Rescission of the “Ten-Day Notices and Corrective Action for State Regulatory Program Issues” Rule, Issued April 9, 2024

DEPARTMENT OF THE INTERIOR <SUBAGY>Office of Surface Mining Reclamation and Enforcement</SUBAGY> <CFR>30 CFR Parts 733, 842</CFR> <DEPDOC>[Docket No. OSM-2025-0018; S1D1S SS08011000 SX064A000 256S180110; S2D2S SS08011000 SX064A000 25XS501520]</DEPDOC> <RIN>RIN 1029-AC89</RIN> <SUBJECT>Rescission of the “Ten-Day Notices and Corrective Action for State Regulatory Program Issues” Rule, Issued April 9, 2024</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> Office of Surface Mining Reclamation and Enforcement, Interior. <HD SOURCE="HED">ACTION:</HD> Notice of proposed rulemaking; request for comments. <SUM> <HD SOURCE="HED">SUMMARY:</HD> The Office of Surface Mining Reclamation and Enforcement (OSMRE) is proposing to rescind the “Ten-Day Notices and Corrective Action for State Regulatory Program Issues” Rule adopted on April 9, 2024. We are undertaking this change to align the regulations with the single, best meaning of the statutory language in the Surface Mining Control and Reclamation Act of 1977 (SMCRA). This proposed rule would streamline the process for OSMRE's coordination with State regulatory authorities to minimize duplication of efforts in the administration of SMCRA and appropriately recognize that State regulatory authorities are the primary regulatory authorities of non-Federal, non-Indian lands within their borders. We solicit comment on all aspects of this proposed rule. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> OSMRE must receive your comments on this proposed rule on or before July 16, 2025. OSMRE is not obligated to consider any comments received after this date in making its decision on the final rule. </EFFDATE> <HD SOURCE="HED">ADDRESSES:</HD> You may submit comments by one of the following methods: <E T="03">Electronically:</E> Go to the Federal eRulemaking Portal: <E T="03">https://www.regulations.gov</E> and search for Docket Number OSM-2025-0018. Follow the instructions at this website. <E T="03">By hard copy:</E> Submit by U.S. mail to the Division of Regulatory Support, Office of Surface Mining Reclamation and Enforcement, Department of the Interior, Attn: James Tyree, 1849 C St. NW, Mail Stop 4557, Washington, DC 20240. <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> James Tyree, Chief, Division of Regulatory Support, (202) 208-4479, <E T="03">jtyree@osmre.gov</E> . Individuals in the United States who are deaf, deafblind, hard of hearing, or have a speech disability may dial 711 (TTY, TDD, or TeleBraille) to access telecommunications relay services. Individuals outside the United States should use the relay services offered within their country to make international calls to the point-of-contact in the United States. </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> SMCRA allows states with federally approved programs to regulate surface coal mining and reclamation operations on non-Federal, non-Indian lands within their borders. <E T="03">See, e.g.,</E> 30 U.S.C. 1253. Once a State program is approved, “the State's laws and regulations implementing the program become operative for the regulation of surface coal mining, and the State officials administer the program, giving the State `exclusive jurisdiction over the regulation of surface coal mining' within its borders . . . .” <E T="03">Bragg</E> v. <E T="03">W. Va. Coal Ass'n,</E> 248 F.3d 275, 288 (4th Cir. 2001) (internal citations omitted). After a state receives primary jurisdiction (“primacy”) to administer SMCRA, the statute provides the Secretary of the Interior (the Secretary) with oversight of the State regulatory programs and limited ongoing enforcement authority in two separate scenarios: (1) when the Secretary has reason to believe there have been violations of SMCRA and; (2) where the Secretary has reason to believe that violations of an approved State program are due to a State regulatory authority not properly enforcing its State program. 30 U.S.C. 1271(a) and (b). In the first scenario, for a non-imminent harm situation, the Secretary can issue a notice, known as a “ten-day notice” (TDN), to a State regulatory authority if the Secretary has a “reason to believe” that “any <E T="03">person</E> is in violation of any requirement of [SMCRA].” <E T="03">Id.</E> § 1271(a) (emphasis added). SMCRA directs the Secretary to determine whether there is a potential violation “on the basis of <E T="03">any information</E> available to him.” <E T="03">Id.</E> (emphasis added). If so, SMCRA provides that the Secretary, acting through the Director of OSMRE, will issue a TDN to the State regulatory authority. A TDN gives the State regulatory authority ten days to respond to OSMRE to show that it either has taken “appropriate action” to “cause said violation to be corrected” or to show “good cause” for not doing so. <E T="03">Id.</E> SMCRA directs the Secretary to then determine whether there is a violation “on the basis of <E T="03">any information</E> available to him.” <E T="03">Id.</E> (emphasis added). Under certain circumstances, such as if the State regulatory authority fails to respond in ten days or if OSMRE disagrees with the State's response to the TDN, the Secretary is authorized to conduct a Federal inspection. For imminent harm situations, the TDN process is waived when there is adequate proof of an imminent harm and the State's failure to take action, and OSMRE would conduct a Federal inspection. <E T="03">Id.</E> In the second scenario, SMCRA provides a separate enforcement process if the Secretary suspects a violation of an approved State program is due to a failure on the part of the State to properly enforce its approved program. <E T="03">Id.</E> § 1271(b). Here, the Secretary must issue “public notice” and “hold a hearing thereon in the State within thirty days of such notice.” <E T="03">Id.</E> If the Secretary finds that there are violations stemming from the State's failure to enforce its own State program effectively and the State “has not adequately demonstrated its capability and intent to enforce such State program,” the Secretary must take over the enforcement and issuance of permits. <E T="03">Id.; see also</E> 30 U.S.C. 1254(a). <HD SOURCE="HD1">“Reason to Believe” Determination</HD> Before the 2024 Rule, the Department's implementing regulations regarding the information that the Secretary can consider when determining whether a potential violation exists mirrored the statutory language providing for consideration of “any information available to him,” 30 U.S.C. 1271(a)(1); the Secretary could determine whether there was a violation by looking to “any information readily available to him or her, from any source[.]” 30 CFR 842.11(b)(1)(i) (2021 version). Despite SMCRA's direction to the Secretary to base his determination on “any information available to him,” the 2024 Rule artificially limited the types of information that OSMRE can consider before issuing a TDN to: (i) “information received from a citizen complaint”; (ii) “information available in OSMRE files at the time that OSMRE is notified of the possible violation”; (iii) “and publicly available electronic information.” 30 CFR 842.11(b)(1)(i). The 2024 Rule made similar changes to §§ 842.11(b)(2) and 842.12(a). As such, the 2024 Rule narrowed OSMRE's investigatory sources in a manner that is inconsistent with the best reading of SMCRA, including by, for example, directing OSMRE to ignore other information that may be readily available from State regulatory authorities, who have primacy, or operators. <E T="03">See Loper Bright Enterprises</E> v. <E T="03">Raimondo,</E> 603 U.S. 369 (2024). Therefore, we propose to return to the language that was in the rule prior to the 2024 Rule and that better implements the best reading of SMCRA. <HD SOURCE="HD1">Definition of “Citizen Complaint” and “Ten-Day Notice”</HD> We propose to return the text of 30 CFR 842.11(b)(1)(i), 842.11(b)(2), and 842.12(a) to the text that existed before the 2024 Rule, which would, in part, remove references to the phrase “citizen complaint” across these subsections. The 2024 Rule added an unnecessary definition of “citizen complaint” at 30 CFR 842.5, a term that is not used anywhere in SMCRA. <E T="03">See</E> 30 U.S.C. 1271(h)(1). The 2024 Rule then used the filing of “citizen complaint[s]” to short-circuit the longstanding requirement that citizens request a Federal inspection by modifying the regulations so that “[a]ll citizen complaints [are] considered as requests for a Federal inspection.” 30 CFR 842.11(b)(2), 842.12(a). When the automatic treatment of all citizen complaints as requests for a Federal inspection is read together with the 2024 Rule's restrictions on the types of information that OSMRE can consider when deciding whether to issue a TDN, the 2024 Rule violates principles of cooperative federalism and is inconsistent with the statutory structure of SMCRA. For example, SMCRA gives States with approved programs primacy and assigns OSMRE an oversight role with limited enforcement authority to ensure SMCRA compliance, but the 2024 Rule pushes OSMRE to conduct unnecessary inspections while disallowing OSMRE from considering all available information when deciding whether it has reason to believe a possible violation may exist. Similarly, reverting the text of 30 CFR 842.12(a) to the language that existed before the 2024 Rule will reestablish the requirement that a person requesting a Federal inspection notify both the OSMRE authorized representative and the State regulatory authority, if any, which better aligns the regulations with the statutory structure of SMCRA and the goals of cooperative federalism. It also ensures that both OSMRE and the State regulatory authority have the opportunity to understand and, if appropriate, address the concerns raised in a complaint. Furthermore, a ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 46k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━