05/ 21/ 2002 OSM_ SMCRA ccbs_ 2002 04 10. doc Page 1 of 19 An Overview Of SMCRA Regulations Applied To CCBs SMCRA did not directly contemplate the disposal of solid wastes in a coal mine, other than wastes generated by coal mining operations ( i. e., coal processing waste, non coal mine waste, underground development waste, and spoil). CCBs are directly referenced in OSM's regulations only at 30 CFR § 817.41( h)( 2)( iii) and ( v), which specifies " fly ash" and " flue gas desulfurization sludge" as two of the seven allowable types of discharges into an underground coal mine. This is not a blanket approval.

In the same vein, the lack of direct regulations for the placement of CCBs in coal mines does not counteract the application of SMCRA to regulating CCB placement in coal mines. All permitting and performance regulatory standards apply to CCBs and any other materials that may be placed in coal mines.

Purposes of SMCRA The purposes are given in the Act as follows, 30 U. S. C. 1202:   Establish a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations.   Assure that the rights of surface landowners and other persons with a legal interest in the land or appurtenances thereto are fully protected from such operations.   Assure that surface mining operations are not conducted where reclamation as required by the Act is not feasible.   Assure that surface coal mining operations are so conducted as to protect the environment.   Assure that adequate procedures are undertaken to reclaim surface areas as contemporaneously as possible with the surface coal mining operations.   Assure that the coal supply essential to the Nation's energy requirements, and to its economic and social well being is provided and strike a balance between protection of the environment and agricultural productivity and the Nation's need for coal as an essential source of energy.   Assist the States in developing and implementing a program to achieve the purposes of the Act.   Promote the reclamation of mined areas left without adequate reclamation prior to the enactment of the Act and which continue, in their unreclaimed condition, to substantially degrade the quality of the environment, prevent or damage the beneficial use of land or water resources, or endanger the health or safety of the public.   Assure that appropriate procedures are provided for the public participation in the development, revision, and enforcement of regulations, standards, reclamation plans, or programs established by the Secretary or any State under the Act.   Provide a means for development of the data and analyses necessary to establish effective and reasonable regulation of surface mining operations for other minerals.   Encourage the full utilization of coal resources through the development and application of underground extraction technologies. 05/ 21/ 2002 OSM_ SMCRA ccbs_ 2002 04 10. doc Page 2 of 19   Stimulate, sponsor, provide for and/ or supplement present programs for the conduct of research investigations, experiments, and demonstrations, in the exploration, extraction, processing, development, and production of minerals and the training of mineral engineers and scientists in the field of mining, minerals resources, and technology, and the establishment of an appropriate research and training center in various States.   Wherever necessary, exercise the full reach of Federal constitutional powers to insure the protection of the public interest through effective control of surface coal mining operations.

Regulatory Program Responsibility The placement of coal combustion by products at a SMCRA mine site would not be exempt from any of the OSM regulations contained at 30 CFR Part 700 to end. The following regulations highlight those that would be expected to apply in most cases.

  State Pre eminence, § 701.4. A state regulatory authority has primary regulatory responsibility for coal exploration and surface coal mining and reclamation operations during the permanent regulatory program. Once the State program is in effect, the Office ( Office of Surface Mining or OSM) has an oversight function to evaluate the administration of those programs. OSM must institute a federal regulatory program in a state that does not have a program, for Federal lands and Indian lands.

  Mining Restriction, § 773.4( a). << Once a state regulatory program is effective, no person shall engage in or carry out any surface coal mining operations, unless such person has first obtained a permit issued by the regulatory authority.

  Cumulative Hydrologic Impact Assessment, § 780.21( g). The regulatory authority shall provide an assessment of the probable cumulative hydrologic impacts ( CHIA) of the proposed operation and all anticipated mining upon surface and ground water systems in the cumulative impact area. The CHIA shall be sufficient to determine, for purposes of permit approval, whether the proposed operation has been designed to prevent material damage to the hydrologic balance outside the permit area. The regulatory authority may allow the applicant to submit data and analyses relevant to the CHIA with the permit application.

Definition of Terms Applicable terms defined at § 701.5 Affected Area Aquifer Best Technology Currently Available Cumulative Impact Area Disturbed Area 05/ 21/ 2002 OSM_ SMCRA ccbs_ 2002 04 10. doc Page 3 of 19 Drinking, domestic or residential water supply Fugitive Dust Ground Water Hydrologic balance Hydrologic regime Imminent danger to the health and safety of the public Irreparable damage to the environment Material damage Materially damage the quantity or quality of water Recharge capacity Replacement of water supply Significant, imminent environmental harm to land, air, or water resources Toxic forming materials Water table Permitting Requirements Permits: General   Permit Required, § 773.4. << All coal mining operations must obtain a permit issued by the regulatory authority.

  Application Of Standards, § 701.11( d). The permanent program performance standards will apply to all permits at the earliest date a permit is required to be obtained.

  Coverage Of Activities, § 773.17( a). All surface coal mining and reclamation operations will be conducted on those lands designated in the permit, ( b) only as described in the approved application and ( c) in compliance with all applicable performance standards.

  Technical Data References, § 777.13. Technical data submitted for the application will be accompanied by the names of persons or organizations that collected and analyzed the data, dates and descriptions of the methodology. Analyses will be planned by or under the direction of a professional qualified in the subject to be analyzed.

  Completeness Of Application, § 777.15. References minimum information required for an application to be considered complete. Additional information can still be required by the regulatory authority on a site by site need.

  Right Of Entry Information, § 778.15. A description of the documents used by the applicant to establish his legal right to enter and begin mining and reclamation operations in the permit area. The description will 05/ 21/ 2002 OSM_ SMCRA ccbs_ 2002 04 10. doc Page 4 of 19 include any pending litigation. Where the mineral estate has been severed from the private surface estate, written consent of the surface owner or other documents establishing the operator's right to mine the coal.

  Status Of Unsuitability Claims, § 778.16 Available information will be provided as to whether the proposed permit area is within an area designated as unsuitable for surface coal mining and reclamation operations or is within an area under study for designation in an administrative proceeding under parts 762, 764 and 769. Supporting information for the exemption in § 762.13( c) of substantial legal and financial commitments in surface coal mining operations were in existence prior to January 4, 1977 will be provided.

  Permit Term, § 778.17. The application will state the anticipated or actual starting and termination date of each phase of the surface coal mining and reclamation operation and the anticipated acreage to be affected during each phase over the life of the mine.

Site Characterization   Environmental Resources, § 779.11 & § 783.11 A description of the existing, premining environmental resources within the proposed permit area and adjacent areas that may be affected or impacted by mining activity.

  Climate Data, § 779.18 & § 783.18. Climatological information, when requested by the regulatory authority, representative of the proposed permit area such average seasonal precipitation or the average direction and velocity of prevailing winds..

  Soil Resources, § 779.21( a) & § 783.21( a). Adequate soil survey information will be provided for affected areas in the permit area.

  General Features, § 779.24 & § 783.24 Land boundaries, ownerships, structures, roads and water will be shown on maps. This can include any other relevant information required by the regulatory authority.

  Surface Water Movement, § 779.24( g) & § 783.24( g). The locations of water supply intakes for current users of surface water flowing into, out of, and within a hydrologic area defined by the RA, and those surface waters which will receive discharges from affected areas in the proposed permit area.

  Water Monitoring Stations, § 779.25( a)( 2) § 783.25( a)( 2). The elevations and locations of monitoring stations used to gather data for water quality and quantity. 05/ 21/ 2002 OSM_ SMCRA ccbs_ 2002 04 10. doc Page 5 of 19   Ground Water, § 779.25( a)( 6) § 783.25( a)( 6) Location and extent of sub surface water, if encountered, within the proposed permit or adjacent areas.

  Water, Water Bodies And Structures, § 779.25( a)( 7) § 783.25( a)( 7). Location of surface water bodies such as streams, lakes, ponds, springs, constructed or natural drains, and irrigation ditches within the proposed permit and adjacent areas.

  Identification Of Placement Areas, § 779.25( a)( 9) & § 783.25( a)( 9). Location and dimensions of existing areas of spoil, waste, and non coal waste disposal within the proposed permit area.

  Fish And Wildlife Information, § 780.16 & § 784.21. Applications will include fish and wildlife resource information for the permit area and adjacent area including species, habitats and protective measures.

Operational Plan   Material Handling, § 780.11( b)( 4) § 784.11( b)( 4). A narrative explaining the construction, modification, use, maintenance, and removal of, among other items, spoil, coal processing waste, and non coal waste removal, handling, storage, transportation, and disposal areas and structures.

  Pollution Control, § 780.11, § 780.15, § 780.18, § 784.11, § 784.13. A narrative description of water and air pollution controls for surface mining, § 780.11( b)( 6) and a description of water pollution control facilities for underground mining surface facilities, § 784.11( b)( 6). A control plan for fugitive dust control practices is required, § 780.15. Description of steps to comply with the requirements of the Clean Air Act, § 780.18( b)( 9) & § 784.13( b)( 9). 05/ 21/ 2002 OSM_ SMCRA ccbs_ 2002 04 10. doc Page 6 of 19   Hydrologic Information, § 780.21 & § 784.14.   Sampling and analysis methodology   Ground water information   Surface water information   Probable hydrologic consequences   Cumulative hydrologic impacts: the hydrologic and geologic information necessary to access the probable cumulative hydrologic impacts for the cumulative impact area   Modeling: Modeling techniques may be used but the regulatory authority may require the actual data used to be included.   Alternative water source information   Probable hydrologic consequences   Whether acid forming or toxic forming materials are present that could result in the contamination of surface or ground water supplies.   Whether the proposed operation may proximately result in contamination, diminution or interruption of an underground or surface source of water within the proposed permit or adjacent areas.   The impact on acidity, total suspended and dissolved solids and other important water quality parameters of local impact and other characteristics as required by the regulatory authority.   Cumulative hydrologic impact assessment with relevant data and analyses from the applicant.   Hydrologic reclamation plan.   Ground water monitoring plan. The application shall include a ground water monitoring plan based upon the PHC determination and the analysis of all baseline hydrologic, geologic and other information in the permit application. The plan shall provide for the monitoring of parameters that relate to the suitability of the ground water for current and approved postmining land uses and to the objectives for protection of the hydrologic balance. It will identify the quantity and quality parameters to be monitored, sampling frequency and site locations. It shall describe how the data may be used to determine the impacts of the operation upon the hydrologic balance. At a minimum, total dissolved solids or specific conductance corrected to 25 degree C, pH, total iron, total manganese, and water levels shall be monitored and data submitted to the regulatory authority at least every 3 months for each monitoring location. The regulatory authority may require additional monitoring.   Surface water monitoring plan. The application shall include a surface water monitoring plan based upon the PHC determination and the analysis of all baseline hydrologic, geologic and other information in the permit application. The plan shall provide for the monitoring of parameters that relate to the suitability of the ground water for current and approved postmining land uses and to the objectives for protection of the hydrologic balance under the hydrologic reclamation plan as well as the effluent limitations found at 40 CFR part 434. The plan will identify the quantity and quality parameters to be monitored, sampling frequency and site locations. It shall describe how the data may be used to determine the impacts of the operation upon the hydrologic balance. At all monitoring locations in the 05/ 21/ 2002 OSM_ SMCRA ccbs_ 2002 04 10. doc Page 7 of 19 surface water bodies such as streams, lakes, and impoundments that are potentially impacted or into which water will be discharged and at upstream monitoring locations the total dissolved solids or specific conductance corrected to 25 degree C, total suspended solids, pH, total iron, total manganese and flow shall be monitored. For point source discharges, monitoring shall be conducted in accordance with 40 CFR parts 122, 123 and 434 and as required by the National Pollutant Discharge Elimination System permitting authority. The monitoring reports shall be submitted to the regulatory authority every 3 months. The regulatory authority may require additional monitoring.

  Geologic Information, § 780.22 & § 784.22. Each application shall include geologic information in sufficient detail to assist in determining   1) The probable hydrologic consequences of the operation upon the quality and quantity of surface and ground water in the permit and adjacent areas, including the extent to which surface and ground water monitoring is necessary, 2) All potentially acid or toxic forming strata down to and including the stratum immediately below the lowest coal seam to be mined, and 3) Whether reclamation as required can be accomplished and whether the proposed operation has been designed to prevent material damage to the hydrologic balance outside the permit area. Minimum geologic information is required including chemical analyses identifying those strata and coal seams that may contain acid or toxic forming or alkalinity producing materials and to determine their content. For coal seams this includes the total sulfur and pyritic sulfur unless the regulatory authority may find that the analysis for pyritic sulfur content and alkalinityproducing materials is unnecessary. The regulatory authority may require the collection, analysis and description of geologic information in addition to that required under part 780.22( b).

  Maps and Plans, § 780.14 & § 784.23 Proposed changes to lands affected throughout the operation will be show on the maps and plans. Some specific items are:   Sequence of mining and reclamation, § 780.14( b)( 2) & § 784.23( b)( 2).   Bonded areas, § 780.14( b)( 3) & § 784.23( b)( 3).   Coal storage, topsoil, spoil, coal waste, and non coal waste storage areas, § 780.14( b)( 5) & § 784.23( b)( 5).   Water and Sedimentation Control, § 780.14( b)( 6)( 11) & § 784.23( b)( 6)( 10).   Each source of waste and each waste disposal facility relating to coal processing or pollution control, & § 784.23( b)( 7).   Air pollution collection and control facilities, § 780.14( b)( 7).   Location of coal processing waste, § 780.14( b)( 11).

Reclamation   Timetable, § 780.18( b)( 1). A detailed timetable for completing each step of the reclamation plan is required and would include CCBs when used in the process. 05/ 21/ 2002 OSM_ SMCRA ccbs_ 2002 04 10. doc Page 8 of 19   Backfill, § 780.18( b)( 3) & § 784.13( b)( 3). A plan for backfilling, soil stabilization compaction and grading is needed that would include CCBs when used. The purpose is to achieve the approximate original contour of the surface.

  Soil Supplements, § 780.18( b)( 5) & § 784.13( b)( 4). A plan for revegetation will be included and under § 816.22( b)( 4) nutrients and amendments can be added to established the plant cover. Section § 780.18( b)( 4) also allows chemical and physical analyses and trials to demonstrate suitability, however full topsoil substitutes is limited by § 816.22( b) to overburden materials and does not include CCBs. Also applies to underground mining permit applications under § 784.13( b)( 4).

  Non Coal Mine Waste, § 780.18( b)( 7) & § 784.13( b)( 7). Description of measures to handle acid forming and toxic forming materials in accordance with § 816.89 and § 816.102. Creating a seal, encapsulation using alkaline coal combustion ash would be an example.

  Pollution Control, § 780.18( b)( 9) & § 784.13( b)( 9). Description of steps to stay in compliance with the Clean Air Act, Clean Water Act and other applicable air and water quality laws and regulations and health and safety standards.

  Post Mining Land Use, § 780.23( b) & § 784.15( b). A detailed description of the proposed land use following reclamation of the land within the proposed permit area, including a discussion of the utility and capacity of the reclaimed land to support a variety of alternative uses. This will include explanation of the consideration given to making all of the proposed surface mining activities consistent with surface owner plans and applicable State and local land use plans and programs.

Hydrologic Impacts   Probable Hydrologic Consequences ( PHC), § 780.21( f) & § 784.14( e). The determination of probable impacts will include adverse impacts to the hydrologic balance, whether acid forming or toxic forming materials are present that could result in the contamination of surface or ground water supplies and whether the proposed operation may proximately result in contamination, diminution or interruption of an underground or surface source of water within the proposed permit or adjacent areas which is used for domestic, agricultural, industrial or other legitimate purpose.

  Cumulative Hydrologic Impact Assessment ( CHIA), § 780.21( g) & § 784.14( f). The regulatory authority shall provide an assessment of the probable cumulative hydrologic impacts of the proposed operation and all anticipated mining upon surface and ground water systems in the cumulative impact area. 05/ 21/ 2002 OSM_ SMCRA ccbs_ 2002 04 10. doc Page 9 of 19 Fugitive Dust Controls   Fugitive Dust Control Practices. § 780.15 Air pollution control plan for air quality monitoring depending on mine size and a decision of the regulatory authority. A plan for fugitive dust control practices, as required under 30CFR 816.95.

Address CCBs In The Permit.

  Operation Plan: General. § 780.11. Each application shall contain a description of the mining operations proposed to be conducted during the life of the mine within the proposed permit area.

  Reclamation Plan: General. § 780.18. Each application shall contain a plan for reclamation of the lands within the proposed permit area, showing how the applicant will comply with section 515 of the Act, subchapter K of 30 CFR Chapter VII, and the environmental protection performance standards of the regulatory program.

  Hydrologic Balance Protection. § 816.41 All surface mining and reclamation activities shall be conducted to minimize disturbance of the hydrologic balance within the permit and adjacent areas, to prevent material damage to the hydrologic balance outside the permit area, to assure the protection or replacement of water rights, and to support approved postmining land uses in accordance with the terms and conditions of the approved permit and the performance standards of 30 CFR Chapter VII, subchapter K. The regulatory authority may require additional preventative, remedial, or monitoring measures to assure that material damage to the hydrologic balance outside the permit area is prevented.

  Toxic Forming Materials. § 816.41( f). Drainage from toxic forming materials into surface water and ground water shall be avoided by identifying and burying and/ or treating, when necessary, materials which may adversely affect water quality, or be detrimental to vegetation or to public health and safety if not buried and/ or treated.

Permits Revisions   Regulatory Authority Permit Review, § 774.10 Every issued permit must be reviewed no later than mid term and at the end of 5 years. After the review or at any time the regulatory authority may require the permit to be revised in order to ensure compliance with the Act and the regulatory program.

  Probable Hydrologic Consequences ( PHC), § 780.21( f)( 4) & § 784.14( e)( 4). The regulatory authority must review and determine if a new or updated PHC will be required. 05/ 21/ 2002 OSM_ SMCRA ccbs_ 2002 04 10. doc Page 10 of 19   Cumulative Hydrologic Impact Assessment, § 780.21( g)( 2), § 784.14( f)( 2). The regulatory authority must review and determine if a new or updated cumulative hydrologic impact assessment will be required.

Inspection And Enforcement CCB placement at a SMCRA mine site is subject to the State inspection and enforcement provisions of § 842 and the Federal inspection and enforcement provisions of § 843.

Public Participation In Permits And Permit Renewals Public Notification   Advertisement Of Permits, § 773.6( a)( 1). << Once a permit or permit renewal application is submitted, an advertisement will be placed in a local newspaper of general circulation in the locality of the proposed surface coal mining and reclamation operation at least once a seek for four consecutive weeks. A copy of the advertisement as it will appear in the newspaper shall be submitted to the regulatory authority. The advertisement must contain minimum information as given in § 773.13( a)( 1).

  Permit Renewals, § 774.15( b)( 2)( iv). A copy of the proposed newspaper notice and proof of publication of same will be included in the permit renewal.

  Notification On Issuance, § 773.19( b). The regulatory authority shall issue written notification of application approval to the applicant, each person who files comments or objections to the permit application, each party to an informal conference, local government and if the regulatory authority is a State agency, the local OSM office.

  Proof Of Publication, § 778.21. A copy of the newspaper advertisements of the application for a permit, significant revision of a permit, or renewal of a permit, or proof of publication of the advertisements which is acceptable to the regulatory authority shall be filed with the regulatory authority and shall be made apart of the application not later than 4 weeks after the last date of publication as required by § 773.13( a)( 1).

  Notice Of Decision For Renewals, § 774.15( e). The regulatory authority shall send copies of its decision to the applicant, to each person who filed comments or objections on the renewal, to each party to any informal conference held on the permit renewal, and to OSM if OSM is not the regulatory authority. 05/ 21/ 2002 OSM_ SMCRA ccbs_ 2002 04 10. doc Page 11 of 19 Public Availability   Accessibility Of Permits, § 773.6( a)( 2). << Permits or permit renewals will be available for the public to inspect and copy by filing a full copy of the application with the recorder at the courthouse of the county where the mining is proposed to occur or an accessible public office approved by the regulatory authority.

  Comments, § 773.6( b)( 3)( ii). << The regulatory authority shall upon receipt of written comments or objections file a copy for public inspection at the same public office where the application is filed.

  Availability Of Files, § 773.6( d)( 1). << Permit applications, revisions, renewals, and transfers, assignments or sales of permit rights on file with the regulatory authority are available at reasonable times for public inspection and copying. Availability can be limited by a request for confidentiality through § 773.6( d)( 3).

Public Comments And Objections   Comments, § 773.6( b)( 1). << Within a reasonable time established by the regulatory authority, written comments or objections may be submitted with respect to the effects of the proposed mining operations on the environment within their areas of responsibility.

  Objections, § 773.6( b)( 2). << Written objections to an application for a permit, significant revision to a permit under § 774.13 or renewal of a permit under § 774.15 may be submitted to the regulatory authority by any person having an interest which is or may be adversely affected by the decision on the application, or by an officer or head of any Federal, State, or local government agency or authority, within 30 days after the last publication of the required newspaper notice.

  Conferences, § 773.6( c). << Any person having an interest which is or may be adversely affected by the decision on the application, or an officer or a head of a Federal, State, or local government agency, may request in writing that the regulatory authority hold an informal conference on the application for a permit, significant revision or permit renewal. The date, time, and location of the conference shall be sent to the applicant and other parties and advertised by the regulatory authority in a newspaper of general circulation in the locality of the proposed surface coal mining and reclamation operation at least 2 weeks before the scheduled conference. 05/ 21/ 2002 OSM_ SMCRA ccbs_ 2002 04 10. doc Page 12 of 19 Public Availability Of Monitoring/ Inspection Data   Permit Files. § 773.6( d). << Materials that are part of the permit files held by the regulatory authority are available to the public.

  Availability Of Records. § 840.14( b). Copies of all records, reports, inspection materials, or information obtained by the regulatory authority shall be made immediately available to the public in the area of mining until at least five years after expiration of the period during which the subject operation is active or is covered by any portion of a reclamation bond so that they are conveniently available to residents of that area, except as otherwise provided by Federal law and for in information not required to be made available under § § 772.15 and 773.13( d). The state regulatory authority can make the subject material available at a Federal, State or local government office in the county where the mining is occurring or proposed to occur. Or, at the regulatory authority's option and expense, provide copies of subject information promptly by mail at the request of any resident of the area where the mining is occurring or is proposed to occur, provided a description of the information available for mailing and the procedure for obtaining the information is available for public inspection at a Federal, State or local government office in the county where the mining is occurring or proposed to occur.

  Availability Of Records. § 842.16. A repeat of § 840.14( b) but with a more specific list of the types of records. This includes materials under Title V of the Act, 30 CFR Chapter VII, a Federal program or Federal lands program, and a State program being enforced by the Office under section 504( b) or 521( b) of the Act and § 733 of 30 CFR Chapter VII or § § 842.11 or 842.12.

Public Participation in Compliance   Public Participation. § 840.16. Each State program shall provide for public participation in enforcement of the State program consistent with that provided by 30 CFR § § 842, 843, and 845 and 43 CFR § 4.

  A Change In Inspection Frequency. § 842.11( f). In lieu of the inspection frequency established in § 842.11( c), an alternate inspection frequency can be proposed after following the procedures in ( f)( 1) of this section. Public notice and opportunity to comment is required in section ( f)( 2) with the procedures.

  Requests For Federal Inspections. § 842.12. A person may request a Federal inspection under § 842.11( b) by furnishing to an authorized representative of the Secretary a signed, written statement ( or an oral report followed by a signed, written statement) giving the reason to believe that a violation , condition or practice referred to in § 842.11( b)( 1)( i) exists and that the State regulatory 05/ 21/ 2002 OSM_ SMCRA ccbs_ 2002 04 10. doc Page 13 of 19 authority, if any, has been notified, in writing, of the existence of the violation, condition or practice.

If a Federal inspection is conducted as a result of information provided to the Office by a person as described, the person shall be notified as far in advance as practicable when the inspection is to occur and shall be allowed to accompany the authorized representative of the Secretary during the inspection. Such person has a right of entry to, upon and through the coal exploration or surface coal mining and reclamation operation about which he or she supplied information, but only if he or she is in the presence of and is under the control, direction and supervision of the authorized representative while on the mine property. Such right of entry does not include a right to enter buildings without consent of the person in control of the building or without a search warrant.

  Review Of Adequacy And Completeness Of Inspections. § 842.14. Any person who is or may be adversely affected by a surface coal mining and reclamation operation or a coal exploration operation may notify the Director or his or her designee in writing of any alleged failure on the part of the Office to make adequate and complete or periodic Federal inspections. The notification shall include sufficient information to create a reasonable belief that the regulations of this part are not being complied with and to demonstrate that the person is or may be adversely affected. The Director or his or her designee shall within 15 days of receipt of the notification determine whether adequate and complete or periodic inspections have been made. The Director or his or her designee shall furnish the complainant with a written statement of the reasons for such determination and the actions, if any, taken to remedy the noncompliance.

Siting Restrictions for Surface Coal Mining Operations General restrictions incidental with surface coal mining unless the operator qualifies for an exemption.

  Area Designated by Act of Congress. § 761.11( a). No operations in the National Park System, National Wildlife Refuge System, National System of Trails, National Wilderness Preservation System, Wild and Scenic Rivers System, and National Recreation Areas designated by Act of Congress.

  National Forest. § 761.11( b). No operations on any Federal lands within a national forest unless the Secretary finds that there are no significant values that may be incompatible with surface coal mining operations and the exemptions of items ( 1) & ( 2).

  National Register of Historic Places. § 761.11( c). Operations are restricted for any lands where the operation would adversely affect any publicly owned park or any place in the National Register of Historic Places unless all agencies with jurisdiction give approval. 05/ 21/ 2002 OSM_ SMCRA ccbs_ 2002 04 10. doc Page 14 of 19   Public Roads. § 761.11( d). Operations will not occur within 100 feet of any public road unless exemptions apply or the given procedures are followed.

  Occupied Dwellings. § 761.11( e). Operations will not occur within 300 feet of any occupied dwelling unless exemptions apply.

  Public Buildings. § 761.11( f). Operations will not occur within 300 feet of any public building, school, church, community or institutional building or public park unless exemptions apply.

  Cemetery. § 761.11( g). Operations will not occur within 300 feet of a cemetery. This prohibition does not apply if the cemetery is relocated in accordance with all applicable laws and regulations.

Surface Protections From Underground Coal Mining Operations   Protection of Publicly Owned Parks and Historic Places. § 784.17. Any publicly owned parks or places listed on the National Register of Historic Places that may be adversely affected by the proposed operation shall describe in the underground mining permit application the measures to be taken to prevent or minimize adverse impacts. Measures may be required for protection through appropriate mitigation and treatment measures.

  Subsidence Minimization. § 784.20( b)( 5). The subsidence control plan, except for areas where planned subsidence is projected to be used, will describe the subsidence control measures that will be taken to prevent or minimize subsidence and subsidence related damage. The measures used could be backstowing or backfilling of voids. Note: The use of sand cement fly ash mixtures is accepted to mitigate subsidence and stabilize abandoned mine openings. Fly ash increases the flowability of grout. [" Site development over an abandoned coal mine," Mining Engineering, vol. 52, no. 10, pp. 31 33. October 2000.] While backstowing or backfilling of voids is not a standard operation during coal mining, it should not be ruled out for the future.

Special Categories Of Mining   Experimental Practices. § 785.13 Experimental practice encourages advances in mining and reclamation technology or allows a postmining land use for industrial, commercial, residential, or public use on an experimental basis. The application shall show that the experimental practice is potentially more, or at least as, environmentally protective, during and after mining operations, as would otherwise be required. And that the practice will not reduce the 05/ 21/ 2002 OSM_ SMCRA ccbs_ 2002 04 10. doc Page 15 of 19 protection afforded public health and safety below the requirements of the permanent program performance standards.

Bonding Bonding: General   Period Of Liability. § 800.13 Performance bond liability will be for the duration of the surface coal mining and reclamation operation and for a period which is coincident with the operator's period of extended responsibility for successful revegetation provided in § 816.116 or § 817.116 or until achievement of the reclamation requirements of the Act, regulatory programs, and permit, which ever is later.

  Determination Of Bond Amount. § 800.14 The bond amount will be determined by the regulatory authority and depend on the requirements of the approved permit and reclamation plan to reflect the probable difficulty of reclamation. The amount shall be sufficient to assure the completion of the reclamation plan if the work has to be performed by the regulatory authority.

Bonding Period In Relation To Revegetation.

  Good Annual Precipitation. § 816.131( 2)( i). In areas of more than 26.0 inches of annual average precipitation, the period of responsibility shall continue for not less than five full years, with the exception in § 816.131( 2)( ii) for remining.

  Low Annual Precipitation. § 816.131( 3)( i). In areas of less than 26.0 inches of annual average precipitation, the period of responsibility shall continue for not less than ten full years, with the exception in § 816.131( 3)( ii) for remining.

Performance Standards Water Protection   Hydrologic Balance Protection. § 816.41( a), § 817.41( a). All mining and reclamation activities shall be conducted to minimize disturbance of the hydrologic balance within the permit and adjacent areas, to prevent material damage to the hydrologic balance outside the permit area, to assure the protection or replacement of water rights, and to support approved postmining land uses in accordance with the terms and conditions of the approved permit and the performance standards in 30 CFR Chapter VII, subchapter K. The regulatory authority may require additional preventative, 05/ 21/ 2002 OSM_ SMCRA ccbs_ 2002 04 10. doc Page 16 of 19 remedial, or monitoring measures to assure that material damage to the hydrologic balance outside the permit area is prevented.

  Ground Water Protection. § 816.41( b)., § 817.41( b). Earth materials and runoff will be handled in a manner that minimizes acidic, toxic, or other harmful infiltration to ground water systems and by managing excavations and other disturbance to prevent or control the discharge of pollutants into the ground water.

  Ground Water Monitoring. § 816.41( c) , § 817.41( a). Ground water monitoring is required based on the plan approved under § 780.21( i) or § 784.14( h). The operator is required to develop a ground water monitoring plan based on the PHC determination and relevant information appearing in the permit application. It must provide for the monitoring of parameters that relate to the suitability of the groundwater for current and approved postmining uses and to the objectives set forth in the hydrology reclamation plan. The monitoring plan must identify the quantity and quality parameters, sampling frequency and site locations. It must describe how the data may be used to determine the impacts of the operation upon the hydrologic balance. Data will be submitted every three months unless more frequently prescribed by the regulatory authority. Data reporting is required at least every three months and the Regulatory Authority may require additional monitoring when necessary.

  Surface Water Protection. § 816.41( d)., § 817.41( d). Water quality shall be protected by handling earth materials, ground water discharges and runoff in a manner that minimizes the formation of acidic or toxic drainage; prevent, to the extent possible using the best technology currently available, additional contribution of suspended solids to streamflow outside the permit area; and otherwise prevent water pollution.

  Surface Water Monitoring. § 816.41 ( e), § 817.41( d). Surface water monitoring is required based on the plan approved under § 780.21( j). The operator's plan will be based on the PHC determination, and analysis of the baseline hydrologic, geologic and other relevant information included in the permit application. The plan must relate to the suitability of the surface water for current and approved postmining land uses, to the objectives set forth in the hydrologic protection plan under paragraph ( h), and to U. S. Environmental Protection Agency effluent limitations found at 40 CFR Part 434. The monitoring plan must identify the quantity and quality parameters, sampling frequency and site locations. It must describe how the data may be used to determine the impacts of the operation upon the hydrologic balance. Data will be submitted every three months unless more frequently prescribed by the regulatory authority. Data reporting is required at least every three months and the Regulatory Authority may require additional monitoring when necessary.

  Water Rights and Replacement, § 816.41( h) & 817.41( j) Requirements for replacement of water supply where that supply has been adversely impacted resulting from surface mining activities. 05/ 21/ 2002 OSM_ SMCRA ccbs_ 2002 04 10. doc Page 17 of 19   Discharges To Underground Mines. § 816.41( i) & § 817.41( h). Discharges into an underground mine are prohibited, unless specifically approved by and it can be demonstrated to the satisfaction of the regulatory authority that the discharge will minimize disturbance to the hydrologic balance on the permit area, prevent material damage outside the permit area, meet with the approval of the Mine Safety and Health Administration, not violate applicable water quality standards and effluent limitations, be of known quality and quantity and meet the effluent limitations in § § 816.42 and 817.42 for pH and total suspended solids. The CCB related materials listed are fly ash from a coal fired facility and flue gas desulfurization sludge.

  Water Quality Standards And Effluent Limitations, § 816.42. Discharges of water from areas disturbed by surface mining activities shall be made in compliance with all applicable State and Federal water quality laws and regulations and with the effluent limitations for coal mining promulgated by the U. S. Environmental Protection Agency set forth in 40 CFR part 434.

  Diversions, § 816.43. With the approval of the regulatory authority, any flow from mined areas abandoned before May 3, 1978 and any flow from undisturbed areas or reclaimed areas, after meeting the criteria of § 816.46 for siltation structure removal, may be diverted from disturbed areas by means of temporary or permanent diversions. All diversions shall be designed to minimize adverse impacts to the hydrologic balance within the permit and adjacent areas, to prevent material damage outside the permit area and to assure the safety of the public.

  Non Coal Mine Waste, § 816.89. Non coal mine wastes including, but not limited to grease, lubricants, paints, flammable liquids, garbage, abandoned mining machinery, lumber and other combustible materials generated during mining activities shall be placed and stored in a controlled manner in a designated portion of the permit area. Placement and storage shall ensure that leachate and surface runoff do not degrade surface or ground water, that fires are prevented, and that the area remains stable and suitable for reclamation and revegetation compatible with the natural surroundings. Final disposal of noncoal mine wastes shall be in a designated disposal site in the permit area or a State approved solid waste disposal area. Disposal sites in the permit area shall be designed and constructed to ensure that leachate and drainage from the noncoal mine waste area does not degrade surface or underground water. Wastes shall be routinely compacted and covered to prevent combustion and windborne waste. When the disposal is completed, a minimum of 2 feet of soil cover shall be placed over the site, slopes stabilized, and revegetation accomplished in accordance with § § 816.111 through 816.116. Operation of the disposal site shall be conducted in accordance with all local, State and Federal requirements. At no time shall any noncoal mine waste be deposited in a refuse pile or impounding structure, nor shall an excavation for a noncoal mine waste disposal site be located within 3 feet of any coal outcrop or coal storage area. 05/ 21/ 2002 OSM_ SMCRA ccbs_ 2002 04 10. doc Page 18 of 19 Fugitive Dust Control   Non Coal Mine Waste, § 816.89. Wastes shall be routinely compacted and covered to prevent wind borne dust.

  Stabilization Of Surface Areas. § 816.95( a), § 817.95( a). All exposed surface areas shall be protected and stabilized to effectively control erosion and air pollution attendant to erosion.

  Road Dust. § 816.150( b)( 1), § 817.150( b)( 1). Control or prevent erosion and air pollution including road dust as well as dust occurring on other exposed surfaces, by measures such as vegetating, watering, using chemical or other dust suppressants, or otherwise stabilizing all exposed surfaces in accordance with current, prudent engineering practices.

Reclamation.

  Non Coal Mine Waste, § 816.89. Placement and storage shall ensure that leachate and surface runoff do not degrade surface or ground water and that the area remains stable and suitable for reclamation and revegetation compatible with the natural surroundings. Completed reclamation will have a minimum of 2 feet of soil cover over the site, slopes stabilized, and revegetation accomplished in accordance with § § 816.111 through 816.116.

  Stabilization of Surface Area, § 816.95 Exposed surface areas must be protected from wind and water erosion with requirements that areas that develop rills and gullies be regraded and stabilized, the topsoil replaced and the areas reseeded or replanted.

  Approximate Original Contour. § 816.102( a), § 817.102( a). Disturbed areas shall be backfilled and graded to achieve the approximate original contour to eliminate highwalls, spoil piles, and depressions. This will also be done to minimize erosion and support the approved postmining land use. The use of fill material from outside the permit is not discussed and not precluded.

  Compaction. § 816.102( c), § 817.102( c). Spoil and waste materials shall be compacted where advisable to ensure stability or to prevent leaching of toxic materials.

  Encapsulation. § 816.102( f), § 817.102( f). Acid and toxic forming material exposed, used or produced during mining will be adequately covered with nontoxic and noncombustible material or treated to control the impact on surface and ground water in accordance with § 816.41 and to minimize adverse effects on plant growth and the approved postmining land use. An alkaline ash can be use to treat an acid forming shale in the overburden. 05/ 21/ 2002 OSM_ SMCRA ccbs_ 2002 04 10. doc Page 19 of 19   Thin Overburden. § 816.104. Thin overburden means insufficient spoil and other waste materials available from the entire permit area to restore the disturbed area to its approximate original contour. The expectation was that no material would be available for addition. This part does not say to go out and find some coal ash. It does point out the adjustment required for a lack of material and that the goal of approximate original contour, when it can be attained, is the expectation.


[Federal Register Volume 79, Number 230 (Monday, December 1, 2014)]
[Notices]
[Pages 71146-71150]
[FR Doc No: 2014-28172]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-73676; File No. SR-NASDAQ-2014-105]

Self-Regulatory Organizations; The NASDAQ Stock Market, LLC;
Notice of Filing and Immediate Effectiveness of Proposed Rule Change
Relating to Rebates in Penny Pilot Options

November 24, 2014.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
(``Act''),\1\ and Rule 19b-4 thereunder,\2\ notice is hereby given that
on November 10, 2014, The NASDAQ Stock Market LLC (``NASDAQ'' or
``Exchange'') filed with the Securities and Exchange Commission
(``SEC'' or ``Commission'') the proposed rule change as described in
Items I, II, and III below, which Items have been prepared by NASDAQ.
The Commission is publishing this notice to solicit comments on the
proposed rule change from interested persons.
---------------------------------------------------------------------------

    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
---------------------------------------------------------------------------

I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change

    NASDAQ proposes to modify Chapter XV, entitled ``Options Pricing,''
at Section 2 governing pricing for NASDAQ members using the NASDAQ
Options Market (``NOM''), NASDAQ's facility for executing and routing
standardized equity and index options. Specifically, NOM proposes to
amend certain Penny Pilot Options \3\ rebates currently applicable to
Customers,\4\ Professionals \5\ and NOM Market Makers.\6\
---------------------------------------------------------------------------

    \3\ The Penny Pilot was established in March 2008 and in October
2009 was expanded and extended through December 31, 2014. See
Securities Exchange Act Release Nos. 57579 (March 28, 2008), 73 FR
18587 (April 4, 2008) (SR-NASDAQ-2008-026) (notice of filing and
immediate effectiveness establishing Penny Pilot); 60874 (October
23, 2009), 74 FR 56682 (November 2, 2009) (SR-NASDAQ-2009-091)
(notice of filing and immediate effectiveness expanding and
extending Penny Pilot); 60965 (November 9, 2009), 74 FR 59292
(November 17, 2009) (SR-NASDAQ-2009-097) (notice of filing and
immediate effectiveness adding seventy-five classes to Penny Pilot);
61455 (February 1, 2010), 75 FR 6239 (February 8, 2010) (SR-NASDAQ-
2010-013) (notice of filing and immediate effectiveness adding
seventy-five classes to Penny Pilot); 62029 (May 4, 2010), 75 FR
25895 (May 10, 2010) (SR-NASDAQ-2010-053) (notice of filing and
immediate effectiveness adding seventy-five classes to Penny Pilot);
65969 (December 15, 2011), 76 FR 79268 (December 21, 2011) (SR-
NASDAQ-2011-169) (notice of filing and immediate effectiveness
extension and replacement of Penny Pilot); 67325 (June 29, 2012), 77
FR 40127 (July 6, 2012) (SR-NASDAQ-2012-075) (notice of filing and
immediate effectiveness and extension and replacement of Penny Pilot
through December 31, 2012); 68519 (December 21, 2012), 78 FR 136
(January 2, 2013) (SR-NASDAQ-2012-143) (notice of filing and
immediate effectiveness and extension and replacement of Penny Pilot
through June 30, 2013); 69787 (June 18, 2013), 78 FR 37858 (June 24,
2013) (SR-NASDAQ-2013-082) (notice of filing and immediate
effectiveness and extension and replacement of Penny Pilot through
December 31, 2013); 71105 (December 17, 2013), 78 FR 77530 (December
23, 2013) (SR-NASDAQ-2013-154) (notice of filing and immediate
effectiveness and extension and replacement of Penny Pilot through
June 30, 2014); and 79 FR 31151 (May 23, 2014), 79 FR 31151 (May 30,
2014) (SR-NASDAQ-2014-056) ((notice of filing and immediate
effectiveness and extension and replacement of Penny Pilot through
December 31, 2014). See also NOM Rules, Chapter VI, Section 5.
    \4\ The term ``Customer'' applies to any transaction that is
identified by a Participant for clearing in the Customer range at
The Options Clearing Corporation (``OCC'') which is not for the
account of broker or dealer or for the account of a ``Professional''
(as that term is defined in Chapter I, Section 1(a)(48)).
    \5\ The term ``Professional'' means any person or entity that
(i) is not a broker or dealer in securities, and (ii) places more
than 390 orders in listed options per day on average during a
calendar month for its own beneficial account(s) pursuant to Chapter
I, Section 1(a)(48). All Professional orders shall be appropriately
marked by Participants.
    \6\ The term ``NOM Market Maker'' means a Participant that has
registered as a Market Maker on NOM pursuant to Chapter VII, Section
2, and must also remain in good standing pursuant to Chapter VII,
Section 4. In order to receive NOM Market Maker pricing in all
securities, the Participant must be registered as a NOM Market Maker
in at least one security.
---------------------------------------------------------------------------

    The text of the proposed rule change is available on the Exchange's
Web site at http://www.nasdaq.cchwallstreet.com, at the principal
office of the Exchange, and at the Commission's Public Reference Room.

II. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change

    In its filing with the Commission, the Exchange included statements
concerning the purpose of and basis for the proposed rule change and
discussed any comments it received on the proposed rule change. The
text of these statements may be examined at the places specified in
Item IV below. The Exchange has prepared summaries, set forth in
sections A, B, and C below, of the most significant aspects of such
statements.

A. Self-Regulatory Organization's Statement of the Purpose of, and the
Statutory Basis for, the Proposed Rule Change

1. Purpose
    NASDAQ proposes to modify Chapter XV, entitled ``Options Pricing,''
at Section 2(1) governing the rebates and fees assessed for option
orders entered into NOM. The Exchange proposes to amend certain
qualifications related to Customer and Professional Penny Pilot Options
Rebates to Add Liquidity tiers to offer Participants a greater
opportunity to earn Customer and Professional rebates. The Exchange
also proposes to modify NOM Market Maker Penny Pilot Options Rebates to
Add Liquidity to offer additional rebate opportunities. The Exchange
believes that additional rebate opportunities will attract additional
order flow to the Exchange to the benefit of all market participants.
Customer and Professional Rebates To Add Liquidity
    Today, the Exchange offers tiered Penny Pilot Options Rebates to
Add Liquidity to Customers and Professionals based on various criteria
with rebates ranging from $0.20 to $0.48 per contract. Participants may
qualify for Customer and Professional Penny Pilot Options Rebates to
Add Liquidity in Tiers 1-5 and Tier 8 by adding a certain amount of
Customer and/or Professional liquidity in Penny Pilot Options or Non-
Penny Pilot Options as specified by each tier.\7\ The Exchange is
proposing to amend these tiers and permit Participants to add Customer,
Professional, Firm,\8\ Non-NOM Market Maker \9\ and/or Broker-Dealer
\10\ liquidity in Penny Pilot Options and/or Non-Penny Pilot Options in
order to qualify for the Customer and/or Professional Penny Pilot
Options Rebates to Add Liquidity in Tiers 1-5 and Tier 8.
---------------------------------------------------------------------------

    \7\ Tiers 6 and 7 are calculated based on Total Volume. Total
Volume is defined as Customer, Professional, Firm, Broker-Dealer,
Non-NOM Market Maker and NOM Market Maker volume in Penny Pilot
Options and/or Non-Penny Pilot Options which either adds or removes
liquidity on NOM. See note ``b'' in Section 2, Chapter XV. The
Exchange utilizes data from OCC to determine the total industry
customer equity and ETF options ADV figure. OCC classifies equity
and ETF options volume under the equity options category. Also, both
customer and professional orders that are transacted on options
exchanges clear in the customer range at OCC and therefore both
customer and professional volume would be included in the total
industry figure to calculate rebate tiers. This is the case today
for the Total Volume number that appear in Tiers 6 and 7 of the
Customer and Professional rebate today, which includes Customer and
Professional numbers in both the numerator and denominator of that
percentage. These tiers will remain unchanged by this proposal.
    \8\ The term ``Firm'' or (``F'') applies to any transaction that
is identified by a Participant for clearing in the Firm range at
OCC.
    \9\ The term ``Non-NOM Market Maker'' or (``O'') is a registered
market maker on another options exchange that is not a NOM Market
Maker. A Non-NOM Market Maker must append the proper Non-NOM Market
Maker designation to orders routed to NOM
    \10\ The term ``Broker-Dealer'' or (``B'') applies to any
transaction which is not subject to any of the other transaction
fees applicable within a particular category.
---------------------------------------------------------------------------

    Tier 1 currently offers Participants that add Customer and/or
Professional liquidity in Penny Pilot Options and/or Non-Penny Pilot
Options of up to 0.10% of total industry customer equity and ETF option
average daily volume (``ADV'') contracts per day in a month a $0.20 per
contract rebate. The Exchange is proposing to amend Tier 1 to provide
that Participants that add Customer, Professional, Firm, Non-NOM Market
Maker and/or Broker-Dealer liquidity in Penny Pilot Options and/or Non-
Penny Pilot Options of up to 0.10% of total industry customer equity
and ETF option average daily volume (``ADV'') contracts per day in a
month would continue to receive a $0.20 per contract rebate.
    Tier 2 currently offers Participants that add Customer and/or
Professional liquidity in Penny Pilot Options and/or Non-Penny Pilot
Options above 0.10% to 0.20% of total industry customer equity and ETF
option ADV contracts per day in a month a $0.25 per contract rebate.
The Exchange is proposing to amend Tier 2 to provide that Participants
that add Customer, Professional, Firm, Non-NOM Market Maker and/or
Broker-Dealer liquidity in Penny Pilot Options and/or Non-Penny Pilot
Options above 0.10% to 0.20% of total industry customer equity and ETF
option ADV contracts per day in a month would continue to receive a
$0.25 per contract rebate.
    Tier 3 currently offers Participants that add Customer and/or
Professional liquidity in Penny Pilot Options and/or Non-Penny Pilot
Options above 0.20% to 0.30% of total industry customer equity and ETF
option ADV contracts per day in a month a $0.42 per contract rebate.
The Exchange is proposing to amend Tier 3 to provide that Participants
that add Customer, Professional, Firm, Non-NOM Market Maker and/or
Broker-Dealer liquidity in Penny Pilot Options and/or Non-Penny Pilot
Options above 0.20% to 0.30% of total industry customer equity and ETF
option ADV contracts per day in a month would continue to receive a
$0.42 per contract rebate.
    Tier 4 currently offers Participants that add Customer and/or
Professional liquidity in Penny Pilot Options and/or Non-Penny Pilot
Options above 0.30% to 0.40% of total industry customer equity and ETF
option ADV contracts per day in a month a $0.43 per contract rebate.
The Exchange is proposing to amend Tier 4 to provide that Participants
that add Customer, Professional, Firm, Non-NOM Market Maker and/or
Broker-Dealer liquidity in Penny Pilot Options and/or Non-Penny Pilot
Options above 0.30% to 0.40% of total industry customer equity and ETF
option ADV contracts per day in a month would continue to receive a
$0.43 per contract rebate.
    Tier 5 currently offers Participants that add Customer and/or
Professional liquidity in Penny Pilot Options and/or Non-Penny Pilot
Options above 0.40% of total industry customer equity and ETF option
ADV contracts per day in a month, or Participants that add (1) Customer
and/or Professional liquidity in Penny Pilot Options and/or Non-Penny
Pilot Options of 25,000 or more contracts per day in a month, (2) the
Participant has certified for the Investor Support Program set forth in
Rule 7014, and (3) the Participant executed at least one order on
NASDAQ's equity market a $0.45 per contract rebate. The Exchange is
proposing to amend Tier 5 to provide that Participants that add
Customer, Professional, Firm, Non-NOM Market Maker and/or Broker-Dealer
liquidity in Penny Pilot Options and/or Non-Penny Pilot Options above
0.40% of total industry customer equity and ETF option ADV contracts
per day in a month, or Participant adds (1) Customer and/or
Professional liquidity in Penny Pilot Options and/or Non-Penny Pilot
Options of 25,000 or more contracts per day in a month, (2) the
Participant has certified for the Investor Support Program set forth in
Rule 7014, and (3) the Participant executed at least one order on
NASDAQ's equity market would continue to receive a $0.45 per contract
rebate.
    Tier 8 currently offers Participants that add Customer and/or
Professional liquidity in Penny Pilot Options and/or Non-Penny Pilot
Options of 0.75% or more of national customer volume in multiply-listed
equity and ETF options classes in a month a $0.48 per contract Customer
rebate and a $0.47 per contract Professional rebate. The Exchange is
proposing to amend Tier 8 to provide that Participants that add
Customer, Professional, Firm, Non-NOM Market Maker and/or Broker-Dealer

liquidity in Penny Pilot Options and/or Non-Penny Pilot Options of
0.75% or more of national customer volume in multiply-listed equity and
ETF options classes in a month would continue to receive a $0.48 per
contract Customer rebate and a $0.47 per contract Professional rebate.
    With respect to Tier 8, today, Participants that add Customer and/
or Professional liquidity in Penny Pilot Options and/or Non-Penny Pilot
Options of 1.25% or more of national customer volume in multiply-listed
equity and ETF options classes in a month will receive an additional
$0.02 per contract Penny Pilot Options Tier 8 Customer Rebate to Add
Liquidity for each transaction which adds liquidity in Penny Pilot
Options in that month. The Exchange also proposes to amend this
incentive by also permitting Firm, Non-NOM Market Maker and/or Broker-
Dealer liquidity to qualify for the incentive. The amended rule text
would provide, ``Participants that add Customer, Professional, Firm,
Non-NOM Market Maker, and/or Broker-Dealer liquidity in Penny Pilot
Options and/or Non-Penny Pilot Options of 1.25% or more of national
customer volume in multiply-listed equity and ETF options classes in a
month will receive an additional $0.02 per contract Penny Pilot Options
Customer Rebate to Add Liquidity for each transaction which adds
liquidity in Penny Pilot Options in that month.''
NOM Market Maker Rebates To Add Liquidity
    Today, the Exchange pays NOM Market Maker Penny Pilot Options
Rebates to Add Liquidity based on various criteria in six tiers with
rebates which range from $0.20 to $0.42 per contract as noted below.

------------------------------------------------------------------------
                                                         Rebate to add
  Monthly  volume                                          liquidity
------------------------------------------------------------------------
Tier 1.............  Participant adds NOM Market       $0.20
                      Maker liquidity in Penny Pilot
                      Options and/or Non-Penny Pilot
                      Options of up to 0.10% of total
                      industry customer equity and
                      ETF option average daily volume
                      (``ADV'') contracts per day in
                      a month.
Tier 2.............  Participant adds NOM Market       $0.25
                      Maker liquidity in Penny Pilot
                      Options and/or Non-Penny Pilot
                      Options above 0.10% to 0.25% of
                      total industry customer equity
                      and ETF option ADV contracts
                      per day in a month.
Tier 3.............  Participant adds NOM Market       $0.30 or $0.40 in
                      Maker liquidity in Penny Pilot    the following
                      Options and/or Non-Penny Pilot    symbols QQQ, SPY
                      Options above 0.25% to 0.60% of   and VXX.
                      total industry customer equity
                      and ETF option ADV contracts
                      per day in a month.
Tier 4.............  Participant adds NOM Market       $0.32 or $0.40 in
                      Maker liquidity in Penny Pilot    the following
                      Options and/or Non-Penny Pilot    symbols QQQ, VXX
                      Options of above 0.60% to 0.90%   and SPY.
                      of total industry customer
                      equity and ETF option ADV
                      contracts per day in a month.
Tier 5.............  Participant adds NOM Market       $0.40
                      Maker liquidity in Penny Pilot
                      Options and/or Non-Penny Pilot
                      Options of above 0.30% of total
                      industry customer equity and
                      ETF option ADV contracts per
                      day in a month and qualifies
                      for the Tier 7 or Tier 8
                      Customer and/or Professional
                      Rebate to Add Liquidity in
                      Penny Pilot Options.
Tier 6.............  Participant adds NOM Market       $0.42
                      Maker liquidity in Penny Pilot
                      Options and/or Non-Penny Pilot
                      Options above 0.80% of total
                      industry customer equity and
                      ETF option ADV contracts per
                      day in a month and qualifies
                      for the Tier 7 or Tier 8
                      Customer and/or Professional
                      Rebate to Add Liquidity in
                      Penny Pilot Options or
                      Participant adds NOM Market
                      Maker liquidity in Penny Pilot
                      Options and/or Non-Penny Pilot
                      Options above 0.90% of total
                      industry customer equity and
                      ETF option ADV contracts per
                      day in a month.
------------------------------------------------------------------------

    Today, the Tier 3 NOM Market Maker Penny Pilot Options Rebate to
Add Liquidity pays a $0.30 per contract rebate, except in QQQ, SPY and
VXX which pay a $0.40 per contract rebate to Participants that add NOM
Market Maker liquidity in Penny Pilot Options and/or Non-Penny Pilot
Options above 0.25% to 0.60% of total industry customer equity and ETF
option ADV contracts per day in a month. The Exchange proposes to add
AAPL to the list of symbols that are eligible for the Tier 3 rebate of
$0.40 per contract. Today, the Exchange pays a Tier 3 NOM Market Maker
Penny Pilot Options Rebate to Add Liquidity of $0.30 per contract in
AAPL. Today, the Tier 4 NOM Market Maker Penny Pilot Options Rebate to
Add Liquidity pays a $0.32 per contract rebate, except in QQQ, SPY and
VXX which pay a $0.40 per contract rebate to Participants that add NOM
Market Maker liquidity in Penny Pilot Options and/or Non-Penny Pilot
Options of above 0.60% to 0.90% of total industry customer equity and
ETF option ADV contracts per day in a month. The Exchange proposes to
add AAPL to the list of symbols that are eligible for the Tier 4 rebate
of $0.40 per contract. Today, the Exchange pays a Tier 4 NOM Market
Maker Penny Pilot Options Rebate to Add Liquidity of $0.32 per contract
in AAPL. The Exchange believes that paying a higher rebate for AAPL
transactions will encourage a greater number of transactions in AAPL.
    Today, the Tier 6 NOM Market Maker Penny Pilot Option Rebate to Add
Liquidity pay a $0.42 per contract rebate to Participants that add NOM
Market Maker liquidity in Penny Pilot Options and/or Non-Penny Pilot
Options above 0.80% of total industry customer equity and ETF option
ADV contracts per day in a month and qualifies for the Tier 7 or Tier 8
Customer and/or Professional Rebate to Add Liquidity in Penny Pilot
Options or Participant adds NOM Market Maker liquidity in Penny Pilot
Options and/or Non-Penny Pilot Options above 0.90% of total industry
customer equity and ETF option ADV contracts per day in a month. The
Exchange is proposing to amend the Tier 6 NOM Market Maker Penny Pilot
Options Rebate to Add Liquidity to also provide that a Participant that
adds Customer, Professional, Firm, Non-NOM Market Maker, and/or Broker-
Dealer liquidity in Penny Pilot Options and/or Non-Penny Pilot Options
of 1.40% or more of national customer volume in multiply-listed equity
and ETF options classes in a month may also qualify for the Tier 6
rebate of $0.42 per contract. This would provide Participants another
method to qualify for the rebate.
2. Statutory Basis
    NASDAQ believes that the proposed rule changes are consistent with
the provisions of Section 6 of the Act,\11\ in general, and with
Section 6(b)(4) of the Act,\12\ in particular, in that they provide

for the equitable allocation of reasonable dues, fees and other charges
among members and issuers and other persons using any facility or
system which NASDAQ operates or controls as described in detail below.
---------------------------------------------------------------------------

    \11\ 15 U.S.C. 78f.
    \12\ 15 U.S.C. 78f(b)(4).
---------------------------------------------------------------------------

Customer and Professional Rebates To Add Liquidity
    The Exchange's proposal to amend the Customer and Professional
Penny Pilot Options Rebates to Add Liquidity Tiers 1-5 and Tier 8 to
provide that Participants may qualify for those rebates by adding not
only Customer and Professional liquidity in Penny and/or Non-Penny
Pilot Options, as specified in each tier, but also Firm, Non-NOM Market
Maker and Broker-Dealer liquidity in Penny and/or Non-Penny Pilot
Options is reasonable because the Exchange believes that the addition
of the various types of market participant liquidity will allow
additional Participants to qualify for these rebate tiers, who may not
qualify today, or receive higher rebates. The Exchange believes that
offering additional types of liquidity to qualify for the Customer and
Professional Penny Pilot Options Rebates to Add Liquidity will
incentivize Participants to send a greater amount of order flow to NOM.
    The Exchange's proposal to amend the Customer and Professional
Penny Pilot Options Rebates to Add Liquidity Tiers 1-5 and Tier 8 to
provide that Participants may qualify for those rebates by adding not
only Customer and Professional liquidity in Penny and/or Non-Penny
Pilot Options, as specified in each tier, but also Firm, Non-NOM Market
Maker and Broker-Dealer liquidity in Penny and/or Non-Penny Pilot
Options is equitable and not unfairly discriminatory because the
Exchange is permitting all types of market participant liquidity in
Tiers 1-5 and Tier 8 of its Customer and Professional Penny Pilot
Options rebate tiers as a means to qualify for these rebates. Further,
all Participants may qualify to be eligible for these rebates, provided
they transact the requisite amount of liquidity. Customer liquidity
offers unique benefits to the market which benefits all market
participants. Customer liquidity benefits all market participants by
providing more trading opportunities, which attracts market makers. An
increase in the activity of these market participants in turn
facilitates tighter spreads, which may cause an additional
corresponding increase in order flow from other market participants.
The Exchange believes that encouraging Participants to add Professional
liquidity creates competition among options exchanges because the
Exchange believes that the rebates may cause market participants to
select NOM as a venue to send Professional order flow.
    The Exchange believes that with respect to Tier 8, permitting
Participants to add Firm, Non-NOM Market Maker and/or Broker-Dealer
liquidity, in addition to Customer and Professional liquidity, to
qualify for the additional $0.02 per contract Tier 8 incentive is
reasonable because the Exchange believes the opportunity to calculate
the qualification for the incentive by adding other types of market
participant liquidity will allow additional market participants to
qualify for the incentive. Additionally, permitting other qualifying
volume to count towards meeting the Tier 8 incentive will incentivize
Participants to send a greater amount of order flow to NOM.
    The Exchange believes that with respect to Tier 8, permitting
Participants to add Firm, Non-NOM Market Maker and/or Broker-Dealer
liquidity, in addition to Customer and Professional liquidity, to
qualify for the additional $0.02 per contract Tier 8 incentive is
equitable and not unfairly discriminatory because all Participants are
eligible for the Tier 8 incentive, provided they transact the requisite
volume.
NOM Market Maker Penny Pilot Options Rebates To Add Liquidity
    The Exchange's proposal to amend the NOM Market Maker Penny Pilot
Options Rebate to Add Liquidity Tiers 3 and 4 to increase the AAPL
rebate from $0.30 to $0.40 per contract in Tier 3 and from $0.32 to
$0.40 per contract in Tier 4 is reasonable because the proposal seeks
to encourage Participants to transact a greater amount of AAPL
liquidity in order to receive the higher rebate of $0.40 per contract.
The Exchange believes that offering Participants NOM Market Makers the
ability to obtain higher rebates is reasonable because it will
encourage additional order interaction.
    The Exchange's proposal to amend the NOM Market Maker Penny Pilot
Options Rebate to Add Liquidity Tiers 3 and 4 to increase the AAPL
rebate from $0.30 to $0.40 per contract in Tier 3 and from $0.32 to
$0.40 per contract in Tier 4 is equitable and not unfairly
discriminatory because all NOM Market Makers may qualify for the Tier 3
and Tier 4 NOM Market Maker Penny Pilot Options Rebate to Add
Liquidity.
    The Exchange believes that it is reasonable, equitable, and not
unfairly discriminatory to adopt different pricing for AAPL, as
compared to other options, because pricing by symbol is a common
practice on many U.S. options exchanges as a means to incentivize order
flow to be sent to an exchange for execution in the most actively
traded options classes, in this case actively traded Penny Pilot
Options.\13\ The Exchange notes that AAPL is one of the most actively
traded options in the U.S. The Exchange believes that this pricing will
incentivize members to transact options on AAPL on NOM in order to
obtain the higher $0.40 per contract rebate.
---------------------------------------------------------------------------

    \13\ See NASDAQ OMX PHLX LLC's Pricing Schedule. See also the
International Securities Exchange LLC's Fee Schedule. Both of these
markets segment pricing by symbol.
---------------------------------------------------------------------------

    The Exchange's proposal to amend the Tier 6 NOM Market Maker Penny
Pilot Options Rebate to Add Liquidity to offer an additional method
\14\ to qualify for the $0.42 per contract rebate is reasonable because
additional Participants may qualify for the Tier 6 rebate if they are
able to transact the requisite volume specified in the additional
proposed qualification to add any type of market participant liquidity.
The Exchange also believes that this amendment to the Tier 6 NOM Market
Maker Penny Pilot Options Rebate to Add Liquidity will incentivize
Participants to send a greater amount of order flow to NOM.
---------------------------------------------------------------------------

    \14\ Today, a Participant may qualify for the NOM Market Maker
Tier 6 Rebate to Add Liquidity in Penny Pilot Options by adding NOM
Market Maker liquidity in Penny Pilot Options and/or Non-Penny Pilot
Options above 0.80% of total industry customer equity and ETF option
ADV contracts per day in a month and qualifying for the Tier 7 or
Tier 8 Customer and/or Professional Rebate to Add Liquidity in Penny
Pilot Options or adding NOM Market Maker liquidity in Penny Pilot
Options and/or Non-Penny Pilot Options above 0.90% of total industry
customer equity and ETF option ADV contracts per day in a month. The
Exchange is amending Tier 6 to permit a Participant to qualify for
the $0.42 per contract rebate by adding Customer, Professional,
Firm, Non-NOM Market Maker, and/or Broker-Dealer liquidity in Penny
Pilot Options and/or Non- Penny Pilot Options of 1.40% or more of
national customer volume in multiply-listed equity and ETF options
classes in a month
---------------------------------------------------------------------------

    The Exchange's proposal to amend the Tier 6 NOM Market Maker Penny
Pilot Options Rebate to Add Liquidity to offer an additional method to
qualify for the $0.42 per contract is equitable and not unfairly
discriminatory because all Participants may qualify for the Tier 6
rebate provided they transact the requisite amount of liquidity.

B. Self-Regulatory Organization's Statement on Burden on Competition

    NASDAQ does not believe that the proposed rule changes will result
in any burden on competition that is not necessary or appropriate in
furtherance of the purposes of the Act, as amended.

    The Exchange believes that amending Tiers 1-5 and Tier 8 of the
Customer and Professional Penny Pilot Options Rebates to Add Liquidity,
as well as the Tier 8 incentive of $0.02 per contract to permit
Participants to add all types of market participant liquidity does not
create an undue burden on competition, rather the proposal will
incentivize market participants to send additional order flow to the
Exchange. Customer liquidity offers unique benefits to the market which
benefits all market participants. Customer liquidity benefits all
market participants by providing more trading opportunities, which
attracts market makers. An increase in the activity of these market
participants in turn facilitates tighter spreads, which may cause an
additional corresponding increase in order flow from other market
participants. The Exchange believes that encouraging Participants to
add Professional liquidity creates competition among options exchanges
because the Exchange believes that the rebates may cause market
participants to select NOM as a venue to send Professional order flow.
    The Exchange's proposal to amend the Tier 3 and 4 NOM Market Maker
Penny Pilot Options Rebates to Add Liquidity to pay a higher rebate for
AAPL of $0.40 per contract, similar to SPY, QQQ and VXX, does not
create an undue burden on competition because all NOM Market Makers may
qualify for the Tier 3 or 4 NOM Market Maker Penny Pilot Options Rebate
to Add Liquidity. The Exchange's proposal to offer another means to
qualify for the Tier 6 NOM Market Maker Penny Pilot Options Rebate to
Add Liquidity does not create an undue burden on competition, rather
the proposal will incentivize market participants to send additional
order flow to the Exchange.
    The Exchange believes the differing outcomes, rebates and fees
created by the Exchange's proposed pricing incentives contribute to the
overall health of the market place to the benefit of all Participants
that willing choose to transact options on NOM. For the reasons
specified herein, the Exchange does not believe this proposal creates
an undue burden on competition. The Exchange operates in a highly
competitive market comprised of twelve U.S. options exchanges in which
many sophisticated and knowledgeable market participants can readily
and do send order flow to competing exchanges if they deem fee levels
or rebate incentives at a particular exchange to be excessive or
inadequate. These market forces support the Exchange belief that the
proposed rebate structure and tiers proposed herein are competitive
with rebates and tiers in place on other exchanges. The Exchange
believes that this competitive marketplace continues to impact the
rebates present on the Exchange today and substantially influences the
proposals set forth above.

C. Self-Regulatory Organization's Statement on Comments on the Proposed
Rule Change Received From Members, Participants, or Others

    No written comments were either solicited or received.

III. Date of Effectiveness of the Proposed Rule Change and Timing for
Commission Action

    The foregoing rule change has become effective pursuant to Section
19(b)(3)(A)(ii) of the Act.\15\ At any time within 60 days of the
filing of the proposed rule change, the Commission summarily may
temporarily suspend such rule change if it appears to the Commission
that such action is necessary or appropriate in the public interest,
for the protection of investors, or otherwise in furtherance of the
purposes of the Act. If the Commission takes such action, the
Commission shall institute proceedings to determine whether the
proposed rule should be approved or disapproved.
---------------------------------------------------------------------------

    \15\ 15 U.S.C. 78s(b)(3)(A)(ii).
---------------------------------------------------------------------------

IV. Solicitation of Comments

    Interested persons are invited to submit written data, views, and
arguments concerning the foregoing, including whether the proposed rule
change is consistent with the Act. Comments may be submitted by any of
the following methods:

Electronic Comments

     Use the Commission's Internet comment form (http://www.sec.gov/rules/sro.shtml); or
     Send an email to<EMAIL_ADDRESS>Please include
File Number SR-NASDAQ-2014-105 on the subject line.

Paper Comments

     Send paper comments in triplicate to Secretary, Securities
and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.

All submissions should refer to File Number SR-NASDAQ-2014-105. This
file number should be included on the subject line if email is used. To
help the Commission process and review your comments more efficiently,
please use only one method. The Commission will post all comments on
the Commission's Internet Web site (http://www.sec.gov/rules/sro.shtml). Copies of the submission, all subsequent amendments, all
written statements with respect to the proposed rule change that are
filed with the Commission, and all written communications relating to
the proposed rule change between the Commission and any person, other
than those that may be withheld from the public in accordance with the
provisions of 5 U.S.C. 552, will be available for Web site viewing and
printing in the Commission's Public Reference Room, 100 F Street NE.,
Washington, DC 20549, on official business days between the hours of
10:00 a.m. and 3:00 p.m. Copies of the filing also will be available
for inspection and copying at the principal office of the Exchange. All
comments received will be posted without change; the Commission does
not edit personal identifying information from submissions. You should
submit only information that you wish to make available publicly. All
submissions should refer to File Number SR-NASDAQ-2014-105, and should
be submitted on or before December 22, 2014.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\16\
---------------------------------------------------------------------------

    \16\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------

Kevin M. O'Neill,
Deputy Secretary.
[FR Doc. 2014-28172 Filed 11-28-14; 8:45 am]
BILLING CODE 8011-01-P


[Federal Register Volume 77, Number 29 (Monday, February 13, 2012)]
[Notices]
[Pages 7575-7576]
[FR Doc No: 2012-3278]

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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

[Docket No. AD12-7-000]

Southwestern Gas Storage Technical Conference; Notice of Revised
Agenda and Transcript Availability

    On December 13, 2011, the Secretary issued formal notice that on
February 16, 2012 at 9:00 a.m. MST, the Staff of the Federal Energy
Regulatory Commission (FERC or Commission) will convene a technical
conference with interested parties to discuss issues related to natural
gas storage development in the southwestern United States, to be held
at the Radisson Fort McDowell Resort, 10438 North Fort McDowell Rd.,
Scottsdale, AZ 85264 (http://www.radissonfortmcdowellresort.com).
    Attached is a revised agenda for the conference. In addition, this
conference will be transcribed, and the transcript will be immediately
available for a fee from Ace-Federal Reporters, Inc.<PHONE_NUMBER> or
1-800-336-6646).
    If you have any questions about the upcoming conference or if you
would like additional information, please contact Berne Mosley in the
Office of Energy Projects, phone:<PHONE_NUMBER>, email:
<EMAIL_ADDRESS>
    Dated: February 7, 2012.
Kimberly D. Bose,
Secretary.

                                 Agenda
------------------------------------------------------------------------
           Event/item               Speaker/panelists          Time
------------------------------------------------------------------------
Opening Remarks................  Jeff Wright, Director,  9:00 a.m.
                                  Office of Energy
                                  Projects.
Keynote........................  Chairman Gary Pierce,   9:10
                                  Arizona Corporation
                                  Commission.
FERC/NERC Outage Report (Need    Tom Pinkston, Office    9:20
 for Storage).                    of Enforcement,
                                  Division of Market
                                  Oversight.
FERC Certificate Process.......  Jeff Wright, Director,  9:45
                                  Office of Energy
                                  Projects.
Geology of the Southwest         Todd Ruhkamp, Office    10:15
 (Storage Applicability).         of Energy Projects,
                                  Division of Pipeline
                                  Certificates; Tom
                                  Shaw, Vice President,
                                  Corporate
                                  Development, Voyager
                                  Midstream, LLC.
Environmental Impacts of         Danny Laffoon, Office   10:55
 Storage.                         of Energy Projects,
                                  Division of Gas
                                  Environment &
                                  Engineering.
Environmental Impacts--Case      Rafael Montag, Office   11:20
 Study.                           of Energy Projects,
                                  Division of Gas
                                  Environment &
                                  Engineering.
Lunch (on your own)............  ......................  11:45
FERC Storage Policies..........  Berne Mosley, Deputy    12:45 p.m.
                                  Director, Office of
                                  Energy Projects.
Industry Panel 1...............  Mike Manning--Tricor    1:15
                                  Energy, LLC; Greg
                                  Gettman--El Paso
                                  Natural Gas Company.
Industry Panel 2...............  Dick Robinson--Picacho  1:45
                                  Peak Gas Storage,
                                  LLC; Jim Bowe--
                                  Arizona Natural Gas
                                  Storage LLC.
                                 Steve Cole--Enstor
                                  Operating Company,
                                  LLC.
Customer Panel.................  Norm Spooner--Arizona   2:30
                                  Storage Coalition;
                                  Tom Carlson--Arizona
                                  Public Service Co.;
                                  William Moody--
                                  Southwest Gas
                                  Corporation.
State Regulatory Panel.........  Joe Dixon--Manager,     3:15
                                  Minerals Section,
                                  Arizona State Land
                                  Department; TBA--
                                  Arizona Corporation
                                  Commission.
Federal Panel..................  Arizona Department of   3:45
                                  Environmental Quality
                                  (invited); Zach
                                  Barrett--PHMSA.
Native American Perspective....  Alan Downer--Navajo     4:15
                                  Nation.
Closing Remarks................  Jeff Wright, Director,  4:45
                                  Office of Energy
                                  Projects.
------------------------------------------------------------------------

[FR Doc. 2012-3278 Filed 2-10-12; 8:45 am]
BILLING CODE 6717-01-P