OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

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COALEX STATE INQUIRY REPORT - 265

July 1993

Mark Secrest, Esquire

Oklahoma Department of Mines

4040 North Lincoln Blvd., Suite 107

Oklahoma City, Oklahoma 73105

TOPIC: 733 PROCEDURES

INQUIRY: What are the procedures for discovery, subpoenas, deposition taking and 

the appeal process when a state is the recipient of a 733 action?

SEARCH RESULTS: Research was conducted using the COALEX Library and the 

other materials available in LEXIS. The material retrieved includes Senate reports that 

discuss congressional intent in establishing 733 procedures and OSM preambles 

discussing its procedures for substituting federal enforcement of a state program or 

withdrawing approval of a state program. The most complete descriptions of these 

procedures occur in the preambles to the 1978 proposed rules and the 1979 final rules. 

The 1979 final rules state, in the discussion of final 733.12(d), that there would be no 

questioning of interested persons allowed, only rebuttal testimony and then refers the 

reader to a related discussion included under the preamble to Part 732. The preamble 

also states that while Section 733.12 contains no provision for judicial review of the 

Director's decision to withdraw approval of a state's program or substitute federal 

enforcement, the Act does provide that final decisions of the Department are subject to 

judicial review. No other materials were identified that address the issue of what 

procedures the states should follow in responding to a 733 action.

Copies of the materials listed below are attached. 

LEGISLATIVE HISTORY

S. REP. 402, 93rd Cong., 1st Sess. 51 (September 21, 1973) (S. 425). Section-bySection Analysis. Section 205 Federal Programs.

"This section provides for Federal regulation of surface mining and reclamation 

operations in any State which proves unwilling or unable to do the job itself. In accord 

with the purposes and findings in Title I, Federal regulation is to occur only if a particular 

State wishes to forego or fails to assume primary responsibility for regulating surface 

mining operations within its boundaries. 

...

"The assumption of regulatory authority over surface mining operations in any State by 
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

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the Secretary through promulgation of a Federal program for that State is regarded as a 

'last resort' measure. It is certainly preferable that the State regulate such operations 

through State programs which meet the requirements of the Act. The Committee hopes 

and expects that the States, in good faith, will develop and implement strong State 

programs. However, if they fail to do so the purpose of the Act and this section in 

particular is to insure that the full reach of the Federal constitutional powers will be 

exercised to achieve the purposes of the Act."

See also: S. Rep. 128, 95th Cong., 1st Sess. 72 (May 10, 1977) (S. 7). Section-bySection Analysis. Section 404 Federal Programs.

REGULATORY HISTORY

43 FR 41662 (SEPTEMBER 18, 1978). Proposed rules. Part 733; Criteria and 

procedures for substituting federal enforcement of state programs and 

withdrawing approval of state programs.

The preamble set out the procedures for substituting federal enforcement of state 

programs or withdrawing approval of state programs:

1. The Director evaluates the effectiveness of the administration of a state program 

at least annually or in response to a citizen report that a state is not maintaining 

its approved program.

2. The Director provides prompt written notice to the state if the evaluation shows 

ineffective administration of its program.

3. If requested, the Director holds an informal conference with the state. This allows 

the state to explain its position regarding allegations of ineffective administration. 

Although not specifically stated in the regulations, this and other informal 

conferences will be open to the public.

4. If, following the informal conference the Director still believes that the program is 

not being effectively administered, he must hold a public hearing in order to make 

a determination whether the state is effectively administering and enforcing its 

program. 

5. Upon completion of the public hearing, the Regional Director submits the 

available information and a recommendation to the Director. If, on the basis of 

this information, the Director finds that there are violations resulting from failure 

of the state to administer part of all of its program effectively, the Director has two 

options: 

a. Substitute direct federal enforcement of the state program; or 

b. Withdraw approval of the state program in whole or in part.

"Withdrawing approval is designed to be the remedial action available to the Director for 

extreme cases of ineffective program administration by a State. Enforcement of all or 

part of a State program by the Director under the first option will be the preferred 
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remedial measure and will be adequate to deal with less extreme cases of ineffective 

program administration.

"In evaluating the administration of State programs...the Director shall base his decision 

to substitute Federal enforcement or withdraw approval on the adequacy of program 

resources and processes.... The decision will also be based on the adequacy of the 

program permitting process, program inspection process, adequacy, and enforcement 

and the overall adequacy of the entire program. These criteria have been established to 

provide a rational basis for proper evaluation of a State program. In evaluating the 

program the Regional Director and Director shall, to the extent possible, attempt to 

quantify program effectiveness or failures."

44 FR 14902 (MARCH 13, 1979). Permanent Program Final Preamble - Final Rule. 

Part 733; Procedures for substituting federal enforcement of state programs and 

withdrawing approval of state programs.

"6. Section 733.12(a)(2) has added the requirement that all persons requesting 

evaluations [of a state program] set forth a concise statement of the facts in their 

request. To avoid frivolous complaints, the Director must verify these facts prior to 

making an evaluation decision. This change has been made in response to comments 

which criticized the proposed evaluation provisions as being cumbersome and 

obstructive since under the proposed regulations any request could trigger an 

evaluation... If the Director is unable to verify the allegations or upon verification has no 

reason to believe that a program evaluation is necessary, his decision in writing to the 

requestor will be the final decision by the Department." 

11. Section 733.12(d). "The policy of the Office for the public hearing...is that no 

questioning of those testifying will be allowed but that rebuttal by interested persons will 

be permitted."

17. While "there is no provision in Section 733.12 for judicial review of the Director's or 

the Secretary's decision to withdraw approval of a state's program or substitute federal 

enforcement... Section 521(a)(1) of the Act clearly provides that final decisions of the 

Department are subject to judicial review." 

47 FR 26356 (JUNE 17, 1982). Final rules. Part 733; Amendment of procedures for 

substituting federal enforcement and establishing a federal program in a state.

"The purpose of these rules is to provide greater editorial clarity and to remove or 

amend certain burdensome or counter-productive requirements to achieve a more 

streamlined set of regulations."

52 FR 10898 (APRIL 6, 1987). Notice of decision on petition for rulemaking. 
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The Director decided to deny the petition for rulemaking from 10 citizens' organizations 

who requested that OSM amend its 733 procedures. The petitioners proposed that 

OSM provide detailed procedures for its annual evaluation of state programs and

recommended modifications to existing procedures regarding the withdrawal of approval 

of state programs. 

53 FR 26728 (JULY 14, 1988). Final rule. Parts 842 and 843; Evaluation of state 

responses to ten-day notices.

These rules were promulgated to establish a uniform standard by which OSM can 

evaluate state responses to federal ten-day notices; they are an "attempt to reach a 

proper balance recognizing the lead role of the primary states, while at the same time 

providing the federal presence that Congress intended to assure the law, through the 

approved state programs, i[s] effectively enforced."

"With this final rule, OSMRE expects that use of 732 and 733 actions may increase, as 

the regulatory focus shifts from individual situations to a broader evaluation of a state's 

overall program. Such a shift in focus, and a willingness on the part of OSMRE to 

require program amendments and to process those amendments expeditiously, as well 

as ongoing program oversight, answers the concern that states will not effectively 

implement, enforce, or maintain their programs."

FEDERAL REGISTER NOTICES RE: STATE PROGRAMS

49 FR 15496 (APRIL 18, 1984). Final Rule. Substituted federal enforcement of 

portions of the Tennessee Permanent Regulatory Program. [Excerpts]

The preamble described the steps taken by OSM in instituting federal enforcement for 

portions of Tennessee's program that OSM found had not been adequately enforced. 

Only a portion of the item is attached.

49 FR 14674 (APRIL 12, 1984). Final rule. Substituted federal enforcement of 

portions of Oklahoma's Permanent Regulatory Program. [Excerpts]

The preamble described the steps taken to institute federal enforcement for portions of 

Oklahoma's program.

55 FR 111679 (MARCH 27, 1990). Final rule; approval of amendment. Oklahoma 

Permanent Regulatory Program. [Excerpts] 

The Director did not approve part of Oklahoma's proposed amendments that failed to 

include or reference rules implementing the incidental mining exemption. In responding 

to the National Wildlife Federation's request that a federal program be implemented in 

Oklahoma the Director stated:
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

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"NWF's request that a Federal program be implemented in Oklahoma is premature; 

fairness and the regulations dictate that prior to the Director exercising this option, 

Oklahoma first be given an opportunity to respond to the required amendment, and to 

promulgate rules that are not less effective than the revised Federal regulations."

58 FR 33553 (JUNE 18, 1993). Notice of informal conference. Montana Permanent 

Regulatory Program.

The informal conference was being held because "OSM had reason to believe that 

serious problems exist which are adversely affecting the effective implementation, 

administration, maintenance, and enforcement of Montana's approved regulatory 

program." The specific "inadequacies of MDSL's implementation of its approved 

program" were described in the Notice.

MISC. ITEM

IN RE: PERMANENT SURFACE MINING REGULATION LITIGATION, PEABODY 

COAL CO., APPELLANT, 653 F 2d 514 (DC Cir April 1, 1981). 

In addressing the issue of the relative authority of the Secretary of the Interior and the 

states in the administration of SMCRA, the court spoke of the Secretary's oversight 

function and his "ultimate power over lax state enforcement" - direct enforcement of 

permit conditions and take over of the permit-issuing process:

"Direct intervention by the Secretary in the operation of state regulatory programs is 

clearly intended as an extraordinary remedy.... The Secretary's primary means of 

guaranteeing effective state programs lies in his approval function at the beginning of 

the process."

ATTACHMENTS

A. S. REP. 402, 93rd Cong., 1st Sess. 51 (September 21, 1973) (S. 425). Sectionby-Section Analysis. Section 205 Federal Programs. 

B. S. REP. 128, 95th Cong., 1st Sess. 72 (May 10, 1977) (S. 7). Section-by-Section 

Analysis. Section 404 Federal Programs. 

C. 43 FR 41662 (SEPTEMBER 18, 1978). Proposed rules. Part 733; Criteria and 

procedures for substituting federal enforcement of state programs and 

withdrawing approval of state programs. 

D. 44 FR 14902 (MARCH 13, 1979). Permanent Program Final Preamble - Final 

Rule. Part 733; Procedures for substituting federal enforcement of state 

programs and withdrawing approval of state programs. 

E. 47 FR 26356 (JUNE 17, 1982). Final rules. Part 733; Amendment of procedures 

for substituting federal enforcement and establishing a federal program in a state. 

F. 52 FR 10898 (APRIL 6, 1987). Notice of decision on petition for rulemaking. 
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G. 53 FR 26728 (JULY 14, 1988). Final rule. Parts 842 and 843; Evaluation of state 

responses to ten-day notices. 

H. 49 FR 15496 (APRIL 18, 1984). Final Rule. Substituted federal enforcement of 

portions of the Tennessee Permanent Regulatory Program. [Excerpts] 

I. 49 FR 14674 (APRIL 12, 1984). Final rule. Substituted federal enforcement of 

portions of Oklahoma's Permanent Regulatory Program. [Excerpts] 

J. 55 FR 111679 (MARCH 27, 1990). Final rule; approval of amendment. Oklahoma 

Permanent Regulatory Program. [Excerpts] 

K. 58 FR 33553 (JUNE 18, 1993). Notice of informal conference. Montana 

Permanent Regulatory Program. 

L. IN RE: PERMANENT SURFACE MINING REGULATION LITIGATION, 

PEABODY COAL CO., APPELLANT, 653 F 2d 514 (DC Cir April 1, 1981).