[Federal Register Volume 63, Number 244 (Monday, December 21, 1998)]
[Proposed Rules]
[Pages 70580-70628]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-33620]
[[Page 70579]]
_______________________________________________________________________
Part V
Department of the Interior
_______________________________________________________________________
Office of Surface Mining Reclamation and Enforcement
_______________________________________________________________________
30 CFR Part 701, et al.
Application and Permit Information Requirements; Permit Eligibility;
Definitions of Ownership and Control; the Applicant/Violator System;
Alternative Enforcement Actions; Proposed Rule
Federal Register / Vol. 63, No. 244 / Monday, December 21, 1998 /
Proposed Rules
[[Page 70580]]
DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Parts 701, 724, 773, 774, 778, 842, 843, and 846
RIN 1029-AB94
Application and Permit Information Requirements; Permit
Eligibility; Definitions of Ownership and Control; the Applicant/
Violator System; Alternative Enforcement Actions
AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.
ACTION: Proposed rule.
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SUMMARY: We are proposing revised permit eligibility requirements for
surface coal mining operations under the Surface Mining Control and
Reclamation Act of 1977 (SMCRA or the Act). In particular, we propose
to revise how ownership and control of mining operations is determined
under section 510(c) of the Act so that applicants who are responsible
for unabated violations do not receive new permits. We have designed
this proposal to be effective, fair, and consistent with a 1997
decision by the U.S. Court of Appeals for the D.C. Circuit addressing
ownership and control issues.
In addition, we are proposing other changes to other aspects of our
regulations in response to comments we received when we sought public
participation in developing this proposed rule. Our intent is to
improve, clarify, and simplify current regulations as well as to reduce
duplicative and burdensome permit information requirements.
DATES: Written comments: We will accept written comments on the
proposed rule until 5 p.m., Eastern time, on February 19, 1999.
Public hearings: Upon request, we will hold public hearings on the
proposed rule at dates, times and locations to be announced in the
Federal Register prior to the hearings. We will accept requests for
public hearings until 5 p.m., Eastern time, on January 11, 1999. If you
wish to attend, but not testify at, any hearing, you should contact the
person identified under FOR FURTHER INFORMATION CONTACT before the
hearing date to verify that the hearing will be held. If you wish to
attend and testify at any hearing, you should follow procedures under
I. Public Comment Procedures--Public hearings.
ADDRESSES: If you wish to provide written comment, you may submit your
comments by any one of several methods (see Public Comment Procedures).
We will make comments available for public review during regular
business hours. You may mail or hand-deliver comments to the Office of
Surface Mining Reclamation and Enforcement, Administrative Record, Room
101, 1951 Constitution Avenue, NW, Washington, D.C. 20240. You may also
submit comments to OSM via the Internet at: [email protected].
You may submit a request for a public hearing orally or in writing
to the person and address specified under `FOR FURTHER INFORMATION
CONTACT. We will announce the address, date and time for any hearing in
the Federal Register prior to the hearing. If you are disabled and
require special accommodation to attend a public hearing, you should
contact the person listed under FOR FURTHER INFORMATION CONTACT.
FOR FURTHER INFORMATION CONTACT: Earl D. Bandy, Jr., Office of Surface
Mining Reclamation and Enforcement, Applicant/Violator System Office,
2679 Regency Road, Lexington, Kentucky 40503. Telephone: (606) 233-2796
or (800) 643-9748. E-Mail: [email protected].
SUPPLEMENTARY INFORMATION
Table of Contents
I. Public Comment Procedures
II. Background to Proposed Rules
A. What is the permit-block sanction in the Surface Mining
Control and Reclamation Act?
B. How has OSM implemented the permit-blocking requirement?
C. What is the Applicant/Violator System and how is it used in
permit-blocking?
D. What happened to the regulations OSM issued in 1988 and
1989?
E. What did the Appeals Court say was wrong with OSM's
regulations?
F. What did OSM do in response to the Appeals Court decision?
G. How has OSM met its April 1997 commitment to propose
additional regulations?
H. How does this proposal relate to the Appeals Court decision
and interim final rule?
I. How would these rules help bring about more effective
regulation of mining?
J. What would be the major effects of this proposal?
K. How would conditioning permits based on compliance history
work?
L. What are some examples of how the new rules would treat
different applicants?
M. Would this rule affect other documents that OSM has
published in the past?
N. Would the rule affect State primacy?
O. How does OSM address the information collection burdens of
this rule?
P. What provisions in SMCRA authorize these proposed changes?
III. Discussion of Proposed Rules
IV. Procedural Determinations
I. Public Comment Procedures
Sixty (60) Day Comment Period: In view of the extensive outreach
activity conducted in advance of this rulemaking and in order to
expedite the publication of final rules, we will not extend the comment
period beyond the usual 60 days.
Written comments: Written comments on the proposed rule by mail,
electronically, or in person, should be specific, confined to issues
pertinent to the proposed rule, and explain the reason for any
recommended change. Submit three copies of your comments.
We will consider only those comments sent within the allowed time
period (see DATES). We will log into the administrative record for the
rulemaking all comments sent to the addresses listed above (see
ADDRESSES). Comments delivered to addresses other than those listed
above (see ADDRESSES) may not be logged in.
Comments over the Internet should be in an ASCII file, and you
should avoid using special characters and any form of encryption.
Please also include ``Attn: RIN 1029-AB94'' and your name and return
address in your Internet message. If you do not receive a confirmation
from the system that we have received your Internet message, contact us
directly at 202-208-2847.
Public hearings: We will hold a public hearing on the proposed rule
only upon request. We will announce the time, date, and address for any
hearing in the Federal Register at least 7 days prior to the hearing.
If you are interested in participating at a hearing, you need to
inform Mr. Bandy (see FOR FURTHER INFORMATION CONTACT) by 5:00 p.m.,
Eastern time, on January 11, 1999. If no one has contacted Mr. Bandy to
express an interest in participating in a hearing by that date, we will
not hold a hearing. If only one person expresses an interest, we may
hold a public meeting rather than a hearing and include the results in
the Administrative Record. We will determine the location of the
hearing, if one is held, after reviewing the number of requests
received and the locations desired.
If we hold a hearing, it will be transcribed, and it will continue
until all persons wishing to testify have been heard. To ensure that we
have an accurate record of the hearing, we ask that you provide a
written copy of your testimony to the transcriber at the beginning of
the hearing. We also
[[Page 70581]]
request that you send an advance copy of your testimony to us at the
address specified for submitting written comments (see ADDRESSES).
We will make comments, including names and addresses of commenters,
available in our Administrative Record for public review during regular
business hours.
II. Background to Proposed Rules
In this Background section, we use a question-and-answer format to
provide some of the history of this rulemaking and to explain the
concepts we are introducing in the proposed rule. In Section III,
Discussion of Proposed Rules, we have put together a section-by-section
description of the proposed changes and the effects they would have if
they were to become final rules. The proposed regulatory text is
included in its entirety in the latter portion of this publication.
In 1998, the President ordered Federal agencies to begin writing
public documents, including regulations, in plain language. Today's
proposal introduces some plain language principles into OSM's body of
regulations.
For example, there are numerous references to ``you'' and ``we'' in
this document. In the regulatory text, ``you'' refers to the applicant
for a surface coal mining operation, and ``we'' refers to the
regulatory authority charged with enforcing the requirements in the
regulations. In all but a few States, ``we'' means the State regulatory
authority approved by the Secretary of the Interior to carry out the
Surface Mining Act's requirements within the State's boundaries. In
some cases, however, ``we'' means the Office of Surface Mining
Reclamation and Enforcement (OSM)--the regulatory authority on Indian
Lands and in the few States that do not have an approved State
regulatory program. Where the regulatory text specifically refers to
``OSM'' or ``the State,'' it is usually in reference to separate roles
or responsibilities as the regulatory authority.
While ``we'' means the regulatory authority in the text of the
regulation, it has a different meaning in the introductory text--also
known as the preamble. Because the preamble describes how OSM has
developed the regulation, the use of ``we'' in the preamble always
refers to OSM.
A. What is the Permit-Block Sanction in the Surface Mining Control and
Reclamation Act?
The Surface Mining Control and Reclamation Act of 1977 (SMCRA or
the Act), 30 U.S.C. 1201 et seq., establishes requirements for the
regulation of active surface coal mining and reclamation and for the
restoration of abandoned mine lands. The Act authorizes OSM to review
and approve a State program so that the State may become the regulatory
authority and have primary responsibility to enforce the Act's
requirements within its borders. The Act also contains numerous
provisions governing the permitting of mining operations. One of the
most powerful tools provided in SMCRA is the permit-block sanction in
section 510(c).
Under Section 510(c), the regulatory authority may not issue a
permit for a new operation when another surface coal mining operation
``owned or controlled by the applicant'' is in current violation of
SMCRA. Such violators may have mined coal and left behind unreclaimed,
on-the-ground, environmental problems. They may have forfeited their
surety bonds. Some may owe the government for unpaid Abandoned Mine
Land fees or civil penalty assessments. Still others may have multiple
infractions in all of these areas. Section 510(c)'s intent is to
prohibit the regulatory authority from issuing new permits to
applicants who own or control operations with violations until they
abate the violations for which they are responsible.
As a first step in this process, regulatory authorities must
determine whether an applicant for a surface coal mining permit owns or
controls an operation with a violation. This ownership or control
determination is key to deciding whether an applicant should be held
responsible for violations that do not appear in violation records
under the applicant's name. Because individuals may apply for permits
under different corporate names, it is easy to avoid being linked to
violations at mines that the applicant may have controlled--violations
that they should have abated.
B. How has OSM Implemented the Permit-Blocking Requirement?
Unfortunately, for most of the decade following enactment of SMCRA
in 1977, neither States nor the Federal Government had devised an
effective means of determining ownership and control to effectively
implement section 510(c). While some States had attempted to set up
mechanisms for tracking violators and their controllers, they relied
heavily on the manual interpretation of paper files which were
difficult to access and keep up-to-date. Even if an individual State
had developed an effective method of tracking violators within its
boundaries, it still had to consult with other regulatory authorities
to determine if out-of-State violators were trying to set up operations
locally. These consultations often lacked consistency and relied on
different filing systems and data standards. There was no national or
regional system in place for keeping up with violators who moved from
State to State leaving behind the mining and reclamation problems they
had created.
In 1981, environmental groups sued the Secretary of the Interior
alleging a nationwide failure to enforce section 510(c). The parties
eventually negotiated a settlement (Save Our Cumberland Mountains,
Inc., et al. v. Clark, No. 81-2134 (D.D.C. 1985) (Parker, J.)) under
which OSM established the computer system now known as the Applicant/
Violator System (AVS). The AVS became the central repository for
violation information, as well as ownership and control information,
enabling regulatory authorities to more effectively implement section
510(c).
During the two years following the settlement, we designed and
built the AVS and negotiated Memoranda of Understanding with each of
the primacy States detailing how States would use the AVS and how they
would assist OSM in maintaining and updating system data. Over the same
period of time, we developed proposed rules to implement section 510(c)
and related sections of SMCRA. We issued those rules in final form in
1988 and 1989 in Title 30, Chapter VII of the Code of Federal
Regulations. They were known as the ``ownership and control'' rule (53
FR 38868 (1988)), the ``permit information'' rule (54 FR 8982 (1989))
and the ``permit rescission'' rule (54 FR 18438 (1989)). Under those
rules, a regulatory authority would deny an application for a surface
coal mining permit if the applicant owned or controlled an operation
that was in violation of the Act, or if others who were in violation
owned or controlled the applicant.
Specifically, the 1988 rule defined ``ownership and control'' at
Sec. 773.5 and required the regulatory authority to review violations
associated with the applicant at Sec. 773.15(b) so that regulatory
authorities could determine who was eligible for a permit. The ``permit
information'' rule published in 1989 described the requirements for the
applicant to provide information on interests at Sec. 778.13 and
violations at Sec. 778.14 needed by the regulatory authority to review
the application. The ``permit information'' rule, while separate from
the original ownership
[[Page 70582]]
and control rule, complemented it by requiring the applicant to supply
the information necessary for the regulatory authority to make a
permitting decision. The ``permit rescission'' rule, also published in
1989, included requirements at Secs. 773.20, 773.21, and 843.21 for
dealing with improvidently issued permits `` those permits that must be
rescinded due to the existence of a violation that would have prevented
issuance of the permit had the regulatory authority been aware of it.
C. What is the Applicant/Violator System and how is it Used in Permit-
Blocking?
The AVS is a computerized system containing two large banks of
data. One bank houses information on owners and controllers of mining
operations. As part of the permit application requirements, companies
and individuals provide this information to the regulatory authority,
which then loads the information in the AVS. The other bank houses
information on violations, including failure to pay required fees and
penalties, which we get primarily from regulatory authorities and our
own financial management records.
Under current regulations, the regulatory authority checks the AVS
during the review of each application for a mining permit. The AVS
automatically compares the ownership and control information with the
violation information to determine if links exist between the applicant
and any outstanding violations. If the applicant is linked to certain
violations in the AVS, OSM recommends to the regulatory authority that
it deny the application unless the applicant submits proof that the
violation has been corrected, is being corrected, or is being appealed
through proper channels. By matching permit applicants to outstanding
violations that they own or control, the AVS helps regulatory
authorities implement section 510(c) faster, easier, and more reliably
than was possible before AVS.
D. What Happened to the Regulations OSM Issued in 1988 and 1989?
The National Mining Association (NMA) and National Wildlife
Federation filed suit challenging the validity of all three sets of
OSM's rules implementing section 510(c). On August 31, 1995, the U.S.
District Court for the District of Columbia upheld the three challenged
rules in their entirety. See National Wildlife Fed'n v. Babbitt, Nos.
88-3117, 88-3464, 88-3470 (consolidated) (D.D.C. Aug. 31, 1995);
National Wildlife Fed'n v. Babbitt, Nos. 89-1130, 89-1167
(consolidated) (D.D.C. Aug. 31, 1995); National Wildlife Fed'n v.
Babbitt, Nos. 89-1751, 89-1811 (consolidated) (D.D.C. Aug. 31, 1995).
The NMA appealed the ruling and, on January 31, 1997, the U.S.
Court of Appeals for the D.C. Circuit reversed the district court's
decision. See National Mining Ass'n v. Department of Interior, 105 F.3d
691 (D.C. Cir. 1997) (hereinafter NMA v. DOI).
E. What did the Appeals Court Say was Wrong With OSM's Regulations?
The Appeals Court held that section 510(c) of SMCRA authorizes OSM
to deny a permit only when ``any surface coal mining operation owned or
controlled by the applicant'' is currently in violation of SMCRA. Thus,
because under OSM's 1988 ownership and control rules the regulatory
authority could also deny a permit when any person who owned or
controlled the applicant was in violation of the Act, the Appeals Court
invalidated OSM's ownership and control rule in its entirety. In
addition, the court held that because OSM's permit information and
permit rescission rules ``are centered on the ownership and control
rule * * *, they too must fall.'' Id. at 696.
Although the Appeals Court found only one aspect of OSM's rules to
be flawed, it invalidated the entire ownership and control rule as well
as the two related sets of regulations, including many provisions which
were not inconsistent with the rationale in the court's decision. At
the same time, nothing in the court's decision eliminated the
responsibility of OSM and State regulatory authorities to implement the
permit-blocking requirements of section 510(c) and the requirement in
section 507(b) of the Act to collect certain permit information. This
meant that OSM and the States faced the prospect of making permitting
decisions as required in the Act without any regulations to support
those decisions. The Appeals Court's action created a great deal of
uncertainty among State regulatory authorities about how to continue to
meet their responsibility to determine who was eligible to receive a
permit.
F. What did OSM do in Response to the Appeals Court Decision?
Immediately following the Appeals Court decision, we made
adjustments in our process for responding to regulatory authorities'
requests for permit recommendations. In each case, before we
recommended that a permit be denied based on the AVS check, we
determined if the recommendation would be consistent with the court's
decision. In those cases where it would have been inconsistent--those
where the recommendation would be based on the violations of those who
owned or controlled the applicant--we informed the regulatory authority
that we could no longer recommend that it deny the permit.
Soon after the Appeals Court decision, we formed a team of
Department of the Interior employees with experience in ownership and
control issues. We instructed the team to evaluate the court's decision
and determine what we needed to do to comply with it. As a first step,
to remove the uncertainty created by the decision, and to ensure there
would be no lapse in approved State programs, we published interim
final rules (the IFR) on an emergency basis on April 21, 1997 (62 FR
19451). The IFR were consistent with the rationale in the Appeals Court
decision. The rules did not authorize the regulatory authority to deny
permits because of outstanding violations of an applicant's owners and
controllers.
We determined that we had ``good cause'' to publish the IFR without
notice and comment because of the need to have regulations in place. At
the same time, we committed to propose further rulemaking ``in
accordance with standard notice and comment procedures.''
G. How has OSM Met its April 1997 Commitment to Propose Additional
Regulations?
In June of 1997, our ownership and control team met with State
regulatory authorities to discuss rulemaking options. As a result of
those discussions, further deliberations within the Department of the
Interior, and input from citizens and the regulated industry, we
decided to take full advantage of the opportunity to re-evaluate all
aspects of the ownership and control rules and related regulations, to
propose improvements, to clarify requirements, and to reduce
unnecessary burdens wherever possible.
On October 29, 1997, we issued an Advance Notice of Proposed
Rulemaking in the Federal Register our intent to propose rules, hold
public meetings and solicit comments from all interested parties on a
wide range of topics related to ownership and control. 62 FR 56,139
(1997). Also on October 29, OSM Director Kathy Karpan held a press
conference to announce a new and innovative rulemaking process that
would include extensive public outreach and consideration of any
suggestions that could improve the ownership and control rules.
Representatives from the coal industry, environmental groups, State
[[Page 70583]]
regulatory authorities, the press, and a congressional authorizing
subcommittee with responsibility for OSM's programs participated in the
Director's press conference. The Director promised a ``no-holds-
barred'' approach in which all aspects of OSM's ownership and control
rules would be open for discussion. Though the task was considerable,
the goal was simple: develop the best possible rules that would be
fair, effective and legally defensible.
The Ownership and Control Team conducted the Director's public
outreach initiative from October 29, 1997, through January 16, 1998.
The Team invited about 900 people and organizations to participate and
provided everyone with a topics paper to elicit ideas, comments, and
suggestions on possible regulatory changes. Seventy people attended
seven public meetings held in different locations throughout the U.S.
We offered to meet separately with any person or group requesting a
meeting. Based upon such a request, members of the Team met with the
National Mining Association. We also held individual discussions with
several environmental advocates. In addition to holding the public
meetings, the team received written comments.
At the conclusion of the outreach, the team began developing
rulemaking options and recommendations to present to the Director on
dozens of regulatory provisions related to ownership and control. As
the team developed proposed rule language, members continued
discussions with our State partners and kept them informed of the
team's progress, including holding a formal States-OSM meeting to
discuss the results of the outreach. Today's proposal is the
culmination of months-long review, analysis and deliberation that
fulfills our commitment in the IFR to proposed further rules with full
public notice and opportunity for comment.
H. How Does This Proposal Relate to the Appeals Court Decision and
Interim Final Rule?
This proposal is consistent with the IFR and the January 31, 1997,
Appeals Court decision in that it would not authorize the denial of
permits based on outstanding violations of an applicant's owners and
controllers. However, it goes farther in reflecting our decision to
take full advantage of the opportunity to re-evaluate all aspects of
the ownership and control rules, propose improvements, clarify
requirements, and reduce any unnecessary burdens placed on States and
the regulated industry. It also reflects suggestions and ideas
presented to us during the public outreach period.
In addition to ensuring that the current proposal is consistent
with the scope of section 510(c) as described by the Appeals Court, we
have looked to the court's decision for guidance in interpreting other
aspects of SMCRA and implementing regulations. For example, the court
explained that, while we may only block permits based on the violation
histories of operations owned or controlled by the applicant, we have
``leeway in determining who the applicant is'' and may ``pierce the
corporate veil'' when appropriate to identify the ``true applicant.''
NMA v. DOI, 105 F. 3d at 695.
Keeping in mind the Appeals Court's commentary, and in consultation
with our State partners, and fully considering the views expressed
during public outreach, we have evaluated our existing authorities to
determine how we can more effectively address violations of the Act.
While the permit-block sanction authorized in section 510(c) will
continue to be the primary tool for determining who is eligible to
mine, it will be much less effective without the ability to consider
the violations of those who own or control the applicant. This makes it
even more important that we effectively use our other authorities under
SMCRA to deter mining by those who are either unwilling or unable to
meet the obligations of their permits. Indeed, during the public
outreach, some commenters suggested that we make more use of
enforcement authorities already granted under the Act and in
regulations rather than relying so heavily on permit blocking. In this
vein, the Appeals Court noted that ``blocking permits under section
510(c) is not the only regulatory mechanism under SMCRA.'' Id. at 695.
I. How Would These Rules Help Bring About More Effective Regulation of
Mining?
In assessing how we could use available authorities to improve
compliance with SMCRA, we have focused on four key areas: (1) improving
the quality and usefulness of the information gathered during the
permit application process and holding applicants fully accountable for
providing all required information; (2) ensuring that permit
eligibility determinations include consideration of all information
indicating the likelihood of an applicant meeting the obligations of
the permit; (3) verifying, through the increased use of investigations,
that applicants have provided complete and accurate information; and
(4) more effectively using currently available alternative enforcement
capabilities to ensure compliance by those who own, control or direct
mining operations in cases where conventional enforcement mechanisms
prove inadequate. We have concluded that these tools can be used more
effectively to achieve greater overall compliance with SMCRA.
J. What Would be the Major Effects of This Proposal?
The major effects of this proposal are as follows:
Consistent with the January 1997 Appeals Court decision,
regulatory authorities would continue to deny applications for permits
when the applicant has an outstanding violation or when the applicant
owns or controls an operation with an outstanding violation.
An applicant also would not be eligible for a permit if an
owner or controller of the applicant has demonstrated such disregard
for the environment that such person has been barred, disqualified,
restrained, enjoined, or otherwise prohibited from mining by a Federal
or State court.
The controllers of an applicant would be on notice of
their duty to comply with the requirements of the Act and the rules
would require them to attest to this fact.
The regulatory authority would more thoroughly review and
verify violation and ownership and control information.
Uncorrected violations of the Act and Federal and State
regulations that remain uncorrected would be subject to enforcement
actions, including the alternative enforcement mechanisms already
available in regulations.
The regulatory authority would more heavily focus
enforcement resources on those operators who lack a demonstrated
history of compliance and place less emphasis on those who have a
demonstrated history of compliance.
The information the regulatory authority would require
from applicants would more closely conform to the information
requirements of section 507(b) of the Act.
The definitions of ``ownership'' and ``control'' in the
rules would aid both the applicant and the regulatory authority in
identifying all parties with obligations under a permit.
Duplicative and burdensome information requirements that
applicants and regulatory authorities must currently meet would be
eliminated.
The current presumptions that ownership or control exists
would be
[[Page 70584]]
replaced with a requirement that the regulatory authority make a
finding of actual ownership or control.
Regulatory authorities would condition permits to ensure
compliance based on how long the applicant has been mining, whether the
applicant has a successful environmental compliance record, and whether
the applicant has owners or controllers with outstanding violations.
K. How Would Conditioning Permits Based on Compliance History Work?
In this proposal, we introduce the concept of having additional
permit conditions for applicants depending on how well each has
demonstrated a commitment to sound mining and reclamation practices.
Possibly the best predictor of the likelihood that an applicant will
meet the obligations of a permit is the record of how well the
applicant has met them for past operations. Applicants with good
environmental compliance records have earned a greater degree of trust
than those who have not practiced sound mining and reclamation, or who
have limited surface coal mining experience, or who have owners and
controllers linked to outstanding violations. While all permittees
would still be subject to the same on-the-ground mining and reclamation
requirements, we propose that some of the administrative and procedural
requirements or permit conditions would differ depending on the record
of past mining.
Specifically, we propose that regulatory authorities place
additional conditions in the permits of applicants who do not have
established a record of successful environmental compliance. Such
additional conditions also would apply to applicants whose owners or
controllers have links to outstanding violations. Those additional
conditions would include payment of all civil penalties, AML
reclamation fees, and AML audit debts within the 30-days after we
provide specific notice that they are due. These permittees also must
take all possible steps to abate any outstanding violation within the
period set for abatement. And, the permittee must maintain
uninterrupted compliance with all provisions of any abatement plan or
payment schedule or other settlement agreement.
Under our proposal, establishing a record of successful
environmental compliance would be demonstrated if the applicant (1) has
mined and reclaimed under approved permits for at least five years
before the date of application; (2) has no outstanding violations; and
(3) does not have owners or controllers who are linked to any
outstanding violations.
We also propose that the regulatory authority may presume that a
notice of violation existing at the time of application is being
corrected for applicants having established a record of successful
environmental compliance, as long as the period allowed for abatement
of the notice of violation has not yet expired. This presumption would
not apply to applicants who do not have an established record of
successful environmental compliance.
The proposed rule provides that failure to comply with any permit
condition by a permittee who was found not to have established a record
of successful compliance at the time the permit was issued may result
in a regulatory finding that the permittee is unable or unwilling to
comply with the mining and reclamation plan. Further, such a finding
would constitute adequate reason for the regulatory authority to
promptly issue an order for the permittee to show cause why the permit
should not be suspended or revoked.
L. What are Some Examples of how the New Rules Would Treat Different
Applicants?
The following examples illustrate how this rule changes permit
eligibility and permit conditions. Six hypothetical mining companies--
Able, Baker, Austin, Charley, Destiny and Eagle--have applied for
permits to mine. Able, Baker and Austin are denied permits, while
Charley, Destiny and Eagle are issued permits. Charley's and Destiny's
permits have the additional permit conditions described in this
proposed rule, while the permit issued to Eagle does not. Here's why:
1. Able Coal Company has been mining coal for 12 years and has one
outstanding violation from a prior operation. Regardless of Able's
overall compliance record or the number of years the company has been
mining, Able is ineligible for a permit under section 510(c) of SMCRA
until the violation is remedied.
2. Baker Industries has been mining coal for 14 years and has no
outstanding violations; however, a company that Baker controls--
Farthing Coal--does. Under section 510(c), Baker is ineligible for a
permit because it owns or controls an operation with a violation. As
with Able Coal, regardless of Baker's overall compliance record or the
number of years the company has been mining, Baker is ineligible for a
permit under section 510(c) of SMCRA until Farthing's violation is
remedied.
3. Austin Coal has been in operation without compliance problems
for 10 years. Six months ago, Austin was purchased by Owens
Enterprises. John Owens, president of Owens Enterprises, was recently
issued a permanent injunction by a State court prohibiting him from
mining due to numerous environmental problems at a half-dozen Owens
mining operations. Issuing a permit to Austin would be inconsistent
with the state court order in that it would again place John Owens in a
position of control over a mining operation. Austin's application would
be denied.
4. Charley Mining Company has been mining coal for six years
without any compliance problems. However, Charley is controlled by
Fickle Commodities, which has an outstanding violation. Charley would
be eligible for a permit because it does not own or control the
operation with the violation. However, the control that Fickle
exercises over Charley puts Charley at an increased risk of not meeting
all the requirements of its permit. The permit issued to Charley would
be conditioned as described in this proposed rule.
5. Destiny Mining, which began mining operations three years ago,
also has been mining without any compliance problems. Destiny is
controlled by Fathom, Inc., which has no outstanding violations.
Destiny would be eligible for a permit because it does not own or
control any operations with violations. However, despite the good
compliance record of Destiny and the violation-free status of its
controller, the permit issued to Destiny would have to be conditioned
as described in this proposed rule because the company has not yet
accumulated the minimum required five years of successful compliance
experience.
6. Eagle Coal Works also has been mining without any compliance
problems for six years. Eagle is controlled by Frisk Mining, which is
controlled by F&A Enterprises, which is a wholly owned subsidiary of
the Faithful Corporation. None of the owners or controllers--Frisk, F&A
or Faithful--has any outstanding violations. Eagle would be eligible
for a permit because it does not own or control any operations with
violations. Further, because of Eagle's successful compliance record
over a period of at least five years, and the violation-free status of
the three companies that own or control Eagle, the company's permit
would not have the additional permit conditions described in this
proposed rule.
[[Page 70585]]
M. Would This Rule Affect Other Documents That OSM has Published in the
Past?
OSM proposes to incorporate into the regulations the provisions of
the existing Memoranda of Understanding (MOUs) with primacy States
regarding use of the AVS. Thus, requirements for State regulatory
authorities related to ownership and control will be consolidated for
improved clarity and ease of reference. The MOUs have been widely
accepted by the States and OSM as effective mechanisms for working
together in operating and maintaining the AVS.
In addition, as part of today's action, we formally withdraw our
June 28, 1993, proposal (58 FR 34652 et seq.). Our 1993 proposal would
have amended the regulations invalidated by the Appeals Court but, as a
result of the court's decision, has been rendered moot.
N. Would the Rule Affect State Primacy?
In the process of re-evaluating our ownership and control
procedures, and in response to concerns raised during public outreach,
we will be changing the recommendation process that we use in response
to State requests for AVS checks. Currently, when information in the
AVS indicates that the regulatory authority should deny an application,
we review the relevant data to confirm that the recommendation to deny
is based on accurate and recent information. If we do not discover
anything that would call the recommendation into question, we recommend
to the regulatory authority that it deny the permit, except in
instances where the recommendation would be inconsistent with the court
ruling.
A long-standing issue concerning the use of AVS has been our
permitting recommendations to State regulatory authorities. Frequently,
State regulatory authorities were perceived as considering our
recommendations as dictates, rather than as advice, on how States were
to make permitting decisions. While our intent in making
recommendations to States has been to ensure quality control of AVS-
generated information, we believe that a change would help to clarify
our role and the role of the States in permitting. Instead of providing
permit eligibility recommendations, we propose to use AVS to provide a
variety of reports, including ownership and control and violation
reports. State regulatory authorities would then perform their own
analysis of applicants' legal identity information, permit history, and
compliance history and make permitting decisions without an OSM
recommendation.
This revised approach should leave no doubt that it is OSM's
responsibility to operate the AVS and maintain the integrity of the
data in the system, and it is the State's responsibility to decide
whether to issue the permit (of course, OSM would make the permitting
decisions in Federal program States). As with other aspects of the
implementation of approved State programs, this activity would be
subject to our oversight reviews.
Although our policy concerning whether or not to provide
recommendations to regulatory authorities is not established in
regulations, and the change described here would not require any
revision to our regulations, we are mentioning this change here for the
public's information because it arose in large part from the public
outreach process for this rulemaking.
O. How Does OSM Address the Information Collection Burdens of This
Rule?
Sections 773.10, 774.10 and 778.10 address information collection
requirements and the appropriate Office of Management and Budget (OMB)
clearance numbers for each part. We propose to amend these sections by
updating the data in each section and estimating the burden of
complying with the information collection requirements for each
response. The proposal also includes the addresses of OSM and OMB
officials where comments on the information collection requirements may
be sent.
P. What Provisions in SMCRA Authorize These Proposed Changes?
The proposed rules are based on the following sections of SMCRA:
Section 201--Creation of the Office
Section 402--Reclamation Fee
Section 506--Permits
Section 507--Application Requirements
Section 510--Permit Approval or Denial
Section 511--Revision of Permits
Section 518--Penalties
Section 521--Enforcement
III. Discussion of Proposed Rules
This proposal affects the following sections of OSM's current
regulations: Secs. 701.5, 724.5, 773.5, 773.10, 773.15, 773.16, 773.17,
773.18, 773.20, 773.21, 773.22, 773.23, 773.24, 773.25, 774.10, 774.13,
774.17, 778.5, 778.10, 778.13, 778.14, 842.11, 843.5, 843.11, 843.13,
843.21, 843.24, and part 846.
Below is a table listing changes to the rules. We have included it
here to describe briefly where the rules are proposed to be changed,
the nature of the changes, and the intended effect. The table is
arranged in the same sequence as the text of the proposed rule and the
section-by-section description of rule changes, which follows the
table. It is an important cross-reference in identifying provisions
that are proposed to be added, revised, deleted, and moved.
In trying to understand the proposed changes, it is best to start
with the table. For many of the proposed changes, the table will be
sufficient to understand what we are proposing and its intended effect.
For those changes where more explanation is needed, additional
description is included in the discussion of our proposal following the
table. And, to further clarify the proposed changes, we have included
the full text of the regulatory changes at the end of this publication.
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Following is the section-by-section description of the proposed
changes to OSM's regulations.
A. Section 701.5--Definitions
We propose ``Applicant/Violator System or AVS'' to mean the
automated information system of applicant, permittee, operator,
violation, and related data OSM maintains to achieve compliance with,
and to implement, the purposes of SMCRA. The amended definition
clarifies the purpose of the computerized system of data and
information in light of the January 31, 1997 Appeals Court decision,
including removing language from the current definition to make it more
consistent with the court's ruling.
We propose ``knowing or knowingly'' to mean that an individual knew
or had reason to know in authorizing, ordering, or carrying out an act
or omission that such an act or omission constituted a violation of the
Act, or a failure or refusal to comply with the Act.
We also propose the related term ``willful or willfully'' to mean
that an individual acted either intentionally, voluntarily or
consciously, and with intentional disregard or plain indifference to
legal requirements in authorizing, ordering or carrying out an action
or omission that constituted a violation of the Act, or a failure or
refusal to comply with the Act.
We propose to define ``knowing'' and ``knowingly'' together, and
``willful'' and ``willfully'' together, and to expand the scope of the
definitions so that they apply to persons in addition to corporate
permittees.
We propose to delete ``willful violation'' from Secs. 701.5 and
843.5. We believe that the definition of ``willful violation'' is
inconsistent with the definition of ``willfully.'' By deleting
``willful violation'' and adding ``willful'' to the definition of
``willfully,'' we intend to make the terms ``willful'' and
``willfully'' consistent in their meaning.
We propose to add ``link to a violation'' to the regulatory
definitions at Sec. 701.5. ``Link to a violation'' is proposed to mean
that a person owning or having the ability to control a proposed
surface coal mining operation has owned or had the ability to control
surface coal mining operations at another site at the time a violation
existed at that operation. In proposing this definition, we emphasize
an important distinction in both coverage and use. It does not cover an
applicant's ownership or control of operations that are in violation of
the Act--a relationship to violations considered in determining permit
eligibility under section 510(c) of the Act. Instead, it covers the
relationship between an applicant and an outstanding violation
[[Page 70591]]
where the two operations share the same controller--a relationship that
we propose should serve as the basis for conditioning a permit once it
is issued. We also propose that a ``link to a violation'' is the basis
for determining the proper means of enforcement to achieve abatement or
correction of an outstanding violation, including alternative
enforcement.
We propose to add ``outstanding violation'' to the regulatory
definitions at Sec. 701.5 to mean a violation notice that remains
unabated or uncorrected beyond the abatement or correction period. The
definition encompasses all violation notices that remain unabated or
uncorrected after all regulatory provisions for abatement or correction
have expired. We propose to define ``outstanding violation'' so that
the regulatory definition coincides with how the term is commonly used
and widely accepted.
We propose ``successful environmental compliance'' to mean having
no outstanding violations and demonstrating consistent abatement and
other correction of violations, payment of civil penalties, and payment
of reclamation fees within the time frames established for abatement
and payment, allowing for administrative due process. We are adding
this definition to Sec. 701.5 to assist regulatory authorities in
making a finding regarding an applicant's or other person's history of
compliance with the Act, State laws, and any other relevant laws,
regulations, or requirements. The definition of ``successful
environmental compliance'', and the provisions proposed at
Secs. 773.15(b)(3), 773.16, and 773.17, are intended to assist
regulatory authorities in making the distinction between persons who
have a record of successful environmental compliance and those who do
not.
We propose ``successor in interest'' to mean a person who applies
to the regulatory authority for approval under a change in an existing
permittee. This change reflects the distinction we propose to make
between those instances of a transfer, assignment, or sale of the
rights granted under a permit that require only approval for a
modification of the existing permit information and where a new permit
is required as a result of a successor in interest.
We intend this change in the definition and the changes in proposed
Sec. 774.17 to be more consistent with the permitting requirements for
a successor in interest in section 506(b) of the Act. Section 506(b) of
the Act requires that the person proposing to continue mining and
reclamation operations under the existing permittee's approved mining
and reclamation plans must apply for a new permit within 30 days of
succeeding to the interests of the existing permittee. The person also
must be able to obtain bond coverage equivalent to the coverage
obtained by the existing permittee.
We propose ``violation notice'' to mean any written notification
from a governmental entity of a violation of the Act or any Federal
regulation issued under the Act, a State program, or any Federal or
State law, or regulation pertaining to air or water environmental
protection in connection with a surface coal mining operation. The
definition includes, but is not limited to: (1) a notice of violation;
(2) an imminent harm cessation order; (3) a failure-to-abate cessation
order; (4) a final order, bill, or demand letter pertaining to a
delinquent civil penalty; (5) a bill or demand letter pertaining to
delinquent reclamation fees; (6) a notice of bond forfeiture where one
or more violations upon which the forfeiture was based have not been
corrected; (7) a notice of bond forfeiture where the cost of
reclamation has exceeded the amount forfeited, or in States with bond
pools, a determination that additional reclamation or reimbursement is
required.
In addition to moving the definition of ``violation notice'' from
Sec. 773.5 to Sec. 701.5, we are proposing several amendments. The
phrase ``delinquent abandoned mine reclamation fees,'' which is in the
current definition, is changed to ``delinquent reclamation fees'' to be
more consistent with language in section 402 of the Act. The definition
also would apply to a notice of bond forfeiture where the cost of
reclamation has exceeded the amount forfeited and, in States with bond
pools, a determination that additional reclamation or reimbursement is
required. This is intended to cover additional circumstances of bond
forfeiture in response to information gathered in the public outreach.
We propose to move the definitions of ``Federal violation notice''
and ``State violation notice'' from Sec. 773.5 to Sec. 701.5.
B. Section 773.5--Definitions
We propose to move each regulatory definition currently contained
in Sec. 773.5, with the exception of ``ownership or control link,''
``owned or controlled'' and ``owns or controls'' to Sec. 701.5. We
propose to eliminate definition the of ``ownership or control link.''
``Ownership or control link'' is too closely associated with the way we
implemented the 1988 ``ownership or control'' and related rules that
the Appeals Court invalidated. Our reasons for proposing to move and
amend the definition of ``owned or controlled'' or ``owns or controls''
to Sec. 778.5 are discussed below, in that section. The net result of
these proposed changes to Sec. 773.5 means is that this section is no
longer required under part 773.
C. Section 773.10--Information Collection
We propose to amend the information collection provision in
Sec. 773.10. Consistent with the Paperwork Reduction Act, we note in
paragraph (a) that the Office of Management and Budget (OMB) has
approved the information collection requirements of this part. The
regulatory authorities will use this information in processing surface
coal mining permit applications. Persons intending to conduct such
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-NEW.
In proposed paragraph (b) we estimate that the public reporting
burden for this part will average 34 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
requirements, including suggestions for reducing the burden, to the
Office of Surface Mining Reclamation and Enforcement, Information
Collection Clearance Officer, Room 210, 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-NEW in any correspondence.
D. Section 773.15--Review of Permit Applications
At Sec. 773.15, we propose to revise the general requirements to be
consistent with other changes we are proposing today and to include
additional responsibilities for regulatory authorities in reviewing
permit applications. These responsibilities include determining permit
eligibility and requiring information to be accurate and complete. We
also propose to ensure that applicants, and those persons who certify
themselves to be the
[[Page 70592]]
owners and controllers of an applicant, comply with these requirements
in order to obtain a permit for surface coal mining and reclamation
operations.
Paragraph (a)(1) is proposed to be amended by changing the
reference to a hearing in the last sentence from (b)(2) of this section
to part 775. Part 775 provides requirements for administrative and
judicial review of decisions on permits.
Proposed paragraph (a)(3) requires that the regulatory authority
make a determination under proposed Sec. 773.15 as to the eligibility
of every applicant under Sec. 773.16 before an applicant may receive a
permit. Proposed Sec. 773.16 provides for a determination of permit
eligibility and is discussed below.
Proposed paragraph (a)(3)(i) provides that the regulatory authority
must evaluate each application for a permit to determine whether it
contains accurate and complete information to make the finding required
under Sec. 773.15(c)(1).
Proposed paragraph (a)(3)(ii) provides that if, at any time during
the review process, the regulatory authority determines that the
applicant has omitted, or provided inaccurate or incomplete, legal
identity, compliance, or technical information, the regulatory
authority must require the applicant to correct the omission,
inaccuracy, or inconsistency. It also provides that the regulatory
authority may discontinue review of the application until the issue is
resolved. Such failure to provide accurate and complete information
will result in, at a minimum, a delay in the approval of an application
for a permit.
Proposed paragraph (b) requires that the regulatory authority
review each applicant's legal identity information, permit history, and
compliance history. We have restructured and amended the provisions at
Sec. 773.15(b) to enable regulatory authorities to evaluate an
applicant based upon a three-part review. In reviewing the permit
application and deciding whether to place additional conditions on a
permit, the regulatory authority will evaluate the applicant's (1)
legal identity information, (2) permit history, and (3) compliance
history. This evaluation process incorporates the use of investigations
to build a body of findings in the assessment of an applicant's
eligibility.
Proposed paragraph (b)(1), the first part of the permit eligibility
review process, requires the regulatory authority to make an initial
determination whether the applicant's legal identity information
submitted under Sec. 778.13 is accurate and complete based upon the
best information available. Within 30 days after the preliminary
determination that the information is accurate and complete, regulatory
authorities are required to update the relevant records in AVS. The
determination and update of AVS records would have to occur before any
regulatory authority request for applicant compliance reports from AVS
under paragraph (b)(3) in this section. This preliminary determination
should not be confused with the finding the regulatory authority makes
on all information in the permit application under Sec. 773.15(c)(1).
Proposed paragraph (b)(1)(i) requires that, if the regulatory
authority finds that an applicant, permittee, operator, or any owner,
controller, principal, or agent of the applicant, permittee, or
operator has knowingly or willfully concealed information about any
person owning or having the ability to control the applicant,
permittee, or operator, the regulatory authority will follow the
courses of action described in paragraph (b)(1)(i)(A) and (B).
Proposed paragraph (b)(1)(i)(A) requires the regulatory authority
to inform the applicant in writing of the regulatory authority's
finding; request that the applicant, permittee, or operator disclose
all persons owning or having the ability to control the applicant; and
convey to the applicant, permittee, or operator that the information
must be provided to the regulatory authority before it makes a decision
on the application.
Proposed paragraph (b)(1)(i)(B) requires the regulatory authority
to investigate the applicant, permittee, or operator and the
information provided to determine if the request made under paragraph
(b)(1)(i)(A) has been met with full disclosure. This provision is the
first instance where we have incorporated investigation into the review
of permit applications. Investigation is one of the four key elements
of this redesigned approach to our regulatory program, in addition to
permit information, permit eligibility, and alternative enforcement. In
this provision, we intend that the regulatory authority actively
determine whether the applicant, permittee, or operator has complied
with the regulatory authority's request to fully disclose all
relationships under proposed Sec. 778.13.
Proposed paragraph (b)(1)(i)(B)(1) provides that, depending on the
results of the applicant's response to the provision in paragraph
(b)(1)(i)(A) and the investigation under (b)(1)(i)(B), the regulatory
authority may deny approval of the application. We believe that if the
applicant, permittee, or operator fails to comply with the regulatory
authority's request to fully disclose all relationships under proposed
Sec. 778.13, the applicant, permittee, or operator has not complied
with the requirements of Sec. 778.13, and therefore, the application is
incomplete. On that basis, the regulatory authority may elect to deny
approval of the application.
Proposed paragraph (b)(1)(i)(B)(2) provides that, if the regulatory
authority denies the application under paragraph (b)(1)(i)(B)(1), the
regulatory authority may refer the applicant, or owner, controller,
principal, or agent of the applicant, to the Attorney General or
equivalent State office for prosecution under section 518(g) of the Act
and proposed Sec. 846.11 of the regulations.
Proposed paragraph (b)(2), the second part of the permit
eligibility review process, provides for the review of the applicant's
permit history. First, proposed paragraph (b)(2)(i) requires the
regulatory authority to use AVS and any other available databases or
information to review the permit history of the applicant, and that of
any person with the ability to control the applicant. The purpose of
the review is to determine how long they have conducted surface coal
mining operations and whether their conduct is in compliance with
applicable requirements of the Act, Federal regulations and equivalent
State regulations.
Proposed paragraph (b)(2)(ii) provides that an applicant with five
or more years of experience as a permittee or operator of a surface
coal mining operation will not be subject to additional permit
conditions proposed at Sec. 773.18 unless any person with the ability
to control the applicant or the operation is responsible for an
outstanding violation.
In proposed Sec. 773.15, we introduce the concept of considering
past mining experience and placing additional conditions on issued
permits for those applicants lacking successful experience. We propose
that five years is the minimum amount of experience that an applicant
should have in order for a regulatory authority to be reasonably
confident that a surface coal mining and reclamation operation will be
successful and not become a burden to the regulatory authority and the
general public. We propose the experience criterion to provide
regulatory authorities with an indicator of the potential success of a
surface coal mining operation.
Proposed paragraph (b)(2)(iii) provides that, if it appears that
none of the persons identified in the application has any previous
mining experience, the regulatory authority must request that the
applicant affirmatively state that neither the applicant nor any person
owning or having the ability to control
[[Page 70593]]
the proposed operation possesses mining experience. This provision also
requires that the regulatory authority investigate to determine whether
any person other than those identified in the application will control
the proposed operation as either an operator or other controller. As
with paragraph (b)(2)(ii) above, we propose paragraph (b)(2)(iii) to
provide regulatory authorities with an indicator of the potential
success of a surface coal mining operation.
Failed mining operations place increased burdens on State programs
to reclaim such sites. We believe that permittees that fail, and their
owners and controllers, must be required to comply with special
conditions in order to continue to receive approval for additional
permits. We received comments during the public outreach preceding the
development of this proposal that stressed the need for some form of
distinguishing criteria to apply to applicants for permits. It was
suggested that we consider giving an advantage in the permitting
process to applicants with successful compliance records and impose
additional requirements on applicants who do not meet the criteria.
We invite comments on the two criteria proposed here in
Sec. 773.15--five or more years of mining experience and successful
environmental compliance--as well as suggestions for other criteria
that may be used to distinguish among proposed operations that are
likely to be successful and those that are not. We also invite comments
on the criterion proposed in Sec. 773.16--withholding of the
presumption of abatement of a notice of violation--and other
suggestions as to how the distinctions may be implemented. For example,
should the criteria apply to the owners and controllers of applicants
in addition to the applicant itself?
Paragraph (b)(3), the third part of the permit eligibility review
process, provides for the review of an applicant's compliance history.
We propose that this review include a review of violations and an
examination of the applicant's controllers.
Proposed paragraph (b)(3)(i) provides that the regulatory authority
must request a report from AVS on the applicant's history of compliance
with SMCRA for an application for a permit; revision; renewal;
transfer, assignment, or sale of the rights granted under a permit; and
an application from a successor in interest to the rights granted under
a permit. This provision specifies all of the circumstances under which
a review of violations must be conducted and includes each of the
relevant permitting or approval processes. We intend that an applicant
under each of these processes must prove eligible to hold a permit
under the permit eligibility standard of section 510(c) of the Act. In
the case of an application for a renewal of a permit, the burden of
proof to find that an applicant is not eligible under section 510(c)
rests with the regulatory authority, as provided under
Sec. 774.15(c)(2).
Paragraph (b)(3)(i) also would replace OSM's current policy that
requires regulatory authorities to obtain permit eligibility
recommendations on pending applications from AVS through a two-step
process. Currently, the regulatory authority first uses the AVS to
obtain a computer system-generated recommendation of permit
eligibility. Second, to ensure that AVS data is reliable and up-to-
date, OSM reviews the system recommendation and supporting data and
uses AVS to provide a final recommendation to the regulatory authority.
In the future, instead of providing permit eligibility
recommendations, we would use AVS to provide a variety of reports,
including a report on applicants and violations on the operations they
own or control, for use by the regulatory authority in reviewing
applications and permits. Consistent with the principle of State
primacy, regulatory authorities would then perform their own analyses
of an applicant's legal identity information, permit history, and
compliance history, and make permitting decisions based on their
findings without receiving a recommendation from OSM. Our role would be
to administer and operate the AVS and maintain the integrity of the
system data. The State, subject to OSM oversight reviews, would have
full authority in deciding whether to issue a permit. As discussed
below at Sec. 773.15(b)(3)(ii), the AVS report on the compliance
history of the applicant and the AVS report on the applicant's owners
and controllers will be used for distinctly different purposes.
Proposed paragraph (b)(3)(i)(A) provides that the regulatory
authority will rely upon the applicant's compliance history, and the
history of operations owned or controlled by the applicant, to make a
permit eligibility finding under section 510(c) of SMCRA, unless there
is an indication that the history of persons other than the applicant
should be included as well. This provision has been expressly crafted
to reflect the January 31, 1997, ruling in NMA v. DOI. The Appeals
Court ruled that OSM could not apply section 510(c) of the Act to the
individual owners or controllers of an applicant. In other words, OSM
could not deny permits under section 510(c) based upon the violations
of those who controlled the applicant.
In proposed Sec. 773.15, we have provided for regulatory
authorities to obtain compliance history reports on persons in addition
to the applicant for the purposes of determining permit eligibility. As
described in (b)(3)(i)(G) below, when certain persons who own or
control an applicant are, themselves, barred from mining, that
prohibition could be sufficient to warrant denial of the permit
application under provisions other than Sec. 510(c). The regulatory
authority may identify such persons by way of investigation or through
other information available to the regulatory authority.
Proposed paragraphs (b)(3)(i)(B)(1) through (3) provide that if the
applicant, or any surface coal mining operation owned or controlled by
the applicant, has an outstanding violation, the regulatory authority
may not approve the application unless one of the following apply:
the applicant obtains a properly executed abatement plan
or payment schedule that is approved by the regulatory authority with
jurisdiction over the violation;
the violation is in the process of being abated;
the violation is the subject of a good faith
administrative or judicial appeal contesting the validity of the
violation; or
the violation is subject to the presumption of NOV
abatement under proposed Sec. 773.16(b).
In addition, proposed paragraph (b)(3)(i)(C) requires that any
application approved with outstanding violations must be conditioned in
accordance with Sec. 773.17(l).
These provisions describe the actions an applicant must take in
order to obtain approval when the applicant, or an operation owned or
controlled by the applicant, has outstanding violations. ``Outstanding
violation'' is proposed to be defined at Sec. 701.5 and means a
violation notice that remains unabated or uncorrected beyond the
abatement or correction period. A proposed change in the definition of
``violation notice'' will add a new violation type to the more typical
violations under this review process. An applicant will be ineligible
for a permit if the applicant has forfeited a performance bond and has
failed to reimburse the regulatory authority for any costs in excess of
the amount forfeited to achieve full reclamation under the applicable
reclamation standards in Sec. 800.50(d)(1). Similarly, in States with
bond pools--a type of
[[Page 70594]]
bonding where many operators contribute to a combined fund--an
applicant will not be eligible for a permit if a determination is made
that additional reclamation or reimbursement is required beyond any
existing reclamation or the amount contributed to the bond pool by the
applicant. This is intended to provide relief to regulatory authorities
from the harmful effects of bond forfeiture on their programs,
especially from permittees responsible for repeated bond forfeiture. In
instances where States have been required to complete reclamation at an
additional cost to the State, an applicant would not be eligible if it
failed to reimburse the State for the cost of reclamation in excess of
the amount of the performance bond. The provisions proposed here are
based, in part, upon the current regulation at Sec. 773.15(b)(1),
(b)(1)(i), and (b)(1)(ii).
Proposed paragraph (b)(3)(i)(D) is the first of two provisions that
describe circumstances under which an applicant or other person will be
found ineligible to hold a permit. This paragraph provides that OSM
will serve a preliminary finding under 43 CFR Sec. 4.1351 upon an
applicant or operator if (1) the applicant or operator is found to have
owned or controlled mining operations with a demonstrated pattern of
willful violations of the Act and its implementing regulations, and (2)
the violations are of such nature and duration that they result in
irreparable harm to the environment, so as to indicate an intent on the
part of the applicant or operator not to comply with the Act or
implementing regulations.
Proposed paragraph (b)(3)(i)(E) provides that the applicant or
operator may request a hearing under 43 CFR Sec. 4.1350 et seq., with
the Office of Hearings and Appeals within 30 days of receipt of the
preliminary finding. It further provides that, if the applicant or
operator files a request for a hearing under 43 CFR 4.1350 et seq., the
Office of Hearings and Appeals will give written notice of the hearing
to the applicant or operator and must issue a decision within 60 days
of the filing of the request for a hearing.
Proposed paragraph (b)(3)(i)(F) provides that the decision of the
administrative law judge may be appealed to the Interior Board of Land
Appeals under procedures set forth in 43 CFR 4.1271 et seq. within 20
days of receipt of the decision.
We propose this amendment, which is based upon the current
regulation at Sec. 773.15(b)(3), to more fully state the administrative
remedies and due process rights of persons preliminarily found to be
permanently ineligible for a permit. We believe a full description of
the remedies and rights is important because regulatory authorities
should be able to implement the second part of section 510(c) of the
Act to permanently withhold the benefit of a surface coal mining permit
from those persons who have committed the most flagrant violations and
have not made a reasonable attempt to rectify the resulting
environmental damage. However, we also recognize that upholding a
preliminary finding under this proposed provision would have very
serious consequences. We intend to ensure full due process and those
rights are expressly addressed in the implementing regulation.
Proposed paragraph (b)(3)(i)(G) is the second of three provisions
that describe circumstances under which an applicant will be found
ineligible to hold a permit. It provides that an applicant will not be
eligible for a permit if the applicant or anyone proposing to engage in
or carry out operations on the proposed permit has been barred,
disqualified, restrained, enjoined, or otherwise prohibited from mining
under Sec. 773.15(b)(3)(i)(D) or proposed Sec. 846.16 by a Federal or
State court. Proposed Sec. 846.16, civil actions for relief, is
discussed below in part 846.
We cannot deny a permit under section 510(c) of the Act based upon
the violations of an applicant's owners or controllers at other
operations. However, we can and should withhold permit approval if the
person controlling the operation has been barred, disqualified,
restrained, enjoined, or otherwise prohibited from mining by
administrative or judicial decision.
We must seek to protect the benefit to hold a surface coal mining
permit for those persons who have demonstrated compliance with
statutory and regulatory requirements. In cases where a person is
adjudicated to have demonstrated such disregard for the environment
that the person has been barred, disqualified, restrained, enjoined, or
otherwise prohibited from mining, the presence of such a person as an
owner, controller, or agent of an applicant is sufficient basis for
denying the permit. To decide otherwise would result in actions that
would contravene the administrative or judicial decision issued against
such a person.
Paragraph (b)(3)(ii) provides for the examination of the
controllers of the applicant to determine if any controller is
responsible for outstanding violations. The provisions at (b)(3)(ii)
are intended to enable regulatory authorities to compel compliance to
rectify or otherwise resolve outstanding violations. We intend that the
eligibility of its controllers based on outstanding violations will not
impair the eligibility of the applicant. However, we also intend that
regulatory authorities will identify persons who have failed to fulfill
their environmental and debt obligations under the Act and its
implementing regulations.
Proposed paragraph (b)(3)(ii)(A) provides that the regulatory
authority will request a report from AVS to identify whether the owners
or controllers of an applicant are also owners or controllers of a
surface coal mining operation at the time a violation notice was issued
and such violation notice remains outstanding. Unlike the report
required for the applicant, the report required for owners and
controllers will not be used as a basis to determine the eligibility of
the applicant for a permit. Instead, it will be used to identify
whether the owners or controllers of an applicant should be subject to
investigation to determine whether remedial enforcement, including
alternative enforcement actions, are appropriate to compel compliance
with SMCRA and its implementing regulations. This provision establishes
that OSM will no longer provide recommendations regarding the
eligibility of applicants, either from AVS or from our quality
assurance activities. Instead, we will provide reports of organized
information generated from AVS. Regulatory authorities must use this
information to formulate their own determinations.
Proposed paragraph (b)(3)(ii)(B) requires that the appropriate
regulatory authority investigate each person and violation to determine
whether alternative enforcement action is appropriate, as discussed
below under part 846. OSM and the State regulatory authority will make
the appropriate determination or referral for violations under their
jurisdiction and must enter the results of each determination or
referral into the AVS. Paragraph (b)(3)(ii)(B) enables regulatory
authorities to compel the owners and controllers of applicants to
fulfill their environmental and debt obligations where they are found
to be responsible for violations. We believe that regulatory
authorities must still compel compliance from these persons. To
accomplish this, we are amending part 846 to provide for remedies
available to regulatory authorities to compel compliance from the
owners and controllers of applicants who are responsible for
outstanding violations.
[[Page 70595]]
Proposed paragraph (b)(3)(ii)(C) provides that if the regulatory
authority finds that an applicant has less than five years experience
in surface coal mining operations or has owners or controllers that are
linked to outstanding violations, the regulatory authority will
consider the applicant to have insufficient or unsuccessful
environmental compliance and therefore be subject to additional permit
conditions under proposed Sec. 773.18, which is discussed below. We
propose to make clear distinctions between applicants that have
demonstrated successful mining and reclamation experience, compliance
with the Act and regulations, and those applicants that have not. As
indicated above, we are interested in receiving comments specific to
the proposed criteria (less than five years experience; owners or
controllers linked to violations) for distinguishing among applicants
eligible for permit approval in determining which applicants should be
subject to additional permit conditions. We are also interested in
receiving comments on what permit conditions under proposed Sec. 773.18
would be appropriate.
Paragraph (b)(4) is unchanged from the current regulation, except
to correct ``September 30, 1994'' to ``September 30, 2004'' at
Sec. 773.15(b)(4)(i)(C)(1). Paragraphs (c) and (d) are unchanged from
the current regulation.
Proposed paragraph (e) provides for the final compliance review of
an application. It requires that, after an applicant is determined
eligible, but before the permit is issued, the regulatory authority
will review any new information submitted or discovered during the
permit application review. Proposed paragraph (e) further provides
that, no more than three business days before permit issuance, the
regulatory authority must again request a report from AVS on the
applicant's history of compliance to ensure that the applicant is, or
operations owned or controlled by the applicant are, not currently
linked to any outstanding violations. This provision is based, in
principle, on agreements with the States documented in Memoranda of
Understanding (MOU) regarding AVS operation and current OSM policy
regarding the frequency and timing for States to obtain permit
eligibility recommendations prior to making permitting decisions. We
also intend to incorporate other provisions contained in the MOUs that
remain relevant to the regulatory program under this proposal, and
eliminate the need for the MOUs.
This proposal also has the effect of removing the current provision
at Sec. 773.15(b)(2). This regulation refers to the certification of
violation information provided by an applicant under Sec. 778.14. This
certification requirement is proposed to be removed from the
regulations at proposed Sec. 778.14. The current provision also refers
to presumptions. One significant effect of the proposed redesign
approach would be to eliminate the use of presumptions of ownership or
control. We propose to eliminate the concept of the rebuttable
presumption of ownership or control, discussed in more detail at
Sec. 778.5, and the effect of presumptions on permit eligibility,
discussed above at Sec. 773.15(b)(3).
With respect to current Sec. 773.15(b)(2), the regulation is based
upon the presumption of links to violations and is not in conformity
with the conceptual basis of this proposal. The remaining portions of
the current regulation at Sec. 773.15(b)(2) regarding the status of
violations disclosed under Sec. 778.14 and the terms of permit
issuance, have been incorporated into proposed Sec. 773.15(b)(3)(i),
discussed above, and Sec. 773.18, discussed below.
E. Section 773.16--Permit Eligibility Determination
We propose to create Sec. 773.16 to provide for permit eligibility
determinations. These provisions represent the net effect of the
regulatory authority's review of permit applications in the proposed
amendments to Sec. 773.15(b), discussed above in Sec. 773.15.
Proposed paragraph (a) requires that the regulatory authority
determines whether the applicant is eligible based upon the permit and
compliance history of the applicant, operations the applicant owns or
controls, and operations it owned or controlled provided for in
proposed Sec. 773.15(b).
Paragraph (a)(1) further provides that the regulatory authority
will determine whether the application for a permit should be approved
subject to additional permit conditions proposed in Sec. 773.18,
depending upon the applicant's permit and compliance history and the
compliance history of the applicant's owners and controllers. These
permit conditions are in addition to those routinely required of
applicants under Sec. 773.17. These additional conditions would be
required for applicants that either fail to meet either the experience
requirement or whose owners or controllers are found to be responsible
for outstanding violations. We invite comments specifically addressing
the criteria for distinguishing which applicants should be subject to
additional permit conditions and what type of conditions should be
imposed.
Paragraph (a)(2) requires the regulatory authority to send the
applicant written notice if found ineligible. The regulatory authority
will include in the notice the reasons you were found ineligible and
how to challenge a finding on the ability to control a surface coal
mining operation.
Proposed paragraph (b) provides for the presumption of NOV
abatement. The proposed provision states that, in the absence of a
failure-to-abate cessation order, the regulatory authority may presume
that a notice of violation issued under Sec. 843.12 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. Paragraph (b) further provides
that permits approved utilizing the presumption of NOV abatement will
be conditioned as required under proposed Sec. 773.17(l). Paragraph (b)
further provides that the presumption will not apply: (1) if the
abatement period has expired; (2) to applicants subject to additional
permit conditions under proposed Sec. 773.18; (3) where evidence that
the violation is not being abated is either set forth in the permit
application or discovered; or (4) if the notice of violation is issued
for nonpayment of reclamation fees or civil penalties.
Proposed paragraph (b)(3) provides the regulatory authority may not
approve the application unless the applicant meets one of the criteria
addressing the violation under paragraph Sec. 773.15(b)(3)(i)(B).
F. Section 773.17--Permit Conditions
We have established in current regulations permit conditions that
are routinely attached to all approved permits. In this proposal, we
propose to amend paragraphs (h)(1) and (h)(2) and to add new conditions
under paragraphs (i) through (m).
Proposed paragraph (h) provides that within thirty days after a
cessation order is issued under Sec. 843.11, or the State program
equivalent, for operations conducted under the permit, the permittee
must either submit to the regulatory authority updated or corrected
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 submission of such information. This provision applies
except where a stay of the cessation order is granted and remains in
effect.
Proposed paragraph (h)(1) provides that a permittee or operator
must
[[Page 70596]]
provide any new information needed to update or correct information
previously submitted to the regulatory authority under Sec. 778.13(c),
(e), and (g). This amendment is proposed in order to revise the cross-
references to Sec. 778.13. To the extent that provisions at Sec. 778.13
are revised, the cross-references here in Sec. 773.17 are amended.
Proposed paragraph (h)(1)(i) provides that if the information
required in a permit application under Sec. 778.13(c), (e), and (g) has
not been previously submitted to the regulatory authority, it must be
submitted. We propose to amend the current provision such that ``permit
applicant'' is changed to ``permit application''.
We propose to add paragraph (i) to Sec. 773.17. It provides that
the permittee, operator, or another person named in the application as
having the ability to determine the manner in which the surface coal
mining operation would be conducted will be considered the controllers
of the permit.
Paragraph (j) provides that: all controllers are jointly and
severally responsible for compliance with the terms and conditions of
the permit and regulatory program; all controllers are subject to the
jurisdiction of the Secretary of the Interior; and a breach of the
responsibility for compliance with the terms and conditions of the
permit and the regulatory program may result in a controller's
individual liability.
Paragraph (k) provides that regulatory authorities may, at any
time, through investigation, determine that additional persons are
controllers. Paragraph (k) also provides that, after the permit is
issued, if any controllers are identified by the regulatory authority
or added by the permittee or operator, the new controller will be
subject to the requirement to certify under proposed Sec. 778.13(m),
discussed below.
We propose to add this condition to all approved permits to
accomplish several purposes. First, and most notably, all persons named
in an application that have the ability to determine the manner in
which the surface coal mining operation is conducted will be considered
controllers of the permit. Under the redesigned approach, we are
eliminating the use of rebuttable presumptions in the definitions of
ownership and control. The effect of eliminating the use of the
rebuttable presumption is that all persons identified as owners or
controllers, or otherwise identified as having the ability to determine
the manner in which operations are conducted, are all proposed to be
control relationships with respect to the surface coal mining
operation. This means that certification by such persons in an
application will establish their responsibility under the regulatory
program. In addition, persons having the ability to determine the
manner in which surface coal mining operations are conducted, however
they may be identified, are made fully aware that they are subject to
the jurisdiction of the Secretary of the Interior for the purposes of
their compliance with all Federal and State terms and conditions under
which their permit is issued.
Any breach of a controller's responsibility for compliance with the
terms and conditions of the regulatory program may result in individual
liability. We are enabling regulatory authorities to pursue individual
liability through a variety of remedies, including pursuit of the
suspension or revocation of a permit for failure to comply with the
conditions under which a permit is issued, discussed below at proposed
Sec. 846.15.
We propose to add paragraph (l) to Sec. 773.17. It provides that,
as applicable, the permittee or operator must abate or correct any
outstanding violation or payment, absent an administrative or judicial
decision invalidating the violation. This provision conveys to the
owners and controllers of a permittee that issuance of a permit does
not defer the obligation of the permittee or operator to abate or
correct any violation notice that may be outstanding at the time of
permit issuance. This provision applies to applicants that have been
approved for a permit that have also received the benefit of the
presumption of NOV abatement, proposed at Sec. 773.16(b). This
provision is based upon the current regulation at
Sec. 773.20(c)(1)(ii), which is a permit condition. Therefore, we
propose to move the provision from Sec. 773.20(c)(1)(ii) to
Sec. 773.17(l).
We propose to add paragraph (m) to Sec. 773.17. It provides that a
permit will be subject to any other special permit conditions the
regulatory authority determines are necessary to ensure compliance with
the performance standards and regulations.
G. Section 773.18--Additional Permit Conditions
We propose to create Sec. 773.18 to provide for the permit
conditions required of applicants eligible under Sec. 773.15(b) but
that have less than five years experience in surface coal mining
operations or whose controllers are responsible for outstanding
violations and thus, have not demonstrated successful environmental
compliance. These are permit conditions that the regulatory authority
must require of such applicants in addition to the standard permit
conditions provided for in Sec. 773.17. We propose these additional
conditions to enable the regulatory authority to more closely monitor
the operations of permittees with limited surface coal mining
experience and whose owners and controllers have not demonstrated
successful environmental compliance. We believe these permittees are a
higher risk. If their operations are unsuccessful, their reclamation
obligations would default to the regulatory authority. While the higher
risk permittees are entitled to hold a permit under the redesigned
approach, these permittees should be subject to greater scrutiny until
they and their owners and controllers demonstrate their ability to
comply with statutory and regulatory requirements with respect to their
surface coal mining and reclamation operations.
These proposed distinctions among applicants are based on comments
received during the public outreach preceding the development of this
proposal. Certain comments stressed the need for some form of criteria
to distinguish between applicants more likely to succeed and those that
are not. It was suggested that we consider giving an advantage to
applicants with demonstrated successful compliance records in the
permitting process. We invite suggestions for other criteria that may
be used to distinguish between proposed operations that are likely to
succeed and those that are not. Also, we invite comments on how the
proposed criteria should be applied. For example: would the experience
criterion apply to all persons intending to engage in or carry out
surface coal mining operations, including the owners and controllers of
an applicant as well as to the applicant; would the experience
criterion mean five consecutive years; and would the experience of a
parent company count towards the experience of an applicant?
Proposed paragraph Sec. 773.18(a) provides that a permittee's
failure to comply with any additional permit condition provided for in
this section may result in a regulatory finding that the permittee is
unable or unwilling to comply with its mining and reclamation plan.
Paragraph (a) further provides that such a finding constitutes adequate
reason for the regulatory authority to promptly issue an order for the
permittee to show cause why the permit should not be suspended or
revoked under proposed Sec. 846.15.
Proposed paragraph (b) provides that the permittee must pay all
civil penalties assessed under part 845 within 30 days of the date of a
final
[[Page 70597]]
order of the Secretary or State counterpart. While all permitted
operations are expected to pay civil penalties in a timely manner, we
believe that for higher risk operations, untimely payment of civil
penalties is an indicator of the potential lack of success of the
operation.
Proposed paragraph (c) provides that the permittee must take all
possible steps to abate any outstanding violation before the expiration
of the abatement period. As with the payment of civil penalties, all
permitted operations are expected to abate violations in a timely
manner. However, we believe that for higher risk operations, untimely
abatement is another indicator of the potential lack of success of the
operation.
Proposed paragraph (d) provides that the permittee must maintain
continuous and uninterrupted compliance with any provision of an
abatement plan, payment schedule or other settlement agreement. We
readily enter into agreements with permittees, operators, or other
persons to abate violations or to fulfill financial obligations where
they are unable to abate or pay within the required time limits. We
count on the good faith of these persons to adhere to the abatement
plan or payment schedule or other terms of an agreement. In the case of
the higher risk permittee, we believe that a lapse in compliance with
an abatement plan, payment schedule, or other settlement agreement is
yet another indicator of the potential lack of success of the
operation.
H. Section 773.20--Improvidently Issued Permits: General Procedures
Proposed paragraph (a) provides for the permit review. The
provision states that 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.
Paragraph (a) further provides that, when the regulatory authority
finds that the permit was improvidently issued, it must comply with
paragraph (c) of this section. The language is unchanged from the
current regulation.
At paragraph (b), which provides for the review criteria to
determine whether a permit has been improvidently issued, the numerical
identifier (1) in the paragraph is removed. The heading and language of
the current regulation are unchanged.
Paragraph (b)(1)(i) of the current regulation would be re-numbered
(b)(1). The language is unchanged from the current regulation.
Paragraph (b)(1)(i)(A) of the current regulation would be re-
numbered (b)(1)(i) and amended. The phrase ``unabated violation'' would
be changed to ``outstanding violation.'' This change is proposed
because a regulatory definition for ``outstanding violation,'' proposed
at Sec. 701.5, defines a more inclusive set of violations and, as such,
is more applicable to the circumstance described in the provision where
a regulatory authority finds it should not have issued a permit.
Paragraph (b)(1)(i)(B) of the current regulation would be re-
numbered (b)(1)(ii). In addition, we propose to add a provision to
follow (b)(1)(ii) which also describes a circumstance where a
regulatory authority finds it should not have issued a permit.
Therefore, the last word in paragraph (b)(1)(ii) is proposed to be
changed from ``and'' to ``or.''
We propose to add paragraph (b)(1)(iii) to Sec. 773.20 to provide
that the failure of an applicant to disclose in its application any
other relevant information that if properly disclosed at the time of
the initial application would have made the applicant ineligible, is
also cause for a finding that the permit was improvidently issued. We
propose to add this provision to Sec. 773.20 in keeping with the
emphasis placed on permit information. The amendment is also consistent
with the provisions of the MOUs with States regarding AVS operation
that provide for States to require the resolution of inaccurate and
incomplete application information. In this proposal, ``permit
information'' means information required from applicants and
permittees.
Paragraph (b)(1)(ii) in the current regulation would be re-numbered
(b)(2). The language of the provision is unchanged from the current
regulation.
Paragraph (b)(1)(ii)(A) would be re-numbered (b)(2)(i) and amended.
The word ``unabated'' is changed to ``outstanding'' for the same
reasons as stated above in proposed paragraph (b)(1)(i) of this
section.
Paragraph (b)(1)(ii)(B) would be re-numbered (b)(2)(ii). The
language in the provision is unchanged from the current regulation.
Paragraph (b)(1)(iii) would be re-numbered (b)(3). Paragraph (b)(3)
also would be amended. The word ``person'' is changed to ``operation.''
We propose this change because the regulatory definition of ``person''
at Sec. 700.5 includes ``an individual.'' The word ``operation'' is
more in keeping with this proposal's approach to permit eligibility.
Paragraph (b)(2), including paragraphs (b)(2)(i) and (b)(2)(ii),
would be removed from Sec. 773.20. To the extent that Sec. 773.25 is
amended in this proposal and Secs. 773.20(b)(2) and (3) already provide
for the same regulations, we believe the current Sec. 773.20(b)(2) is
an unnecessary duplication of provisions.
We propose to amend paragraph (c) of Sec. 773.20. As discussed
below in the individual provisions within paragraph (c), we propose to
amend existing provisions and to add provisions to address the failure
of an applicant to disclose accurate and complete information. These
revisions address permit information, one of the four key elements of
this proposal.
Proposed paragraph (c)(1) provides that a regulatory authority
which finds that a permit was improvidently issued must use one or more
of the three remedial measures that follow in the succeeding paragraphs
proposed at Secs. 773.20(c)(1)(i) through (c)(1)(iii). Paragraph (c)(1)
is proposed to be amended to remove what we believe to be unnecessary
language from the provision. As a result, proposed paragraph (c)(1) is
more succinct.
Proposed paragraph (c)(1)(i) describes the first remedial measure.
It provides for a plan to abate the violation, or a schedule to pay the
penalty or fee, or that the regulatory authority require the permittee
to correct the inaccurate information or provide the incomplete
information. We propose to amend this provision by removing ``with the
cooperation of the responsible agency, the permittee, and persons owned
or controlled by the permittee'' from the provision. We believe this
language is unnecessary to the provision. Instead, we propose to add
``or require the permittee to correct the inaccurate information or
provide the incomplete information'' at the end of the provision. This
change adds inaccurate or incomplete information to the criteria under
which the regulatory authority may find a permit was improvidently
issued. As with certain other provisions in this proposal, the concept
governing sanctions for providing inaccurate and incomplete information
is based upon provisions contained in the MOUs with State regulatory
authorities regarding the operation of the AVS.
Paragraph (c)(1)(ii) in the current regulation would be removed
from Sec. 773.20. It provides for the imposition of a permit condition
requiring the abatement of the violation or payment of the penalty or
fee. We believe this requirement is more appropriate to the regulations
governing permit conditions. Thus, we have proposed this provision as
Sec. 773.17(j).
Paragraph (c)(1)(iii) in the current regulation would be re-
numbered (c)(1)(ii) and is the second remedial
[[Page 70598]]
measure. Proposed paragraph (c)(1)(ii) is largely a reorganization of
current (c)(1)(iii) and provides that the regulatory authority may
suspend the permit until one or more of three conditions are met. The
three conditions are provided for in proposed paragraph (c)(1)(ii).
Proposed paragraph (c)(1)(ii)(A) provides that permit suspension
will continue until the violation is corrected to the satisfaction of
the regulatory authority or other issuing authority with jurisdiction
over the violation. This provision is essentially a restatement of the
first part of the condition stated in the current paragraph (c)(iii).
Proposed paragraph (c)(1)(ii)(B) provides that permit suspension
will continue until the penalty or fee is paid. This provision is
essentially a restatement of the second part of the condition stated in
the current regulation at paragraph (c)(iii).
Proposed paragraph (c)(1)(ii)(C) provides that permit suspension
will continue until the inaccurate or incomplete information is
corrected or provided. We propose to add paragraph (c)(1)(iii) to be
internally consistent with proposed Secs. 773.20(b)(1)(iii) and
(c)(1)(i) that add inaccurate or incomplete information to both the
reasons for the suspension of a permit and the conditions under which
the suspension could be lifted or terminated.
Paragraph (c)(1)(iv) in the current regulation would be re-numbered
(c)(1)(iii) and is the third remedial measure. Proposed paragraph
(c)(1)(iii) provides that the regulatory authority may rescind the
permit under the provisions in Sec. 773.21, which is also proposed to
be amended. We propose to add the reference to Sec. 773.21 to
specifically reference the permit rescission procedures contained in
that section.
Paragraph (c)(2) of Sec. 773.20 is unchanged from the current
regulation.
I. Section 773.21--Improvidently Issued Permits: Rescission Procedures
We propose to amend the rescission procedures for improvidently
issued permits at Sec. 773.21.
The proposed introductory paragraph at Sec. 773.21 provides that a
regulatory authority which, under Sec. 773.20(c)(1) (iii), elects to
rescind an improvidently issued permit, must serve a notice of proposed
suspension and rescission on the permittee and individuals who have the
ability to control the permittee. The notice must include the reasons
for the regulatory authority's finding under proposed Sec. 773.20(b).
We propose two revisions to the current regulation. We propose to
change the cross-reference from Sec. 773.20(c)(1)(iv) to
Sec. 773.20(c)(1)(iii). We propose to add the phrase, ``and individuals
who have the ability to control the permittee'' to the introductory
paragraph. This proposal is consistent with the redesigned approach
because the individual owners or controllers of an applicant or
permittee that are responsible for outstanding violations will be
treated separately from the applicant or permittee. The notification
provision means that the permittee and the individuals that have the
ability to control the permittee will be served the notice of proposed
suspension and rescission.
Proposed paragraph (a) provides for the automatic suspension and
rescission of a permit. The provision states that, after a specified
period of time, not to exceed 90 days, the permit automatically will
become suspended. Further, not more than 90 days thereafter it would be
rescinded, unless within those periods the permittee submits proof, and
the regulatory authority finds, consistent with the provisions of
Sec. 773.25, that one or more of the provisions in paragraphs (a)(1)
through (a)(4) are met. The current regulation at Sec. 773.21(a) is
unchanged.
Proposed paragraph (a)(1) provides that the regulatory authority
will not suspend or revoke the permit if the finding of the regulatory
authority under Sec. 773.20(b) of this part was erroneous. This
provision is unchanged from the current regulation.
Proposed paragraph (a)(2) provides that the regulatory authority
will not suspend or revoke the permit if the violation has been abated,
the penalty or fee paid, or the information corrected to the
satisfaction of the responsible agency. This provision is proposed to
be amended such that the phrase, ``or the information corrected'' has
been added. As we have previously indicated, the MOUs with States
regarding AVS operation require States to resolve inaccurate and
incomplete application information. Therefore, the amendment proposed
at paragraph (a)(2) is also consistent with our intent to eliminate the
need for the MOUs.
Proposed paragraph (a)(3) provides that the regulatory authority
will not suspend or revoke the permit if 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. This provision in Sec. 773.21 (a)(3) is unchanged
from the current regulation.
Proposed paragraph (a)(4) provides that the regulatory authority
will not suspend or revoke the permit if the permittee and all
operations owned or controlled by the permittee are no longer
responsible for the violation, penalty, or fee, or for providing the
information. In this provision, ``operations'' substitutes for
``persons'' and ``or for providing the information'' is added.
Proposed paragraph (a)(5) provides that the regulatory authority
will not suspend or revoke the permit if the information is subject to
a pending challenge under Sec. 773.24. In this provision, the phrase
``the information is subject to a pending challenge under Sec. 773.24''
is added.
Paragraph (b) provides for the cessation of operations following
permit suspension or rescission and would be amended only slightly from
the current regulation, but it is a meaningful change. The words, ``and
reclamation'' are removed from the activities the permittee must cease
after permit suspension or rescission so that it is clear that
reclamation activities do, in fact, continue following the suspension
or revocation of an improvidently issued permit.
J. Section 773.22--Identifying Entities Responsible for Violations
We propose to withdraw current provisions in Sec. 773.22 in their
entirety and replace them with provisions for identifying entities
responsible for violations. The current provisions in Sec. 773.22 are
centered on presumptions of ownership or control to create links based
on common control between applicants and operations with violations.
Thus, they have no meaning in the proposed redesigned approach to
permit information, permit eligibility, investigation, and alternative
enforcement.
Instead, we propose to use Sec. 773.22 to establish provisions for
regulatory authorities to identify in AVS outstanding violations
attributable to applicants, permittees, and the controllers of surface
coal mining operations. The concept governing the identification of
persons responsible for violations is based upon provisions contained
in the MOUs with State regulatory authorities regarding the operation
of the AVS. By incorporating these provisions into this proposal, we
intend to eliminate the need for the MOUs.
In the introductory paragraph of Sec. 773.22, we propose to make
clear that all persons who own or have the ability to control surface
coal mining operations as a permittee, operator, owner, controller, or
agent have an affirmative duty to comply with the Act, regulatory
program, and approved
[[Page 70599]]
permit. The introductory statement sets the stage for the provisions
that address the alternative to successful environmental compliance. In
Sec. 773.22, we intend to provide for the identification of persons in
AVS that are responsible for violations. In addition, we intend that
OSM and State regulatory authorities are obligated to enter and
maintain in AVS their respective violation information so that the
purposes of the Act may be effectively implemented.
Proposed paragraph (a) provides that OSM or the State regulatory
authority with jurisdiction over the violation will investigate each
outstanding violation of the regulatory program to determine the
identity of those responsible for preventing and correcting the
violation.
Proposed paragraph (b) provides that each owner, controller,
principal, or agent responsible for preventing or ensuring abatement or
correction of the violation will be designated in the AVS as a person
OSM or the State regulatory authority may compel to comply with the Act
and other applicable laws and regulations, as necessary, to correct the
violation. Paragraph (b) is proposed so that persons identified as a
result of the investigation in paragraph (a) are so designated in the
AVS as responsible for the violation.
Proposed paragraph (c) provides that OSM and State regulatory
authorities must enter into AVS all violations issued under the Act or
the regulatory program no more than 30 days after the abatement or
correction period has expired. It further provides that OSM and State
regulatory authorities must maintain the accuracy and completeness of
this information to reflect the most recent changes in status, such as
abatement, correction, termination, and administrative or judicial
appeal. Paragraph (c) is proposed to convey our commitment to maintain
the accuracy and completeness of Federal violation data in AVS and to
require that State regulatory authorities maintain the accuracy and
completeness for State violation data. The integrity of Federal and
State violation data is critical to the effective performance of the
computer system and is therefore critical to our implementation of the
regulatory program.
Proposed paragraph (d) provides that OSM and the State regulatory
authorities must either pursue the appropriate alternative enforcement
action under part 846 against the permittee, operator, or an owner,
controller, or agent, to compel correction of the violation, or make a
determination that referral for alternative enforcement action is not
warranted. Paragraph (d) further provides that the existence of a
performance bond is not the sole basis for a regulatory authority's
determination that alternative enforcement action is not warranted.
Paragraph (d) would enable regulatory authorities, as a result of their
investigation under proposed paragraph (a), to use the proposed
alternative enforcement provisions to make, as appropriate, a
determination under proposed Sec. 846.12, 846.14, or 846.15, or a
referral for prosecution under proposed Sec. 846.11 or 846.16.
K. Section 773.23--Review of Ownership or Control and Violation
Information
We propose to remove the provisions in Sec. 773.23 from our
regulations that provide for the review of ownership or control and
violation information. The current provisions are centered on ownership
or control to create links based on presumptions of common control
between applicants and operations with violations. Insofar as we
propose to revise definitions for ``ownership'' and ``control'' and
eliminate the use of rebuttable presumptions, the current provisions in
this section have no meaning in the proposed redesign.
L. Section 773.24--Procedures for Challenging a Finding on the Ability
to Control a Surface Coal Mining Operation
We propose to revise the provisions at Sec. 773.24 to provide for
challenges to a finding on the ability to control a surface coal mining
operation. We believe that the redesigned approach entitles persons,
under certain conditions, to challenge whether they have the ability to
control a surface coal mining operation. Unlike the current regulations
at Sec. 773.24, the proposed provisions are not centered on the use of
the rebuttable presumption, jurisdiction based upon whether entity
relationships are shown in AVS, ownership or control links, or the
existence of a violation.
To further contribute to the clarity of Sec. 773.24, we propose to
add headings to improve the organization of the provisions. We also
propose to amend the language and to remove references to ``ownership
or control links'' and to add instead ``a finding on the ability to
control a surface coal mining operation.'' The provisions would be
organized under the following headings: (1) who may challenge; (2) how
to submit a written challenge; (3) the issuance of a written decision;
(4) service procedures; (5) the relevant procedures for appeal; and (6)
a limitation on the use of the provisions.
We propose to change the title of Sec. 773.24 from ``Procedures for
challenging ownership or control links shown in AVS'' to ``Procedures
for challenging a finding on the ability to control a surface coal
mining operation.'' The proposed change of the section's title
illustrates the change in the focus of these procedures.
Proposed paragraph (a) provides for who may challenge a finding on
the ability to control a surface coal mining operation. It states that
any person listed as owning or controlling a surface coal mining
operation in a pending permit application, or who OSM or a State
regulatory authority finds as an owner or controller, may, prior to
providing certification under proposed Sec. 778.13(m), challenge the
listing or finding in accordance with paragraphs (b) through (d) of
proposed Sec. 773.25. We propose to change the phrase, ``[a]ny
applicant or other person'' to ``[a]ny person'' for succinctness. The
definition of ``person'' at Sec. 700.5 includes all entities that are
entitled to make use of these procedures.
We propose to amend the current provision to clarify that persons
who wish to challenge a finding on their ability to control a surface
coal mining operation are entitled to do so, either (1) while the
relevant application is pending before the regulatory authority, or (2)
after OSM or the regulatory authority has found that a person has the
ability to control an operation but was not identified to the
regulatory authority either by the applicant or later by the permittee.
We believe that once a person certifies, under proposed Sec. 778.13(m),
to being a controller of the applicant and under the jurisdiction of
the Secretary and the regulatory program, that any attempt to challenge
a finding of control is without merit.
We believe that while an application is pending before the
regulatory authority, a person has sufficient knowledge and opportunity
to challenge its ability to control the proposed operation. In the case
of persons that OSM or the regulatory authority discovers have the
ability to control the operation after a permit is issued, we believe
such persons are entitled to challenge the finding. However, we also
believe that such persons and the permittee are also subject to
investigation, under proposed Sec. 773.15(b)(1)(i), as to the
circumstances surrounding the permittee's failure to disclose the
controller.
Proposed paragraph (b) explains how a person may challenge a
finding on the ability to control a surface coal mining
[[Page 70600]]
operation. It states that any person who wishes to challenge his status
in the application, or a finding that he has or had the ability to
control a surface coal mining operation, must submit a written
explanation of the basis of the challenge to the agency with
jurisdiction over any existing violations, or absent a violation, to
the agency with jurisdiction over the pending application. The written
challenge should be accompanied by supporting evidence and supporting
documents.
Proposed paragraph (c) provides for the agency's written decision
in response to a challenge of a finding on the ability to control a
surface coal mining operation.
Proposed paragraph (c)(1) provides that the agency with
jurisdiction will review any information submitted under paragraph (b)
and will issue a written decision on whether the person filing the
challenge has the ability to control the relevant surface coal mining
operation. Proposed paragraph (c)(1) further provides that the agency
issuing the decision will notify the person and any regulatory
authorities with an interest in the challenge. The agency issuing the
decision is also required to update, as necessary, the relevant
information in AVS. By way of this provision, we intend that the agency
with jurisdiction will issue a written decision, as a matter of record,
on each challenge made under these procedures. In addition, we intend
that each regulatory authority with an interest in the challenge should
receive a copy of the decision. We also intend that the agency issuing
the decision will update AVS, as necessary, should the decision affect
information contained in the computer system. In keeping with our
commitment to maintain the integrity of the system's data, we believe
that it is important to require any necessary updates to the
information in AVS under these procedures.
Proposed paragraph (c)(2) requires that the agency issuing the
decision must serve a copy of the decision on the person by certified
mail, or by any means consistent with the rules governing service of a
summons and compliant under Rule 4 of the Federal Rules of Civil
Procedure, or the equivalent State counterpart. Proposed paragraph
(c)(2) further provides that service will be complete upon delivery of
the notice or of the mail and will not be considered incomplete because
of a refusal to accept.
Proposed paragraph (c)(3) provides for the appeals procedures
afforded to persons who use these procedures. We propose that any
person who is or may be adversely affected by a decision under
paragraph (c)(1) may appeal the agency's decision to the Department of
the Interior's Office of Hearings and Appeals within 30 days of service
of the decision in accordance with 43 CFR Sec. 4.1380 et seq., or the
equivalent State counterparts. Paragraph (c)(3) further provides that
the decision will remain in effect during the pendency of an appeal,
unless temporary relief is granted in accordance with 43 CFR
Sec. 4.1386, or the equivalent State counterpart.
Proposed paragraph (d) provides that a permittee or operator may
not use these procedures to challenge their joint and several liability
to pay reclamation fees under section 402 of the Act. We have proposed
this provision to clarify that challenges to the ability to control a
surface coal mining and reclamation operation does not include the
ability to challenge the joint and several liability of permittees and
operators to pay reclamation fees.
M. Section 773.25--Standards for Challenging a Finding or Decision on
the Ability to Control a Surface Coal Mining Operation
We propose to revise the provisions at Sec. 773.25 to provide
standards for challenging a finding on the ability to control a surface
coal mining operation. We propose to change the title of Sec. 773.25
from ``Standards for challenging ownership or control links and the
status of violations'' to ``Standards for challenging a finding or
decision on the ability to control a surface coal mining operation'' to
be consistent with the redesigned approach.
Proposed paragraph (a) provides that the provisions of Sec. 773.25
apply whenever a person exercises a right, under the provisions of
Secs. 773.20, 773.21, or 773.24 or under the provisions of part 775, to
challenge a decision that he or she has the ability to control a
surface coal mining operation. We are amending paragraph (a) to delete
the reference to Sec. 773.23. Section 773.23 would be deleted from our
regulations as unnecessary within the proposed redesign. The phrase,
``ownership or control link'' is deleted because the definition for the
phrase is proposed to be deleted.
Proposed paragraph (b) provides for agency responsibility in these
provisions. Paragraph (b) includes four subparagraphs as follows.
Proposed paragraph (b)(1) provides that the State regulatory
authority which cites a violation must make a decision on a challenge
to a finding of the ability to control surface coal mining operations
with respect to a State-issued citation. The proposed provision is
based upon the current regulation at Sec. 773.25(b)(1)(i). Current
Sec. 773.25(b)(3) assigns exclusive jurisdiction to OSM for challenges
to information shown in AVS.
We propose to change the focus of the challenge procedures to
whether a person has the ability to control a surface coal mining
operation. In addition, we propose to remove the condition that a
challenge involve a pending application. We believe the standards in
proposed Sec. 773.25 should apply regardless of whether an application
is pending.
Proposed paragraph (b)(2) provides that OSM must make a decision on
a challenge to a finding on the ability to control surface coal mining
operations with respect to Federal violation notices. The proposed
provision is based upon the current regulation at Sec. 773.25(b)(2) but
is restated within the context of a challenge of a person's ability to
control a surface coal mining operation.
Proposed paragraph (b)(3) provides that the regulatory authority
that processed the application or that issued the permit must make the
decision on a challenge to a finding on the ability to control a
surface coal mining operation where there is no outstanding violation.
The proposed provision is based upon the current regulation at
Sec. 773.25(b)(2)(ii), but like proposed (b)(2), it is restated within
the context of a challenge of a person's ability to control a surface
coal mining operation.
Proposed paragraph (b)(4) provides that the State or Federal agency
with jurisdiction over the violation determines whether the violation
has been abated or corrected. The proposed provision is based upon the
current regulation at Sec. 773.25(b)(2)(iv) but is amended to
streamline the language of the current provision.
Proposed paragraph (c) provides for the evidentiary standards that
apply under Sec. 773.25. The evidentiary standards are also found at
paragraph (c) in the current regulation.
Proposed paragraph (c)(1) provides that in any formal or informal
review of a challenge to a finding, the responsible agency will issue a
written decision if it determines that the ability to control exists or
existed during the relevant period. We propose to add this provision to
Sec. 773.25 to expressly require a written decision from the
responsible agency.
Proposed paragraph (c)(2) provides that a person challenging a
finding on his or her ability to control the relevant surface coal
mining operation will have the burden of proving by a preponderance of
evidence, with respect
[[Page 70601]]
to any relevant time period, that he or she did not have the ability to
control the surface coal mining operation. Since we propose to remove
the rebuttable presumption and ``ownership or control link'' from the
regulations, we believe that it follows that the requirement for a
prima facie determination in these standards is no longer necessary.
Proposed paragraph (c)(3) provides that in meeting the burden of
proof set forth in paragraph (c)(2), the person challenging the finding
on his or her ability to control the relevant surface coal mining
operation must present reliable, credible, and substantial evidence and
any supporting explanatory materials. Paragraph (c)(3) further provides
that such evidence and materials submitted to the appropriate
jurisdiction may include those described in the paragraphs that follow.
The proposed provision is based upon the current regulation at
Sec. 773.25(c)(2), but it no longer requires the existence of an
ownership or control link for the reasons previously stated in this
section.
Proposed paragraph (c)(3)(i) provides examples of evidence and
materials that may be submitted to the agency responsible for issuing
the written decision under these provisions.
Proposed paragraph (c)(3)(i)(A) provides that such evidence may
include notarized affidavits containing specific facts concerning the
scope of the duties actually performed by the person; the beginning and
ending dates of the person's control of the applicant, permittee,
operator, or violator; and the nature and details of any transaction
creating or severing the ability to control the applicant, permittee,
operator, or violator. The proposed provision is based on the current
regulation at Sec. 773.25(c)(3)(i)(A) but is restated to be consistent
with proposed provisions.
Proposed paragraph (c)(3)(i)(B) provides that such evidence may
include certified copies of corporate minutes, stock ledgers,
contracts, purchase and sale agreements, leases, correspondence, or
other relevant company records. The proposed provision is based on the
current regulation at Sec. 773.25(c)(3)(i)(B) but is restated to be
consistent with the preceding proposed provisions.
Proposed paragraph (c)(3)(i)(C) provides that such evidence may
include certified copies of documents filed with or issued by any
State, Municipal, or Federal governmental agency. The proposed
provision is based on the current regulation at Sec. 773.25(c)(3)(i)(C)
but is restated to be consistent with the preceding proposed
provisions.
Proposed paragraph (c)(3)(i)(D) provides that such evidence may
include an opinion of counsel when supported by (1) evidentiary
materials; (2) a statement by counsel that he or she is qualified to
render the opinion; and (3) a statement that counsel has personally and
diligently investigated the facts of the matter or, where counsel has
not so investigated the facts, a statement that such opinion is based
upon information which has been supplied to counsel and which is
assumed to be true. The proposed provision is based on the current
regulation at Sec. 773.25(c)(3)(i)(C) but is restated to be consistent
with the preceding proposed provisions.
Proposed paragraph (c)(3)(ii) provides that evidence and materials
presented in proceedings before any administrative or judicial tribunal
reviewing the decision of the responsible agency must be admissible
under the rules of the reviewing tribunal. The proposed provision is
unchanged from the current regulation at Sec. 773.25(c)(3)(ii).
Proposed paragraph (d) provides that, following any determination
by a regulatory authority, or any decision by an administrative or
judicial tribunal reviewing such determination, the regulatory
authority will review the information in AVS to determine if it is
consistent with the determination or decision. Paragraph (d) further
provides that if the regulatory authority finds that the information in
AVS is not consistent with the determination or decision, it will
promptly revise the AVS information to reflect the determination or
decision.
N. Section 774.10--Information Collection
We propose to amend the provisions for information collection in
part 774, Revision, Renewal, and Transfer, Assignment or Sale of Permit
Rights. Consistent with the Paperwork Reduction Act, in proposed
paragraph (a) we note that OMB has approved the information collection
requirements of part 774. Paragraph (a) further provides that this
information will be used by regulatory authorities to determine if the
applicant meets the requirements for revision, renewal, transfer, sale,
or assignment of permit rights and that persons must respond to obtain
a benefit. Paragraph (a) further provides that 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-NEW.
In proposed paragraph (b), we estimate that the public reporting
burden for this part will average 32 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. Paragraph (b) further provides that
comments regarding this burden estimate or any other aspect of these
information collection requirements, including suggestions for reducing
the burden, may be sent to the Office of Surface Mining Reclamation and
Enforcement, Information Collection Clearance Officer, Room 210, 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-NEW in any
correspondence.
We propose to amend Sec. 774.10 to indicate the authority under
which we may require collection of information for part 774. This
section conforms to OMB requirements to publish the estimated time
needed to collect information under certain regulatory provisions. We
invite comments on the estimated average number of hours required to
fulfill the information collection requirements under part 774.
O. Section 774.13--Permit Revisions
We propose to create a paragraph (e) at Sec. 774.13 to provide for
a permittee to report certain ownership or control changes to the
regulatory authority. Proposed paragraph (e) requires a permittee to
report changes of officers, owners, or other controllers where the
permittee is not required to obtain the approval of the regulatory
authority for the change under proposed Sec. 774.17(a)(2). Changes of
persons under proposed Sec. 774.13(e) would not be subject to the
certification provision under proposed Sec. 778.13(m). However, a
permittee must report such a change to the regulatory authority within
60 days after it occurs.
P. Section 774.17--Transfer, Assignment, or Sale of Permit Rights
We propose to amend the provisions at Sec. 774.17, regarding
transfer, assignment, or sale of permit rights. The proposed revisions
include a reorganization of the provisions in this section and various
amendments to the regulatory language. We have found that there is
great variance among the State regulatory authorities in the
implementation of their counterparts to these regulations. In this
proposal, we
[[Page 70602]]
intend to further clarify the use of these regulations, including
distinguishing among those instances where a new permit is required and
those that only require approval for modification of the existing
permit information.
In proposed Sec. 774.17, we have incorporated the effect of the
change in the definition of ``successor in interest'' proposed in
Sec. 701.5. We believe that the proposed definition and the
corresponding procedural changes proposed here in Sec. 774.17(d)
conform more to the statutory requirements for a successor in interest
at section 506(b) of SMCRA. Section 506(b) of SMCRA covers the
conditions under which a successor in interest may continue mining
operations on an approved permit. Section 506(b) requires that the
successor in interest obtain bond coverage and apply for a new permit
within 30 days of succeeding to the interest of an existing permittee.
The procedural change incorporates additional requirements, notably the
permit eligibility requirements proposed at Secs. 773.15 and 773.16,
and the information and certification requirements proposed at
Secs. 778.13 and 778.14.
The proposed heading at paragraph (a), and paragraphs (a)(1) and
(a)(2) that follow are newly-proposed provisions. As indicated above,
we propose to add these provisions to Sec. 774.17 to further clarify
who must obtain approval of a transfer, assignment, or sale of permit
rights.
Proposed paragraph (a) contains two significant changes. First, it
seeks to resolve the identity of the applicant in the case of a
transfer, assignment, or sale of permit rights. We believe that the
permittee has the obligation to obtain the approval of a transfer,
assignment, or sale of permit rights whenever there is a change in
ownership or other effective control over the right to conduct surface
coal mining operations under a permit issued by the regulatory
authority. Second, although all changes in legal identity or
identification of interests require notification to the regulatory
authority under proposed Sec. 774.13(e), only those changes that
require certification under proposed Sec. 778.13(m) will require
written approval from the regulatory authority under this section.
Proposed paragraph (a)(1) provides that the permittee is always the
applicant for a transfer, assignment, or sale of rights granted under a
permit. The proposed provision further provides that the permittee has
the burden of establishing that the application for transfer,
assignment, or sale of permit rights complies with the requirements of
the regulatory program.
Proposed paragraph (a)(2) provides that the permittee must obtain
approval of a transfer, assignment, or sale of permit rights. We
believe that a change or addition of an operator, officer, owner,
controller, permittee, or other person on a permit constitutes a change
of the rights granted under that permit. The permittee must obtain
approval of any transaction for a transfer, assignment, or sale of
permit rights, by which the rights granted under a permit are
transferred, assigned, or sold for any length of time, to a person not
identified on the currently approved permit. The requirement for
approval only applies for those whom certification under proposed
Sec. 778.13(m) will be required.
Proposed paragraph (b) specifies what information is required in
the application for a transfer, assignment, or sale. We propose to
create a heading for paragraph (b) to identify these provisions.
Proposed paragraph (b) provides that the permittee must provide the
regulatory authority with an application for approval of the proposed
transfer, assignment, or sale. As proposed, the application must
include the information specified in the four paragraphs that follow.
This provision is proposed as a consolidation and amendment to the
current regulation at Secs. 774.17(b), (b)(1), and (b)(3).
Proposed paragraph (b)(1) provides that the name and address of the
existing permittee and the relevant permit number must be provided in
the application. This provision is proposed as an amendment to the
current regulation at Sec. 774.17(b)(1)(i). The phrase, ``or other
identifier'' is proposed to be deleted because we believe that for the
transfer, assignment, or sale of rights granted under a permit, an
identifier other than the permit number is irrelevant.
Proposed paragraph (b)(2) provides that a brief description of the
proposed action requiring approval must be provided in the application.
This provision is in the current regulations at Sec. 774.17(b)(1)(ii).
The proposed language is unchanged from the current provision.
Proposed paragraph (b)(3) provides that the legal, financial,
compliance, and related information and violation information required
under Secs. 778.13 and 778.14 for the person(s) proposed to receive
permit rights by way of transfer, assignment, or sale must be provided
in the application. This provision is the current regulation at
Sec. 774.17(b)(1)(iii) and is proposed to be amended. We propose to
amend `` Part 778'' to ``Secs. 778.13 and 778.14.'' We propose to amend
``applicant for approval'' to ``person(s) proposed to receive permit
rights by way of.'' The latter change is proposed to be internally
consistent within the context of the provisions proposed in paragraph
(a).
Paragraph (b)(4) provides that the application contain the bonding
company's written acceptance of those proposed to gain permit rights.
Paragraph (b)(4) is proposed as a new provision. This change is based
on comments received from bonding companies during the outreach phase
of this rulemaking.
The proposed heading and provisions for proposed paragraph (c) are
newly-created. This section explains how the regulatory authority will
review and approve applications for a transfer, assignment, or sale of
permit rights. We are proposing that, as with all other permitting
processes, approval of a transfer, assignment, or sale of permit rights
should require a written finding by the regulatory authority and should
be subject to the permit eligibility review requirements proposed in
Secs. 773.15 and 773.16. We propose to remove prior approval from the
requirements under these procedures. Based upon our experience with
this regulation, we believe that to require prior written approval of a
transfer, assignment, or sale of permit rights is unnecessary. In most
cases the change would have already occurred prior to the request for
regulatory authority approval. The provisions in paragraph (c) also
reflect the incorporation of concepts in related provisions proposed at
part 846 into the procedures for transfer, assignment, or sale of
permit rights.
Proposed paragraph (c)(1) provides that the regulatory authority
must issue a written finding either approving or denying the transfer,
assignment, or sale.
Proposed paragraph (c)(2) provides that the regulatory authority
must evaluate each proposed transfer, assignment, or sale to determine
whether a new permit or bond is required pursuant to the regulatory
program requirements.
Proposed paragraph (c)(3) provides that the regulatory authority
must add the conditions specified in proposed Sec. 773.18 to the
permit, if the transfer, assignment, or sale is to owners or
controllers responsible for outstanding violations.
Proposed paragraph (c)(4) provides that the regulatory authority
must not approve the transfer, assignment, or sale if applicant is
ineligible for a permit under proposed Secs. 773.15(b)(2) or 773.16.
[[Page 70603]]
Proposed paragraph (c)(5) provides that the regulatory authority
must not approve the transfer, assignment, or sale if the proposed
recipient is enjoined or otherwise prohibited from mining under
Sec. 846.16 or by a Federal or State court.
Proposed paragraph (d) provides for the procedures governing a
successor in interest. The provisions in paragraph (d) and paragraphs
that follow are based upon the current regulations at Secs. 774.17(c),
(d), and (f). However, the proposed provisions in paragraph (d) also
reflect revisions based on what we believe conforms more with the
requirements of section 506(b) of SMCRA.
Proposed paragraph (d)(1) requires a successor in interest to apply
for and obtain a new permit in instances where the current permittee
gives up all rights granted under the existing permit. It further
requires that an existing permittee cannot give up all of its rights
granted under a permit until the successor in interest is approved by
the regulatory authority. Section 506(b) of the Act requires that a
successor in interest obtain a new permit. We therefore propose to add
this requirement in these procedures.
Proposed paragraph (d)(2) consists of the requirements a successor
in interest must meet to continue operations under the existing permit.
Paragraph (d)(2) is largely based upon the current regulation at
Secs. 774.17(d) and (f). In order to continue operations, all of the
requirements must be met.
Proposed paragraph (d)(2)(i) provides that the existing permittee
must first obtain written approval of the transfer, assignment, or sale
to allow for the successor to continue operations for the 30 days
pending submittal of a new permit application. The transfer,
assignment, or sale application from the permittee and the items
required from the successor under (d)(2)(i) can be submitted at the
same time and processed simultaneously by us. The application and
information may have to be submitted and processed rapidly to allow for
continued uninterrupted operations.
Proposed paragraph (d)(2)(i)(A) requires that the successor submit
the legal, financial, compliance, and related information and violation
information required under Secs. 778.13 and 778.14.
Proposed paragraph (d)(2)(i)(B) requires that the successor submit
a performance bond, or proof of other guarantee, or obtain the bond
coverage of the original permittee, as required by Subchapter J.
Proposed paragraph (d)(2)(i)(C) requires the successor submit a
signed and notarized written statement assuming the liability and
reclamation responsibilities of the existing permit.
Proposed paragraph (d)(2)(ii) provides that we will review the
information submitted by the successor under paragraph (d)(2)(i)(A) of
this section using the criteria in Secs. 773.15(b)(2) and 773.16 of
this Subchapter.
Paragraph (d)(2)(iii) provides the requirements that if the
successor receives preliminary written approval, they may conduct
mining operations for up to 30 days.
Proposed paragraph (d)(2)(iii)(A) requires that the successor must
conduct the surface coal mining and reclamation operations in full
compliance with the Act and the regulatory program.
Proposed paragraph (d)(2)(iii)(B) provides that the successor must
conduct the surface coal mining and reclamation operations under the
terms and conditions of the existing permit and any additional terms or
conditions that may be imposed by us.
Proposed paragraphs (d)(2)(i)(C), (d)(2)(iii)(A), and
(d)(2)(iii)(B) are based on the current provision at Sec. 774.17(f).
They have been separated here for clarity. The language in the proposed
provisions is basically unchanged from the current regulation.
Proposed paragraph (d)(2)(iii)(C) provides that the successor must
meet any other requirement specified by the regulatory authority.
Proposed paragraph (d)(2)(iii)(D) provides that the successor in
interest must submit an application for a new permit within 30 days of
succeeding to the interests of an existing permittee.
Proposed paragraph (d)(2)(iv) provides that if the successor
submits a complete permit application within 30 days of succeeding to
the existing permittee's interest and meets the other requirements
under paragraph (d)(2(iii), then the successor can continue operations
until we make the decision to either approve or deny the application
for a permit. If we deny the successor's permit application, then the
successor must cease operations.
Proposed paragraph (d)(3) is amended from the current provision at
Sec. 774.17(b)(2). The change means that the advertisement requirements
will only apply to a successor in interest. Persons subject to a
transfer, assignment, or sale of rights granted under a permit will no
longer be required to advertise such a change.
Proposed paragraph (d)(4) is based upon the current provision at
Sec. 774.17(c). The effect of incorporating this requirement into
paragraph (d) is that public participation is limited to situations
involving a successor in interest.
Proposed paragraph (d)(5) provides that the previous permittee will
not be released from responsibilities for any affected area or
disturbed area of the permit unless the successor engages in surface
coal mining operations which affect or disturb previously affected or
disturbed areas and the regulatory authority approves the successor's
application for a new permit. Paragraph (d)(5) further provides that,
until the successor's application for a new permit is approved, both
the previous permittee and its successor will be responsible for
violations created after the successor begins surface coal mining
operations, but prior to the approval of the new permit. We propose to
add this provision to ensure that the permit is protected under the
regulations until the successor is approved as the new permittee. We
believe that it is extremely important that both the previous permittee
and the successor understand their environmental obligations under
these regulations.
Proposed paragraph (d)(6) provides that the successor in interest's
replacement bond should not form the basis for the release of the
previous permittee's bond. We propose to add this provision to be
consistent with the requirements for the release of a performance bond
under Sec. 800.40. We believe that bond release is a separate
consideration from the eligibility of a successor and the issuance of a
new permit. Therefore, the previous permittee would remain under the
Secretary's jurisdiction until the permitted operation has been
substantially re-disturbed or affected by the successors' operations.
The regulatory authorities will continue to pursue compliance from the
correct party that it finds responsible for creating any violations on
the permitted area.
Proposed paragraph (e) provides for the notification procedures
that apply to Sec. 774.17. Proposed paragraph (e)(1) provides that the
regulatory authority must notify the permittee and the successor, the
new operator, or other person gaining permit rights and commenters of
its findings. This provision is based upon the current provision at
Sec. 774.17(e)(1) and is amended to be consistent with other proposed
provisions in Sec. 774.17.
Proposed paragraph (e)(2) provides that the person must immediately
provide notice to the regulatory authority when the transfer,
assignment, or sale of permit rights is complete. The proposed language
is based upon the current provision at Sec. 774.17(e)(2).
[[Page 70604]]
Proposed paragraph (e)(3) provides that the regulatory authority
must update the relevant records in the AVS with the approved transfer,
assignment, or sale or successor in interest information within 30 days
of approval. We propose this mechanism to ensure that the information
in AVS is current.
Q. Section 778.5--Applicability and Definitions
We propose to amend and reorganize the current definition of
``owned or controlled'' and ``owns or controls.'' We propose separate
definitions for ``ownership'' and ``control'' and would move the
definitions from Sec. 773.5 to Sec. 778.5. We believe that the proposed
concepts of ownership or control are similar to the current definition,
but that reorganizing ``ownership'' and ``control'' into separate
definitions will improve clarity and provide a greater understanding of
the various circumstances that meet the definitions.
We have concluded that we should clarify the definitions and better
define who must be disclosed in an application. This change would more
appropriately support the permit information requirements of our
regulations in part 778, which in turn, support the requirements under
section 507 of the Act.
This proposal will eliminate the use of the rebuttable presumption
as it is applied to the current definition of ``owned or controlled''
and ``owns or controls'' and as it is used in various procedures that
we propose to amend. A rebuttable presumption is where OSM's current
definition of ``owns or controls'' presumes that a type of
relationship, an officer for example, is able to control the surface
coal mining operation. In our example, an officer may challenge or
rebut the presumption of control under existing procedures at
Secs. 773.24 and 773.25.
We believe that the emphasis on accurate and complete information
and the mechanisms for investigation and alternative enforcement
reflected in this proposal render the rebuttable presumption
unnecessary under this proposal's redesigned approach to permit
information and permit eligibility. Those persons that certify in an
application under proposed Sec. 778.13(m) that they have the ability to
control the operation and are under the Secretary's jurisdiction for
compliance have established the basis of their responsibility. In this
proposal at Sec. 773.15(b), we have given regulatory authorities the
ability to identify persons who have the ability to control the surface
coal mining operation that have not been identified in an application.
However, we have retained amended procedures for persons to challenge a
finding on their ability to control a surface coal mining operation at
Sec. 773.24 in order to protect the due process rights of such persons.
Taken together, we believe these amendments eliminate the need of the
rebuttable presumption of ownership or control. Accordingly, we propose
to create new Sec. 778.5 and to provide for the separate definitions of
``ownership'' and ``control'' in this new section within part 778,
which provides for the information required from applicants and
permittees.
We propose ``ownership'' to mean holding an interest in a sole
proprietorship, being a general partner in a partnership, owning 50
percent or more of the stock in a corporation, or having the right to
use, enjoy, or transmit to others the rights granted under a permit.
We propose ``control'' to mean to own, manage, or supervise surface
coal mining and reclamation operations, as either a principal or an
agent, such that the person has the ability, alone or in concert with
others, to influence or direct the manner in which surface coal mining
and reclamation operations are conducted.
We do not propose to provide an exhaustive list of persons who
would be covered under the proposed definition of ``control.'' However,
we propose to include in the regulation at Sec. 778.5, that persons who
engage in or carry out surface coal mining and reclamation operations
as an owner or controller, include, but are not limited to: (1) the
president, other officers, directors, agent or person performing
functions similar to a director; (2) those persons who have the ability
to direct the day-to-day business of the surface coal mining operation;
(3) the permittee or an operator, if different from the permittee; (4)
partners in a partnership, the general partner in a limited
partnership, or the participant(s), member(s), or manager(s) of a
limited liability company; (5) persons owning the coal (through lease,
assignment, or other agreement) and retaining the right to receive, or
direct delivery of, the coal; (6) persons who make the mining
operations possible by contribution (to the permittee or operator) of
capital or other resources necessary for mining to commence or to
continue operations at the site; (7) persons who control the cash flow
or can cause the financial or real property assets of a corporate
permittee or operator to be employed in the mining operation or
distributed to creditors; and (8) persons who cause operations to be
conducted in anticipation of their desires or who are the animating
force behind the conduct of operations.
At (6), examples of resources include a personal guarantee to
obtain the reclamation bond, the assumption of responsibility for the
liability insurance, a captive coal supply contract, and mining
equipment.
At (8), ``persons who cause operations to be conducted in
anticipation of their desires'' is consistent with the holding in S & M
Coal Co. and Jewell Smokeless Coal Co. v. OSMRE, 79 IBLA 350 (1984).
Also at (8), ``persons who are the animating force behind the conduct
of operations'' is consistent with the holding in Citronelle-Mobile
Gathering, Inc. v. Herrington, 826 F.2d 16 (Temp. Emer. Ct. App. 1987),
cert. denied sub nom Chamberlain v. United States, 108 S.Ct. 327
(1987).
Those who engage in or carry out surface coal mining operations by
owning or controlling the manner in which mining operations are
conducted are clearly within the Secretary's regulatory jurisdiction
under sections 506(a) and 510(c) of SMCRA. However, not everyone who
``engages in or carries out surface coal mining operations'' under
section 506(a) of the Act needs to be identified in an application. The
proposed definitions of ``ownership'' and ``control'' create a clear
distinction between employees of mining operations and those who
``engage in or carry out mining operations'' by owning, controlling, or
influencing the manner in which mining operations are conducted. A
broad class of persons, including employees, falls under the
jurisdiction of the Secretary of the Interior. However, as proposed
under this redesigned regulatory concept, we would only require a
permit application to identify those who engage in or carry out mining
operations as owners or controllers, and not employees per se.
Requiring the disclosure in an application of all those who engage in
or carry out surface coal mining operations as owners or controllers is
critical under the redesigned approach.
There is a valid reason for making this regulatory distinction
between the different types of persons and business entities who engage
in or carry out mining operations. Employees, as opposed to the owners
and controllers of mining operations, have few responsibilities under
the Act other than to refrain from intentional violations. See section
518(e) of SMCRA. On the other hand, persons who can influence the
manner in which mining operations are conducted have much broader
duties and responsibilities under the Act. Therefore, it is more
important that those who can directly control or
[[Page 70605]]
indirectly influence mining operations be identified in a permit
application.
The failure of the current regulation to require the identification
in an application of persons who own, control, or influence mining
operations has resulted in regulatory authorities expending significant
resources to investigate and identify those who have breached their
responsibilities under the Act. Additionally, many persons who engage
in or carry out mining operations by owning or controlling mining
operations do so without a clear understanding of their personal
responsibilities under SMCRA. All persons who engage in or carry out
mining operations as owners or controllers should recognize that
breaches of their personal duties and obligations place their personal
assets at risk under SMCRA, its implementing regulations, and the case
law interpreting those statutory and regulatory provisions. The
proposed definitions of ``ownership'' and ``control'' will put those
persons and entities who fall within the definitions on express notice
that they have personal duties and obligations under SMCRA.
R. Section 778.10--Information Collection
We propose to amend the provisions for information collection in
part 778, Permit Applications-- Minimum Requirements for Legal,
Financial, Compliance, and Related Information. Consistent with the
Paperwork Reduction Act, in proposed paragraph (a) we note that OMB has
approved the information collection requirements of part 778. Section
507(b) of SMCRA is the authority for regulatory authorities to require
that persons applying for a permit to conduct surface coal mining and
reclamation operations must submit 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. Paragraph (a) further provides that the
regulatory authority uses this information to ensure that all legal,
financial and compliance requirements are satisfied prior to issuance
of a permit and the persons seeking to conduct surface coal mining
operations must respond to obtain a benefit. Paragraph (a) finally
provides that 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 and that the OMB
clearance number for this part is 1029-0034.
In proposed paragraph (b), we estimate that the public reporting
and record keeping burden for this part averages 25 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
record keeping 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.
We propose to amend Sec. 778.10 to indicate the authority under
which we may require collection of information for part 778. This
section conforms to OMB requirements to publish the estimated time
needed to collect information under certain regulatory provisions. We
invite comments on the estimated average number of hours required to
fulfill the information collection requirements under part 778.
S. Section 778.13--Legal Identity and Identification of Interests
We propose to amend the provisions governing the required
disclosure of information by applicants. We tried to provide for the
complete range of information regulatory authorities may require from
applicants. At Sec. 778.13, we first propose to amend the title of the
section to ``legal identity and identification of interests.'' We
propose this change to clarify that the information requirements of
Sec. 778.13 include both the information that identifies various
interests of an applicant and the legal identity of the applicant. The
change also emphasizes the importance of full disclosure of the
applicant's identity and the identity of those who engage in or carry
out surface coal mining operations as owners and controllers to the
review of an application under the provisions of proposed
Secs. 773.15(b)(1) and (b)(3)(ii).
We also propose in Sec. 778.13 to make the disclosure of the
information required in Sec. 778.13 easier for applicants that have
existing or previous permits by using the technology afforded by AVS.
Those applicants may provide the information required under Sec. 778.13
by certifying that the information contained in AVS at the time of
application is accurate and complete. This provision substantially
reduces the information collection burden for such applicants.
Moreover, we expect regulatory authorities may also reduce their review
of the certified information under Sec. 778.13.
We also propose to amend the provisions at Sec. 778.13 to require
applicants to disclose the identity of any operator, known at the time
of application, that is different from the applicant. We propose that
the applicant provide not only the identity of the operator, but of
those who engage in or carry out surface coal mining operations as the
operator's owners and controllers. The entire Sec. 778.13 is proposed
here, including parts of the regulation that we are not proposing to
change, so that the section may be viewed in its entirety. As discussed
below, there are certain individual provisions for which no substantial
changes is proposed, but that have been re-numbered to accommodate
additional provisions.
We propose in the introductory paragraph of Sec. 778.13 that an
application must contain the information specified in proposed
paragraphs (a) through (n), unless the applicant has existing permits,
in which case certification under proposed paragraph (o) also applies.
Proposed paragraph (a) requires that an application contain a
statement as to whether the applicant is a corporation, partnership,
single proprietorship, association, or other business entity. This
provision is unchanged from the current regulation.
Proposed paragraph (b) requires that an application contain the
name, address, telephone number, and taxpayer identification number of
(1) the applicant, (2) the applicant's resident agent who will accept
service of process, (3) the operator (if different from the applicant),
(4) person(s) responsible for submitting the Coal Reclamation Fee
Report (OSM-1) and for remitting the reclamation fee payment to OSM,
and (5) the identity of all other persons who will engage in or carry
out surface coal mining operations as an owner or controller on the
permit.
We propose three amendments in paragraph (b). First, we would
delete reference to the voluntary submission of social security numbers
for individuals. Instead, we will require a taxpayer identification
number for each person identified in the provision. We would amend this
provision under the authority of the Debt Collection
[[Page 70606]]
Improvement Act of 1996. The effect of this statute is that if a person
wishes to conduct business with the Federal Government, then the person
must supply its taxpayer identification number. Taxpayer identification
number means the social security number for individuals and the
employer identification number for businesses.
Second, we propose to amend ``resident agent'' to ``resident agent
who will accept service of process.'' We propose this change because we
believe the principal function of a resident agent is to receive
communications for a company that is domiciled in a State apart from
where it conducts business. We also believe that it is important not to
confuse a company's resident agent with those individuals who both
represent the interests of the company and have the ability to control
the company, and who are therefore agents of the company.
Third, we would require the identity of all persons who will engage
in or carry out surface coal mining operations as owners or controllers
on the proposed permit. We believe that the applicant has the
responsibility to provide this information.
As indicated by way of the provisions proposed below in paragraphs
(c), (e), (f), (g), and (m), there are certain inescapable obligations
on the part of the applicant and those persons who propose to engage in
or carry out surface coal mining operations. One such obligation is the
full disclosure of persons having the ability to control the surface
coal mining and reclamation operation. Therefore, the regulatory
authority should have the ability to take certain actions if persons
having the ability to control the operation are not identified in an
application or later by the applicant or permittee, but instead, are
later discovered by OSM or the State regulatory authority.
We propose that OSM and the regulatory authority take such actions
against the permittee, persons identified in the application, and
persons not identified in the application, for failure to fully
identify the applicant or permittee. They should be subject to a range
of sanctions, including those provided for in section 521(c) of the Act
and proposed at Sec. 846.16.
Proposed paragraph (c) requires that the information required in
paragraphs (c)(1), (c)(2), and (c)(3).
Proposed paragraph (c)(1)(i) requires each person's name, address,
and taxpayer identification number. We propose to amend the current
provision to delete the language for the voluntary submission of an
individual's social security number. As explained above ``taxpayer
identification number'' would mean either an employer identification
number or a social security number, whichever is applicable.
Proposed paragraph (c)(1)(ii) requires disclosure of the person's
ownership or control relationship to the applicant, including
percentage of ownership and location in the organizational structure.
Proposed paragraph (c)(1)(iii) requires that the application
include the title of the person's position, the date that the person
assumed the position, and, when submitted under existing
Sec. 773.17(h), the date of departure from the position. This provision
is unchanged from the current regulations.
Proposed paragraph (c)(2) requires the name, address, and taxpayer
identification number for publicly traded corporations.
Proposed paragraphs (c)(3)(i) through (iii) require you to provide
the information required by paragraphs (c)(1) or (2) of the section for
every officer, director, and person performing a function similar to a
director.
Proposed paragraph (c)(3)(iv) requires this information for a
person who owns or controls the applicant or the operator. Paragraph
(c)(3)(v) requires this information for a person who owns 10 to 50
percent of the applicant or the operator.
Proposed paragraph (d) provides that the applicant need not report
any owner that is a corporation not licensed to do business in any
State or territory of the United States. This is a new provision that
we propose as a mechanism to reduce the information collection burden
of applicants. Based upon the experience of OSM and State regulatory
authorities with the information collection provisions of Sec. 778.13,
we see no need to continue to require the identity of any owner of an
applicant that is not licensed to do business in any State or territory
of the United States. We believe that in any communication with an
applicant, or the owners or controllers of an applicant, whether it
routine correspondence or the notification of a violation, it is
unlikely that a business entity so far removed from the surface coal
mining operation could adequately respond. It has been our experience
that shareholders of applicants and permittees that are ``foreign'' to
the States and territories of the United States have little direct
knowledge of the surface coal mining operation. We believe that it is
unnecessary to continue to collect information that provides little
benefit to the regulatory program.
Proposed paragraph (e) requires that for the applicant and each
partner or principal shareholder of the applicant and operator, the
application must include each name under which the person operates or
previously operated a surface coal mining and reclamation operation in
the United States within the five years preceding the date of the
application. Paragraph (e) is former paragraph (d) proposed in an
amended form. We would revise the requirements to apply to the
operation of a surface coal mining and reclamation operation instead of
the ownership or control of a surface coal mining and reclamation
operation, as provided in the current regulation. This amendment is
internally consistent with the redesign of the regulatory program
represented by this proposal.
Proposed paragraph (f) requires that the application contain 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. Paragraph (f)
consists of the current regulation at Sec. 778.13(e) and is re-
numbered. The language of the provision is unchanged from the current
regulation.
Proposed paragraph (g) requires that the application contain the
operation's name, address, identifying numbers, including taxpayer
identification number, Federal or State permit number and Mine Safety
and Health Administration (MSHA) number, and the regulatory authority,
for any surface coal mining operation permit held by the applicant or
operator during the five years preceding the date of the application.
Paragraph (g) is proposed as a revision of the current Sec. 778.13(f)
to change the focus from operations owned or controlled by the
applicant to the permits held by the applicant or operator during the
five years preceding the date of application. The information provided
here in proposed Sec. 778.13(g) forms the basis for a regulatory
authority's review of an applicant's permit history at proposed
Sec. 773.15(b)(2). The current provision at Sec. 778.13(f)(2) is
deleted. The proposed provision requires permit information from the
applicant and any operator different from the applicant. The current
regulation at Sec. 778.13(f)(2) provides for identifying ownership or
control relationships to the applicant, including percentages of
ownership. This information is unnecessary within this proposal's
redesigned approach.
Proposed paragraph (h) requires that the application must contain
the name and address of each legal or equitable
[[Page 70607]]
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. Paragraph (h) consists of the current regulation
at Sec. 778.13(g) and is proposed to be re-numbered. The language of
the provision is unchanged from the current regulation.
Proposed paragraph (i) requires the name and address of each owner
of record of all property (surface and subsurface) contiguous to any
part of the proposed permit area. Paragraph (i) consists of the current
regulation at Sec. 778.13(h) and is re-numbered. The language of the
provision is unchanged from the current regulation.
Proposed paragraph (j) requires the MSHA numbers for all mine-
associated structures that require MSHA approval. Paragraph (j)
consists of the current regulation at Sec. 778.13(i) and is re-
numbered. The language of the provision is unchanged from the current
regulation.
Proposed paragraph (k) requires that an application must contain 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. Paragraph (k) further
provides that, 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). Paragraph (k) consists of the current
regulation at Sec. 778.13(j) and is re-numbered. The language of the
provision is unchanged from the current regulation.
Proposed paragraph (l) requires that after an applicant is notified
that its 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 (k). Paragraph (l) consists of the current
regulation at Sec. 778.13(k) and is re-numbered. The provision is
proposed to be amended to change the reference, ``(a) through (f)'' to
``(a) through (k)'' to conform to the revisions proposed in
Sec. 778.13.
Proposed paragraph (m) requires that, prior to permit approval, all
persons who will engage in or carry out surface coal mining operations
as owners or controllers on the proposed operation must certify that
they have the ability to control the proposed surface coal mining
operation. This certification must also include a statement that these
persons are under the jurisdiction of the Secretary of the Interior for
the purposes of compliance with the terms and conditions of the permit
and the requirements of the regulatory program. We intend that all
persons who will engage in or carry out surface coal mining operations
as owners, controllers, or persons having the ability to control a
proposed operation, should be fully aware of their statutory and
regulatory obligations under the Act, the regulatory program, and the
permit. It is important they understand that they will be held
accountable for compliance with the Act and the regulatory program
under the authority of the Secretary of the Interior. We propose to
require that all such persons attest to their knowledge of these
obligations in the application for a surface coal mining and
reclamation permit. By acknowledging and attesting to their obligations
under the Act, the regulatory program, and the permit prior to approval
and issuance, such certification will establish the basis of their
responsibility.
Proposed paragraph (n) provides that the applicant must submit the
information required by this section and Sec. 778.14 of this part in
the format that OSM prescribes. Paragraph (n) consists of the current
regulation at Sec. 778.13(l) and is proposed to be re-numbered. The
language of the provision is essentially unchanged from the current
regulation.
Proposed paragraph (o) provides that applicants who have previously
applied for permits and for whom relevant data resides in AVS may
certify to the regulatory authority that the information in AVS is
complete, accurate, and up-to-date. Paragraph (o) further provides that
only information that has changed from a previous application or site-
specific information needs to be provided in the current application.
We propose to add this provision in response to comments received
during the public outreach. We believe that the AVS computer system
offers many as yet unused benefits. The most beneficial advantage to
the regulated community is the use of the system's data to relieve
certain information collection burdens, notably the information
requirements in Sec. 778.13.
Proposed paragraph (p) provides that the regulatory authority may
establish a central file to house the legal identity information for
each applicant, rather than placing duplicate information in each
permit application file. This provision is proposed in response to
comments received during the public outreach effort conducted before
the development of this proposal. We believe that the provision could
effectively reduce the amount of duplicate information required from
applicants by the regulatory authorities. It is important to note,
however, that the establishment of such files by a regulatory authority
is voluntary.
T. Section 778.14--Violation information
We propose to retain the current provisions in Sec. 778.14, except
to amend paragraph (c). However, the entire Sec. 778.14 is proposed
here, in order that the section may be viewed in its entirety. There
are no substantive changes proposed in the provisions at paragraphs
(a), (b), and (d). At paragraph (c), we propose to remove reference to
Sec. 773.5, reference to the definition of ``owned or controlled'' and
``owns or controls,'' and to confine the information requirement,
regarding violation notices and outstanding violation notices, to the
applicant and to surface coal mining operations owned or controlled by
the applicant. The reason for this change is sufficiently explained
elsewhere in this preamble, notably at Secs. 773.5 and 778.5. We also
propose to eliminate the requirement that an applicant certify that
violation notices are in the process of being corrected. Applicants who
must prove that violation notices are in the process of being corrected
would be identified in proposed Sec. 773.18(b). We believe that
experience with this regulation has raised the question as to the
benefits of the certification requirement. By proposing to eliminate
the certification requirement, we intend to reduce the information
collection burden for applicants under Sec. 778.14. In this proposal,
the current provision at Sec. 773.15(b)(2) containing the cross-
reference to the certification requirement here in Sec. 778.14 is
removed and replaced with new provisions.
We propose that the introductory statement of Sec. 778.14 provide
that each application must contain the information required in the
section. This statement is unchanged from the current regulation.
Proposed paragraph (a) requires that an application must state
whether the applicant or any subsidiary, affiliate, or persons
controlled by or under common control with the applicant has either had
a Federal or State coal mining permit suspended or revoked in the five
years preceding the date of submission of the application or forfeited
a performance bond or similar security deposited in lieu of bond. This
provision is unchanged from the current regulation.
Proposed paragraph (b) requires the application contain a brief
explanation
[[Page 70608]]
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) the 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. The
provisions of paragraph (b) and its five subparagraphs are unchanged
from the current regulation.
Proposed paragraph (c) requires that an application contain 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 owned or controlled by
the applicant. Proposed paragraph (c) further provides that for each
violation notice reported, the list must include the information, as
applicable, described in the five subparagraphs that follow. In
addition to the proposed changes described above, we propose to amend
paragraph (c) by deleting the phrase ``that is deemed or presumed to
be'' from the provision. A significant effect of the changes to the
definitions of ``ownership'' and ``control'' at Sec. 778.5, as
discussed above in that section, is that presumptions of ownership or
control will no longer exist in these regulations. Therefore, we
believe that any reference to a deemed or presumed relationship of the
applicant to operations the applicant owns or controls here in
Sec. 778.14 is unnecessary.
Proposed paragraph (c)(1) provides that for each violation notice
reported, the list must include any identifying numbers for the
operation, including the Federal or State permit number and MSHA
number, the date of issuance of the violation notice, the name of the
person to whom the violation notice was issued, and the name of the
issuing regulatory authority, department or agency. We would amend the
provision by deleting the requirement to provide the date of issuance
of the MSHA number. We intend this change to mean that only the
identifying numbers are required. OSM believes that the list need not
include the date an MSHA number was issued, since the actual MSHA
number should provide sufficient identifying information.
Proposed paragraph (c)(2) provides that for each violation notice
reported, the list must include a brief description of the violation
alleged in the notice. This provision is unchanged from the current
regulation.
Proposed paragraph (c)(3) provides that for each violation notice
reported, the list must include 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. This provision is
unchanged from the current regulation.
Proposed paragraph (c)(4) provides that for each violation notice
reported, the list must include the current status of the proceedings
and of the violation notice. This provision is unchanged from the
current regulation.
Proposed paragraph (c)(5) provides that for each violation notice
reported, the list must include the actions, if any, taken by any
person identified in paragraph (c) of this section to abate the
violation. This provision is unchanged from the current regulation.
Proposed paragraph (d) provides that 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. This provision is unchanged from the current
regulation.
U. Section 842.11--Federal inspections and monitoring
We propose to amend paragraph (e)(3)(i) at Sec. 842.11. It provides
that OSM will take action to ensure that the permittee and operator
will be precluded from receiving future permits while violations
continue at the site. This provision is a consequence of an OSM
finding, in writing, that a surface coal mining operation has been
abandoned and at least one notice of violation has been cited.
Paragraph (e)(3)(i) is proposed to be amended to remove the phrase,
``and owners and controllers of the permittee and operator'' from the
provision. This change is consistent with the redesigned approach
represented by this proposal. The phrase proposed to be removed
indicates that future applications by an applicant whose principals
include the owners or controllers of a permittee or operator of a site
having been abandoned with violations will not be found permit
ineligible based solely upon the violations at the abandoned site. We
propose no changes for the remaining provisions in Sec. 842.11.
V. Section 843.5--Definitions
We propose to delete the entire Sec. 843.5 which contains two
definitions. The definition for ``unwarranted failure to comply'' is
proposed to be moved to Sec. 846.5 under alternative enforcement. The
definition for ``willful violation'' is proposed to be deleted as
inconsistent with the proposed definition of ``willful'' or
``willfully'' under Sec. 701.5.
W. Section 843.11--Cessation Orders
We propose to amend paragraph (g) at Sec. 843.11. It provides that
where OSM is the regulatory authority, OSM will provide written notice
within 60 days after issuing a cessation order to any person who has
been identified under proposed Secs. 773.17(h) and 778.13(c) as a
controller or who has the ability to control the operation against
which the cessation order was issued. We propose this amendment to
revise the cross-references to Secs. 773.17 and 778.13 to be consistent
with the amendments proposed in those sections. No other revisions to
Sec. 843.11 are proposed.
X. Section 843.13--Suspension or Revocation of Permits: Pattern of
Violations
We propose to move Sec. 843.13, the provisions for suspension or
revocation of permits for a pattern of violations, from part 843 to
Sec. 846.14 of part 846, which is proposed to be devoted to alternative
enforcement actions. We have consistently considered suspension or
revocation for a pattern of violations to be one of the remedial
measures that we call alternative enforcement actions. Accordingly, we
propose to move the provisions governing suspension or revocation of
permits for a pattern of violations to part 846. Proposed amendments to
the provisions are discussed below, at part 846.
Y. Section 843.21--Procedures for Improvidently Issued State Permits
We propose to amend paragraphs (d) and (e) of the provisions at
Sec. 843.21, procedures for improvidently issued State permits. We
propose no changes to the current regulations in paragraphs (a), (b),
(c), and (f) at Sec. 843.21, but have re-proposed these provisions to
provide the opportunity for public review and comment. We propose to
amend the Federal enforcement provision at paragraph (d) to add
accurate and complete information to the reasons for not taking
remedial action. We propose to amend the remedies to a notice of
[[Page 70609]]
violation at paragraph (e) to add accurate and complete information to
the reasons a notice of violation might be terminated.
Proposed paragraph (a) of Sec. 843.21 provides for the initial
notice. It provides that, 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), 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, OSM
will issue to the State, and should provide to the permittee, an
initial notice stating in writing the reasons for that belief. This
provision is unchanged from the current regulation.
Proposed paragraph (b) provides for the State's response to the
initial notice. It provides that 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: (1) the permit does not meet
the criteria of Sec. 773.20(b), or the State program equivalent; or (2)
the State is in compliance with the State program equivalents of
Secs. 773.20 and 773.21. This provision is unchanged from the current
regulation.
Proposed paragraph (c) provides for the issuance of a ten-day
notice. It provides that 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. This provision is unchanged from the current regulation.
Proposed paragraph (d) provides for Federal enforcement under these
procedures. After 10 days from the date on which a ten-day notice is
issued under paragraph (c) of Sec. 843.21, if OSM finds that the State
has failed to take appropriate action under the State program
equivalents of Secs. 773.20 and 773.21, or to show good cause for such
failure, OSM will take appropriate remedial action. Paragraph (d)
further provides that such remedial action may include the issuance of
a notice of violation to the permittee or operator 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. This requirement would apply unless certain conditions were
met to the satisfaction of the responsible agency. These conditions
would include: (1) abatement of any violation, or the payment of any
penalty, or fee; (2) execution of a plan to abate the violation or a
schedule to pay the penalty or fee; (3) the information questions have
been resolved; or (4) the permittee, operator, and all operations owned
or controlled by the permittee and operator are no longer responsible
for the violation, penalty, fee, or information. Paragraph (d) further
provides that, under this paragraph, good cause does not include the
lack of State program equivalents of Secs. 773.20 and 773.21. We
propose to amend paragraph (d) to clarify that the regulatory authority
will not take remedial action if the information questions are resolved
to the satisfaction of the responsible agency.
Proposed paragraph (e) provides for the remedies to a 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 either vacate or terminate the
notice as provided for in the subparagraphs that follow.
Proposed paragraph (e)(1) provides that OSM will vacate the notice
of violation if it resulted from an erroneous conclusion under this
section or if ownership or control has been refuted. We propose to
amend this provision to add ``or if ownership or control has been
refuted'' to allow for a successful challenge to the ability to control
a surface coal mining operation under proposed Sec. 773.24. A
successful challenge under Sec. 773.24 would also result in the
vacation of the notice of violation.
Proposed paragraph (e)(2) provides that OSM will terminate the
notice of violation if the three criteria discussed in the
subparagraphs that follow are met.
Proposed paragraph (e)(2)(i) provides that the notice of violation
will be terminated if all violations have been abated, all penalties or
fees have been paid, and all information questions have been resolved.
As with paragraph (d) above, we propose to add information to the
issues covered by this provision. This change is consistent with the
proposed changes at Secs. 773.20 and 773.21.
Proposed paragraph (e)(2)(ii) provides that the notice of violation
will be terminated if the permittee or any operation owned or
controlled by the permittee has filed and is pursuing a good faith
appeal of the violation, penalty, fee, or information request, or has
entered into and is complying with an abatement plan or payment
schedule to the satisfaction of the responsible agency. As with
paragraphs (d) and (e)(2)(i) above, we propose to add information to
the issues covered by this provision.
Proposed paragraph (e)(2)(iii) provides that the notice of
violation will be terminated if the permittee and all operations owned
or controlled by the permittee are no longer responsible for the
violation, penalty, fee, or information. As with paragraphs (d),
(e)(2)(i), and (e)(2)(ii) above, we propose to add information to the
issues covered by this provision.
Proposed paragraph (f) provides for no civil penalty under the
provisions at Sec. 843.21. OSM will not assess a civil penalty for a
notice of violation issued under this section. This provision is
unchanged from the current regulation.
Z. Section 843.24--Oversight of State Permitting Decisions With Respect
to Ownership or Control or the Status of Violations
We would remove the provisions for the oversight of State
permitting decisions with respect to ownership or control or the status
of violations at Sec. 843.24 from the regulations. Our approach to
permit eligibility and permitting decisions would be redesigned by way
of this proposal. Therefore, provisions for oversight of a State's
permitting decisions in the context of presumptions of ownership or
control or the status of a violation are no longer required. However,
this change in no way alters our oversight obligations with respect to
permit information, permitting decisions or the use of the AVS.
Provisions for States to maintain data on State-issued violations in
AVS is provided for in proposed Sec. 773.22. Accordingly, Sec. 843.24
is proposed to be removed from our rules.
AA. Part 846--Alternative Enforcement
We have devoted considerable time and effort to eliciting comments
and suggestions from a broad range of interested parties prior to the
development of a conceptual framework for this proposal. As the
concepts for permit information, permit eligibility, and investigation
evolved, it became apparent that another element was required to
complete the conceptual framework of the redesigned approach. That key
element is alternative enforcement.
In the current regulations, provisions exist for alternative
enforcement at 30 CFR Sec. 845.15(b)(2). Those provisions provide for
appropriate action under sections 518(e), 518(f), 521(a)(4), and 521(c)
of SMCRA whenever a violation has remained unabated for 30 days.
We propose to amend part 846 to provide further regulatory
authority for the use of certain enforcement actions
[[Page 70610]]
that we collectively call ``alternative enforcement.'' We view
alternative enforcement actions as those enforcement measures provided
for under sections 518 and 521 of SMCRA. These actions would be in
addition to those provided for in Sec. 845.15(b)(2), and would include
provisions for individual civil penalties, currently the whole of part
846. Additionally the proposed regulations make it clear that we will
pursue all appropriate remedies to correct SMCRA violations. Permittees
have occasionally acted as if a regulatory authority may pursue only
one of the alternative enforcement options set out in 30 CFR
Sec. 845.15(b)(2). This proposed rule makes it clear that we may pursue
more than one option and are not limited to any single remedy to
correct SMCRA violations.
We have concluded that under the January 31, 1997, Court of
Appeals' ruling, an applicant's owners or controllers with violations
might be able to continue unimpeded, in the surface coal mining
business, although not as a permittee. Therefore, we have sought
through alternative enforcement to compel compliance from those who
would ignore, fail, or refuse to meet their affirmative duty to comply
with the Act and regulatory program. We propose to rely upon the
powerful statutory provisions in the Act which authorize alternative
enforcement. The proposal provides the regulatory means whereby those
statutory remedies are implemented to compel compliance under the
regulatory program. State regulatory authorities have similar
alternative enforcement remedies available under State-law counterparts
to SMCRA. Under this proposal the regulatory authorities will more
readily be able to invoke the remedies available to them.
AA.1. Section 846.1--Scope
We propose to amend Sec. 846.1, the scope of part 846. It states
that part 846 will govern the use of measures provided for in the Act
at sections 201(c)(1), 510(c), 518(e), 518(f), 518(g), 521(a)(4), and
521(c), that we collectively call ``alternative enforcement'' measures
or actions. OSM and State regulatory authorities will use these
measures to compel compliance whenever any person engaging in or
carrying out surface coal mining operations as an owner, controller,
agent, permittee, or operator has failed in his or her duty to promptly
correct violations. A determination, finding, or conviction made under
these provisions must be so designated in the AVS by OSM or the State
regulatory authority for the person for whom the determination,
finding, or conviction is made.
AA.2. Section 846.5--Definitions
We propose to amend Sec. 846.5 by moving the definitions of
``knowingly'' and ``willfully'' to Sec. 701.5 and amend them. The
definition of ``unwarranted failure to comply'' is proposed to be moved
from Sec. 843.5 to Sec. 846.5 to support the provisions for suspension
or revocation of a permit for a pattern of violations.
``Unwarranted failure to comply'' would mean the failure of a
permittee, operator, agent, or owner or controller of a permittee or
operator to prevent the occurrence of any violation of his or her
permit or any requirement of the Act or regulations due to
indifference, lack of diligence, or lack of reasonable care. It also
would mean the failure to abate any violation of such permit or any
requirement of the Act or regulations due to indifference, lack of
diligence, or lack of reasonable care. This amended definition would
pertain to an operator, owner, controller, or agent of a permittee or
operator in addition to the permittee. We also propose to add ``or any
requirement'' between ``any violation of such permit'' and ``of the Act
or regulations.'' This revision addresses an apparent typographical
error in the current definition. We believe the definition of
``unwarranted failure to comply'' is more meaningful within the
provisions for alternative enforcement.
The definition of ``violation, failure, or refusal'' in Sec. 846.5
would mean: (1) A violation of a condition of a permit issued under a
Federal program, a Federal lands program, Federal enforcement under
section 502 of the Act, or Federal enforcement of a State program under
section 521 of the Act; or (2) a failure or refusal to comply with any
order issued under section 521 of the Act, or any order incorporated in
a final decision issued by the Secretary under the Act, except an order
incorporated in a decision issued under sections 518(b) or 703 of the
Act. This language is unchanged from the current definition.
AA.3. Section 846.11--Criminal Penalties
We propose to create Sec. 846.11 to contain the provisions for
criminal penalties. It would provide OSM and State regulatory
authorities with regulatory language to implement the statutory
provisions of section 518(e) of the Act. The language in the proposed
provisions is taken directly from the statutory provisions in section
518(e). Use of these provisions would entail a finding by the
regulatory authority for a person meeting the criteria for criminal
prosecution and the referral of that finding to the Attorney General,
as appropriate, to pursue prosecution under the provisions of the Act
and these regulations.
Proposed paragraph (a) provides that the regulatory authority may
pursue criminal sanctions against any person who willfully and
knowingly (1) violates a condition of a permit; or (2) fails or refuses
to comply with any order issued under section 521 or 526 of the Act or
any order incorporated into a final decision issued by the Secretary;
or (3) makes any false statement, representation, or certification, or
fails to make any statement, representation, or certification in any
application, record, report, plan, or other document filed or required
to be maintained pursuant to the regulatory program or any order or
decision issued by the Secretary under the Act.
Proposed paragraph (b) provides that the regulatory authority may
pursue criminal sanctions against a permittee, operator, or any owner,
controller, principal or agent of the permittee or operator if the
violation, failure or refusal under paragraph (a) of this section
remains uncorrected for more than 30 days after (1) the suspension or
revocation of a permit under Sec. 846.14 of this part, or (2) the
issuance of a violation notice to an unpermitted operation.
Proposed paragraph (c) provides that any person convicted under
proposed Sec. 846.11 may be subject to punishment by a fine of not more
than $10,000 or imprisonment of not more than one year, or both.
AA.4. Section 846.12--Individual Civil Penalties
We propose to replace current Sec. 846.12 with the provisions for
individual civil penalties. Proposed Sec. 846.12 is based on the
existing provisions for individual civil penalties which are currently
the entire part 846 and which, in turn, are based upon the statutory
requirements of section 518(f) of the Act. We propose to re-number the
existing regulations governing individual civil penalties, with only
minor edits to the language of the provisions. We propose these
provisions to authorize the regulatory authority to make a
determination for persons who meet the criteria for the assessment of
an individual civil penalty.
Proposed paragraph (a) introduces the two criteria that must be met
in order for an individual civil penalty to be assessed. The heading is
provided for at current Sec. 846.12.
[[Page 70611]]
Proposed paragraph (a)(1) provides that, except as provided in
paragraph (a)(2) of this section, the regulatory authority may assess
an individual civil penalty against any corporate director, officer or
agent of a corporate permittee or operator who knowingly and willfully
authorized, ordered or carried out a violation, failure or refusal.
This provision is currently at Sec. 846.12(a). The cross-reference
``paragraph (b)'' is changed to ``paragraph (a)(2)'' in the proposed
provisions. In addition, we propose to add ``or operator'' to paragraph
(a)(1) to indicate that any corporate director, officer, or agent of an
operator may also be assessed an individual civil penalty. This
amendment is consistent with other revisions in this proposal, notably
at Secs. 773.15 and 778.13, where we propose to provide for the
responsibilities and obligations of operators, different from the
permittee, in the conduct of surface coal mining and reclamation
operations.
Proposed paragraph (a)(2) provides that the agency will not assess
an individual civil penalty in situations resulting from a permit
violation by a corporate permittee until the agency issues a cessation
order to the corporate permittee for the violation, and the cessation
order has remained unabated for 30 days. The proposed language is
unchanged from the current regulation at Sec. 846.12(b).
Proposed paragraph (b) provides for the amount of individual civil
penalty. The proposed heading is unchanged from the current heading at
Sec. 846.14.
Proposed paragraph (b)(1) provides that in determining the amount
of an individual civil penalty assessed under paragraph (a) of this
section, the regulatory authority will consider the criteria specified
in section 518(a) of the Act, including (i) the individual's history of
authorizing, ordering or carrying out previous violations, failures or
refusals at the particular surface coal mining operation; (ii) the
seriousness of the violation, failure or refusal (as indicated by the
extent of damage and/or the cost of reclamation), including any
irreparable harm to the environment and any hazard to the health and
safety of the public; and (iii) the demonstrated good faith of the
individual charged in attempting to achieve rapid compliance after
notification of the violation, failure or refusal. The current
provision is at Secs. 846.14(a)(i) through (a)(iii). Except for the
amended cross-reference in paragraph (b)(1), the proposed language is
unchanged from the current regulation.
Proposed paragraph (b)(2) provides that the penalty will not exceed
$5,000 for each violation. Paragraph (b)(2) further provides that each
day of a continuing violation may be deemed a separate violation and
the regulatory authority may assess a separate individual civil penalty
for each day the violation, failure or refusal continues, from the date
of service of the underlying notice of violation, cessation order or
other order incorporated in a final decision issued by the Secretary,
until abatement or compliance is achieved. The proposed language is
unchanged from the current regulation at Sec. 846.14(b).
Proposed paragraph (c) provides for the procedure for the
assessment of an individual civil penalty. The heading is unchanged
from the current regulation at Sec. 846.17.
Proposed paragraph (c)(1) provides for the notice of an individual
civil penalty. It states that the regulatory authority will serve on
each individual to be assessed an individual civil penalty a notice of
proposed individual civil penalty assessment, including a narrative
explanation of the reasons for the penalty, the amount to be assessed,
and a copy of any underlying notice of violation and cessation order.
The proposed language is unchanged from the current regulation at
Sec. 846.17(a).
Proposed paragraph (c)(2) provides for the final order and the
opportunity for review. It provides that the notice of proposed
individual civil penalty assessment will become a final order of the
Secretary, 30 days after service upon the individual, unless the
individual files within 30 days of service of the notice of proposed
individual civil penalty assessment a petition for review with the
Hearings Division, Office of Hearings and Appeals, U.S. Department of
the Interior, 4015 Wilson Boulevard, Arlington, Virginia 22203 (Phone:
703-235-3800), in accordance with 43 CFR 4.1300 et seq.; or the OSM and
the individual or responsible corporate permittee agree within 30 days
of service of the notice of proposed individual civil penalty
assessment to a schedule or plan for the abatement or correction of the
violation, failure or refusal. The proposed language is based on the
current regulations at Secs. 846.17(b)(i) and (b)(ii).
Proposed paragraph (c)(3) provides for the service of an individual
civil penalty. Paragraph (c)(3) provides that for purposes of this
section, OSM will perform service on the individual to be assessed an
individual civil penalty by certified mail or by any alternative means
consistent with the rules governing service of a summons or complaint
under Rule 4 of the Federal Rules of Civil Procedure. Service is
complete upon tender of the notice of proposed assessment and included
information or of the certified mail and is not deemed incomplete
because of refusal to accept. The proposed language is based on the
current regulation at Sec. 846.17(c).
Proposed paragraph (d) provides for the conditions under which an
individual civil penalty is paid. The proposed heading is unchanged
from the current heading Sec. 846.18.
Paragraph (d)(1) provides for the payment of an individual civil
penalty when there has been no abatement or appeal of the penalty. It
provides that if a notice of proposed individual civil penalty becomes
a final order in the absence of a petition for review or abatement
agreement, the penalty will be due upon the issuance of the final
order. The proposed language is unchanged from the current regulation
at Sec. 846.18(a).
Proposed paragraph (d)(2) provides for the payment of an individual
civil penalty when the individual subject to the penalty appeals the
penalty. It provides that if an individual named in the notice of
proposed individual civil penalty assessment files a petition for
review in accordance with 43 CFR 4.1300 et seq., the penalty becomes
due upon issuance of a final administrative order affirming,
increasing, or decreasing the proposed penalty. The proposed language
is unchanged from the current regulation at Sec. 846.18(b).
Proposed paragraph (d)(3) provides for the payment of an individual
civil penalty when an abatement agreement has been executed. It
provides that where the regulatory authority and the corporate
permittee or individual have agreed in writing on a plan for the
abatement of, or compliance with, the unabated order, an individual
named in a notice of proposed individual civil penalty assessment may
postpone payment until receiving either a final order from the
regulatory authority stating that the penalty is due on the date of
such final order, or written notice that abatement or compliance is
satisfactory and the penalty has been withdrawn. This provision is
currently at Sec. 846.18(c). Except for punctuation, the proposed
provision is unchanged from the current regulation.
Proposed paragraph (d)(4) provides for instances of delinquent
payment. It provides that following the expiration of 30 days after the
issuance of a final order assessing an individual civil penalty, any
delinquent penalty is subject to interest at the rate established
quarterly by the U.S. Department of the Treasury for use in applying
late charges on late payments to the Federal government, under Treasury
Financial
[[Page 70612]]
Manual 6-8020.20. Paragraph (d)(4) further provides that the Treasury
current value of funds rate is published by the Fiscal Service in the
notices section of the Federal Register and that interest on unpaid
penalties will run from the date payment first was due until the date
of payment. Paragraph (d)(4) further provides that failure to pay
overdue penalties may result in one or more of the actions specified in
Secs. 870.15(e)(1) through (e)(5) and that delinquent penalties are
subject to late payment penalties specified in Sec. 870.15(f) and
processing and handling charges in Sec. 870.15(g). The proposed
language is unchanged from the current regulation at Sec. 846.18(d).
AA.5. Section 846.14--Suspension or Revocation of Permits: Pattern of
Violations
We propose to replace current Sec. 846.14 with provisions to allow
the regulatory authority to suspend or revoke permits for a pattern of
violations. The provisions proposed in Sec. 846.14 are based upon the
current provisions at Sec. 843.13 which, in turn, are based upon the
statutory requirements of section 521(a)(4) of the Act.
Proposed paragraph (a)(1) provides that the Director will issue an
order to a permittee, requiring them to show cause why the permit and
their right to mine under the Act should not be suspended or revoked,
if the regulatory authority determines that a pattern of violations of
any requirements of the Act, this Chapter, the applicable program, or
any permit condition required by the Act exists or has existed, and
that the violations were caused by the permittee willfully or through
unwarranted failure to comply with those requirements or conditions.
Paragraph (a)(2) further provides that violations committed by any
person conducting surface coal mining operations on behalf of the
permittee would be attributed to the permittee, unless the permittee
establishes that the violations were: (1) acts of deliberate sabotage
or in direct contravention of the expressed orders of the permittee; or
(2) willful and knowing violations of a contract provision which the
permittee actively tried to prevent.
Paragraph (a)(3) provides that if OSM determines that a pattern of
violations exists, it will promptly file a copy of any order to show
cause with the Office of Hearings and Appeals. We believe that the
permittee should be protected from a determination under the provisions
of proposed Sec. 846.14 in instances where a violation resulted from
activities that occur in direct opposition to orders or direction given
by the permittee and where the permittee actively tried to prevent a
violation that results from the willful and knowing disregard of a
provision in a contract between the permittee and its operator.
Proposed paragraph (a)(4) provides that the regulatory authority
may determine that a pattern of violations exists or has existed after
considering the circumstances, including: (1) the number of violations,
cited on more than one occasion, of the same or related requirements of
the Act, the regulations, the applicable program, or the permit; (2)
the number of violations, cited on more than one occasion, of different
requirements of the Act, the regulations, the applicable program, or
the permit; and (3) the extent to which the violations were isolated
departures from lawful conduct. We would remove the language in the
current provision whereby a determination of a pattern of violations is
based upon two or more Federal inspections within any 12-month period.
We have concluded that the Act at section 521(a)(4) does not contain
specific criteria as set out in the current regulation. However, we
invite comments on this proposed change.
Proposed paragraph (a)(5) provides that the regulatory authority
will promptly review the history of violations of any permittee or
operator who has been cited for violations of the same or related
requirements of the Act, this Chapter, the applicable program, or the
permit. Paragraph (a)(5) further provides that if, after such review,
the regulatory authority determines that a pattern of violations exists
or has existed, the regulatory authority will issue an order to show
cause as provided in paragraph (a)(1) of this section. This provision
is currently at Sec. 843.13(a)(3). We would amend the provision to add
that we will review a history of violations for the operator in
addition to the permittee. We propose this change to provide for the
responsibilities and obligations of operators, different from the
permittee, in the conduct of surface coal mining and reclamation
operations. We would further amend the provision to remove the language
whereby the review of violations is based upon three or more Federal
inspections within any 12-month period. As discussed above in proposed
paragraph (a)(4), we have concluded that the Act at section 521(a)(4)
does not contain specific criteria as set out in the current
regulation. Therefore, we propose to remove the criteria in the
proposed rule. We also invite comments on this proposed change.
Proposed paragraph (a)(6) provides that, in determining whether a
pattern exists or has existed, OSM will consider only violations issued
as a result of: (1) the enforcement of the provisions of Title IV of
the Act, or a Federal program or a Federal lands program under Title V;
(2) a Federal inspection during the interim program and before the
applicable State program was approved under sections 502 or 504 of the
Act; or (3) Federal enforcement of a State program in accordance with
sections 504(b) or 521(b) of the Act. This provision is currently at
Sec. 843.13(a)(4)(i) and includes paragraphs (A), (B), and (C). We
would amend the current regulation at Sec. 843.13(a)(4) by revising the
language and reorganizing the provisions. In proposed paragraph (a)(6),
the phrase, ``the number of violations within any 12-month period'' is
replaced with ``whether a pattern exists or has existed.'' This
revision is consistent with the amendments to provisions here in
proposed Sec. 846.14 in paragraphs (a)(1) and (a)(3). We would delete
the last clause in paragraph (a)(4) to make the language in paragraph
(a)(6) more concise. In addition, we are re-proposing current
subparagraph (a)(4)(i)(A) as subparagraph (a)(6)(i) to require that the
provision applies not only to Title V, but also to Title IV of the Act.
As indicated above in proposed paragraphs (a)(5) and (a)(6), we
invite comments on what constitutes a pattern of violations.
Specifically, we ask whether the review of the history of violations
and a determination of whether a pattern exists is permit-specific.
Alternatively, should it include a controller's compliance history at
prior operations. For example, if a controller has been associated with
two previous mining operations that have failed to pay reclamation fees
and the current operation is delinquent in paying reclamation fees,
would this constitute a pattern of violations?
We have not re-proposed the current provision at
Sec. 843.13(a)(4)(ii) in Sec. 846.14. We believe that this provision is
inconsistent with our proposal to eliminate the pre-determined number
of inspections and the defined time frame for the occurrence of the
violations in order to establish a pattern of violations.
Proposed paragraph (b) provides for the hearing and order in the
procedures for suspension or revocation of a permit for a pattern of
violations. A heading would be inserted at paragraph (b) identifying
that the provisions that follow pertain to the hearing and order under
these regulations.
Proposed paragraph (b)(1) provides that if the permittee files an
answer to
[[Page 70613]]
the show cause order and requests a hearing under 43 CFR Part 4.1190 et
seq., a public hearing will be provided as set forth in that part.
Paragraph (b)(1) corresponds to the current regulation at
Sec. 843.13(b). Paragraph (b)(1) would be amended to provide for the
specific regulatory citation in 43 CFR Part 4.
Proposed paragraph (b)(2) provides that within the time limits set
forth in 43 CFR Part 4.1190 et seq., the Office of Hearings and Appeals
will issue a written determination as to whether a pattern of
violations exists and, if appropriate, an order. Paragraph (b)(2)
further provides that if the Office of Hearings and Appeals revokes or
suspends the permit and the permittee's right to mine under the Act,
the permittee must immediately cease surface coal mining operations on
the permit and must comply with whichever of the two following
paragraphs is applicable. This provision is revised from the current
regulation at Sec. 843.13(c). We would amend the provision by deleting
``sixty days'' and thereby deferring to 43 CFR Part 4.1190 et seq. for
the time period within which the Office of Hearings and Appeals will
issue a written determination and order.
Proposed paragraph (b)(2)(i) provides that if the permit and the
right to mine under the Act are revoked, the permittee must complete
reclamation within the time specified in the order. The proposed
language is unchanged from the current regulation at Sec. 843.13(c)(1).
Proposed paragraph (b)(2)(ii) provides that if the permit and the
right to mine under the Act are suspended, the permittee must complete
all affirmative obligations to abate all conditions, practices, or
violations as specified in the order. The proposed language is
unchanged from the current regulation at Sec. 843.13(c)(2).
Proposed paragraph (c) provides for the review of violations under
the procedures for suspension or revocation of a permit for a pattern
of violations. It provides that whenever a permittee fails to abate a
violation contained in a notice of violation or cessation order within
the abatement period set in the notice or order or as subsequently
extended, the regulatory authority will review the permittee's history
of violations to determine whether a pattern of violations exists and
will issue an order to show cause as appropriate. This provision is
currently at Sec. 843.13(d). We propose to add a heading to identify
the content of the provision and to delete the cross-reference to
Sec. 845.15(b)(2) from the current regulation. Insofar as we are
proposing fully-developed regulatory provisions for alternative
enforcement actions here in part 846, we believe the cross-reference to
Sec. 845.15(b)(2) in the regulations for suspension or revocation of a
permit for a pattern of violations is no longer required.
Proposed paragraph (d) provides for the service of the show cause
order under the procedures for suspension or revocation of a permit for
a pattern of violations. Paragraph (d) provides that for purposes of
this section and Sec. 846.15 of this part, the permittee and/or
operator, or owner, controller, principal, or agent of the permittee or
operator must be served by certified mail, or by any alternative means
consistent with the rules governing service of a summons or complaint
under Rule 4 of the Federal Rules of Civil Procedure. Paragraph (d)
further provides that service is complete upon delivery of the order or
of the certified mail and is not considered incomplete because of a
person's refusal to accept.
AA.6. Section 846.15--Suspension or Revocation of Permits: Failure to
Comply With a Permit Condition
We propose to create Sec. 846.15 to provide procedures for the
suspension or revocation of a permit for failure to comply with a
permit condition. We believe these provisions are required under the
redesigned approach and are included under alternative enforcement
actions. One of the aspects of the redesign proposed today is an
increased emphasis on the obligations and responsibilities of persons
after a permit is approved and issued. We believe that all persons who
engage in or carry out surface coal mining operations, including
permittees and operators, have an affirmative duty to comply with every
condition under which a permit is issued in order to continue to have
the benefit of an approved permit. We also believe that regulatory
authorities must have the ability to compel compliance of persons who
fail to comply with permit conditions. Moreover, we have concluded that
the statutory provisions in section 201(c) of the Act provide the
authority for proposed Sec. 846.15.
Paragraph (a) of proposed Sec. 846.15 provides the general
provision for suspension or revocation for failure to comply with a
permit condition. It states that if the regulatory authority finds that
a permittee or operator, or any owner, controller, principal, or agent
of a permittee or operator, has failed to comply with any condition
imposed on an approved permit, the agency will order the permittee or
operator, or any owner, controller, principal, or agent of the
permittee or operator, to show cause why the permit should not be
suspended or revoked.
Proposed paragraph (b) provides procedures for suspension or
revocation for failure to comply with additional permit conditions
provided for in proposed Sec. 773.18. Paragraph (b) provides that if
the regulatory authority finds: (1) a permittee has less than five
years experience or controllers without demonstrated successful
environmental compliance; and (2) the permittee or operator, or any
owner, controller, principal, or agent of the permittee or operator has
failed to comply with the additional permit conditions imposed under
Sec. 773.18 and the permittee is unable or unwilling to comply with the
mining and reclamation plans. We have proposed this provision to
provide regulatory authorities with an administrative remedy to use
when a permittee or operator or other person subject to the additional
permit conditions under Sec. 773.18 fails to comply with the additional
conditions. We also invite comments on the proposal in Sec. 846.15,
especially the criteria the regulatory authority would use to find a
permittee unable or unwilling to comply with the mining and reclamation
plan.
Proposed paragraph (c) provides for the hearing and order under the
procedures for suspension or revocation of a permit for failure to
comply with a permit condition.
Proposed paragraph (c)(1) provides that if the permittee files an
answer to the show cause order and requests a hearing under 43 CFR part
4 Subpart L, a public hearing may be provided as set forth in that
part.
Proposed paragraph (c)(2) provides that if the Office of Hearings
and Appeals revokes the permit, the permittee and the operator, if any,
must immediately cease surface coal mining operations on the permit and
must complete reclamation within the time specified in the order.
Proposed paragraph (c)(3) provides that if the permit is suspended,
the permittee and operator must complete all affirmative obligations to
abate all conditions, practices, or violations as specified in the
order.
Proposed paragraph (c)(4) provides that if the right of an owner,
controller, principal or agent of the permittee or operator to engage
in or carry out surface coal mining operations is suspended or revoked,
such person is prohibited from owning, controlling, or serving as a
principal or agent for any surface coal mining operation as specified
in the order.
Proposed paragraph (d) provides for the service of the show cause
order under the procedures for suspension or revocation of a permit for
failure to
[[Page 70614]]
comply with a permit condition. Paragraph (d) provides that the
provisions for service in Sec. 846.14 also govern service under
Sec. 846.15.
AA.7. Section 846.16--Civil Actions for Relief
We propose to create Sec. 846.16 to provide procedures whereby OSM
and State regulatory authorities may pursue civil actions for relief
under the authority of section 521(c) of the Act. We propose to add
these provisions to part 846 to complement administrative
determinations and referrals for prosecution. Under each remedial
action, whether administrative, civil, or criminal, we would seek
compliance from those who would ignore, fail, or refuse to meet their
affirmative duty to comply with the Act and the regulatory program. The
use of the regulations in Sec. 846.16 entails a finding by the
regulatory authority that a person meets the proposed criteria and
referral to the Attorney General, as appropriate, to pursue one or more
appropriate civil actions under the Act and these regulations.
Proposed paragraph (a) provides that under section 521(c) of the
Act, OSM will request the Attorney General to institute civil action
for relief according to these procedures. Civil actions for relief
include a permanent or temporary injunction, restraining order, or any
other appropriate order in the district court of the United States for
the district in which the surface coal mining operation is located or
in which the permittee or operator has its principal office. OSM or the
State regulatory authority will seek such civil action whenever a
permittee or operator, or owner, controller, principal, or agent of the
permittee or operator is found to have committed any one of six actions
described in the paragraphs that follow.
Proposed paragraph (a)(1) provides that OSM or a State regulatory
authority may pursue a civil action for relief if the permittee or
operator, or owner, controller, principal, or agent of the permittee or
operator has: (i) violated or failed or refused to comply with any
order or decision issued by OSM or the State regulatory authority with
jurisdiction under the Act; or (ii) interfered with, hindered, or
delayed the agency with jurisdiction in carrying out the provisions of
the Act or its implementing regulations.
Proposed paragraph (a)(1)(iii) provides that OSM or a State
regulatory authority may pursue a civil action for relief if the
permittee or operator, or owner, controller, principal, or agent of the
permittee or operator has refused to admit the agency's authorized
representative onto the mine site.
Proposed paragraph (a)(1)(iv) provides that OSM or a State
regulatory authority may pursue a civil action for relief if the
permittee or operator, or owner, controller, principal, or agent of the
permittee or operator has refused to allow inspection of the mine by
the agency's authorized representative.
Proposed paragraph (a)(1)(v) provides that OSM or a State
regulatory authority may pursue a civil action for relief if the
permittee or operator, or owner, controller, principal, or agent of the
permittee or operator has refused to furnish any information or report
requested by the agency under the provisions of the Act or its
implementing regulations.
Proposed paragraph (a)(1)(vi) provides that OSM or a State
regulatory authority may pursue a civil action for relief if the
permittee or operator, or owner, controller, principal, or agent of the
permittee or operator has refused to allow access to, and copying of,
such records as the agency determines necessary to carry out the
provisions of the Act and its implementing regulations.
Proposed paragraph (b) provides that temporary restraining orders
will be issued in accordance with Rule 65 of the Federal Rules of Civil
Procedure, as amended.
Proposed paragraph (c) provides that any relief granted by the
court to enforce an order under paragraph (a)(1)(i) of this section
will continue in effect until completion of all proceedings for review
of such order under the Act or its implementing regulations unless,
beforehand, the district court granting such relief sets aside or
modifies the order.
We also propose to incorporate the current provisions at
Secs. 846.17 and 846.18 into the provisions proposed at Sec. 846.12, as
noted in that section.
IV. Procedural Determinations
1. Executive Order 12866--Regulatory Planning and Review
This document is not a significant rule and is not subject to
review by the Office of Management and Budget under Executive Order
12866.
a. This rule will not have an effect of $100 million or more on the
economy. It will not adversely affect in a material way the economy,
productivity, competition, jobs, the environment, public health or
safety, or State, local, or Tribal governments or communities.
b. This rule will not create a serious inconsistency or otherwise
interfere with an action taken or planned by another agency.
c. This rule does not alter the budgetary effects or entitlements,
grants, user fees, or loan programs or the rights or obligations of
their recipients.
d. This rule does not raise novel legal or policy issues.
2. 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.).
This determination is based on the findings that the regulatory
additions in the rule will not significantly change costs to industry
or to the Federal, State, or local governments. Furthermore, the rule
produces no adverse effects on competition, employment, investment,
productivity, innovation, or the ability of United States enterprises
to compete with foreign-based enterprises in domestic or export
markets.
3. Small Business Regulatory Enforcement Fairness Act
This rule is not a major rule under 5 U.S.C. 804(2), the Small
Business Regulatory Enforcement Fairness Act. This rule:
a. Does not have an annual effect on the economy of $100 million or
more.
b. Will not cause a major increase in costs or prices for
consumers, individual industries, Federal, State, or local government
agencies, or geographic regions because the rule does not impose major
new requirements on the coal mining industry or consumers.
c. Does not have significant adverse effects on competition,
employment, investment, productivity, innovation, or the ability of
U.S.-based enterprises to compete with foreign-based enterprises for
the reasons stated above.
4. Unfunded Mandates
This rule does not impose an unfunded mandate on State, local, or
Tribal governments or the private sector of more than $100 million per
year. The rule does not have a significant or unique effect on State,
local or Tribal governments or the private sector. A statement
containing the information required by the Unfunded Mandates Reform Act
(2 U.S.C. 1531, et seq.) is not required.
5. Executive Order 12630--Takings
In accordance with Executive Order 12630, the rule does not have
significant takings implications. This determination is based on the
fact that the rule will not have an impact on the use or value of
private property and so,
[[Page 70615]]
does not result in significant costs to the government.
6. Executive Order 12612--Federalism
In accordance with Executive Order 12612, the rule does not have
significant Federalism implications to warrant the preparation of a
Federalism Assessment for the reasons discussed in the Record of
Compliance on file in OSM's Administrative Record. The proposed rule
does not meet the threshold criteria for requiring a Federalism
Assessment because it would not ``have substantial direct effects on
the States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among
various levels of government.''
7. Executive Order 12988--Civil Justice Reform
In accordance with Executive Order 12988, the Office of the
Solicitor has determined that this rule does not unduly burden the
judicial system and meets the requirements of sections 3(a) and 3(b)(2)
of the Order.
8. Paperwork Reduction Act
In accordance with 44 U.S.C. 3507, OSM has submitted the
information collection and record keeping requirements of 30 CFR Parts
773, 774, and 778 to the Office of Management and Budget (OMB) for
review and approval.
30 CFR Part 773
Title: Requirements for Permits and Permit Processing.
OMB Control Number: 1029-NEW.
Abstract: The regulations at 30 CFR 773 implement section 510 (c)
of the Act by requiring information from permit applicants, the
coordination and regulatory review of information regarding ownership
and control of the applicant and violation history, and the public
participation in the approval process for a surface coal mining permit.
It also establishes notification requirements and decision criteria for
the agency responsible for making decisions on applications.
Need for and Use: OSM and State regulatory authorities use the
information collected under 30 CFR Part 773 to ensure that persons
planning to conduct surface coal mining operations meet the criteria
for permit approval under section 510(b) of the Act, and is eligible to
receive a permit under section 510(c).
Respondents: Persons who prepare the approximately 300 applications
for permits for surface coal mining operations that OSM and State
regulatory authorities receive each year, and the 24 State regulatory
authorities who must evaluate the permit applications.
Total Annual Burden: OSM estimates that a person will need an
average of 34 hours to prepare the portion of the permit application
required under part 733, including the regulatory review time. The
burden placed on respondents by section is as follows:
BILLING CODE 4310-05-P
[GRAPHIC] [TIFF OMITTED] TP21DE98.058
30 CFR Part 774
Title: Revision; Renewal; and Transfer, Assignment, or Sale of
Permit Rights.
OMB Control Number: 1029-NEW.
Abstract: Sections 506 and 511 of the Act provide that persons
seeking permit revisions, renewals, transfer, assignment, or sale of
permit rights for surface coal mining activities submit relevant
information to the regulatory authority to determine whether the
applicant meets the requirements for the action anticipated.
Need For and Use: OSM and State regulatory authorities use the
information collected to determine whether the application meets the
statutory and regulatory standards for approval of a permit revision,
renewal, or transfer, assignment or sale of permit rights.
Respondents: Persons who prepare the approximately 5,370 annual
permit revisions, renewals, and requests for approval of permit
transfers, sales or assignments and the 24 State regulatory authorities
that process these permit changes.
Total Annual Burden: The estimated annual burden for this part
totals 97,214 hours. Specifically, OSM estimates that 4,000 permit
revisions will be received annually, requiring 8 hours for each
respondent to prepare, and an additional 8 hours for each State
regulatory authority to review and approve or deny. OSM anticipates
receiving 725 permit renewals annually requiring 16 hours for operators
to prepare, and an additional 16 hours for each State regulatory
authority to review and approve or deny. Finally, OSM estimates that
645 applications for transfer, assignment, or sale of permit rights
will be received annually requiring 8 hours to prepare and 8 hours to
review by the appropriate regulatory authority. Therefore, OSM
estimates that respondent burden will be 32 hours for the average
request for permit renewals, revisions, or transfers, assignments or
sales, in addition to the time required for regulatory review.
30 CFR Part 778
Title: Permit Applications--Minimum Requirements for Legal,
Financial, Compliance, and Related Information.
OMB Control Number: 1029-NEW.
Abstract: Part 778 implements section 507(b) of the Act which
provides that
[[Page 70616]]
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 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 to promote public participation.
Need For and Use: OSM and State regulatory authorities use the
information collected to insure that all legal, financial and
compliance requirements are satisfied prior to issuance of a permit.
Respondents: Persons who prepare the approximately 300 annual
permit applications to conduct surface coal mining and reclamation
operations, and the 24 State regulatory authorities who process the
information prior to approval or denial of the application.
Total Annual Burden: The estimated annual burden for this part
totals 8,223 hours, which translates to an approximate burden of 25
hours for respondents to complete this portion of the permit
application, in addition to the time required for regulatory review.
The burden placed on respondents by section is as follows:
BILLING CODE 4310-05-P
[GRAPHIC] [TIFF OMITTED] TP21DE98.059
Comments are invited on:
(a) Whether the proposed collection of information is necessary for
the proper performance of OSM and State regulatory authorities,
including whether the information will have practical utility;
(b) The accuracy of OSM's estimate of the burden of the proposed
collection of information;
(c) Ways to enhance the quality, utility, and clarity of the
information to be collected; and
(d) Ways to minimize the burden of collection on the respondents.
Under the Paperwork Reduction Act, OSM must obtain OMB approval of
all information and record keeping requirements. No person is required
to respond to an information collection request unless the form or
regulation requesting the information has a currently valid OMB control
(clearance) number. These numbers appear in section xxx.10 of 30 CFR
Parts 700 through 955. To obtain a copy of OSM's information collection
clearance requests, explanatory information, and related forms, contact
John A. Trelease at (202) 208-2783 or by e-mail at [email protected].
By law, OMB must submit comments to OSM within 60 days of
publication of this proposed rule, but may respond as soon as 30 days
after publication. Therefore, to ensure consideration by OMB, you must
send comments regarding these burden estimates or any other aspect of
these information collection and record keeping requirements by January
20, 1999, to 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 the appropriate OMB
Control Numbers in any correspondence.
9. National Environmental Policy Act
OSM has prepared a draft environmental assessment (EA) of this
proposed rule and has made a tentative finding that it would not
significantly affect the quality of the human environment under section
102(2)(C) of the National Environmental Policy Act of 1969 (NEPA), 42
U.S.C. Sec. 4332(2)(C). It is anticipated that a finding of no
significant impact (FONSI) will be made for the final rule in
accordance with OSM procedures under NEPA. The draft EA is on file in
the OSM Administrative Record at the address specified previously (see
ADDRESSES). The EA will be completed and a finding made on the
significance of any resulting impacts prior to promulgation of the
final rule.
10. Clarity of this regulation.
Executive Order 12866 requires each agency to write regulations
that are easy to understand. We invite your comments on how to make
this proposed rule easier to understand, including answers to questions
such as the following: (1) Are the requirements in the proposed rule
clearly stated? (2) Does the proposed rule contain technical language
or jargon that interferes with its clarity? (3) Does the format of the
proposed rule (grouping and order of sections, use of headings,
paragraphing, etc.) aid or reduce its clarity? (4) Would the rule be
easier to understand if it were divided into more (but shorter)
sections? (A ``section'' appears in bold type and is preceded by the
symbol ``Sec. '' and a numbered heading; for example, Sec. 773.15). (5)
Is the description of the proposed rule in the SUPPLEMENTARY
INFORMATION section of this preamble helpful in
[[Page 70617]]
understanding the proposed rule? What else could we do to make the
proposed rule easier to understand?
Send a copy of any comments that concern how we could make this
proposed rule easier to understand to: Office Regulatory Affairs,
Department of the Interior, Room 7229, 1849 C Street NW, Washington, DC
20240. You may also e-mail the comments to this address:
E[email protected]
11. Authors
The proposed rule has been developed by the Ownership and Control
Redesign Team. Earl Bandy is the Team Leader. The principal authors
from the Team were Ann Singleton, Gary Kitzmiller, Sherry Wilson, and
Steve McEntegart. Editing the proposed rule was coordinated by Steve
McEntegart, Office of Surface Mining Reclamation and Enforcement, U.S.
Department of the Interior, 1951 Constitution Avenue, N.W., Washington,
D.C. 20240.
List of Subjects
30 CFR Part 701
Law enforcement, Surface mining, Underground mining.
30 CFR Part 724
Administrative practice and procedure, Penalties, Surface mining,
Underground mining.
30 CFR Part 773
Administrative practice and procedure, Reporting and record keeping
requirements, Surface mining, Underground mining.
30 CFR Part 774
Reporting and record keeping requirements, Surface mining,
Underground mining.
30 CFR Part 778
Reporting and record keeping requirements, Surface mining,
Underground mining.
30 CFR Part 842
Law enforcement, Surface mining, Underground mining.
30 CFR Part 843
Administrative practice and procedure, Law enforcement, Reporting
and record keeping requirements, Surface mining, Underground mining.
30 CFR Part 846
Administrative practice and procedure, Penalties, Surface mining,
Underground mining.
Dated: December 4, 1998.
Sylvia V. Baca,
Acting Assistant Secretary, Land and Minerals Management.
For the reasons given in the preamble, OSM proposes to amend 30 CFR
Parts 701, 724, 773, 774, 778, 842, 843, and 846 as set forth below:
PART 701--PERMANENT REGULATORY PROGRAM
1. Revise the authority citation for part 701 to read as follows:
Authority: 30 U.S.C. 1201 et seq.
2. Amend Sec. 701.5 as follows:
a. Remove the definition of Willful violation.
b. Revise the definition of Successor in interest to read as set
forth below:
c. Add the following definitions in alphabetical order to read as
set forth below:
Sec. 701.5 Definitions.
Applicant/Violator System or AVS means the automated information
system of applicant, permittee, operator, violation, and related data
OSM maintains to achieve compliance with SMCRA.
* * * * *
Federal violation notice means a violation notice issued by OSM or
by another agency or instrumentality of the United States.
* * * * *
Knowing or knowingly means that an individual knew or had reason to
know in authorizing, ordering, or carrying out an act or omission that
such an act or omission constituted a violation of the Act, or a
failure or refusal to comply with the Act.
* * * * *
Link to a violation means that a person owning or having the
ability to control the proposed surface coal mining operation has owned
or had the ability to control surface coal mining operations at another
site at the time a violation existed at that other operation.
* * * * *
Outstanding violation means a violation notice that remains
unabated or uncorrected beyond the abatement or correction period.
* * * * *
State violation notice means a violation notice issued by a State
regulatory authority or by another agency or instrumentality of State
government.
* * * * *
Successful environmental compliance means having no outstanding
violations and demonstrating consistent abatement and other correction
of violations, payment of civil penalties, and payment of reclamation
fees within the time frames established for abatement and payment,
allowing for administrative due process.
Successor in interest means a person who the regulatory authority
approves as the new permittee when there is a permittee change.
* * * * *
Violation notice means any written notification from a governmental
entity of a violation of the Act or any Federal regulation issued under
the Act, a State program, or any Federal or State law or regulation
pertaining to air or water environmental protection, in connection with
a surface coal mining operation. It includes, but is not limited to, a
notice of violation; an imminent harm cessation order; a failure-to-
abate cessation order; a final order, bill, or demand letter pertaining
to a delinquent civil penalty; a bill or demand letter pertaining to
delinquent reclamation fees; a notice of bond forfeiture, where one or
more violations upon which the forfeiture was based have not been
corrected; a notice of bond forfeiture where the cost of reclamation
has exceeded the amount forfeited, or in States with bond pools, a
determination that additional reclamation or reimbursement is required.
* * * * *
Willful or willfully means that an individual acted either
intentionally, voluntarily or consciously, and with intentional
disregard or plain indifference to legal requirements in authorizing,
ordering or carrying out an action or omission that constituted a
violation of the Act, or a failure or refusal to comply with the Act or
any Federal or State law or regulation applicable to surface coal
mining operations.
Part 724--INDIVIDUAL CIVIL PENALTIES
3. Revise the authority citation for part 724 to read as follows:
Authority: 30 U.S.C. 1201 et seq.
Sec. 724.5 [Amended]
4. In Sec. 724.5 remove the definitions of Knowingly and Willfully.
PART 773--REQUIREMENTS FOR PERMITS AND PERMIT PROCESSING
5. Revise the authority citation for part 773 to read as follows:
Authority: 30 U.S.C. 1201 et seq., 16 U.S.C. 470 et seq., 16
U.S.C. 661 et seq., 16 U.S.C. 703 et seq., 16 U.S.C. 668a et seq.,
16 U.S.C. 469 et seq., and 16 U.S.C. 1531 et seq.
[[Page 70618]]
Sec. 773.5 [Removed]
6. Remove Sec. 773.5.
7. Revise Sec. 773.10 to read as follows:
Sec. 773.10 Information Collection.
(a) Under the Paperwork Reduction Act, the Office of Management and
Budget (OMB) has approved the information collection requirements of
this part. Regulatory authorities will use this information in
processing surface coal mining permit applications. Persons intending
to conduct such 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-NEW.
(b) We estimate that the public reporting burden for this part will
average 34 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 requirements,
including suggestions for reducing the burden, to the Office of Surface
Mining Reclamation and Enforcement, Information Collection Clearance
Officer, Room 210, 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-NEW
in any correspondence.
8. Amend Sec. 773.15 as follows:
a. In the last sentence of paragraph (a)(1) remove the reference to
``paragraph (b)(2) of this section'' and add ``part 775 of this
chapter'' in its place.
b. Add paragraph (a)(3) to read as set forth below.
c. Revise paragraphs (b)(1), (b)(2), and (b)(3) to read as set
forth below.
d. In paragraph (b)(4)(i)(C)(1) remove the date ``September 30,
1994'' and add ``September 30, 2004'' in its place.
e. Revise paragraph (e) to read as set forth below.
Sec. 773.15 Review of permit applications.
(a) * * *
(3) We, the regulatory authority, will determine whether you, the
applicant, are eligible under Sec. 773.16 to receive a permit.
(i) We will evaluate whether your application contains accurate and
complete information, to make the finding required under paragraph
(c)(1) of this section.
(ii) If we find that you have submitted inaccurate, incomplete, or
inconsistent legal identity, compliance, or technical information, you
must correct the omission, inaccuracy, or inconsistency. We may stop
review of the application until the issue is resolved.
(b) Review of the applicant's legal identity information. (1) We
will make an initial determination whether your legal identity
information submitted under Sec. 778.13 of this chapter is accurate and
complete, based upon information provided in the permit application, an
AVS check, and all other reasonably available information. Once we make
a preliminary determination that the information is accurate and
complete, we will update the relevant records in the AVS with any
previously unreported legal identity information within 30 days. This
update must occur before requesting a report from the AVS on the
applicant's compliance history under paragraph (b)(3)(i) of this
section.
(i) If we find that you, the operator, or any owner, controller,
principal, or agent of you or your operator has knowingly or willfully
concealed information about any person owning or having the ability to
control you or your operator we will--
(A) Inform you in writing of our finding and ask you or the
operator to disclose all persons having such a relationship to you or
the operator before making a decision on a permit application; and
(B) Investigate to determine if your response under paragraph
(b)(1)(i)(A) of this section is a full disclosure.
(1) Depending on the results of your response to paragraph
(b)(1)(i)(A) of this section and the investigation under paragraph
(b)(1)(i)(B), we may deny the permit application; and
(2) Refer our finding to the Attorney General or equivalent State
office for prosecution under section 518(g) of the Act and Sec. 846.11
of this chapter.
(2) Review of the applicant's permit history. (i) We will use AVS
and any other available information to review your permit history and
the permit history of any person with the ability to control you. Our
review will determine how long you or those with the ability to control
you or the operation have conducted surface coal mining operations and
whether such conduct has been in compliance with applicable
requirements.
(ii) If you have 5 years or more experience as a permittee or
operator of a surface coal mining operation, you are not subject to
additional permit conditions under Sec. 773.18 unless any person with
the ability to control you or the operation is linked to an outstanding
violation.
(iii) If we determine from the information provided in the
application under Sec. 778.13 of this chapter that none of the persons
identified in the application has had any previous mining experience,
we will ask you to affirm that neither you nor any person with the
ability to control you has mining experience. We will investigate
whether any person not identified in the application will control the
proposed surface coal mining operation as either an operator or other
controller as defined in Sec. 778.5 of this chapter.
(3) Review of the applicant's compliance history. (i) Review of
violations. We will request a report from AVS on your history of
compliance with SMCRA whenever there is an application for a permit or
revision, renewal, transfer, assignment, or sale of permit rights.
(A) We will rely upon your compliance history, and the history of
operations you owned or controlled, to make a permit eligibility
finding under section 510(c) of SMCRA, unless there is an indication
that the history of persons other than you also should be included.
(B) If you, or any surface coal mining operation you owned or
controlled, has an outstanding violation, we may not approve the
application unless:
(1) The regulatory authority with jurisdiction over the violation
approves a properly executed abatement plan or payment schedule; or
(2) The violation is being abated or is the subject of a good faith
administrative or judicial appeal, contesting the validity of the
violation; or
(3) The violation is subject to the presumption of NOV abatement
under Sec. 773.16(b).
(C) Any application approved with outstanding violations must be
conditioned under Sec. 773.17(j).
(D) OSM will serve a preliminary finding of permanent permit
ineligibility under 43 CFR 4.1351 on you or an operator if we find
that:
(1) You owned or controlled mining operations with a demonstrated
pattern of willful violations of the Act and its implementing
regulations, and
(2) The violations are of such nature and duration that they result
in irreparable damage to the environment so as to indicate your or your
operator's intent not to comply with the Act or implementing
regulations.
(E) You or your operator may request a hearing under 43 CFR 4.1350
through
[[Page 70619]]
4.1356 with the Office of Hearings and Appeals within 30 days of
receiving a preliminary finding under paragraph (3)(i)(D) of this
section. If you or your operator files a request for a hearing under 43
CFR 4.1350 through 4.1356, the Office of Hearings and Appeals will:
(1) Give written notice of the hearing to you or the operator and
(2) Issue a decision within 60 days of the filing of the request
for a hearing.
(F) You or your operator may appeal the decision of the
administrative law judge to the Interior Board of Land Appeals under
procedures in 43 CFR 4.1271 through 4.1276 within 20 days after you or
your operator receives the decision.
(G) You are not eligible for a permit if you or anyone proposing to
engage in or carry out operations on the proposed permit has been
barred, disqualified, restrained, enjoined, or otherwise prohibited
from mining under Secs. 773.15(b)(3)(i)(C) or 846.16 of this chapter or
by a Federal or State court.
(ii) Examination of the applicant's controllers. (A) We ask for an
AVS report on your owners or controllers that shows:
(1) If they owned or controlled a surface coal mining operation
when a violation notice was issued regarding that operation; and
(2) If the violation remains outstanding.
(B) We will investigate each person and violation to determine
whether alternative enforcement action under part 846 of this chapter
is appropriate. We will enter the results of each determination or
referral into AVS.
(C) If we find that you have less than 5 years experience or have
owners or controllers that are linked to outstanding violations:
(1) We will consider you to have insufficient or unsuccessful
environmental compliance and
(2) You will be subject to additional permit conditions under
Sec. 773.18.
* * * * *
(e) Final compliance review. After we determine you are eligible
for a permit, but before the permit is issued, we will review any new
information submitted or discovered during the permit application
review. No more than 3 business days before permit issuance, we will
again request a report from AVS on your history of compliance with
SMCRA to ensure that you are not currently linked to any outstanding
violations.
9. Add Sec. 773.16 to read as follows:
Sec. 773.16 Permit eligibility determination.
(a) We will determine whether you are eligible for a permit based
upon your permit and compliance history, operations you own or control,
and operations you owned or controlled.
(1) If we find you eligible based upon your permit and compliance
history and the compliance history of your owners and controllers under
Sec. 773.15, then we will determine whether we should impose additional
conditions under Sec. 773.18 before permit issuance.
(2) If we find you ineligible, we will send you written notice of
our decision. The notice will tell you why you are ineligible and how
to challenge a finding on the ability to control a surface coal mining
operation.
(b) Presumption of NOV abatement. This paragraph applies to a
notice of violation (NOV) issued under Sec. 843.12 of this chapter or
under a Federal or State program. If the requirements in paragraph
(b)(1) of this section are met, we may presume that an NOV is being
corrected. We then will add conditions to an approved permit using the
presumption of NOV abatement as required under Sec. 773.17(l).
(1) We may presume that an NOV is being corrected to the
satisfaction of the agency with jurisdiction over the violation if:
(i) There is no failure-to-abate cessation order; and
(ii) The abatement period for the notice of violation has not yet
expired.
(2) The presumption in paragraph (b) of this section does not
apply:
(i) If the abatement period has expired;
(ii) If applicants are subject to additional permit conditions
under Sec. 773.18;
(iii) Where evidence that the violation is not being abated appears
in the permit application or otherwise discovered; or
(iv) If the notice of violation is issued for nonpayment of
reclamation fees or civil penalties.
(3) Where the conditions in paragraph (b)(2) of this section apply,
we may not approve the application unless you meet one of the criteria
under Sec. 773.15(b)(3)(i)(B).
10. In Sec. 773.17 revise paragraph (h) and add paragraphs (i)
through (m) 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, you, the applicant, must comply with the
requirements of this paragraph.
(1) You must submit to us, the regulatory authority, either:
(i) All of the information required from a permit application by
Sec. 778.13(c), (e) and (g) of this chapter; or
(ii) If you have already submitted the information required by
paragraph (h)(1)(i) of this section:
(A) Any new information needed to correct or update your previous
submission; or
(B) A written notification that there has been no change since the
last time you submitted the information.
(2) You do not have to make a submission under paragraph (h) of
this section if a stay of the cessation order is granted and remains in
effect.
(i) We assume that you are a controller under the permit if:
(1) You are the permittee, operator, or another person named in the
application; and (2) You are named in the application as having the
ability to determine the manner in which the surface coal mining
operation is conducted.
(j) All controllers are jointly and severally responsible for
compliance with the terms and conditions of the permit and the
regulatory program. All controllers are subject to the jurisdiction of
the Secretary of the Interior. A breach of their responsibility for
compliance with the terms and conditions of the permit and the
regulatory program may result in individual liability for a controller.
(k) We may determine at any time that additional persons are
controllers. After the permit is issued, if we identify any additional
controllers or they are added by you or the operator, the new
controller will be subject to the requirement to certify under
Sec. 778.13(m) of this chapter.
(l) As applicable, you or the operator must abate or correct any
outstanding violation or payment or receive an administrative or
judicial decision invalidating the violation.
(m) The permit is subject to any other special permit conditions we
determine necessary to ensure compliance with the performance standards
and regulations.
11. Add Sec. 773.18 to read as follows:
Sec. 773.18 Additional permit conditions.
We, the regulatory authority, will include additional permit
conditions in any permit issued to you, the applicant, if you have less
than 5 years experience in surface coal mining operations, or if your
controllers have not demonstrated successful environmental compliance.
(a) If you fail to comply with additional permit conditions under
this section, we may find that you are unable or unwilling to comply
with the mining and reclamation plan. This finding constitutes adequate
reason for us to promptly issue an order for you to show cause why we
should not suspend or
[[Page 70620]]
revoke the permit under Sec. 846.15 of this chapter.
(b) You must pay all civil penalties assessed under part 845 of
this chapter within 30 days of the date of a final order of the
Secretary. You must pay all Abandoned Mine Land (AML) reclamation fees
under part 870 of this chapter within 30 days of the end of the
calendar quarter for which they are due. You must pay AML audit debts
within 30 days of the date of the demand letter sent from OSM.
(c) You must take all possible steps to abate any violation within
the period set for abatement.
(d) You must maintain continuous and uninterrupted compliance with
any provision of an abatement plan or payment schedule or other
settlement agreement.
12. Revise Sec. 773.20 to read as follows:
Sec. 773.20 Improvidently issued permits: General procedures.
(a) Permit review. If a regulatory authority believes that it
improvidently issued a surface coal mining and reclamation permit, it
must review the circumstances under which the permit was issued, using
the criteria in paragraph (b) of this section. If we, the regulatory
authority, find that the permit was improvidently issued, we will take
remedial measures under paragraph (c) of this section.
(b) Review criteria. We will find that a surface coal mining and
reclamation permit was improvidently issued if:
(1) Under the violations review criteria of the regulatory program
at the time the permit was issued:
(i) The permit should not have been issued because of an
outstanding violation or a delinquent penalty or fee; or
(ii) 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; or
(iii) You, the applicant, failed to disclose any other relevant
information that, if properly disclosed at the time of the initial
application, would have made you ineligible; and
(2) The violation, penalty, or fee:
(i) Remains outstanding or delinquent; and
(ii) 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
(3) You or any operation owned or controlled by you continues to be
responsible for the violation, penalty, or fee.
(c) Remedial measures. (1) If we find that a permit was
improvidently issued, we will use one or more of the following remedial
measures:
(i) Implement a plan for abatement of the violation, establish a
schedule for payment of the penalty or fee, or require you to correct
the inaccurate information or provide the incomplete information;
(ii) Suspend the permit until:
(A) The violation is corrected to the satisfaction of the
regulatory authority or other issuing authority with jurisdiction over
the violation; or
(B) The penalty or fee is paid; or
(C) The inaccurate or incomplete information is corrected or
provided; or
(iii) Rescind the permit under Sec. 773.21.
(2) If we decide to suspend the permit, we will give you written
notice at least 30 days before the suspension is effective. If we
decide to rescind the permit, we will issue you a notice under
Sec. 773.21. In either case, we will give you the opportunity to
request administrative review of the notice under 43 CFR 4.1370 through
4.1377. Our decision will remain in effect during the pendency of the
appeal, unless you receive temporary relief under 43 CFR 4.1376.
13. Revise Sec. 773.21 to read as follows:
Sec. 773.21 Improvidently issued permits: Rescission procedures.
If we, the regulatory authority, elect under Sec. 773.20(c)(1)(iii)
to rescind an improvidently issued permit, we will serve you, the
permittee, and persons who have the ability to control the operation, a
notice of proposed suspension and rescission. The notice will include
the reasons for our finding under Sec. 773.20(b) and state that:
(a) Automatic suspension and rescission. If we determine that your
permit was improvidently issued, after a period of time we specify (but
not to exceed 90 days), the permit is automatically suspended. We will
rescind your permit within 90 days after the suspension date. However,
we will not suspend or rescind your permit if you submit proof, and we
find, consistent with the provisions of Sec. 773.25, that:
(1) Our finding under Sec. 773.20(b) was erroneous;
(2) The violation has been abated, the penalty or fee paid, or the
information corrected 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;
(4) You and all operations owned or controlled by you are no longer
responsible for the violation, penalty, fee or for providing the
information; or
(5) The information is subject to a pending challenge under
Sec. 773.24.
(b) Cessation of operations. After a permit suspension or
rescission under paragraph (a) of this section, you must cease all
surface coal mining operations under the permit, except for violation
abatement and for reclamation and other environmental protection
measures we require.
14. Revise Sec. 773.22 to read as follows:
Sec. 773.22 Identifying entities responsible for violations.
If you own or have the ability to control a surface coal mining
operation, you have an affirmative duty to comply with the Act, the
regulatory program, and the approved permit.
(a) OSM or the State regulatory authority with jurisdiction over
the violation will investigate each outstanding violation of the
regulatory program to determine the identity of those responsible for
preventing and for correcting the violation.
(b) We will designate you in the AVS as a person we may compel to
correct the violation through compliance with the Act and applicable
laws and regulations if you are an:
(1) Owner;
(2) Controller;
(3) Principal; or
(4) Agent responsible for preventing or ensuring abatement or
correction of the violation.
(c) We will enter into AVS all outstanding violation notices issued
under the Act and regulatory program no later than 30 days after the
abatement or correction period has expired. We will update violation
data in AVS to reflect the most recent change in status, such as
abatement, correction, termination, and administrative or judicial
appeal.
(d) If there is a violation, we will decide whether to pursue the
appropriate alternative enforcement action under part 846 of this
chapter against you, the operator, or an owner, controller, or agent,
to compel correction of the violation. The existence of a performance
bond can not be used as the sole basis for our determination that
alternative enforcement action is not warranted.
Sec. 773.23 [Removed]
15. Remove Sec. 773.23.
16. Revise Sec. 773.24 to read as follows:
[[Page 70621]]
Sec. 773.24 Procedures for challenging a finding on the ability to
control a surface coal mining operation.
(a) Who may challenge. Any person listed as owning or controlling a
surface coal mining operation in a pending permit application, or who
we find as an owner or controller, may, before certification under
Sec. 778.13(m) of this chapter, challenge the listing or finding in
accordance with paragraphs (b) through (d) of this section and
Sec. 773.25.
(b) How to challenge. If you wish to challenge your status in the
application or a finding that you have or had the ability to control a
surface coal mining operation, you must submit a written explanation of
the basis for the challenge to the agency with jurisdiction over any
existing violations. Include any supporting evidence and supporting
documents with your explanation. If there is no violation, submit your
written explanation to the agency with jurisdiction over the pending
permit application.
(c) Written decision. (1) We will review any information you submit
under paragraph (b) of this section and issue a written decision on
whether you have the ability to control the relevant surface coal
mining operation. The agency issuing the decision will notify you and
any regulatory authorities with an interest in the challenge, of the
decision and will update, as necessary, the relevant information in
AVS.
(2) Service. The agency making the decision will serve a copy of
the decision on you by certified mail, or by any means consistent with
the rules governing service of a summons and complaint under Rule 4 of
the Federal Rules of Civil Procedure, or the equivalent State
counterparts. Service is complete upon delivery of the notice or of the
mail and is not incomplete because of a refusal to accept.
(3) Appeals procedures. Any person who is or may be adversely
affected by a decision under paragraph (c)(1) of this section may
appeal OSM's decision to the Department of the Interior's Office of
Hearings and Appeals within 30 days of service of the decision in
accordance with 43 CFR 4.1380 through 4.1387, or the equivalent State
counterparts. The decision will remain in effect during the pendency of
an appeal, unless temporary relief is granted in accordance with 43 CFR
4.1386, or the equivalent State counterpart.
(d) Limitations. No person, including a permittee or operator, may
use these procedures, the procedures in Sec. 773.25, or the procedures
in 43 CFR 4.1380 through 4.1387 to challenge the liability of a
permittee, operator, or other person for reclamation fees assessed
under Title IV of SMCRA.
17. Revise Sec. 773.25 to read as follows:
Sec. 773.25 Standards for challenging a finding or decision on the
ability to control a surface coal mining operation.
(a) When do these provisions apply. The provisions of this section
apply whenever you challenge a decision that you have the ability to
control a surface coal mining operation under the provisions of
Secs. 773.20, 773.21, or 773.24 or under the provisions of part 775 of
this chapter.
(b) Agencies responsible. (1) The State regulatory authority will
make a decision on a challenge to a finding on the ability to control
surface coal mining operations with respect to a State-issued citation.
(2) OSM will make a decision on a challenge to a finding on the
ability to control surface coal mining operations with respect to a
Federal violation notice issued under SMCRA.
(3) The regulatory authority (OSM or the State) which processed the
application or which issued the permit will make a decision on a
challenge to a finding on the ability to control surface coal mining
operations not associated with a violation.
(4) The State or Federal agency with jurisdiction over the
violation will determine whether the violation has been abated or
corrected.
(c) Evidentiary standards. (1) In any formal or informal review of
a challenge to a finding, the responsible agency will issue a written
decision if it determines that the ability to control exists or existed
during the relevant period.
(2) When you challenge a finding on your ability to control the
relevant surface coal mining operation, you must prove by a
preponderance of the evidence, for any relevant time period, that you
did not have the ability to control the surface coal mining operation.
(3) In meeting the burden of proof in paragraph (c)(2) of this
section, you must present reliable, credible, and substantial evidence
and any explanatory materials.
(i) Evidence and supporting material that you present before the
responsible agency may include--
(A) Notarized affidavits containing specific facts concerning the
duties you performed; the beginning and ending dates of your control of
the applicant, permittee, operator, or violator; and the nature and
details of any transaction creating or severing the ability to control
that person;
(B) Certified copies of corporate minutes, stock ledgers,
contracts, purchase and sale agreements, leases, correspondence, or
other relevant company records;
(C) Certified copies of documents filed with or issued by any
State, Municipal, or Federal governmental agency;
(D) An opinion of counsel, when supported by: evidentiary
materials; a statement by counsel that he or she is qualified to render
the opinion; and a statement that counsel has personally and diligently
investigated the facts of the matter or, where counsel has not
investigated the facts, a statement that the opinion is based upon
information which has been supplied to counsel and which is assumed to
be true.
(ii) Evidence and supporting material that you present before any
administrative or judicial tribunal reviewing the decision of the
responsible agency, may include any evidence admissible under the rules
of such tribunal.
(d) Following any regulatory authority determination or any
decision by an administrative or judicial tribunal reviewing such a
determination, the regulatory authority will review the information in
AVS to determine if it is consistent with the determination or
decision. If it is not, the regulatory authority will promptly revise
the information in AVS to reflect the determination or decision.
PART 774--REVISION; RENEWAL; AND TRANSFER, ASSIGNMENT, OR SALE OF
PERMIT RIGHTS
18. Revise the authority citation for part 774 to read as follows:
Authority: 30 U.S.C. 1201 et seq.
19. Revise Sec. 774.10 to read as follows:
Sec. 774.10 Information Collection.
(a) Under the Paperwork Reduction Act, the Office of Management and
Budget (OMB) has approved the information collection requirements of
this part. Regulatory authorities will use this information to
determine if the applicant meets the requirements for revision,
renewal, transfer, sale, or assignment of permit rights. Persons 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-NEW.
(b) We estimate that the public reporting burden for this part will
average 32 hours per response, including time spent reviewing
instructions, searching existing data sources, gathering and
maintaining the
[[Page 70622]]
data needed, and completing and reviewing the collection of
information. Send comments regarding this burden estimate or any other
aspect of these information collection requirements, including
suggestions for reducing the burden, to the Office of Surface Mining
Reclamation and Enforcement, Information Collection Clearance Officer,
Room 210, 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-NEW in
any correspondence.
20. In Sec. 774.13 add paragraph (e) to read as follows:
Sec. 774.13 Permit revisions.
* * * * *
(e) Notice to regulatory authority. You must report changes in
interests required under Sec. 778.13 of this chapter but that do not
require our written approval under Sec. 774.17. You must report this
type of information to us within 60 days of the change. This type of
change includes a change or addition of an officer or other person not
identified on the currently approved permit and not requiring
certification under Sec. 778.13(m).
21. Revise Sec. 774.17 to read as follows:
Sec. 774.17 Transfer, assignment, or sale of permit rights.
(a) Who must obtain approval of a transfer, assignment, or sale of
permit rights?
(1) You, the permittee, must apply to us for a transfer,
assignment, or sale of permit rights. You must be able to show that
your application complies with the requirements of the regulatory
program.
(2) You must obtain our approval for changes--including the change
or addition of an operator, officer, owner, other controller, or
permittee--by which the rights granted under a permit are transferred,
assigned, or sold to a person not identified under the currently
approved permit and requiring certification under Sec. 778.13(m) of
this chapter.
(b) What must your application contain? You must submit an
application to us requesting approval of any proposed transfer,
assignment, or sale, of rights granted under a permit described in
paragraph (a)(2) of this section including--
(1) Your name, address, and permit number;
(2) A brief description of the proposed action requiring approval;
(3) The legal, financial, compliance, and related information and
violation information required under Secs. 778.13 and 778.14 of this
chapter for the person proposed to receive permit rights by way of the
transfer, assignment, or sale; and
(4) The bonding company's written acceptance of those gaining
permit rights.
(c) How will the regulatory authority review and approve
applications for transfer, assignment, or sale?
(1) We, the regulatory authority, will issue written findings
either approving or denying any application for a transfer, assignment,
or sale of rights granted under a permit described in paragraph (a)(2)
of this section.
(2) We will evaluate your application for a transfer, assignment,
or sale to determine whether a new permit or bond is required under the
regulatory program requirements.
(3) We will impose additional permit conditions under Sec. 773.18
of this chapter, if the permit is not already subject to the additional
conditions and if the transfer, assignment, or sale involves a person
responsible for outstanding violations or an operator with owners or
controllers responsible for outstanding violations.
(4) We will disapprove the permittee's request for a transfer,
assignment, or sale of rights under the permit, if the applicant is
ineligible for a permit under Secs. 773.15(b)(2) or 773.16 of this
chapter.
(5) We will disapprove the permittee's request for a transfer,
assignment, or sale of rights under the permit, if the person,
operator, or any owner or controller of the person or operator,
proposed to receive rights under the permit is enjoined or otherwise
prohibited from mining under Sec. 846.16 of this chapter or by a
Federal or State court.
(d) Successor in interest. (1) A permittee cannot give up all
rights granted under an existing permit until the successor in interest
to the existing permit obtains a new permit.
(2) Continued operations under existing permit. (i) In order for
the successor in interest to continue uninterrupted operations under
the existing permit, the permittee must obtain our written approval of
the transfer, assignment, or sale of permit rights and the successor in
interest must submit the following:
(A) The legal, financial, compliance, and related information and
violation information required under Secs. 778.13 and 778.14 of this
chapter;
(B) A performance bond, or proof of other guarantee, or obtain the
bond coverage of the original permittee, as required by subchapter J of
this title; and
(C) A signed and notarized written statement assuming the liability
and reclamation responsibilities of the existing permit.
(ii) We will review the information submitted by the successor in
interest under paragraph (d)(2)(i)(A) of this section using the
criteria in Secs. 773.15(b)(2) and 773.16 of this chapter.
(iii) If the successor in interest receives preliminary written
approval, mining operations may commence and continue for up to 30
days. The successor must:
(A) Conduct the surface coal mining and reclamation operations in
full compliance with the Act and the regulatory program;
(B) Conduct the surface coal mining and reclamation operations
under the terms and conditions of the existing permit and any
additional terms or conditions that may be imposed by us;
(C) Meet any other requirements specified by us; and
(D) Submit an application for a new permit within 30 days of
succeeding to such interest.
(iv) If the successor submits a complete permit application under
subchapter G of this title within 30 days of succeeding to such
interest and meets the other requirements under paragraph (d)(2)(iii)
of this section, then the successor can continue operations until we
make the decision to either approve or deny the application for a
permit. If we deny the successor's permit application, then the
successor must cease operations.
(3) Advertisement. The successor in interest must advertise the
filing of the permit application in a newspaper of general circulation
in the local area of the operation. The advertisement must indicate the
name and address of the applicant, permittee, and regulatory authority
where comments may be sent, the permit number, mine name generally
associated with the permit, geographic location of the permit, and the
date the regulatory authority requires receipt of comments.
(4) Public participation. Any person having an interest which is or
may be adversely affected by a decision on the successor in interest's
application, including an official of any Federal, State, or local
government agency, may submit written comments on the application to
the regulatory authority within the time specified by the regulatory
authority and announced in the advertisement.
(5) We will not release the previous permittee from
responsibilities for any affected or disturbed area of the permit until
the successor in interest engages in
[[Page 70623]]
surface coal mining operations which substantially re-affect or re-
disturb the areas previously mined and not before the successor's
application for a new permit is approved. Until such time, both the
previous permittee and its successor are responsible for violations
created after the successor begins surface coal mining operations.
(6) The successor in interest's replacement of the previous
permittee's performance bond needed under paragraph (d)(2)(ii) of this
section does not form the basis for a release of the previous
permittee's bond under Sec. 800.40 of this chapter. Bond release for
the previous permittee is a separate consideration from the issuance of
a new permit to its successor.
(e) Notification. (1) We will notify the permittee, the successor,
the new operator, or other person gaining permit rights, and
commenters, of our findings.
(2) The person gaining permit rights must immediately notify us
when the transfer, assignment, or sale of permit rights or successor in
interest transaction is complete.
(3) We will update the relevant records in the AVS with the
approved transfer, assignment, or sale or successor in interest
information within 30 days of approval.
PART 778--PERMIT APPLICATIONS--MINIMUM REQUIREMENTS FOR LEGAL,
FINANCIAL, COMPLIANCE, AND RELATED INFORMATION
22. Revise the authority citation for part 778 to read as follows:
Authority: 30 U.S.C. 1201 et seq.
23. In part 778, add Sec. 778.5 to read as follows:
Sec. 778.5 Applicability and definitions.
(a) Applicability. This part applies to any person who engages in
or carries out mining operations as an owner or controller. An owner or
controller includes, but is not limited to, the following:
(1) The president, other officers, directors, agents or persons
performing functions similar to a director.
(2) Those persons who have the ability to direct the day-to-day
business of the surface coal mining operation.
(3) The permittee, or an operator if different from the permittee.
(4) Partners in a partnership, the general partner in a limited
partnership, or the participants, members, or managers of a limited
liability company.
(5) Persons owning the coal (through lease, assignment, or other
agreement) and retaining the right to receive or direct delivery of the
coal.
(6) Persons who make the mining operations possible by contribution
(to the permittee or operator) of capital or other resources necessary
for mining to commence or for operations to continue at the site.
Examples of resources include a personal guarantee to obtain the
reclamation bond, the assumption of responsibility for the liability
insurance, a captive coal supply contract, and mining equipment.
(7) Persons who control the cash flow or can cause the financial or
real property assets of a corporate permittee or operator to be
employed in the mining operation or distributed to creditors.
(8) Persons who cause operations to be conducted in anticipation of
their desires or who are the animating force behind the conduct of
operations.
(b) For the purposes of this subchapter:
(1) Ownership means holding an interest in a sole proprietorship,
being a general partner in a partnership, owning 50 percent or more of
the stock in a corporation, or having the right to use, enjoy, or
transmit to others the rights granted under a permit.
(2) Control means to own, manage, or supervise surface coal mining
and reclamation operations, as either a principal or an agent, such
that the person has the ability, alone or in concert with others, to
influence or direct the manner in which surface coal mining operations
are conducted.
24. Revise Sec. 778.10 to read as follows:
Sec. 778.10 Information collection.
(a) Under the Paperwork Reduction Act, 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 ensure that all legal, financial and compliance requirements are
satisfied before 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-NEW.
(b) We estimate that the public reporting and record keeping burden
for this part averages 25 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 record keeping
requirements, including suggestions for reducing the burden, to the
Office of Surface Mining Reclamation and Enforcement, Information
Collection Clearance Officer, 1951 Constitution Avenue, N.W.,
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-NEW in any correspondence.
25. Revise Sec. 778.13 to read as follows:
Sec. 778.13 Legal identity and identification of interests.
Your permit application must contain the following information (if
you have existing permits, paragraph (o) of this section applies to
you):
(a) A statement as to whether you are a corporation, partnership,
single proprietorship, association, or other business entity.
(b) The name, address, telephone number, and taxpayer
identification number of the:
(1) Applicant;
(2) Your resident agent who will accept service of process;
(3) Operator (if different from applicant);
(4) Person(s) responsible for submitting the Coal Reclamation Fee
Report (OSM-1) and for remitting the reclamation fee payment to OSM;
and
(5) All other persons who will engage in or carry out surface coal
mining operations as an owner or controller on the permit.
(c) You must provide the information required by paragraphs (c)(1)
through (3) of this section.
(1) You must provide for every person (except a publicly traded
corporation) specified in paragraph (c)(3) of this section:
(i) The person's name, address, and taxpayer identification number;
(ii) The person's ownership or control relationship to you,
including the percentage of ownership and location in the
organizational structure; and
(iii) The title of the person's position, the date that the person
assumed the position, and, when submitted under
[[Page 70624]]
Sec. 773.17(h) of this chapter, the date of departure from the
position.
(2) If a person specified in paragraph (c)(3) of this section is a
publicly traded corporation, you must provide the corporation's:
(i) Name;
(ii) Address; and
(iii) Taxpayer identification number.
(3) You must provide the information required by paragraph (c)(1)
or (2) of this section for every:
(i) Officer;
(ii) Director;
(iii) Person performing a function similar to a director;
(iv) Person who owns or controls the applicant or the operator
under the definitions of ``ownership'' and ``control'' in Sec. 778.5,
if that person is different from the applicant; and
(v) Person who owns 10 to 50 percent of the applicant or the
operator.
(d) You don't need to report any owner that is a corporation not
licensed to do business in any State or territory of the United States.
(e) For each of your or your operator's partners or principal
shareholders, all names under which those persons operate or previously
operated a surface coal mining and reclamation operation in the United
States within the 5 years preceding the date of the application.
(f) The application number or other identifier of, and the
regulatory authority for, any other pending surface coal mining
operation permit application either you or your operator filed in any
State in the United States.
(g) For any surface coal mining operation permit held by you or
your operator during the 5 years preceding the date of the application,
the operation's name, address, identifying numbers, including taxpayer
identification number, Federal or State permit number and MSHA number,
and the regulatory authority.
(h) 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.
(i) The name and address of each owner of record of all property
(surface and subsurface) contiguous to any part of the proposed permit
area.
(j) The Mine Safety and Health Administration (MSHA) numbers for
all mine-associated structures that require MSHA approval.
(k) A statement of all lands, interests in lands, options, or
pending bids on interests you held or made for lands contiguous to the
area described in the permit application. If you request, we will hold
as confidential any information required by this paragraph which is not
on public file under State law as provided under Sec. 773.13(d)(3)(ii)
of this chapter.
(l) After we notify you that we have approved your application, but
before the permit is issued, you must, as applicable, update, correct,
or indicate that no change has occurred in the information previously
submitted under paragraphs (a) through (k) of this section.
(m) Before approval, the persons that will engage in or carry out
surface coal mining operations as owners or controllers of the proposed
operation (e.g., those persons identified under paragraph (c) of this
section) must certify that they have the ability to control and that
they are under the jurisdiction of the Secretary for the purposes of
compliance with the terms and conditions of the permit and the
requirements of the regulatory program.
(n) You must submit the information required by this section and
Sec. 778.14 in the format that we prescribe.
(o) If you have previously applied for permits and the data
required under this section is in AVS, you may certify to us that the
information in AVS is complete, accurate, and up to date. Or, if only
some of the information is different, tell us what to change.
(p) We may establish a central file to house your legal identity
information, rather than place duplicate information in each of your
permit application files.
26. Revise Sec. 778.14 to read as follows:
Sec. 778.14 Violation information.
You, the applicant, must include the following information in your
permit application:
(a) A statement of whether you or any subsidiary, affiliate, or
persons controlled by or under common control with you has:
(1) Had a Federal or State coal mining permit suspended or revoked
in the five 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 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 you received during the three-
year period preceding the application date, and a list of all
outstanding violation notices you received before the date of the
application for any surface coal mining operation you owned or
controlled. For each violation notice reported, you 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 issue date of the
violation notice, 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 we notify you that we have approved your application, but
before we issue the permit, you must, as applicable, update, correct,
or indicate that no change has occurred in the information previously
submitted under this section.
PART 842--FEDERAL INSPECTIONS AND MONITORING
27. Revise the authority citation for part 842 to read as follows:
Authority: 30 U.S.C. 1201 et seq.
28. In Sec. 842.11, revise paragraph (e)(3)(i) to read as follows:
Sec. 842.11 Federal inspections and monitoring.
* * * * *
(e) * * *
(3) * * *
(i) Is taking action to ensure that the permittee and operator will
be precluded from receiving future permits
[[Page 70625]]
while violations continue at the site; and
* * * * *
PART 843--FEDERAL ENFORCEMENT
29. Revise the authority citation for part 843 to read as follows:
Authority: 30 U.S.C. 1201 et seq.
Sec. 843.5 [Removed]
30. Remove Sec. 843.5.
31. In Sec. 843.11, revise paragraph (g) to read as follows:
Sec. 843.11 Cessation orders.
* * * * *
(g) 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 an owner or controller of the operation
that the cessation order was issued.
Sec. 843.13 [Removed]
32. Remove Sec. 843.13.
33. Revise Sec. 843.21 to read as follows:
Sec. 843.21 Procedures for improvidently issued State permits.
(a) Initial notice. If OSM believes 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 failed to take appropriate action on the
permit under State program equivalents of Secs. 773.20 and 773.21, OSM
will issue to the State and the permittee an initial notice stating in
writing the reasons for that belief.
(b) State response. Within 30 days of the date that OSM notifies
the State under paragraph (a) of this section, the State must
demonstrate to OSM in writing that either:
(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.
(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 10-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. (1) OSM will take appropriate remedial
action after 10 days from the date OSM issues a 10-day notice under
paragraph (c) of this section, if OSM finds that the State has failed
to:
(i) Take appropriate action under the State program equivalents of
Secs. 773.20 and 773.21 of this chapter; or
(ii) Show good cause for not taking action under State program
equivalents of Secs. 773.20 and 773.21.
(2) Remedial action may include issuing to the permittee or the
operator a notice of violation requiring that by a specified date:
(i) All mining operations must cease; and
(ii) Reclamation of all areas for which a reclamation obligation
exists must commence or continue.
(3) OSM will not take remedial action if:
(i) Any violation, penalty, or fee on which the notice of violation
was based is abated or paid;
(ii) An abatement plan or payment schedule is entered into;
(iii) All inaccurate or incomplete information questions are
resolved; or
(iv) The permittee and the operator, and all operations owned or
controlled by the permittee and the operator, are no longer responsible
for the violation, penalty, fee, or information.
(4) Under this paragraph, good cause does not include the absence
of State program equivalents of Secs. 773.20 and 773.21.
(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 ownership and control has been
refuted; or
(2) Terminate the notice of violation if:
(i) All violations have been abated, all penalties or fees have
been paid, and all informational questions have been resolved;
(ii) You, or any operation owned or controlled by you, have filed
and are pursuing a good faith appeal of the violation, penalty, fee, or
information request, or have entered into and are complying with an
abatement plan or payment schedule to the satisfaction of the
responsible agency; or
(iii) You, and all operations owned or controlled by you, are no
longer responsible for the violation, penalty, fee, or requested
information.
(f) No civil penalty. OSM will not assess a civil penalty for a
notice of violation issued under this section.
Sec. 843.24 [Removed]
34. Remove Sec. 843.24.
35. Revise part 846 to read as follows:
PART 846--ALTERNATIVE ENFORCEMENT
Sec.
846.1 Scope.
846.5 Definitions.
846.11 Criminal penalties.
846.12 Individual civil penalties.
846.14 Suspension or revocation of permits: Pattern of violations.
846.15 Suspension or revocation of permits: Failure to comply with
a permit condition.
846.16 Civil actions for relief.
Authority: 30 U.S.C. 1201 et seq.
Sec. 846.1 Scope.
This part governs the use of measures provided for in the Act at
sections 201(c)(1), 510(c), 518(e), 518(f), 518(g), 521(a)(4), and
521(c), that we collectively call ``alternative enforcement'' measures
or actions that we may use to compel compliance with any provision of
the Act. These measures are available to us whenever any person
engaging in or carrying out surface coal mining operations has allowed
a violation notice to remain outstanding and has thus failed to comply
with the provisions of the Act and its implementing regulations.
Whenever we make a determination, finding, or conviction under these
provisions, we will designate the person determined, found, or
convicted in the AVS.
Sec. 846.5 Definitions.
Unwarranted failure to comply means the failure of a permittee,
operator, agent, or owner or controller of a permittee or operator--
(1) To prevent the occurrence of any violation of his or her permit
or any requirement of the Act or regulations due to indifference, lack
of diligence, or lack of reasonable care, or
(2) To abate any violation of such permit or any requirement of the
Act or regulations due to indifference, lack of diligence, or lack of
reasonable care.
Violation, failure, or refusal means--
(1) A violation of a condition of a permit issued under a Federal
program, a Federal lands program, Federal enforcement under section 502
of the Act, or Federal enforcement of a State program under section 521
of the Act; or
(2) A failure or refusal to comply with any order issued under
section 521 of the Act, or any order incorporated in a final decision
issued by the Secretary under the Act, except an order incorporated in
a decision issued under sections 518(b) or 703 of the Act.
[[Page 70626]]
Sec. 846.11 Criminal penalties.
(a) We may pursue criminal sanctions against any person who
willfully and knowingly:
(1) Violates a condition of a permit, or
(2) Fails or refuses to comply with:
(i) Any order issued under section 521 or 526 of the Act; or
(ii) Any order incorporated into a final decision issued by the
Secretary.
(3) Makes any false statement, representation, or certification, or
fails to make any statement, representation, or certification in any
application, record, report, plan, or other document filed or required
to be maintained under the regulatory program or any order or decision
issued by the Secretary under the Act.
(b) We may pursue criminal sanctions against a permittee, operator,
or any owner, controller, principal, or agent of the permittee or
operator if the violation, failure, or refusal under paragraph (a) of
this section remains uncorrected for more than 30 days after--
(1) Suspension or revocation of a permit under Sec. 846.14; or
(2) Issuance of a violation notice to an unpermitted operation.
(c) Any person convicted under this section may be subject to
punishment by a fine of not more than $10,000 or imprisonment of not
more than one year, or both.
Sec. 846.12 Individual civil penalties.
(a) When an individual civil penalty may be assessed. (1) Except as
provided in paragraph (a)(2) of this section, we may assess an
individual civil penalty against any corporate director, officer, or
agent of a corporate permittee or operator who knowingly and willfully
authorized, ordered, or carried out a violation, failure, or refusal.
(2) We will not assess an individual civil penalty in situations
resulting from a permit violation by a corporate permittee until we
issue a cessation order to the corporate permittee for the violation,
and the cessation order has remained unabated for 30 days.
(b) Amount of individual civil penalty. (1) In determining the
amount of an individual civil penalty assessed under paragraph (a) of
this section, we will consider the criteria in section 518(a) of the
Act, including:
(i) The individual's history of authorizing, ordering or carrying
out previous violations, failures or refusals at the particular surface
coal mining operation;
(ii) The seriousness of the violation, failure or refusal (as
indicated by the extent of damage and/or the cost of reclamation),
including any irreparable harm to the environment and any hazard to the
health and safety of the public; and
(iii) The demonstrated good faith of the individual charged in
attempting to achieve rapid compliance after notification of the
violation, failure, or refusal.
(2) The penalty will not exceed $5,000 for each violation. We may
assess a separate individual civil penalty for each day the violation,
failure, or refusal continues, from the date of service of the
underlying notice of violation, cessation order, or other order
incorporated in a final decision issued by the Secretary, until
abatement or compliance is achieved.
(c) Procedure for assessment of individual civil penalty. (1)
Notice. We will serve on each individual to be assessed an individual
civil penalty a notice of proposed individual civil penalty assessment,
including a narrative explanation of the reasons for the penalty, the
amount to be assessed, and a copy of any underlying notice of violation
and cessation order.
(2) Final order and opportunity for review. The notice of proposed
individual civil penalty assessment becomes a final order of the
Secretary 30 days after service upon the individual unless:
(i) The individual files within 30 days of service of the notice of
proposed individual civil penalty assessment a petition for review with
the Hearings Division, Office of Hearings and Appeals, U.S. Department
of the Interior, 4015 Wilson Boulevard, Arlington, Virginia 22203
(Phone: 703-235-3800), in accordance with 43 CFR 4.1300 through 4.1309;
or
(ii) We and the individual or responsible corporate permittee agree
within 30 days of service of the notice of proposed individual civil
penalty assessment to a schedule or plan for the abatement or
correction of the violation, failure or refusal.
(3) Service. For purposes of this section, service must be
performed on the individual to be assessed an individual civil penalty
by certified mail, or by any alternative means consistent with the
rules governing service of a summons or complaint under Rule 4 of the
Federal Rules of Civil Procedure. Service is complete upon tender of
the notice of proposed assessment and included information or of the
certified mail and is not incomplete because of refusal to accept.
(d) Payment of penalty. (1) No abatement or appeal. If a notice of
proposed individual civil penalty becomes a final order in the absence
of a petition for review or abatement agreement, the penalty is due
upon issuance of the final order.
(2) Appeal. If an individual named in the notice of proposed
individual civil penalty assessment files a petition for review in
accordance with 43 CFR 4.1300 through 4.1309, the penalty is due upon
issuance of a final administrative order affirming, increasing or
decreasing the proposed penalty.
(3) Abatement agreement. Where we and the corporate permittee or
individual have agreed in writing on a plan for the abatement of, or
compliance with, the unabated order, an individual named in a notice of
proposed individual civil penalty assessment may postpone payment until
receiving either a final order from us stating that the penalty is due
on the date of the final order, or written notice that abatement or
compliance is satisfactory and the penalty has been withdrawn.
(4) Delinquent payment. Any delinquent penalty is subject to
interest beginning 30 days after the final order assessing a civil
penalty is issued.
(i) Interest will be charged at the rate established quarterly by
the U.S. Department of the Treasury for use in applying late charges on
late payments to the Federal government, under Treasury Financial
Manual 6-8020.20. The Treasury current value of funds rate is published
by the Fiscal Service in the notices section of the Federal Register.
(ii) Interest on unpaid penalties will run from the date payment
first was due until the date of payment.
(iii) Failure to pay overdue penalties may result in one or more of
the actions specified in Secs. 870.15(e)(1) through (e)(5) of this
chapter.
(iv) Delinquent penalties are subject to late payment penalties
specified in Sec. 870.15(f) and processing and handling charges in
Sec. 870.15(g).
Sec. 846.14 Suspension or revocation of permits: Pattern of
violations.
(a) Issuing an order. (1) We will issue an order to you, requiring
you to show cause why your permit and right to mine under the Act
should not be suspended or revoked, if we determine that:
(i) A pattern of violations of any requirements of the Act, this
chapter, the applicable program, or any permit condition required by
the Act exists or has existed; and
(ii) The violations were caused by you willfully or through
unwarranted failure to comply with those requirements or conditions.
(2) We will attribute to you violations by any person conducting
surface coal mining operations on your behalf,
[[Page 70627]]
unless you establish that the violations were:
(i) Acts of deliberate sabotage or in direct contravention of your
expressed orders, or
(ii) Willful and knowing violations of a contract provision which
you actively tried to prevent.
(3) If we determine that a pattern of violations exists, we will
promptly file a copy of any order to show cause with the Office of
Hearings and Appeals.
(4) We may determine that a pattern of violations exists or has
existed after considering the circumstances, including:
(i) The number of violations, cited on more than one occasion, of
the same or related requirements of the Act, this chapter, the
applicable program, or the permit;
(ii) The number of violations, cited on more than one occasion, of
different requirements of the Act, this chapter, the applicable
program, or the permit; and
(iii) The extent to which the violations were isolated departures
from lawful conduct.
(5) We will promptly review your history of violations or the
history of violations of an operator who has been cited for violations
of the same or related requirements of the Act, this chapter, the
applicable program, or the permit. If we determine that a pattern of
violations exists or has existed, we will issue an order to show cause
as provided in paragraph (a)(1) of this section.
(6) In determining whether a pattern exists or has existed, we will
consider only violations issued as a result of:
(i) Enforcement of the provisions of Title IV of the Act, or a
Federal program or a Federal lands program under Title V;
(ii) Federal inspection during the interim program and before the
applicable State program was approved under sections 502 or 504 of the
Act; or (iii) Federal enforcement of a State program in accordance with
sections 504(b) or 521(b) of the Act.
(b) Hearing and order. (1) If you file an answer to the show cause
order and request a hearing under 43 CFR 4.1190 through 4.1196, a
public hearing will be held as set forth in those sections.
(2) Within the time limits in 43 CFR 4.1190 through 4.1196, the
Office of Hearings and Appeals will issue a written determination as to
whether a pattern of violations exists and, if appropriate, an order.
If the Office of Hearings and Appeals revokes or suspends the permit
and your right to mine under the Act, you must immediately cease
surface coal mining operations on the permit.
(i) If the permit and the right to mine under the Act are revoked,
you must complete reclamation within the time specified in the order.
(ii) If the permit and the right to mine under the Act are
suspended, you must complete all affirmative obligations to abate all
conditions, practices, or violations as specified in the order.
(c) Review of violations. Whenever you fail to abate a violation
contained in a notice of violation or cessation order within the
prescribed abatement period, we will review your history of violations
to determine whether a pattern of violations exists under this section,
and will issue an order to show cause as appropriate.
(d) Service of show cause orders. For purposes of this section and
Sec. 846.15, we must serve you and/or the operator, or owner,
controller, principal, or agent of the permittee or operator by
certified mail, or by any alternative means consistent with the rules
governing service of a summons or complaint under Rule 4 of the Federal
Rules of Civil Procedure. Service is complete upon delivery of the
order or of the certified mail and is not considered incomplete because
of a person's refusal to accept.
Sec. 846.15 Suspension or revocation of permits: Failure to comply
with a permit condition.
(a) General. If we find that you, or your operator, or any owner,
controller, principal, or agent of you or your operator, have failed to
comply with any condition imposed on an approved permit, then we may
order you to show cause why we should not suspend or revoke the permit.
(b) Additional permit conditions. We will order you to show cause
why the permit should not be suspended or revoked if:
(1) You have less than 5 years experience, or have controllers
without demonstrated successful environmental compliance; and
(2) We find that you have failed to comply with additional permit
conditions imposed on an approved permit under Sec. 773.18(a) of this
chapter, and find you are unable or unwilling to comply with the mining
and reclamation plan.
(c) Hearing and order. (1) If you file an answer to the show cause
order and request a hearing under 43 CFR part 4, subpart L, then a
public hearing may be provided as set forth in that subpart.
(2) If the Office of Hearings and Appeals revokes the permit, then
you must immediately cease surface coal mining operations on the permit
and complete reclamation within the time specified in the order.
(3) If the Office of Hearings and Appeals suspends the permit, then
you must abate all conditions, practices, or violations as specified in
the order.
(4) If your right to engage in or carry out surface coal mining
operations is suspended or revoked, then you are prohibited from
owning, controlling, or serving as a principal or agent for any surface
coal mining operations as specified in the order.
(d) Service. The provisions for service set out in Sec. 846.14
govern service under this section.
Sec. 846.16 Civil actions for relief.
(a) Under section 521(c) of the Act, we will request the Attorney
General to institute civil action for relief whenever you or your
operator, or any owner, controller, principal, or agent of you or your
operator are found to have met the criteria in this section.
(1) We will request action under this section whenever you or your
operator, or any owner, controller, principal, or agent of you or your
operator are found to have--
(i) Violated or failed or refused to comply with any order or
decision issued by OSM or the State regulatory authority with
jurisdiction under the Act; or
(ii) Interfered with, hindered, or delayed the agency with
jurisdiction in carrying out the provisions of the Act or its
implementing regulations; or
(iii) Refused to admit our authorized representative onto the mine;
or
(iv) Refused to allow inspection of the mine by our authorized
representative; or
(v) Refused to furnish any information or report that we have
requested; or
(vi) Refused to allow access to, and copying of, such records as we
determine necessary to carry out the provisions of the Act and its
implementing regulations.
(2) Civil action for relief includes a permanent or temporary
injunction, restraining order, or any other appropriate order in the
district court of the United States for the district in which the
surface coal mining operation is located or in which you have your
principal office.
(b) Temporary restraining orders will be issued in accordance with
Rule 65 of the Federal Rules of Civil Procedure, as amended.
(c) Any relief the court grants to enforce an order under paragraph
(a)(1)(i) of this section will continue in effect until completion or
final termination of all proceedings for
[[Page 70628]]
review of such order under the Act or its implementing regulations
unless, beforehand, the district court granting such relief sets aside
or modifies the order.
[FR Doc. 98-33620 Filed 12-18-98; 8:45 am]
BILLING CODE 4310-05-P