, the court held that this sanction applies only to violations
incurred by the applicant or entities owned or controlled by the
applicant, although the court left some room for the regulatory
authority to determine the true applicant. Id. at 695. Therefore, the
interim final rule being promulgated today does not include the
language in the version of 30 CFR 773.15(b)(1) and (b)(3) promulgated
in 1988 that applied the permit block sanction to violations incurred
by persons who own or control the applicant.
Since there is nothing in the remainder of the 1988 changes to 30
CFR 773.15(b) (or the subsequent revisions in 1994 and 1995) that
presents a conflict with the court's interpretation of section 510(c)
of the Act in NMA--O&C, OSM is repromulgating the remainder of this
paragraph without substantive change as part of the interim final rule
being published today. The rationale for the other 1988, 1994, and 1995
changes, which include criteria for conditional issuance of a permit,
provisions concerning the presumption that a notice of violation is in
the process of abatement, and a special exception for remaining
operations, is set forth in detail in the preambles to the 1988
rulemaking at 53 FR 38880-89 (October 3, 1988), the 1994 rulemaking at
59 FR 4322-24 (October 28, 1994), and the 1995 rulemaking at 60 FR
58482-86 (November 27, 1995).
C. Section 773.15(e)--Final Compliance Review
On March 2, 1989 (54 FR 8982), OSM adopted 30 CFR 773.15(e), which
required that before issuing a permit, the regulatory authority
reconsider its initial compliance review in light of any new
information submitted pursuant to 30 CFR 778.13(i) and 778.14(d). In
NMA--O&C, the court was silent on this aspect of the permit information
rule. Since its contents do not present a conflict with the court's
findings concerning the scope of the section 510(c) permit block, OSM
is repromulgating it in substantively identical form as part of this
interim final rule. In keeping with the changes to 30 CFR 778.13, the
new rule replaces the reference to 30 CFR 778.13(i) with a reference to
its new designation, 30 CFR 778.13(k).
D. Section 773.17(i)--Permit Condition
On March 2, 1989 (54 FR 8982), OSM adopted 30 CFR 773.17(i), which
required that each permit include a condition obligating the permittee
to update the information required by 30 CFR 778.13(c), which pertains
to the identity and organizational position and relationship of persons
who own or control the applicant, whenever the permittee receives a
cessation order. The preamble to the 1989 rulemaking at 54 FR 8982-83
explains that the purpose of this condition was to reveal the identity
of persons who own or control the permittee, and then use the
[[Page 19453]]
information collected to block issuance of permits to these persons
pursuant to 30 CFR 773.15(b). However, in NMA--O&C, the court held that
section 510(c) of the Act does not allow the blocking of permit
issuance on the basis of violations incurred by persons who own or
control the applicant. Therefore, the information can no longer be used
for its original purpose. However, as noted at 54 FR 8986 (March 2,
1989) in the preamble to a related provision in 30 CFR 843.11(g), the
information collected through this condition has other uses, such as
the identification of persons against whom individual civil penalties
may be assessed under 30 CFR Part 846 and section 518(f) of the Act.
Therefore, OSM is repromulgating this permit condition in substantively
identical form as part of the interim final rule being promulgated
today, although its designation is now paragraph (h), which was
previously reserved, instead of paragraph (i).
E. Section 773.20 and 773.21--Improvidently Issued Permits
On April 28, 1989 (54 FR 18438), OSM promulgated 30 CFR 773.20 and
773.21 to establish procedures and criteria for (1) determining when a
permit had been improvidently issued, and (2) applying appropriate
remedial measures. In NMA--O&C, the court struck down these rules based
on a finding that they ``are centered on the ownership and control
rule,'' which the court found to exceed the mandate of SMCRA. Id. at
696. In support of its decision, the court pointed to the reference to
ownership or control links in 30 CFR 773.20(b)(1)(iii).
Accordingly, the interim final rule being published today replaces
the term ``ownership or control link'' (and related language concerning
ownership and control links and responsibility for violations,
penalties, or fees) in 30 CFR 773.20(b)(1)(iii), 773.20(b)(2)(ii), and
773.21(a)(4) with more specific language that applies the provisions of
these rules only to situations in which the permittee or any person
owned or controlled by the permittee is responsible for the violation,
penalty, or fee.
OSM also is revising 30 CFR 773.20(b)(1)(ii)(B), 773.20(c)(1) (i)
and (ii), and 30 CFR 773.21(a) (2) and (3) to either eliminate the
phrase ``the permittee or other person responsible'' or replace it with
language that clarifies that the rule applies only to violations,
penalties, and fees for which the permittee or persons owned or
controlled by the permittee are responsible. OSM is making these
changes to ensure that 30 CFR 773.20 and 773.21 are applied in a manner
consistent with the revisions to 30 CFR 773.15(b) and the court's
decision on the scope of section 510(c) of the Act.
Since there is nothing in the remainder of the 1989 version of 30
CFR 773.20 and 773.21 (or the subsequent revisions in 1994) that
presents a conflict with the court's interpretation of section 510(c)
of the Act in NMA--O&C, OSM is repromulgating the remainder of these
sections without substantive change as part of the interim final rule
being published today. The rationale for these procedural requirements
and criteria for improvidently issued permit is set forth in detail in
the preambles to the 1989 rulemaking at 54 FR 18439-62 (April 28, 1989)
and the 1994 rulemaking at 59 FR 54325-29 (October 28, 1994). However,
in view of the court decision and the changes in wording of these rules
and 30 CFR 773.15(b), the discussions of ownership or control links in
the preambles to previous versions of these rules no longer apply in
full, especially Part II of the violations review criteria set forth in
the April 28, 1989 preamble at 54 FR 18440-41. Similarly, the
explanation of the meaning of ``other person responsible'' at 54 FR
18447 under the heading ``Inconsistent Terminology'' and at 54 FR 18455
under the heading ``Ownership and Control Relationships Covered'' is no
longer fully applicable, especially since the revised versions of the
rules no longer include this term.
F. Section 778.10--Information Collection
In NMA--O&C at 696, the court struck down the permit information
rule, of which this section was a part. Since the contents of this
section do not present a conflict with the court's holding on the scope
of the section 510(c) permit block sanction, OSM is repromulgating it
in revised form as part of the interim final rule being published
today. The revisions reflect current Departmental guidance concerning
format and content.
G. Section 778.13--Organizational and Ownership Information
Requirements for Permit Applications
On March 2, 1989 (54 FR 8982), OSM promulgated revised permit
application information requirements at 30 CFR 778.13 to conform these
requirements to the definition of `` `owned or controlled or' `owns or
controls' '' at 30 CFR 773.5. In NMA--O&C, the court struck down the
revised rules based on a finding that they ``are centered on the
ownership and control rule,'' which the court found to exceed the
mandate of SMCRA. Id. at 696. In support of its decision, the court
pointed to 30 CFR 778.13(d), which requires information pertaining to
any surface coal mining operation owned or controlled by either the
applicant or by any person who owns or controls the applicant under the
definition of owned or controlled and owns or controls in 30 CFR 773.5.
Accordingly, the interim final rule being published today modifies
the language of former 30 CFR 778.13(d) [now 30 CFR 778.13(f)] to
restrict its scope to operations owned or controlled by the applicant.
OSM also is:
Recodifying former 30 CFR 778.13(c)(4) as paragraph (d)
and revising it to apply only to the applicant and each partner or
principal shareholder of the applicant in accordance with the language
of section 507(b)(4) of the Act;
Recodifying former 30 CFR 778.13(c)(5) as paragraph (e)
and revising it to apply only to the applicant in accordance with the
language of section 507(b)(3) of the Act; and
Redesignating former 30 CFR 778.13 (d) through (j) as
paragraphs (f) through (l), respectively.
Under revised 30 CFR 778.13(c), the application must continue to
include identifying information about persons who own or control the
applicant. This information is needed to verify the applicant's
statement under section 507(b)(5) of the Act as to ``whether the
applicant, any subsidiary, affiliate, or persons controlled by or under
common control with the applicant'' has ever forfeited a mining bond or
had a mining permit suspended or revoked within the 5-year period
preceding the date of application. Revised 30 CFR 778.13(c) also is
based upon and generally analogous to the ownership and control
information requirements of section 507(b)(4) of SMCRA. The court noted
that this section of the Act requires information relevant to statutory
provisions other than the section 510(c) permit block sanction, such as
the individual civil penalty sanction of section 518(f) of the Act. The
court also observed that ``OSM or the state regulatory authority can
use the information required under section 507(b) to determine who the
real applicant is--i.e., to pierce the corporate veil in cases of
subterfuge in order to ensure that it has the true applicant before
it.'' Id. at 695. The information required under revised 30 CFR
778.13(c) will improve the ability of OSM and state regulatory
authorities to initiate these types of enforcement and compliance
measures.
Since there is nothing in the remainder of the 1989 version of 30
CFR
[[Page 19454]]
778.13 that presents a conflict with the court's interpretation of
section 510(c) of the Act in NMA--O&C, OSM is repromulgating the
remainder of this section without substantive change (apart from
redesignation of paragraphs) as part of the interim final rule being
published today. The rationale for these permit application information
requirements is set forth in the preamble to the 1989 rulemaking at 54
FR 8983-90 (March 2, 1989).
H. Section 778.14--Compliance Information Requirements for Permit
Applications
On March 2, 1989 (54 FR 8982), OSM promulgated revised permit
application information requirements at 30 CFR 778.14. Among other
things, these regulations required information about unabated
violations and other compliance data concerning persons who own or
control the applicant. In NMA--O&C, the court struck down the revised
rules based on a finding that they ``are centered on the ownership and
control rule,'' which the court found to exceed the mandate of SMCRA by
applying the permit block sanction of section 510(c) of the Act to
violations incurred by persons who own or control the applicant. Id. at
696.
Accordingly, the interim final rule being published today modifies
the language of former 30 CFR 778.14(c) to restrict its scope to the
applicant and operations owned or controlled by the applicant. Since
there is nothing in the remainder of the 1989 version of 30 CFR 778.14
(or the subsequent 1994 revisions to that section) that presents a
conflict with the court's interpretation of section 510(c) of the Act
in NMA--O&C, OSM is repromulgating the remainder of this section
without substantive change as part of the interim final rule being
published today. The rationale for these permit application information
requirements is set forth in the preambles to the 1989 rulemaking at 54
FR 8985-90 (March 2, 1989) and the 1994 rulemaking at 59 FR 54347-49
(October 28, 1994).
I. Section 843.11(g)--Notification Following Issuance of Cessation
Order
On March 2, 1989 (54 FR 8982), OSM amended its regulations by
adding 30 CFR 843.11(g), which provides that, within 60 days of
issuance of a cessation order in situations in which OSM is the
regulatory authority, OSM must notify all owners and controllers
identified under 30 CFR 778.13(c) that a cessation order has been
issued and that they have been identified as owners or controllers of
the violator. As explained in the preamble at 54 FR 8986, one of the
purposes of this requirement is to provide notification to individual
owners and controllers of a nature sufficient to establish a basis for
the assessment of an individual civil penalty under section 518(f) of
the Act and 30 CFR part 846 or its State program equivalent.
Since this purpose and the language of the regulation itself do not
present a conflict with the court's interpretation of section 510(c) of
the Act in NMA--O&C, OSM is repromulgating 30 CFR 843.11(g) in
substantively identical form as part of the interim final rule being
published today. Unlike the previous rule, the new rule does not
contain a reference to 30 CFR 778.13(d). While the latter rule is being
repromulgated in revised form as 30 CFR 778.13(f) as part of this
rulemaking, the revised version no longer includes information
requirements pertinent to owners or controllers of the applicant.
Therefore, it is no longer relevant to the requirements of 30 CFR
843.11(g). OSM also is replacing the reference to 30 CFR 773.17(i) with
a reference to 30 CFR 773.17(h) to reflect the new designation of the
paragraph in question.
J. Section 843.21--Federal Procedures for Improvidently Issued State
Permits
On April 28, 1989 (54 FR 18438), OSM amended its regulations by
adding 30 CFR 843.21 to provide a mechanism for Federal enforcement in
those situations where the regulatory authority has failed to take
appropriate actions under 30 CFR 773.20 with respect to an
improvidently issued permit. In NMA--O&C, the court struck down this
rule and related regulations based on a finding that they ``are
centered on the ownership and control rule,'' which the court found to
exceed the mandate of SMCRA. Id. at 696. In support of its decision,
the court pointed to the reference to ownership or control links in 30
CFR 773.20(b)(1)(iii).
Accordingly, the interim final rule being published today replaces
the term ``ownership or control link'' (and related language concerning
ownership and control links and responsibility for violations,
penalties, or fees) in 30 CFR 843.21(d) and (e)(2)(iii) with more
specific language that applies the provisions of these rules only to
situations in which the permittee or any person owned or controlled by
the permittee is responsible for the violation, penalty, or fee.
OSM also is revising 30 CFR 843.21(e)(2) (i) and (ii) to either
eliminate the phrase ``the permittee or other person responsible'' or
replace it with language that clarifies that the rule applies only to
violations, penalties, and fees for which the permittee or persons
owned or controlled by the permittee are responsible. OSM is making
these changes to ensure that 30 CFR 843.21 is applied in a manner
consistent with the revisions to 30 CFR 773.15(b) and the court's
decision on the scope of section 510(c) of the Act.
Since there is nothing in the remainder of the 1989 version of 30
FR 843.21 that presents a conflict with the court's interpretation of
section 510(c) of the Act in NMA--O&C, OSM is repromulgating the
remainder of this section without substantive change as part of the
interim final rule being published today. The rationale for the
procedural requirements and enforcement provisions of 30 CFR 843.21 is
set forth in detail in the preamble to the 1989 version of this rule at
54 FR 18454-62 (April 28, 1989). However, the discussions of ownership
or control links in that preamble no longer apply in full in view of
the court decision and the wording changes in 30 CFR 843.21 (d) and
(e). Similarly, the explanation of the meaning of ``other person
responsible'' at 54 FR 18447 under the heading ``Inconsistent
Terminology'' and at 54 FR 18455 under the heading ``Ownership and
Control Relationships Covered'' is no longer fully applicable,
especially since the revised version of 30 CFR 843.21 no longer
includes this term.
K. Effect in Federal Program States and on Indian Lands
Through cross-referencing in the respective regulatory programs,
this rule will apply in the following Federal program States: Arizona,
California, Georgia, Idaho, Massachusetts, Michigan, North Carolina,
Oregon, Rhode island, South Dakota, Tennessee, and Washington. The
Federal Programs for these States are codified at 30 CFR parts 903,
905, 910, 912, 921, 922, 933, 937, 939, 941, 942 and 947, respectively.
The rule also applies to Indian lands through cross-referencing in 30
CFR part 750.
L. Effect on State Programs
None of the rules being promulgated today will require changes in
State regulatory programs under the standards set forth in section 503
of SMCRA and 30 CFR part 732, provided States have fully amended their
programs to be consistent with the previous versions of these Federal
rules. If the Director determines that there are special circumstances
in a particular State that result in a need for a State program
amendment as a result of this rulemaking, she or he will notify the
State in accordance with 30 CFR 732.17.
[[Page 19455]]
M. Comparison of Interim Final Rule Language with Prior Rule Language
Set forth below is the text of the interim final rule showing all
changes in paragraph designation and substantive changes in language
from the version of the rules that currently appears in the Code of
Federal Regulations. Deleted text is enclosed in brackets ([ ]). Added
text appears in italics. Asterisks indicate no change in the existing
text.
This comparison is provided solely as a user aid in locating
significant changes. It does not identify every minor editorial
revision, and it does not include 30 CFR 778.10, the information
collection section. It is not a substitute for the actual rule text
that follows the preamble.
Sec. 773.5 Definitions.
No substantive change.
Sec. 773.15 Review of permit applications.
(a) * * *
(b) Review of violations. (1) Based on a review of all
reasonably available information concerning violation notices [and
ownership or control links] involving either the applicant or any
person owned or controlled by the applicant, including information
obtained pursuant to Secs. 773.22, 773.23, 778.13, and 778.14 of
this chapter, the regulatory authority may not issue the permit if
any surface coal mining and reclamation operation owned or
controlled by [either] the applicant [or by any person who owns or
controls the applicant] is currently in violation of the Act, any
Federal rule or regulation promulgated pursuant thereto, a State
program, or any Federal or State law, rule, or regulation pertaining
to air or water environmental protection. In the absence of a
failure-to-abate cessation order, the regulatory authority may
presume that a notice of violation issued pursuant to Sec. 843.12 of
this chapter or under a Federal or State program is being corrected
to the satisfaction of the agency with jurisdiction over the
violation where the abatement period for the [such] notice of
violation has not yet expired and where, as part of the violation
information provided pursuant to Sec. 778.14 of this chapter, the
applicant has provided certification that the [such] violation is in
the process of being so corrected. This [such] presumption does not
apply where evidence to the contrary is set forth in the permit
application, or where the notice of violation is issued for
nonpayment of abandoned mine land reclamation fees or civil
penalties. If a current violation exists, the regulatory authority
must require the applicant or any person [who owns or controls]
owned or controlled by the applicant, before the issuance of the
permit, to either:
(i) Submit to the regulatory authority proof that the current
violation has been or is in the process of being corrected to the
satisfaction of the agency that has jurisdiction over the violation;
or
(ii) Establish for the regulatory authority that the applicant,
or any person owned or controlled by [either] the applicant [or any
person who owns or controls the applicant], has filed and is
presently pursuing, in good faith, a direct administrative or
judicial appeal to contest the validity of the current violation. If
the initial judicial review authority under Sec. 775.13 of this
chapter affirms the violation, then the applicant must, within 30
days of the judicial action, submit the proof required under
paragraph (b)(1)(i) of this section.
(2) Any permit that is issued on the basis of a presumption
supported by certification under Sec. 778.14 of this chapter that a
violation is in the process of being corrected, on the basis of
proof submitted under paragraph (b)(1)(i) of this section that a
violation is in the process of being corrected, or pending the
outcome of an appeal described in paragraph (b)(1)(ii) of this
section, must be issued conditionally.
(3) If the regulatory authority makes a finding that the
applicant, [anyone who owns or controls the applicant,] or the
operator specified in the application, controls or has controlled
surface coal mining and reclamation operations with a demonstrated
pattern of willful violations of the Act of such nature and
duration, and with resulting irreparable damage to the environment
as to indicate an intent not to comply with the Act, no permit may
be issued. Before such a finding becomes final, the applicant or
operator must be afforded an opportunity for an adjudicatory hearing
on the determination as provided for in Sec. 775.11 of this chapter.
(4) No substantive change.
(c) * * *
(d) * * *
(e) Final compliance review. After an application is approved,
but before the permit is issued, the regulatory authority must
reconsider its decision to approve the application, based on the
compliance review required by paragraph (b)(1) of this section in
light of any new information submitted under sections [778.13(i)]
778.13(k) and 778.14(d) of this chapter.
Sec. 773.17 Permit conditions.
* * * * *
(h)[(i)] Within 30 days after a cessation order is issued under
Sec. 843.11 of this chapter, or the State program equivalent, for
operations conducted under the permit, except where a stay of the
cessation order is granted and remains in effect, the permittee must
either submit to the regulatory the following information, current
to the date the cessation order was issued, or notify the regulatory
authority in writing that there has been no charge since the
immediately preceding submittal of such information:
(1) Any new information needed to correct or update the
information previously submitted to the regulatory authority by the
permittee under Sec. 778.13(c) of this chapter; or
(2) If not previously submitted, the information required from a
permit applicant by Sec. 778.13(c) of this chapter.
Sec. 773.20 Improvidently issued permits: General procedures.
(a) Permit review. A regulatory authority which has reason to
believe that it improvidently issued a surface coal mining and
reclamation permit must review the circumstances under which the
permit was issued, using the criteria in paragraph (b) of this
section. When the regulatory authority finds that the permit was
improvidently issued, it must comply with paragraph (c) of this
section.
(b) Review criteria. (1) A regulatory authority must find that a
surface coal mining and reclamation permit was improvidently issued
if:
(i) Under the violations review criteria of the regulatory
program at the time the permit was issued:
(A) The regulatory authority should not have issued the permit
because of an unabated violation or a delinquent penalty or fee; or
(B) The permit was issued on the presumption that a notice of
violation was in the process of being corrected to the satisfaction
of the agency with jurisdiction over the violation, but a cessation
order subsequently was issued; and
(ii) The violation, penalty, or fee:
(A) Remains unabated or delinquent; and
(B) Is not the subject of a good faith appeal, or of an
abatement plan or payment schedule that is being met [with which the
permittee or other person responsible is complying] to the
satisfaction of the responsible agency; and
(iii) [Where the] The permittee or any person owned or
controlled by the permittee [was linked to the violation, penalty,
or fee through ownership or control under the violations review
criteria of the regulatory program at the time the permit was
issued, an ownership or control link between the permittee and the
person responsible for the violation, penalty, or fee still exists,
or where the link has been severed, the permittee] continues to be
responsible for the violation, penalty, or fee.
(2) The provisions of Sec. 773.25 of this part apply whenever
[shall be applicable when] a regulatory authority [determines] makes
one of the following determinations:
(i) Whether a violation, penalty, or fee existed at the time
that it was cited, remains unabated or delinquent, has been
corrected, is in the process of being corrected, or is the subject
of a good faith appeal, and
(iii) Whether [any ownership or control link between] the
permittee or any person owned or controlled by the permittee
continues to be [and the person] responsible for the violation,
penalty, or fee [existed, still exists, or has been severed].
(c) Remedial measures. (1) A regulatory authority which, under
paragraph (b) of this section, finds that, because of an unabated
violation or a delinquent penalty or fee, a permit was improvidently
issued must use one or more of the following remedial measures:
(i) Implement, with the cooperation of the responsible agency,
the permittee, and persons owned or controlled by the permittee [or
other person responsible, and of the responsible agency], a plan for
abatement of the violation or a schedule for payment of the penalty
or fee;
(ii) Impose on the permit a condition requiring abatement of the
violation or payment of the penalty or fee within [that in] a
reasonable time [the permittee or other
[[Page 19456]]
person responsible abate the violation or pay the penalty or fee];
(iii) Suspend the permit until the violation is abated or the
penalty or fee is paid; or
(iv) Rescind the permit.
(2) If the regulatory authority decides to suspend the permit,
it must afford at least 30 days written notice to the permittee. If
the regulatory authority decides to rescind the permit, it must
issue a notice in accordance with Sec. 773.21 of this part. In
either case, the permittee must be given the opportunity to request
administrative review of the notice under 43 CFR 4.1370 through
4.1377, where OSM is the regulatory authority, or under the State
program equivalent, where a State is the regulatory authority. The
regulatory authority's decision will remain in effect during the
pendency of the appeal, unless temporary relief is granted in
accordance with 43 CFR 4.1376 or the State program equivalent.
Sec. 773.21 Improvidently issued permits: Rescission procedures.
A regulatory authority which, under Sec. 773.20(c)(1)(iv) of
this part, elects to rescind an improvidently issued permit must
serve on the permittee a notice of proposed suspension and
rescission which includes the reasons for the finding of the
regulatory authority under Sec. 773.20(b) of this part and states
that:
(a) Automatic suspension and rescission. After a specified
period of time not to exceed 90 days, the permit automatically will
become suspended, and not to exceed 90 days thereafter rescinded,
unless within those periods the permittee submits proof, and the
regulatory authority finds, consistent with the provisions of
Sec. 773.25 of this part, that:
(1) The finding of the regulatory authority under Sec. 773.20(b)
of this part was erroneous;
(2) The [permittee or other person responsible has abated the]
violation has been abated, [on which the finding was based,] or
[paid] the penalty or fee paid, to the satisfaction of the
responsible agency;
(3) The violation, penalty, or fee is the subject of a good
faith appeal, or of an abatement plan or payment schedule that is
being met [with which the permittee or other person responsible is
complying] to the satisfaction of the responsible agency; or
(4) [Since the finding was made, the] The permittee and all
persons owned or controlled by the permittee [has severed any
ownership or control link with the person responsible for, and does
not continue to be] are no longer responsible for the violation,
penalty, or fee.
(b) Cessation of operations. After permit suspension or
rescission, the permittee must cease all surface coal mining and
reclamation operations under the permit, except for violation
abatement and for reclamation and other environmental protection
measures as required by the regulatory authority.
Sec. 778.13 Identification of interests.
An application must contain the following information, except
that the submission of a social security number is voluntary;
(a) A statement as to whether the applicant is a corporation,
partnership, single proprietorship, association, or other business
entity.
(b) The name, address, telephone number, and, as applicable,
social security number and employer identification number of the:
(1) Applicant;
(2) Applicant's resident agent; and
(3) Person who will pay the abandoned mine land reclamation fee.
(c) For each person who owns or controls the applicant under the
definition of `` `owned or controlled' and `owns or controls' '' in
Sec. 773.5 of this chapter, as applicable:
(1) The person's name, address, social security number, and
employer identification number;
(2) The person's ownership or control relationship to the
applicant, including percentage of ownership and location in the
organizational structure; and
(3) The title of the person's position, [and] the date that the
person assumed the position, [was assumed,] and, when submitted
under section [773.17(i)] 773.17(h) of this chapter, the date of
departure from the position.
[(4)] (d) For the applicant and each partner or principal
shareholder of the applicant, each [additional] name and identifying
number, including employer identification number, Federal or State
permit number, and MSHA number with date of issuance, under which
the person owns or controls, or previously owned or controlled, a
surface coal mining and reclamation operation in the United States
within the 5 years preceding the date of the application.[; and]
[(5)] (e) The application number or other identifier of, and the
regulatory authority for, any other pending surface coal mining
operation permit application filed by the [person] applicant in any
State in the United States.
[(d)](f) For any surface coal mining operation owned or
controlled by [either] the applicant [or by any person who owns or
controls the applicant] under the definition of ``owned or
controlled'' and ``owns or controls'' in Sec. 773.5 of this chapter,
the operation's:
(1) Name, address, identifying numbers, including employer
identification number, Federal or State permit number and MSHA
number, the date of issuance of the MSHA number, and the regulatory
authority; and
(2) Ownership or control relationship to the applicant,
including percentage of ownership and location in organizational
structure.
[(e)](g) The name and address of each legal or equitable owner
of record of the surface and mineral property to be mined, each
holder of record of any leasehold interest in the property to be
mined, and any purchaser of record under a real estate contract for
the property to be mined.
[(f)](h) The name and address of each owner of record of all
property (surface and subsurface) contiguous to any part of the
proposed permit area.
[(g)](i) The Mine Safety and Health Administration (MSHA)
numbers for all mine-associated structures that require MSHA
approval.
[(h)](j) A statement of all lands, interest in lands, options,
or pending bids on interests held or made by the applicant for lands
contiguous to the area described in the permit application. If
requested by the applicant, any information required by this
paragraph which is not on public file pursuant to State law must be
held in confidence by the regulatory authority, as provided under
Sec. 773.13(d)(3)(ii) of this chapter.
[(i)](k) After an applicant is notified that his or her
application is approved, but before the permit is issued, the
applicant must, as applicable, update, correct or indicate that no
change has occurred in the information previously submitted under
paragraphs (a) through [(d)](f) of this section.
[(j)](l) The applicant must submit the information required by
this section and by Sec. 778.14 of this part in any format that OSM
prescribes.
Sec. 778.14 Violation information.
Each application must contain the following information:
(a) A statement of whether the applicant or any subsidiary,
affiliate, or persons controlled by or under common control with the
applicant has:
(1) Had a Federal or State coal mining permit suspended or
revoked in the 5 years preceding the date of submission of the
application; or
(2) Forfeited a performance bond or similar security deposited
in lieu of bond.
(b) A brief explanation of the facts involved if any such
suspension, revocation, or forfeiture referred to in paragraphs
(a)(1) and (a)(2) of this section has occurred, including:
(1) Identification number and date of issuance of the permit,
and the date and amount of bond or similar security;
(2) Identification of the authority that suspended or revoked
the permit or forfeited the bond and the stated reasons for the
action;
(3) The current status of the permit, bond, or similar security
involved;
(4) The date, location, and type of any administrative or
judicial proceedings initiated concerning the suspension,
revocation, or forfeiture; and
(5) The current status of the proceedings.
(c) A list of all violation notices received by the applicant
during the three-year period preceding the application date, and a
list of all outstanding violation notices received prior to the date
of the application by any surface coal mining operation that is
deemed or presumed to be owned or controlled by [either] the
applicant [or any person who is deemed or presumed to own or control
the applicant] under the definition of ``owned or controlled'' and
``owns or controls'' in Sec. 773.5 of this chapter. For each notice
of violation issued pursuant to Sec. 843.12 of this chapter or under
a Federal or State program for which the abatement period has not
expired, the applicant must certify that such notice of violation is
in the process of being corrected to the satisfaction of the agency
with jurisdiction over the violation. For each violation notice
reported, the list must include the following information, as
applicable:
(1) Any identifying numbers for the operation, including the
Federal or State permit number and MSHA number, the dates of
issuance of the violation notice and MSHA
[[Page 19457]]
number, the name of the person to whom the violation notice was
issued, and the name of the issuing regulatory authority, department
or agency;
(2) A brief description of the violation alleged in the notice;
(3) The date, location, and type of any administrative or
judicial proceedings initiated concerning the violation, including,
but not limited to, proceedings initiated by any person identified
in paragraph (c) of this section to obtain administrative or
judicial review of the violation;
(4) The current status of the proceedings and of the violation
notice; and
(5) The actions, if any, taken by any person identified in
paragraph (c) of this section to abate the violation.
(d) After an applicant is notified that his or her application
is approved, but before the permit is issued, the applicant must, as
applicable, update, correct or indicate that no change has occurred
in the information previously submitted under this section.
Sec. 843.11 Cessation orders.
* * * * *
(g) Where OSM is the regulatory authority, within 60 days after
issuing a cessation order, OSM will notify in writing any person who
has been identified under sections [773.17(i)] 773.17(h) and
778.13(c) (d)] of this chapter as owning or controlling the
permittee, that the cessation order was issued and that the person
has been identified as an owner or controller.
Sec. 843.21 Procedures for improvidently issued State permits.
(a) Initial notice. If OSM has reason to believe that a State
surface coal mining and reclamation permit meets the criteria for an
improvidently issued permit in Sec. 773.20(b) of this chapter, or
the State program equivalent, and the State has failed to take
appropriate action on the permit under State program equivalents of
Secs. 773.20 and 773.21 of this chapter, OSM will issue to the
State, and should provide to the permittee, an initial notice
stating in writing the reasons for that belief.
(b) State response. Within 30 days of the date on which an
initial notice is issued under paragraph (a) of this section, the
State must demonstrate to OSM in writing either that:
(1) The permit does not meet the criteria of Sec. 773.20(b) of
this chapter, or the State program equivalent; or
(2) The State is in compliance with the State program
equivalents of Secs. 773.20 and 773.21 of this chapter.
(c) Ten-day notice. If OSM finds that the State has failed to
make the demonstration required by paragraph (b) of this section,
OSM will issue to the State a ten-day notice stating in writing the
reasons for that finding and requesting that within 10 days the
State take appropriate action under the State program equivalents of
Secs. 773.20 and 773.21 of this chapter;
(d) Federal enforcement. After 10 days from the date on which a
ten-day notice is issued under paragraph (c) of this section, if OSM
finds that the State has failed to take appropriate action under the
State program equivalents of Secs. 773.20 and 773.21 of this
chapter, or to show good cause for such failure, OSM will take
appropriate remedial action. Such remedial action may include the
issuance to the permittee of a notice of violation requiring that by
a specified date all mining operations must cease and reclamation of
all areas for which a reclamation obligation exists must commence or
continue unless, to the satisfaction of the responsible agency, any
violation, penalty, or fee on which the notice of violation was
based is abated or paid, an abatement plan or payment schedule is
entered into, or [any ownership or control link with the person
responsible for the violation, penalty or fee is severed and] the
permittee and all persons owned or controlled by the permittee are
no longer [does not continue to be] responsible for the violation,
penalty, or fee. Under this paragraph, good cause does not include
the lack of State program equivalents of Secs. 773.20 and 773.21 of
this chapter.
(e) Remedies to notice of violation. Upon receipt from any
person of information concerning the issuance of a notice of
violation under paragraph (d) of this section, OSM will review the
information and:
(1) Vacate the notice of violation if it resulted from an
erroneous conclusion under this section; or
(2) Terminate the notice of violation if:
(i) [The permittee or other person responsible has, to the
satisfaction of the responsible agency, abated any violation or paid
any penalty or fee on which the notice of violation was based] All
violations have been abated and all penalties or fees have been
paid;
(ii) The permittee or any [other] person [responsible] owned or
controlled by the permittee has filed and is pursuing a good faith
appeal of the violation, penalty, or fee, or has entered into and is
complying with an abatement plan or payment schedule to the
satisfaction of the responsible agency; or
(iii) [Since the notice of violation was issued, the] The
permittee [has severed any ownership or control link with the person
responsible for, and does not continue to be] and all persons owned
or controlled by the permittee are no longer responsible for the
violation, penalty, or fee.
(f) No civil penalty. OSM will not assess a civil penalty for a
notice of violation issued under this section.
IV. Procedural Matters
A. Executive Order 12866
This rule has been reviewed under the criteria of Executive Order
12866.
B. Regulatory Flexibility Act
The Department of the Interior certifies that this rule will not
have a significant economic impact on a substantial number of small
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
The rule will not add to the cost of operating a mine under an approved
regulatory program. Its provisions apply mainly to operators who
previously operated mines in violation of the provisions of SMCRA and
then failed to abate the violation or pay monetary civil penalties that
were assessed. Further, most coal mining operations subject to these
regulations do not engage in prohibited activities and practices, and,
as a result, the aggregate economic impact of these revised regulations
will be minimal, affecting only those who engage in prohibited behavior
in violation of SMCRA.
C. Executive Order 12988 on Civil Justice Reform
The Department of the Interior has determined that this rule meets
the requirements of sections 3(a) and 3(b)(2) of Executive Order 12988,
``Civil Justice Reform'' (56 FR 55195).
D. Unfunded Mandates Reform Act
This rule will not impose a cost of $100 million or more in any
given year on any governmental entity or the private sector.
E. Federal Paperwork Reduction Act
The Department of the Interior has determined that this rule does
not contain collections of information which require approval by the
Office of Management and Budget under 44 U.S.C. 3501 et seq. OMB has
previously approved the collection activities and assigned clearance
numbers 1029-0034- 1029-0041 to 30 CFR parts 778 and 773, respectively.
F. National Environmental Policy Act
OSM has determined that this rulemaking action is categorically
excluded from the requirement to prepare an environmental document
under the National Environmental Policy Act of 1969, as amended, 42
U.S.C. 4332 et seq. This determination was made in accordance with the
Departmental Manual (516 DM 2, Appendix 1.10).
Authors: The principal authors of this rule are Nancy Broderick and
Dennis Rice, Office of Surface Mining Reclamation and Enforcement, U.S.
Department of the Interior, 1951 Constitution Ave., NW., Washington, DC
20240. Telephone: (202) 2028-2700 and 2829. E-mail address:
nbroderi@osmre.gov and drice@osmre.gov.
List of Subjects
30 CFR Part 773
Administrative practice and procedure, Reporting and recordkeeping
requirements, Surface mining, Underground mining.
[[Page 19458]]
30 CFR Part 778
Reporting and recordkeeping requirements, Surface mining,
Underground mining.
30 CFR Part 843
Federal enforcement.
Dated: April 11, 1997.
Bob Armstrong,
Assistant Secretary, Land and Minerals Management.
For the reasons set forth in the preamble, the Department is
amending 30 CFR parts 773, 778, and 843 as set forth below:
PART 773--REQUIREMENTS FOR PERMITS AND PERMIT PROCESSING
1. The authority citation for part 773 is revised to read as
follows:
Authority: 30 U.S.C. 1201 et seq., as amended; 16 U.S.C. 1531 et
seq.; 16 U.S.C. 661 et seq.; 16 U.S.C. 703 et seq.; 16 U.S.C. 668a;
16 U.S.C. 469 et seq.; 16 U.S.C. 470aa et seq.; and Pub. L. 100-34.
2. In Sec. 773.5, the definition of `` `Owned or controlled' and
`owns or controls' '' is revised to read as follows:
Sec. 773.5 Definitions.
* * * * *
Owned or controlled and owns or controls mean any one or a
combination of the relationships specified in paragraphs (a) and (b) of
this definition:
(a)(1) Being a permittee of a surface coal mining operation;
(2) Based on instrument of ownership or voting securities, owning
of record in excess of 50 percent of an entity; or
(3) Having any other relationship which gives one person authority
directly or indirectly to determine the manner in which an applicant,
an operator, or other entity conducts surface coal mining operations.
(b) The following relationships are presumed to constitute
ownership or control unless a person can demonstrate that the person
subject to the presumption does not in fact have the authority directly
or indirectly to determine the manner in which the relevant surface
coal mining operation is conducted:
(1) Being an officer or director of an entity;
(2) Being the operator of a surface coal mining operation;
(3) Having the ability to commit the financial or real property
assets or working resources of an entity;
(4) Being a general partner in a partnership;
(5) Based on the instruments of ownership or the voting securities
of a corporate entity, owning of record 10 through 50 percent of the
entity; or
(6) Owning or controlling coal to be mined by another person under
a lease, sublease or other contract and having the right to receive
such coal after mining or having authority to determine the manner in
which that person or another person conducts a surface coal mining
operation.
* * * * *
3. In Sec. 773.15, paragraphs (b) and (e) are revised to read as
follows:
Sec. 773.15 Review of permit applications.
* * * * *
(b) Review of violations. (1) Based on a review of all reasonably
available information concerning violation notices involving either the
applicant or any person owned or controlled by the applicant, including
information obtained pursuant to Secs. 773.22, 773.23, 778.13, and
778.14 of this chapter, the regulatory authority may not issue the
permit if any surface coal mining and reclamation operation owned or
controlled by the applicant is currently in violation of the Act, any
Federal rule or regulation promulgated pursuant thereto, a State
program, or any Federal or State law, rule, or regulation pertaining to
air or water environmental protection. In the absence of a failure-to-
abate cessation order, the regulatory authority may presume that a
notice of violation issued pursuant to Sec. 843.12 of this chapter or
under a Federal or State program is being corrected to the satisfaction
of the agency with jurisdiction over the violation where the abatement
period for the notice of violation has not yet expired and where, as
part of the violation information provided pursuant to Sec. 778.14 of
this chapter, the applicant has provided certification that the
violation is in the process of being so corrected. This presumption
does not apply where evidence to the contrary is set forth in the
permit application, or where the notice of violation is issued for
nonpayment of abandoned mine land reclamation fees or civil penalties.
If a current violation exists, the regulatory authority must require
the applicant or any person owned or controlled by the applicant,
before the issuance of the permit, to either:
(i) Submit to the regulatory proof that the current violation has
been or is in the process of being corrected to the satisfaction of the
agency that has jurisdiction over the violation; or
(ii) Establish for the regulatory authority that the applicant, or
any person owned or controlled by the applicant, has filed and is
presently pursuing, in good faith, a direct administrative or judicial
appeal to contest the validity of the current violation. If the initial
judicial review authority under Sec. 775.13 of this chapter affirms the
violation, then the applicant must, within 30 days of the judicial
action, submit the proof required under paragraph (b)(1)(i) of this
section.
(2) Any permit that is issued on the basis of a presumption
supported by certification under Sec. 778.14 of this chapter that a
violation is in the process of being corrected, on the basis of proof
submitted under paragraph (b)(1)(i) of this section that a violation is
in the process of being corrected, or pending the outcome of an appeal
described in paragraph (b)(1)(ii) of this section, must be issued
conditionally.
(3) If the regulatory authority makes a finding that the applicant,
or the operator specified in the application, controls or has
controlled surface coal mining and reclamation operations with a
demonstrated pattern of willful violations of the Act of such nature
and duration, and with resulting irreparable damage to the environment
as to indicate an intent not to comply with the Act, no permit may be
issued. Before such a finding becomes final, the applicant or operator
must be afforded an opportunity for an adjudicatory hearing on the
determination as provided for in Sec. 775.11 of this chapter.
(4)(i) Subsequent to October 24, 1992, the prohibitions of
paragraph (b) of this section regarding the issuance of a new permit do
not apply to any violation that:
(A) Occurs after that date;
(B) Is unabated; and
(C) Results from an unanticipated event or condition that arises
from a surface coal mining and reclamation operation on lands that are
eligible for remining under a permit:
(1) Issued before September 30, 1994, or any renewals thereof; and
(2) Held by the person making application for the new permit.
(ii) For permits issued under Sec. 785.25 of this chapter, an event
or condition will be presumed to be unanticipated for the purposes of
this paragraph if it:
(A) Arose after permit issuance;
(B) Was related to prior mining; and
(C) Was not identified in the permit.
* * * * *
(e) Final compliance review. After an application is approved, but
before the permit is issued, the regulatory authority must reconsider
its decision to approve the application, based on the compliance review
required by paragraph (b)(1) of this section in light of any new
information submitted under Secs. 778.13(k) and 778.14(d) of this
chapter.
[[Page 19459]]
4. In Sec. 773.17, paragraph (i) is redesignated as paragraph (h),
which is revised to read as follows:
Sec. 773.17 Permit conditions.
* * * * *
(h) Within 30 days after a cessation order is issued under
Sec. 843.11 of this chapter, or the State program equivalent, for
operations conducted under the permit, except where a stay of the
cessation order is granted and remains in effect, the permittee must
either submit to the regulatory authority the following information,
current to the date the cessation order was issued, or notify the
regulatory authority in writing that there has been no change since the
immediately preceding submittal of such information:
(1) Any new information needed to correct or update the information
previously submitted to the regulatory authority by the permittee under
Sec. 778.13(c) of this chapter; or
(2) If not previously submitted, the information required from a
permit application by Sec. 778.13(c) of this chapter.
5. Sec. 773.20 is revised to read as follows:
Sec. 773.20 Improvidently issued permits: General procedures.
(a) Permit review. A regulatory authority which has reason to
believe that it improvidently issued a surface coal mining and
reclamaiton permit must review the circumstances under which the permit
was issued, using the criteria in paragraph (b) of this section. When
the regulatory authority finds that the permit was improvidently
issued, it must comply with paragraph (c) of this section.
(b) Review criteria. (1) A regulatory authority must find that a
surface coal mining and reclamation permit was improvidently issued if:
(i) Under the violations review criteria of the regulatory program
at the time the permit was issued:
(A) The regulatory authority should not have issued the permit
because of an unabated violation or a delinquent penalty or fee; or
(B) The permit was issued on the presumption that a notice of
violation was in the process of being corrected to the satisfaction of
the agency with jurisdiction over the violation, but a cessation order
subsequently was issued; and
(ii) The violation, penalty, or fee:
(A) Remains unabated or delinquent; and
(B) Is not the subject of a good faith appeal, or of an abatement
plan or payment schedule that is being met to the satisfaction of the
responsible agency; and
(iii) The permittee or any person owned or controlled by the
permittee continues to be responsible for the violation, penalty, or
fee.
(2) The provisions Sec. 773.25 of this part apply whenever a
regulatory authority makes one of the following determinations:
(i) Whether a violation, penalty, or fee existed at the time that
it was cited, remains unabated or delinquent, has been corrected, is in
the process of being corrected, or is the subject of a good faith
appeal, and
(ii) Whether the permittee or any person owned or controlled by the
permittee continues to be responsible for the violation, penalty, or
fee.
(c) Remedial measures. (1) A regulatory authority which, under
paragraph (b) of this section, finds that, because of an unabated
violation or a delinquent penalty or fee, a permit was improvidently
issued must use one or more of the following remedial measures:
(i) Implement, with the cooperation of the responsible agency, the
permittee, and persons owned or controlled by the permittee, a plan for
abatement of the violation or a schedule for payment of the penalty or
fee;
(ii) Impose on the permit a condition requiring abatement of the
violation or payment of the penalty or fee within a reasonable time;
(iii) Suspend the permit until the violation is abated or the
penalty or fee is paid; or
(iv) Rescind the permit.
(2) If the regulatory authority decides to suspend the permit, it
must afford at least 30 days written notice to the permittee. If the
regulatory authority decides to rescind the permit, it must issued a
notice in accordance with Sec. 773.21 of this part. In either case, the
permittee must be given the opportunity to request administrative
review of the notice under 43 CFR 4.1370 through 4.1370 through 4.1377,
where OSM is the regulatory authority, or under the State program
equivalent, where a State is the regulatory authority. The regulatory
authority's decision will remain in effect during the pendency of the
appeal, unless temporary relief is granted in accordance with 43 CFR
4.1376 or the State program equivalent.
6. Sec. 773.21 is revised to read as follows:
Sec. 773.21 Improvidently issued permits: Rescission procedures.
A regulatory authority which, under Sec. 773.20(c)(1)(iv) of this
part, elects to rescind an improvidently issued permit must serve on
the permittee a notice of proposed suspension and rescission which
includes the reasons for the finding of the regulatory authority under
Sec. 773.20(b) of this part and states that:
(a) Automatic suspension and rescission. After a specified period
of time not to exceed 90 days, the permit automatically will become
suspended, and not to exceed 90 days thereafter rescinded, unless
within those periods the permittee submits proof, and the regulatory
authority finds, consistent with the provisions of Sec. 773.25 of this
part, that:
(1) The finding of the regulatory authority under Sec. 773.20(b) of
this part was erroneous;
(2) The violation has been abated, or the penalty or fee paid, to
the satisfaction of the responsible agency;
(3) The violation, penalty, or fee is the subject of a good faith
appeal, or of an abatement plan or payment schedule that is being met
to the satisfaction of the responsible agency; or
(4) The permittee and all persons owned or controlled by the
permittee are no longer responsible for the violation, penalty, or fee.
(b) Cessation of operations. After permit suspension or rescission,
the permittee must cease all surface coal mining and reclamation
operations under the permit, except for violation abatement and for
reclamation and other environmental protection measures as required by
the regulatory authority.
PART 778--PERMIT APPLICATIONS--MINIMUM REQUIREMENTS FOR LEGAL,
FINANCIAL, COMPLIANCE, AND RELATED INFORMATION
7. The authority citation for Part 778 is revised to read as
follows:
Authority: 30 U.S.C. 1201 et seq., as amended and Pub. L. 100-
34.
8. Sec. 778.10 is revised to read as follows:
Sec. 778.10 Information collection.
(a) In accordance with 44 U.S.C. 3501 et seq., the Office of
Management and Budget (OMB) has approved the information collection
requirements of this part. Section 507(b) of SMCRA provides that
persons applying for a permit to conduct surface coal mining operations
must submit to the regulatory authority certain information regarding
the applicant and affiliated entities, their compliance status and
history, property ownership and other property rights, right of entry,
liability insurance, the status of unsuitability claims, and proof of
publication of a newspaper notice. The regulatory authority uses this
information to insure that all legal,
[[Page 19460]]
financial and compliance requirements are satisfied prior to issuance
of a permit. Persons seeking to conduct surface coal mining operations
must respond to obtain a benefit. A Federal agency may not conduct or
sponsor, and a person is not required to respond to, a collection of
information unless it displays a currently valid OMB control number.
The OMB clearance number for this part is 1029-0034.
(b) OSM estimates that the public reporting and recordkeeping
burden for this part averages 48 hours per response, including time
spent reviewing instructions, searching existing data sources,
gathering and maintaining the data needed, and completing and reviewing
the collection of information. Send comments regarding this burden
estimate or any other aspect of these information collection and
recordkeeping requirements, including suggestions for reducing the
burden, to the Office of Surface Mining Reclamation and Enforcement,
Information Collection Clearance Officer, 1951 Constitution Avenue,
NW., Washington, DC 20240; and the Office of Management and Budget,
Office of Information and Regulatory Affairs, Attention: Interior Desk
Officer, 725 17th Street, NW, Washington, DC 20503. Please refer to OMB
Control Number 1029-0034 in any correspondence.
9. Sec. 778.13 is revised to read as follows:
Sec. 778.13 Identification of interests.
An application must contain the following information, except that
the submission of a social security number is voluntary:
(a) A statement as to whether the applicant is a corporation,
partnership, single proprietorship, association, or other business
entity.
(b) The name, address, telephone number, and, as applicable, social
security number and employer identification number of the:
(1) Applicant;
(2) Applicant's resident agent; and
(3) Person who will pay the abandoned mine land reclamation fee.
(c) For each person who owns or controls the applicant under the
definition of ```owned or controlled' and `owns or controls''' in
Sec. 773.5 of this chapter, as applicable:
(1) The person's name, address, social security number, and
employer identification number;
(2) The person's ownership or control relationship to the
applicant, including percentage of ownership and location in the
organizational structure; and
(3) The title of the person's position, the date that the person
assumed the position, and, when submitted under Sec. 773.17(h) of this
chapter, the date of departure from the position.
(d) For the applicant and each partner or principal shareholder of
the applicant, each name and identifying number, including employer
identification number, Federal or State permit number, and MSHA number
with date of issuance, under which the person owns or controls, or
previously owned or controlled, a surface coal mining and reclamation
operation in the United States within the 5 years preceding the date of
the application.
(e) The application number or other identifier of, and the
regulatory authority for, any other pending surface coal mining
operation permit application filed by the applicant in any State in the
United States.
(f) For any surface coal mining operation owned or controlled by
the applicant under the definition of ``owned or controlled'' and
``owns or controls'' in Sec. 773.5 of this chapter, the operation's:
(1) Name, address, identifying numbers, including employer
identification number, Federal or State permit number and MSHA number,
the date of issuance of the MSHA number, and the regulatory authority;
and
(2) Ownership or control relationship to the applicant, including
percentage of ownership and location in organizational structure.
(g) The name and address of each legal or equitable owner of record
of the surface and mineral property to be mined, each holder of record
of any leasehold interest in the property to be mined, and any
purchaser of record under a real estate contract for the property to be
mined.
(h) The name and address of each owner of record of all property
(surface and subsurface) contiguous to any part of the proposed permit
area.
(i) The Mine Safety and Health Administration (MSHA) numbers for
all mine-associated structures that require MSHA approval.
(j) A statement of all lands, interest in lands, options, or
pending bids on interests held or made by the applicant for lands
contiguous to the area described in the permit application. If
requested by the applicant, any information required by this paragraph
which is not on public file pursuant to State law must be held in
confidence by the regulatory authority, as provided under
Sec. 773.13(d)(3)(ii) of this chapter.
(k) After an applicant is notified that his or her application is
approved, but before the permit is issued, the applicant must, as
applicable, update, correct or indicate that no change has occurred in
the information previously submitted under paragraphs (a) through (f)
of this section.
(l) The applicant must submit the information required by this
section and by Sec. 778.14 of this part in any format that OSM
prescribes.
10. Sec. 778.14 is revised to read as follows:
Sec. 778.14 Violation information
Each application must contain the following information:
(a) A statement of whether the applicant or any subsidiary,
affiliate, or persons controlled by or under common control with the
applicant has:
(1) Had a Federal or State coal mining permit suspended or revoked
in the 5 years preceding the date of submission of the application; or
(2) Forfeited a performance bond or similar security deposited in
lieu of bond.
(b) A brief explanation of the facts involved in any such
suspension, revocation, or forfeiture referred to in paragraphs (a)(1)
and (a)(2) of this section has occurred, including:
(1) Identification number and date of issuance of the permit, and
the date and amount of bond or similar security;
(2) Identification of the authority that suspended or revoked the
permit or forfeited the bond and the stated reasons for the action;
(3) The current status of the permit, bond, or similar security
involved;
(4) The date, location, and type of any administrative or judicial
proceedings initiated concerning the suspension, revocation, or
forfeiture; and
(5) The current status of the proceedings.
(c) A list of all violation notices received by the applicant
during the three-year period preceding the application date, and a list
of all outstanding violation notices received prior to the date of the
application by any surface coal mining operation that is deemed or
presumed to be owned or controlled by the applicant under the
definition of ``owned or controlled'' and ``owns or controls'' in
Sec. 773.5 of this chapter. For each notice of violation issued
pursuant to Sec. 843.12 of this chapter or under a Federal or State
program for which the abatement period has not expired, the applicant
must certify that such notice of violation is in the process of being
corrected to the satisfaction of the agency with jurisdiction over the
violation. For each violation notice reported, the list must include
the following information, as applicable:
(1) Any identifying numbers for the operation, including the
Federal or State
[[Page 19461]]
permit number and MSHA number, the dates of issuance of the violation
notice and MSHA number, the name of the person to whom the violation
notice was issued, and the name of the issuing regulatory authority,
department or agency;
(2) A brief description of the violation alleged in the notice;
(3) The date, location, and type of any administrative or judicial
proceedings initiated concerning the violation, including, but not
limited to, proceedings initiated by any person identified in paragraph
(c) of this section to obtain administrative or judicial review of the
violation;
(4) The current status of the proceedings and of the violation
notice; and
(5) The actions, if any, taken by any person identified in
paragraph (c) of this section to abate the violation.
(d) After an applicant is notified that his or her application is
approved, but before the permit is issued, the applicant must, as
applicable, update, correct or indicate that no change has occurred in
the information previously submitted under this section.
PART 843--FEDERAL ENFORCEMENT
11. The authority citation for part 843 is revised to read as
follows:
Authority: 30 U.S.C. 1201 et seq., as amended and Pub. L. 100-
34.
12. In Sec. 843.11, paragraph (g) is revised to read as follows:
Sec. 843.11 Cessation orders.
* * * * *
(g) Where OSM is the regulatory authority, within 60 days after
issuing a cessation order, OSM will notify in writing any person who
has been identified under Secs. 773.17(h) and 778.13(c) of this chapter
as owning or controlling the permittee that the cessation order was
issued and that the person has been identified as an owner or
controller.
13. Sec. 843.21 is revised to read as follows:
Sec. 843.21 Procedures for improvidently issued State permits.
(a) Initial notice. If OSM has reason to believe that a State
surface coal mining and reclamation permit meets the criteria for an
improvidently issued permit in Sec. 773.20(b) of this chapter, or the
State program equivalent, and the State has failed to take appropriate
action on the permit under State program equivalents of Secs. 773.20
and 773.21 of this chapter, OSM will issue to the State, and should
provide to the permittee, an initial notice stating in writing the
reasons for that belief.
(b) State response. Within 30 days of the date on which an initial
notice is issued under paragraph (a) of this section, the State must
demonstrate to OSM in writing either that:
(1) The permit does not meet the criteria of Sec. 773.20(b) of this
chapter, or the State program equivalent; or
(2) The State is in compliance with the State program equivalents
of Secs. 773.20 and 773.21 of this chapter.
(c) Ten-day notice. If OSM finds that the State has failed to make
the demonstration required by paragraph (b) of this section, OSM will
issue to the State a ten-day notice stating in writing the reasons for
that finding and requesting that within 10 days the State take
appropriate action under the State program equivalents of Secs. 773.20
and 773.21 of this chapter.
(d) Federal enforcement. After 10 days from the date on which a
ten-day notice is issued under paragraph (c) of this section, if OSM
finds that the State has failed to take appropriate action under the
State program equivalents of Secs. 773.20 and 773.21 of this chapter,
or to show good cause for such failure, OSM will take appropriate
remedial action. Such remedial action may include the issuance to the
permittee of a notice of violation requiring that by a specified date
all mining operations must cease and reclamation of all areas for which
a reclamation obligation exists must commence or continue unless, to
the satisfaction of the responsible agency, any violation, penalty, or
fee on which the notice of violation was based is abated or paid, an
abatement plan or payment schedule is entered into, or the permittee
and all persons owned or controlled by the permittee are no longer
responsible for the violation, penalty, or fee. Under this paragraph,
good cause does not include the lack of State program equivalents of
Secs. 773.20 and 773.21 of this chapter.
(e) Remedies to notice of violation. Upon receipt from any person
of information concerning the issuance of a notice of violation under
paragraph (d) of this section, OSM will review the information and:
(1) Vacate the notice of violation if it resulted from an erroneous
conclusion under this section; or
(2) Terminate the notice of violation if:
(i) All violations have been abated and all penalties or fees have
been paid;
(ii) The permittee or any person owned or controlled by the
permittee has filed and is pursuing a good faith appeal of the
violation, penalty, or fee, or has entered into and is complying with
an abatement plan or payment schedule to the satisfaction of the
responsible agency; or
(iii) The permittee and all persons owned or controlled by the
permittee are no longer responsible for the violation, penalty, or fee.
(f) No civil penalty. OSM will not assess a civil penalty for a
notice of violation issued under this section.
[FR Doc. 97-10247 Filed 4-21-97; 8:45 am]
BILLING CODE 4310-05-M
