Texas Permanent Regulatory Program

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 943

Texas Permanent Regulatory Program

AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),

Interior.

ACTION: Final rule; approval of proposed amendment.

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SUMMARY: OSM is announcing its decision to approve, with certain

exceptions and additional requirements, a proposed amendment to the

Texas permanent regulatory program (hereinafter, the Texas program)

under the Surface Mining Control and Reclamation Act of 1977 (SMCRA).

The proposed amendment consisted of changes to Texas' existing

regulations pertaining to identification of interests and compliance

information, review of permit applications, conditions of permits,

Railroad Commission of Texas (Commission) review of outstanding

permits, and cessation orders. The amendment was intended to revise the

Texas program to be consistent with the corresponding Federal

standards.

EFFECTIVE DATE: March 21, 1994.

FOR FURTHER INFORMATION CONTACT:

James H. Moncrief, telephone: (918) 581-6430.

SUPPLEMENTARY INFORMATION:

I. Background on the Texas Program.

II. Proposed Amendment.

III. Director's Findings.

IV. Summary and Disposition of Comments.

V. Director's Decision

VI. Procedural Determinations.

I. Background on the Texas Program

On February 16, 1980, the Secretary of the Interior conditionally

approved the Texas program. General background information on the Texas

program including the Secretary's findings, the disposition of

comments, and the conditions of approval of the Texas program can be

found in the February 27, 1980, Federal Register (45 FR 12998).

Subsequent actions concerning the Texas program and program amendments

are codified at 30 CFR 943.15 and 943.16.

II. Proposed Amendment

By letter dated February 8, 1993 (Administrative Record No. TX-

542), Texas submitted to OSM a proposed amendment to its program

pursuant to SMCRA. Texas submitted the proposed amendment in response

to the required amendments codified at 30 CFR 943.16(b), (c), (d)(1),

(2) and (3), (e), (f), (g), (h)(1) and (2), (i)(1) and (2), and (j)(1),

(2), and (3) (57 FR 21600, May 21, 1992). The provisions of the Texas

Coal Mining Regulations (TCMR) at 16 Texas Administrative Code (TAC)

11.221 that Texas proposed to revise were the identification of

interests and compliance information at TCMR 778.116(1) and (m), review

of permit applications at TCMR 786.215(e)(1) and (2), (f), and (g), and

Commission review of outstanding permits at TCMR 788.225(f), (f)(1)(A),

(g) and (g)(3).

OSM published a notice in the March 30, 1993, Federal Register (58

FR 16834) announcing receipt of the amendment and inviting public

comment on the adequacy of the proposed amendment (Administrative

Record No. TX-550). The public comment period closed April 29, 1993.

During its review of the amendment, OSM identified concerns

relating to the provisions of TCMR 778.116(m), identification of

interests and compliance information: Violation information; TCMR

786.215(e)(1), review of permit applications: Review of violations;

TCMR 786.215(f), review of permit applications: Pattern of willful

violations; TCMR 786.215(g), review of permit applications: Final

compliance review; TCMR 788.225(e), Commission review of outstanding

permits: Improvidently issued permits; TCMR 788.225(f), Commission

review of outstanding permits: Review criteria; and TCMR 788.225(g),

Commission review of outstanding permits: Remedial measures. OSM also

noted that the proposed amendment did not contain revisions to the

Texas program adopting procedural requirements no less effective than

the Federal regulation at 30 CFR 843.11(g), which requires that, within

60 days of the issuance of a cessation order, the regulatory authority

must notify all owners and controllers identified as owning or

controlling the permittee.

OSM notified Texas of these concerns by letter dated June 8, 1993

(Administrative Record No. TX-565). Texas responded in a letter dated

July 7, 1993, by submitting additional explanatory information and a

revised amendment (Administrative Record No. TX-562). The regulations

that Texas proposed to further revise were TCMR 778.116(m),

identification of interests and compliance information: Violation

information; TCMR 786.215(e)(1), review of permit applications: Review

of violations; TCMR 786.215(f), review of permit applications: Pattern

of willful violations; TCMR 786.215(g), review of permit applications:

Final compliance review; TCMR 788. 225(e), Commission review of

outstanding permits: Review criteria; TCMR 788.225(f), Commission

review of outstanding permits: Remedial measures; and TCMR 788.225(g),

Commission review of outstanding permits: Right of appeal. In this

revised amendment, Texas also submitted for the first time proposed

revisions to TCMR 843.680(c), cessation orders.

OSM published a notice in the August 12, 1993, Federal Register (58

FR 42901) announcing receipt of the amendment and inviting public

comment on the adequacy of the proposed amendment (Administrative

Record No. TX-567). The public comment period closed August 27, 1993.

III. Director's Findings

After a thorough review, pursuant to SMCRA and the Federal

regulations at 30 CFR 732.15 and 732.17, the Director finds, with

certain exceptions and additional requirements discussed herein, that

the proposed amendment as submitted by Texas on February 8, 1993, and

subsequently revised on July 7, 1993, is no less stringent than SMCRA

and no less effective than the corresponding Federal regulations in

meeting SMCRA's requirements.

1. Revisions to Texas' Regulations That Are Substantively Identical to

the Corresponding Federal Regulations

Texas proposed revisions to the following regulations that are

substantive in nature and contain language that is substantively

identical to the corresponding Federal regulations (listed in

parentheses): TCMR 778.116(1) (30 CFR 778.14(b)), identification of

interests and compliance information; TCMR 786.215(e)(2) (30 CFR

773.15(b)(2)), review of permit applications; and TCMR 788.225(g) (30

CFR 773.21(c)), right of appeal.

Because these proposed Texas regulations are substantively

identical to the corresponding Federal regulations, the Director finds

that they are no less effective than the corresponding Federal

regulations and approves them. Accordingly, the Director removes the

required amendments at 30 CFR 943.16(b) and (e).

2. TCMR 778.116(m), Identification of Interests and Compliance

Information

Proposed TCMR 778.116(m) requires that an application for a permit

to conduct surface coal mining and reclamation operations (a permit

application) include, among other things,

[f]or any violations of a provision of the Act, Federal Act, or

of any law, rule or regulation of the United States, or of any State

law, rule or regulation enacted pursuant to Federal law, rule or

regulation pertaining to air or water environmental protection

incurred in connection with any surface coal mining operation, a

list of all violation notices received by the applicant during the

three year period preceding the application date, and a list of all

unabated cessation orders and unabated air and water quality

violation notices received prior to the date of the application by

any surface coal mining and reclamation operation owned or

controlled by either the applicant or by any person who owns or

controls the applicant.

Proposed TCMR 778.116(m) is similar to the corresponding Federal

regulation at 30 CFR 778.14(c). In fact, the proposed Texas provision

follows the language of the Federal counterpart regulation almost

verbatim, with the exception that Texas has added the term ``Federal

Act.'' However, as discussed below, the requirements of the proposed

TCMR 778.116(m) differ substantively from the Federal requirements, and

the Director has two specific concerns with Texas' proposal.

The Director's first concern relates to Texas' use of the terms

``Act'' and ``Federal Act.'' At TCMR 700.003(1), Texas defines the term

``Act'' to mean the ``Texas Surface Coal Mining Control and Reclamation

Act'' (TSCMRA) and at TCMR 700.003(10) defines the term ``Federal Act''

to mean the ``Surface Mining Control and Reclamation Act of 1977 (Pub.

L. 95-87).'' Therefore, when Texas requires at proposed TCMR 778.116(m)

information ``for any violations of a provision of the Act, [or the]

Federal Act,'' it requires a permit application to include information

regarding violations of TSCMRA and SMCRA.

In contrast, the term ``Act'' as used in 30 CFR 778.14(c) and

section 510(c) of SMCRA, includes not only SMCRA, but also its

implementing Federal regulations, and all Federal and State programs

approved under SMCRA (53 FR 38868, 38882-38883, October 3, 1988; and 48

FR 44344, 44389, September 28, 1983). Therefore, the corresponding

Federal regulation at 30 CFR 778.14(c) requires permit applications to

include information regarding violations received pursuant to SMCRA,

SMCRA's implementing Federal regulations (e.g., 30 CFR part 865), all

SMCRA-approved Federal programs (OSM-administered Indian lands programs

(30 CFR part 750) and Federal programs for States (various sections of

30 CFR part 900; e.g. 30 CFR part 942)), and all SMCRA-approved State

programs.

Although Texas, by adding the term ``Federal Act,'' requires permit

applications to include information regarding violations of SMCRA, it

is not clear that this term, as used in the Texas proposal, includes

SMCRA's implementing Federal regulations, SMCRA-approved Federal

programs, and all SMCRA-approved State programs, not just the Texas

program. In its June 8, 1993 letter to Texas, OSM requested Texas to

clarify whether the term ``Federal Act'' included SMCRA's implementing

Federal regulations, SMCRA-approved Federal programs, and all SMCRA-

approved State programs. In its submittal of July 8, 1993, Texas

responded that inclusion of information on such violations in permit

applications is not necessary because section 21(b) of TSCMRA and TCMR

786.215 (e)(1) and (g) allow the regulatory authority to consider other

available information in making its decision regarding a permit

application.

The Federal regulation at 30 CFR 778.14(c) does not provide any

exception to the requirement that violations of the specified laws

rules and regulations be included in a permit application. In addition,

section 510(c) of SMCRA requires that ``any and all'' such violations

be listed. There is no exception for information that may be available

to the regulatory authority from other sources.

The Director's second concern with proposed TCMR 778.116(m) relates

to the phrase ``of any law, rule or regulation of the United States, or

of any State law, rule or regulation enacted pursuant to Federal law,

rule or regulation pertaining to air or water environmental

protection'' (emphasis added). In its June 8, 1993 letter to Texas, OSM

observed that, in its proposals, Texas sometimes capitalizes the word

``State.'' OSM requested Texas to clarify whether or not the State

intended the word ``State'' to have different meanings, depending upon

whether or not it was capitalized in any particular proposed provision.

In its submittal of July 8, 1993, Texas responded that the word

``State,'' when capitalized, refers to Texas and, when uncapitalized,

refers to all States within the United States of America. Therefore,

the word ``State'' in the phrase ``of any law, rule or regulation of

the United States, or of any State law, rule or regulation enacted

pursuant to Federal law, rule or regulation pertaining to air or water

environmental protection'' limits the applicable violations that must

be included in a permit application to those incurred in Texas.

In its July 8, 1993 submittal, Texas indicated that its proposed

regulation at TCMR 778.116(m) limited the information regarding

violations that must be included in a permit application to violations

incurred within the State of Texas because section 21(c) of TSCMRA is

similarly limited in scope. Section 21(c) of TSCMRA requires a permit

application to include a listing of ``notices of violations of this Act

and any law, rule, or regulation of the United States, or the State of

Texas, or of any department or agency in the United States pertaining

to air or water environmental protection incurred by the applicant in

connection with any surface coal mining operation within the state * *

*'' (emphasis added).

This limitation of section 21(c) of TSCMRA is inconsistent with

section 510(c) of SMCRA and OSM's interpretation of the phrase ``any

department or agency in the United States'' included in that section of

SMCRA. The preamble to the Federal regulations at 30 CFR 778.14 states

that

[t]he phrase ``in the United States'' is construed by courts to

mean physically located within the United States * * *. Therefore,

the preferred way to read section 510(c) is to construe ``department

or agency in the United States'' to mean any governmental department

or agency'' physically located in the United States, which would

include State and local governmental entities

(44 FR 14902, 15023, March 13, 1979). This includes the State and local

governmental entities of all States, not just those within the State in

which the permit application is submitted.

In conclusion, the Director finds that Texas' proposed regulation

at TCMR 778.116(m) is less effective than the corresponding regulation

at 30 CFR 778.14(c) in meeting SMCRA's requirements and less stringent

than section 510(c) of SMCRA because it does not require permit

applications to include information regarding (1) violations received

pursuant to SMCRA's implementing Federal regulations, SMCRA-approved

Federal programs, and SMCRA-approved State programs, other than the

Texas program, and (2) air or water environmental protection violations

received pursuant to State laws, rules or regulations enacted pursuant

to Federal laws, rules, or regulations and incurred by the applicant

outside of the State of Texas. The Director approves proposed TCMR

778.116(m) but requires Texas to revise it or otherwise modify its

program to provide that a permit application must include information

on (1) violations received pursuant to SMCRA's implementing Federal

regulations, SMCRA-approved Federal programs, and all SMCRA-approved

State programs, not just the Texas program and (2) air or water

environmental protection violations received pursuant to State laws,

rules or regulations enacted pursuant to Federal laws, rules, or

regulations and incurred by the applicant in any State, not just Texas.

The Director also finds that section 21(c) TSCMRA is less stringent

than section 510(c) of SMCRA because it limits the information

regarding violations that must be included in a permit application to

those that occur in Texas. Therefore, the Director requires Texas to

revise section 21(c) of TSCMRA to remove the words ``within the state''

from the phrase ``in connection with any surface coal mining operation

within the state during the three-year period'' in the first sentence

of section 21(c).

3. TCMR 786.215(e)(1), (f), and (g), and 786.216(i), Review of Permit

Applications

(a) TCMR 786.215(e)(1)

Proposed TCMR 786.215(e)(1) provides, in part, that,

[i]f the Commission determines from either the schedule

submitted as part of an application * * * or from other available

information concerning Federal and State failure-to-abate cessation

orders, unabated Federal and State imminent harm cessation orders,

delinquent civil penalties issued pursuant to the Act or Federal Act

or Federally-approved coal regulatory program, bond forfeitures

where violations upon which the forfeitures were based have not been

corrected, delinquent abandoned mine reclamation fees, and unabated

violations of Federal and any state laws, rules, and regulations

pertaining to air or water environmental protection incurred in

connection with any surface coal mining and reclamation operation

owned or controlled by either the applicant or by any person who

owns or controls the applicant is currently in violation of the Act

or any other law, rule, or regulation referred to in this paragraph

(emphasis added).

Proposed TCMR 786.215(e)(1) differs from the corresponding Federal

requirements at 30 CFR 773.15(b)(1) in three ways. First, as discussed

in finding No. 2, Texas has stated that the word ``State,'' when

capitalized, refers to the State of Texas and, when uncapitalized,

refers to all States within the United States of America. Thus, the

reference in Texas' proposal to ``Federal and State failure-to-abate

cessation orders [and] unabated Federal and State imminent harm

cessation orders'' is limited to cessation orders incurred in Texas.

Therefore, Texas' proposal is inconsistent with the Federal

requirements at 30 CFR 773.15(b)(1), which require the regulatory

authority to consider information on cessation orders incurred in all

States, not just Texas.

Second, proposed TCMR 786.215(e)(1) requires the Commission to

consider, as a basis for permit denial, information on ``delinquent

civil penalties issued pursuant to the Act or Federal Act or federally-

approved coal regulatory program.'' The corresponding Federal

regulation at 30 CFR 773.15(b)(1) requires the regulatory authority to

consider, as a basis for permit denial, among other things, information

concerning delinquent civil penalties issued pursuant to ``the Act,''

meaning SMCRA. The preamble to 30 CFR 778.14(c) (53 FR 38868, 38882-

38883, October 3, 1988; also 48 FR 44344, 44389, September 28, 1983)

explains that the reference to the ``Act'' in section 510(c) of SMCRA,

on which the Federal regulation is based, includes, in addition to

SMCRA, SMCRA's implementing Federal regulations and all Federal and

State programs approved under SMCRA (53 FR 38868, 38882-38883, October

3, 1988).

As discussed in finding No. 2, Texas defines the term ``Act'' to

mean Texas Surface Coal Mining Control and Reclamation Act and defines

the term ``Federal Act'' to mean the Surface Mining Control and

Reclamation Act of 1977 (SMCRA, Pub. L. 95-87). In its submittal dated

February 8, 1993, Texas stated that it interprets the phrase ``the

Federal Act or federally-approved coal regulatory program'' in TCMR

786.215(e)(1) to include available information concerning delinquent

civil penalties issued pursuant to any OSM Federal programs, or any

SMCRA-approved State programs other than the Texas program, as a basis

for permit denial.

On the basis of this interpretation, proposed TCMR 786.215(e)(1) is

no less effective than 30 CFR 773.15(b)(1) because it requires that the

Commission consider, as a basis for permit denial, information

concerning delinquent civil penalties issued pursuant to the Texas

program, SMCRA, SMCRA's implementing Federal regulations, SMCRA-

approved Federal programs, and all SMCRA-approved State programs, not

just the Texas program.

Third, proposed TCMR 786.215(e)(1) also provides, in part, that

``[i]n the absence of a failure-to-abate cessation order, the

Commission may presume that a notice of violation issued pursuant to

Section .681 or under a Federal or State program has been or is being

corrected to the satisfaction of the agency with jurisdiction over the

violation * * *.'' This proposed language includes the same

requirements as the Federal provisions at 30 CFR 773.15(b)(1). However,

on May 21, 1992 (57 FR 21600, 21602), the Director deferred decision on

this provision of TCMR 786.215(e)(1) because the Secretary of the

Interior, in National Wildlife Federation v. Lujan, Civ. Nos. 88-3117,

et seq. (Consolidated, D.D.C. filed October 27, 1988), had expressed an

intention to reconsider the issue of whether, in the absence of a

failure-to-abate cessation order, the regulatory authority may presume

that a notice of violation has been or is being corrected, as set forth

in the Federal regulation (Memorandum of Points and Authorities In

Support of the Federal Defendants' Cross-Motion For Summary Judgment

and In Opposition to Plaintiffs' Motions For Summary Judgment, pp. 89-

90). The final resolution of this reconsideration is pending.

In conclusion, the Director finds that proposed TCMR 786.215(e)(1)

is less stringent than section 510(c) of SMCRA and less effective in

meeting SMCRA's requirements than the corresponding Federal regulation

at 30 CFR 773.15(b)(1) to the extent that it does not require the

Commission to consider information on cessation orders incurred in

States other than Texas. The Director requires Texas to revise TCMR

786.215(e)(1) to require the Commission to additionally consider, as a

basis for permit denial, information on cessation orders issued by

States other than Texas. With the exception of the part of proposed

TCMR 786.215(e)(1) that addresses the presumption that, in the absence

of a failure-to-abate cessation order, a notice of violation has been

or is being corrected, the Director approves proposed TCMR

786.215(e)(1). On the part of TCMR 786.215(e)(1) that addresses this

presumption, the Director continues to defer decision.

(b) TCMR 786.215(f) and 786.216(i)

Proposed TCMR 786.215(f) provides, in part, that,

[b]efore any final determination by the Commission that the

applicant, anyone who owns or controls the applicant, or the

operator specified in the application, controls or has controlled

mining operations with a demonstrated pattern of willful violation

of the Act or Federal or State laws as used in 30 CFR 773.15(b) of

such nature, duration, and with such resulting irreparable damage to

the environment that indicates an intent not to comply with the

provisions of the Act or Federal or State laws as used in 30 CFR

773.15(b), no permit shall be issued and a hearing shall be held.

The proposed regulation further provides that the applicant or

operator shall be afforded the opportunity for an adjudicatory hearing

in accordance with TCMR 787.222.

Section 510(c) of SMCRA and the Federal regulation at 30 CFR

773.15(b)(3) prohibit issuance of a permit when the regulatory

authority makes a finding that the applicant, anyone who owns or

controls the applicant, or the operator specified in the application,

controls or has controlled surface coal mining and reclamation

operations with a demonstrated pattern of willful violations of the Act

of such nature and duration, and with resulting irreparable damage to

the environment, as to indicate an intent not to comply with the Act.

The term ``Act,'' as used in section 510(c) of SMCRA and 30 CFR

773.15(b)(3), includes SMCRA, its implementing Federal regulations, and

all Federal and State programs approved under SMCRA (48 FR 44344,

44389, September 28, 1983). This Federal regulation also requires that

the applicant or operator be given an opportunity for an adjudicatory

hearing on the determination, as provided for at 30 CFR 775.11, before

such a finding becomes final.

The Director has three concerns with proposed TCMR 786.215(f).

First, as discussed in finding No. 2, Texas stated in its submittal of

July 7, 1993, that the word ``State,'' when capitalized, means the

State of Texas and, when uncapitalized, means all States within the

United States of America. Because proposed TCMR 786.215(f) uses the

term ``State laws'' in the phrase ``Federal or State laws as used in 30

CFR 773.15(b),'' the Commission would be required to consider

violations of the applicable laws, rules, and regulations of Texas, but

not of other States. This is inconsistent with the corresponding

Federal regulation at 30 CFR 773.15(b)(3) that requires consideration

of the specified violations incurred in all States.

Second, the proposed regulation does not explicitly require denial

of a permit once the Commission makes a determination that a pattern of

willful violations exists. Instead, the proposed rule only requires

that a permit not be issued and a hearing held ``before any final

determination by the Commission.'' Accordingly, the State proposal is

less effective than the Federal regulation at 30 CFR 773.15(b)(3),

which does explicitly require denial of a permit once the regulatory

authority makes a finding that a pattern of willful violation exists.

Third, another Texas regulation directly related to proposed TCMR

786.215(f) is inconsistent with proposed TCMR 786.215(f) and the

Federal requirements at 30 CFR 773.15(b)(3). TCMR 786.216(i), like

proposed TCMR 786.215(f), addresses permit denial based upon the

existence of a pattern of willful violations. However, the scope of

TCMR 786.215(i) is more limited than the scope of proposed TCMR

786.215(f).

TCMR 786.216(i) prohibits Commission approval of a permit only if

the applicant or the operator, if other than the applicant, controls or

has controlled operations with a pattern of willful violations. By

comparison, proposed TCMR 786.215(f) and the Federal regulations at 30

CFR 773.15(b)(3) encompass, in addition to the applicant and the

operator, anyone who owns or controls the applicant. In addition, TCMR

786.216(i) only addresses violations of TSCMRA. It does not encompass

violations of SMCRA, SMCRA's implementing Federal regulations, SMCRA-

approved Federal programs, and SMCRA-approved State programs.

Therefore, existing TCMR 786.216(i) is inconsistent with proposed TCMR

786.215(f) and is less effective than the Federal regulations at 30 CFR

773.15(b)(3).

In conclusion, the Director finds that proposed TCMR 786.215(f) is

less stringent than section 510(c) of SMCRA and less effective than the

corresponding Federal regulation at 30 CFR 773.15(b)(3) in meeting

SMCRA's requirements because the proposed provision (1) does not

specifically require denial of a permit when the Commission determines

that a pattern of willful violations exists and (2) does not require

the Commission to consider violations of the applicable laws, rules,

and regulations of States other than Texas. The Director does not

approve proposed TCMR 786.215(f) and requires Texas to revise it to

prohibit issuance of a permit whenever the Commission makes a

determination that the applicant, anyone who owns or controls the

applicant, or the operator specified in the application controls or has

controlled surface coal mining and reclamation operations with a

demonstrated pattern of willful violations of TSCMRA, SMCRA, SMCRA's

implementing Federal regulations, SMCRA-approved Federal programs, and

all SMCRA-approved State programs, not just the Texas program, of such

nature, duration, and with such resulting irreparable damage to the

environment, as to indicate an intent not to comply with these laws,

rules, and regulations.

In addition, because TCMR 786.216(i) creates internal

inconsistencies in the Texas program and it is less effective than the

Federal regulations at 30 CFR 773.15(b)(3) in meeting SMCRA's

requirements, the Director requires Texas to delete TCMR 786.216(i) or

revise it to be no less effective than the Federal requirements in

meeting SMCRA's requirements.

(c) TCMR 786.215(g)

Proposed TCMR 786.215(g) requires the Commission, prior to issuing

a permit, to review and consider, under the criteria of TCMR

786.215(e)(1), any new compliance information submitted pursuant to

TCMR 778.116 (i) and (n). If the applicant fails or refuses to respond

as required, or if the new information shows that the applicant, anyone

who owns or controls the applicant, or the operator is in violation,

the Commission must deny the permit.

Under the Federal regulation at 30 CFR 773.15(b)(1), the regulatory

authority cannot issue a permit if any surface coal mining and

reclamation operation owned or controlled by either the applicant or by

any person who owns or controls the applicant is currently in violation

of SMCRA or certain other laws and regulations. The Federal regulation

at 30 CFR 773.15(e), which corresponds to proposed TCMR 786.215(g),

requires that after an application is approved, but before a permit is

issued, the regulatory authority must reconsider its decision to

approve the application, based upon the compliance review required by

30 CFR 773.15(b)(1), in light of any new information submitted pursuant

to 30 CFR 778.13(i) and 778.14(d).

Because proposed TCMR 786.215(g) requires the Commission, after an

application is approved but before the permit is issued, to conduct a

final compliance review in accordance with TCMR 786.215(e)(1), the

Director finds that proposed TCMR 786.215(g) is no less effective than

the corresponding Federal regulation at 30 CFR 773.15(e). The Director

approves TCMR 786.215(g) and removes the required amendment at 30 CFR

943.16(g).

4. TCMR 788.225 (e) and (f), Commission Review of Outstanding Permits

(a) TCMR 788.225(e)

Proposed TCMR 788.225(e) requires the Commission to review a permit

under the authority of section 22(c) of TSCMRA when it has reason to

believe that the permit was improvidently issued. The Commission must

find, after notice and opportunity for a hearing, that the permit was

improvidently issued if the conditions set forth at TCMR 788.225(e) (1)

through (3) are met.

The corresponding Federal regulation at 30 CFR 773.20(a) provides,

in part, that a regulatory authority that has reason to believe that it

improvidently issued a surface coal mining and reclamation permit must

review the circumstances under which the permit was issued, using the

criteria at 30 CFR 773.20(b). The Federal regulations at 30 CFR

773.20(b) require the regulatory authority to make a finding that a

permit was improvidently issued when the conditions specified at 30 CFR

773.20(b) (1) through (3) are met.

Proposed TCMR 788.225(e) includes the phrase ``under the authority

of Section 22(c) of the Act.'' In its June 8, 1993, letter to Texas,

OSM requested that Texas clarify the meaning of this phrase. In its

July 8, 1993, submittal, Texas responded that the phrase merely cited

the section of TSCMRA that provides the basis for Commission review of

a final order which issued a permit. Section 22(c) of TSCMRA requires

the Commission to review outstanding permits and allows it to require

reasonable revisions or modifications of the permit provisions. On the

basis of this explanation, this part of proposed TCMR 788.225(e) is no

less effective than the Federal regulations at 30 CFR 773.20(a) and (b)

because it requires a review of an outstanding permit any time the

Commission has reason to believe that the permit was improvidently

issued.

Proposed TCMR 788.225(e) does not specifically identify the

violations review criteria that the Commission will use to determine

whether a permit was improvidently issued. In its June 8, 1993, letter

to Texas, OSM requested that Texas identify the permit review criteria

that would be used. As OSM noted, the Federal regulations contain only

the procedures the regulatory authority must employ to determine

whether a surface coal mining and reclamation permit was improvidently

issued. The preamble to the Federal regulation at 30 CFR 773.20

specifies certain review and decision criteria (including effective

dates relative to various types of violations, penalties, and fees)

that apply in all Federal and State cases (54 FR 18438, 18440-18441,

April 28, 1989). Texas responded in its July 8, 1993, submittal that it

intends to apply the same permit review criteria that are applied by

the Federal rules. Thus, Texas has adopted the minimum violation review

criteria specified by the Federal regulations. Texas has not specified

the actual calendar dates on which each of the criteria became or will

become effective. Therefore, at the time a review is conducted, Texas

must specify criteria and effective dates corresponding with those of

the Federal regulations. On this basis, this part of proposed TCMR

788.225(e) is no less effective than the Federal regulations at 30 CFR

773.20(a) and (b) in meeting SMCRA's requirements.

Proposed TCMR 788.225(e)(1)(B) provides that the Commission shall

review a permit if ``[t]he permit was issued on the information that a

notice of violation was in the process of being corrected to the

satisfaction of the agency with jurisdiction over the violation * *

*.'' This proposed language is substantively identical to the

corresponding Federal regulation at 30 CFR 773.20(b)(1)(ii). However,

this subsection relates to the same presumption issue discussed in

finding No. 3(a). On May 21, 1992 (57 FR 21600, 21602), the Director

deferred decision on this provision of TCMR 788.225(e) because the

Secretary had indicated an intention to reconsider the corresponding

Federal regulation at 30 CFR 773.20(b)(1)(ii) in addition to 30 CFR

773.15(b)(1)(i) (Memorandum of Points and Authorities, p. 124). The

final resolution of this reconsideration is pending.

For the aforementioned reasons, and with the exception of

subsection TCMR 788.225(e)(1)(B) which allows the Commission to presume

that a notice of violation has been or is being corrected in the

absence of a failure-to-abate cessation order, the Director finds that

proposed TCMR 788.225(e) is no less effective than 30 CFR 773.20(a) and

(b), approves it, and removes the required amendments at 30 CFR

943.16(h)(1), (i)(1) and (i)(2). The Director continues to defer

decision on proposed TCMR 788.225(e)(1)(B).

(b) TCMR 788.225(f)

Proposed TCMR 788.225(f) requires that if the Commission, under

TCMR 788.225(e), finds that a permit was improvidently issued, it shall

use one or more of the following three remedial measures specified at

TCMR 788.225(f)(1) through (3):

(1) Implement, with the cooperation of the permittee or other

person responsible, and of the responsible agency, a plan for

abatement of the violation or a schedule for payment of the penalty

or fee;

(2) Require revision of the permit to impose a condition that in

a reasonable period of time the permittee abate the violation or pay

the penalty or fee;

(3) Issue a show cause order to suspend or revoke the permit

based upon its improvident issuance in accordance with [the

Administrative Procedures and Texas Register Act (APTRA)]. A

decision on suspension shall be made within ninety days and a

decision on rescission shall be made within a further ninety days.

The corresponding Federal regulation at 30 CFR 773.20(c) requires a

regulatory authority, when it finds that a permit was improvidently

issued, to use one or more of the four remedial measures specified at

30 CFR 773.20(c)(1) through (4).

The remedial measure proposed by Texas at TCMR 778.225(f)(1) and

(2) are almost identical to the counterpart Federal provisions at 30

CFR 773.20(c)(1) and (2). They differ only in that under TCMR

778.225(f)(2) the Commission can impose a condition on a permit that,

in a reasonable amount of time, the ``permittee'' abate the violation

or pay the penalty or fee, whereas the Federal regulation at 30 CFR

773.20(c)(2) allows the same permit condition for the ``permittee or

other persons responsible'' to abate the violations or pay the penalty

or fee. Texas' proposal to make the permittee solely responsible for

the violation abatement or payment is no less effective than the

Federal regulations at 30 CFR 773.20(c)(2).

The Director has two concerns with the remainder of proposed TCMR

778.225(f). First, proposed TCMR 788.225(f) does not include provisions

corresponding to the Federal remedial measures at 30 CFR 773.20(c)(3).

This remedial measure allows the regulatory authority to suspend the

permit until the violation is abated or the penalty or fee is paid.

This possible remedial measure is separate and distinct from the one at

30 CFR 773.20(c)(4) that allows the regulatory authority to rescind the

permit in accordance with 30 CFR 773.21. The Federal regulation at 30

CFR 773.21 provides for permit suspension in connection with the

rescission process provided for by that regulation.

The preamble to the Federally regulations makes clear that the

suspension referred to in 30 CFR 773.21 is separate and distinct from

the suspension revered to in 30 CFR 773.20(c)(3). The suspension

referred to at 30 CFR 773.21 is merely a preliminary step in the permit

rescission process; OSM stated that it was providing for the permit

suspension at 30 CFR 773.20(c)(3) as a separate possible remedial

action ``to give a regulatory authority discretion to tailor a

suspension to the unique circumstances involving a particular permit *

* *'' (54 FR 18438, 18450; April 28, 1989). OSM also stated that

Section 773.20(c)(3) does not set out specific suspension

procedures, but allows the regulatory authority to use any

appropriate procedures that are consistent with the regulatory

program, including a reasonable period of time between notifying a

permittee of a suspension and when the suspension becomes effective

(54 FR 18438, 18450, April 28, 1989).

Proposed TCMR 788.225(f)(3) appears to be a counterpart provision

to the Federal regulations at 30 CFR 773.20(c)(4) and 773.21. That is,

Texas' proposed possible remedially measure involving a show cause

order to suspend or revoke a permit seems to corespond to the Federal

provisions at 30 CFR 773.20(c)(4) and 773.21 for permit rescission.

Texas has not proposed any counterpart provision to the Federal

regulation at 30 CFR 773.20(c)(3) for permit suspension as a possible

remedial measure. The preamble to 30 CFR 773.20(c) explains that four

alternative remedial measures are provided ``because of the diversity

of circumstances under which a regulatory authority might find that a

permit was improvidently issued, and the resulting need to apply a

remedy that not only is administratively appropriate, but also is fair

and equitable to the permitted'' (54 FR 18438, 18447, April 28, 1989).

Since the availability of various possible remedial measures is a

matter bearing upon procedural rights and remedies, the State proposal

must be evaluated from the point of view of is similarity to the

Federal rules in affording rights and remedies to persons (46 FR 53376,

53377, October 28, 1981). To the extent Texas' proposal does not

provide any counterpart provision to 30 CFR 773.20(c)(3), it fails to

afford rights and remedies to persons similar to those afforded under

the Federal regulations. Accordingly, the Director finds that proposed

TCMR 788.225(f) is less effective than the Federal regulations in

meeting SMCRA's requirements insofar as the State proposal fails to

provide a counterpart provision to 30 CFR 773.20(c)(3).

Second, proposed TCMR 788.225(f)(3) differs considerably from and

is less effective in meeting SMCRA's requirements than the Federal

counterpart provisions at 30 CFR 773.20(c)(4) and 773.21. While the

Federal regulation at 30 CFR 773.21 sets forth detailed procedures

governing rescission of a permit pursuant to 30 CFR 773.20(c)(4),

proposed TCMR 788.225(f)(3) merely states that a possible remedial

measure is to

[i]ssue a show cause order to suspend or revoke the permit based

upon its improvident issuance in accordance with APTRA. A decision

on suspension shall be made within ninety days and a decision on

rescission shall be made within a further ninety days.

In its letter to the State dated June 8, 1993, OSM notified Texas

that its provision appeared to provide for rescission only through

formal adjudicative proceedings, as compared to the automatic

suspension and rescission process provided for in the Federal

regulations at 30 CFR 773.21(a). Texas explained, in its letter of July

7, 1993, that because section 13(a) of APTRA, which is part of the

approved Texas program, requires that all parties in a contested case

have the opportunity for an adjudicative hearing before legal rights,

duties or privileges are determined, the suspension or revocation of

permits cannot be automatic. Texas further explained that proposed TCMR

788.225(f)(3) provides that decisions on suspension and rescission of

permits must be made within the same time periods as required by the

Federal provisions.

Although the concept of providing for a formal adjudicative

proceeding in connection with permit suspension and revocation

proceedings does not, by itself, render proposed TCMR 788.225(f)(3)

less effective than the Federal regulations at 30 CFR 773.21(a) in

meeting SMCRA's requirements, there are ambiguities and deficiencies

with the State proposal that do render it less effective than the

Federal counterpart regulations.

First, although Texas states that its proposal provides for the

same time periods as the corresponding Federal provisions, it is not

clear that the Texas proposal does so. The Texas proposal only states

when a ``decision'' regarding permit suspension and revocation will be

made. It does not discuss when such a decision will become effective

and the permit will actually be suspended or rescinded. Although the

proposal would require Texas to make a ``decision'' on permit

suspension and rescission within the specified time periods, the

effective date of the suspension and rescission could occur beyond the

specified time periods. By comparison, the Federal regulation at 30 CFR

773.21(a) provides for the suspension of a permit to become effective

on a specified date not to exceed 90 days after notice is served on the

permittee and for the rescission of the permit to become effective

within a specified period not to exceed 90 days after the suspension is

effective.

It also is not clear that the specified time periods in the State

proposal are the same as those in the Federal regulations. The Federal

regulation at 30 CFR 773.21(a) requires that ``[a]fter a specified

period of time not to exceed 90 days [after service of the notice of

permit suspension and rescission] the permit automatically will become

suspended, and not to exceed 90 days thereafter rescinded'' (emphasis

added) unless, within those time frames, the permittee submits proof

and the regulatory authority makes findings on certain matters

specified at 30 CFR 773.21(a)(1) through (4). By comparison, the State

proposal merely states that a decision on suspension will be made

``within ninety days'' and a decision on rescission will be made

``within a further ninety days.''

Under the Federal regulations, the regulatory authority has the

ability to specify any particular period of time in its notice of

permit suspension and rescission, as long as the specified time period

does not exceed 90 days. That is, the regulatory authority has the

flexibility and discretion to suspend and rescind the permit very

rapidly if deemed appropriate. Because Texas has indicated that it must

follow its adjudicative procedures for permit suspension and rescission

under this State rule but has not indicated the time periods associated

with those procedures, it is not clear that Texas retains similar

flexibility and discretion under its proposal.

In addition, the Federal regulations explicitly detail at 30 CFR

773.21(a)(1) through (4) the matters upon which the permittee must

submit proof, and the findings the regulatory authority must make, in

order to prevent permit suspension and rescission. If the permittee

fails to submit proof or the regulatory authority fails to make

findings on such specified matters, the permit must be suspended and

rescinded. Moreover, the Federal regulations explicitly require that

the permittee be given advance notice of those necessary matters of

proof and required findings. The Texas proposal contains no such

requirements.

Similarly, proposed TCMR 788.225(f) does not address the cessation

of operations once a permit is suspended or rescinded. By comparison,

the Federal regulation at 30 CFR 773.21(b) explicitly requires that

after a permit is suspended or rescinded, all surface coal mining and

reclamation operations being conducted under that permit must cease,

except for violation abatement and for reclamation and other

environmental protection measures as required by the regulatory

authority. Permit suspension or rescission must not preclude the

operator from completing such required operations. Again, Texas'

proposal contains no counterpart provision.

In conclusion, the Director finds that proposed TCMR 788.225(f) is

less effective than the corresponding Federal regulations at 30 CFR

773.20(c) and 773.21 (a) and (b) because it does not (1) include, as a

counterpart to 30 CFR 773.20(c)(3), another possible remedial measure

for improvidently issued permits that allows suspension of the

improvidently issued permit until the violation is abated or the

penalty or fee is paid, (2) specify the conditions no less effective

than those at 30 CFR 773.21(a) (1) through (4) that must be met in

order to prevent suspension or rescission an improvidently issued

permit, (3) require that after a permit is suspended or rescinded, the

only surface coal mining and reclamation operations that may continue

to be conducted are those required for violation abatement and those

required for completion of reclamation and other environmental

protection measures as specified by the Commission, and (4) provide for

the same time periods as those specified in the Federal regulations at

30 CFR 773.21, require that a decision to suspend or rescind an

improvidently issued permit must become effective within these

specified time periods, or allow the Commission sufficient flexibility

and discretion to suspend and rescind a permit rapidly when it is

appropriate. Accordingly, the Director does not approve proposed

subparagraph TCMR 788.225(f)(3).

With the exception of subparagraph (f)(3), the Director approves

proposed TCMR 788.225(f). The Director requires Texas to further revise

TCMR 788.225(f) to (1) include, as a counterpart to 30 CFR

773.20(c)(3), another possible remedial measure for improvidently

issued permits that allows suspension of the improvidently issued

permit until the violation is abated or the penalty or fee is paid, (2)

specify the conditions no less effective than those at 30 CFR 773.21(a)

(1) through (4) that must be met in order to prevent suspension or

rescission an improvidently issued permit, (3) require that, after a

permit is suspended or rescinded, the only surface coal mining and

reclamation operations that may continue to be conducted under that

permit are those required by the Commission for violation abatement and

for completion of reclamation and other environmental protection

measures, and (4) provide for the same time periods as those specified

in the Federal regulations at 30 CFR 773.21, require that a decision to

suspend or rescind an improvidently issued permit must become effective

within these specified time periods, and allow the Commission

sufficient flexibility and discretion to suspend and rescind a permit

rapidly when it is appropriate. Because the Director is revising 30 CFR

943.16(j) to require that TCMR 788.225(f) be revised as discussed

above, the Director removes the required amendment to 30 CFR

943.16(h)(2).

5. TCMR 843.680(c), Cessation Orders

Proposed TCMR 843.680(c) sets forth the minimum information that

must be specified in a cessation order issued under the provisions of

TCMR 843.680 (a) or (b), including (1) the nature of the violation, (2)

the remedial action or affirmative obligation required, if any,

including interim steps, if appropriate, (3) the time established for

abatement, if appropriate, including the time for meeting any interim

steps, and (4) a reasonable description of the portion of the coal

exploration or surface coal mining and reclamation operation to which

it applies.

Proposed TCMR 843.680(c) also requires that (1) a cessation order

shall remain in effect until the condition, practice, or violation has

been abated or until vacated, modified or terminated in writing by an

authorized representative of the Commission, and (2) the Commission,

within 60 days after issuing a cessation order, shall notify in writing

any person who has been identified as owning or controlling the

permittee that the cessation order was issued and that the person has

been identified as an owner or controller.

The provisions of proposed TCMR 843.680(c) are similar to the

corresponding Federal provisions at 30 CFR 843.11 (c) and (g), with

three exceptions. Proposed TCMR 843.680(c) requires a cessation order

to set forth, among other things, ``the nature of the violation.'' The

corresponding Federal regulations at 30 CFR 843.11(c) require a

cessation order to set forth ``the nature of the conditions, practice

or violation.'' This difference in wording is not substantive. Section

521(a)(5) of SMCRA requires a cessation order to set forth ``the nature

of the violation'' and OSM's original program at 30 CFR 843.11(c) had

the same requirement (44 FR 14902, 15458, March 13, 1979).

Subsequently, the words ``condition, practice or'' were added to the

phrase ``the nature of the violation'' (47 FR 35620, 35630, August 16,

1982). The preamble to that rulemaking states that, except for

paragraph (a)(2), section 843.11 was promulgated as proposed, and

further indicates that the promulgated changes were made to more

closely reflect the provisions for cessation orders contained in

section 521 of SMCRA (47 FR 35620, 35630, August 16, 1982). OSM stated

in the proposed rule that it was proposing various language changes

throughout 30 CFR 843.11(c) for clarity and that no changes in effect

were intended (46 FR 58464, 58467, December 1, 1981).

The requirements of SMCRA at section 521(a)(5) to set forth in a

cessation order ``the nature of the violation'' and of the Federal

regulations at 30 CFR 843.11(c) to set forth ``the nature of the

condition, practice or violation'' are both, in effect, requirements to

explain to the permittee, in writing, why cessation of operations is

being ordered. The omission of the words ``condition, practice or''

from the requirements at TCMR 843.680(c) does not relieve the

Commission or its representatives from including in the cessation order

the reason for the order, regardless of whether the reason is a

condition, practice, violation, or a combination of thereof. Therefore,

to the extent that it requires a cessation order to include the reasons

for the order, whether the reason is a condition, practice, violation,

proposed TCMR 843.680(c) is no less effective than the requirements of

the corresponding Federal regulations at 30 CFR 843.11(c) in meeting

SMCRA's requirements.

In addition, proposed TCMR 843.680(c) does not require, as do 30

CFR 843.11(c), section 521(a)(5) of SMCRA, and 30 CFR 843.15, that a

cessation order expire within 30 days after it is served unless an

informal public hearing has been held within that time. Texas'

regulations at TCMR 843.684(a) provide that a cessation order must be

reviewed at a public hearing within 30 days after it is served, but

there is no provision for terminating the order if such hearing is not

held within 30 days. However, consistent with section 521(a)(5) of

SMCRA, section 32(e) of TSCMRA provides that a cessation order shall

expire within 30 days of notice unless a public hearing is held.

Therefore, proposed TCMR 843.680(c), in conjunction with section 32(e)

of TSCMRA, is no less effective than the Federal regulations at 30 CFR

843.11(c) and is no less stringent than section 521(a)(5) of SMCRA with

regard to the expiration of cessation orders.

The additional requirements that Texas proposed to add at TCMR

843.680(c), concerning notification of persons identified as owning or

controlling the permittee, differ from the Federal requirements to 30

CFR 843.11(g) only to the extent that they do not reference the

specific Texas regulations that require identification of all persons

that own or control the permittee. The proposed regulations, instead,

require notification of ``any person who has been identified as owning

or controlling a permittee.'' The requirements for identification of

such persons are found in the Texas program at TCMR 786.221(d) and

778.116 (c) and (d). These regulations correspond, respectively, to the

Federal regulations at 30 CFR 773.17(i) and 778.13 (c) and (d).

Although proposed TCMR 843.680(c) does not specifically reference

Texas' regulations at TCMR 786.221(d) and 778.116 (c) and (d), which

provide for the identification of all persons that own or control the

permittee, it does require notification of ``any person who has been

identified as owning or controlling a permittee.'' Because the only

regulations in the Texas program that address the identification of

persons who own or control the permittee, are TCMR 786.221(d) and

778.116 (c) and (d), there should be no confusion as to who must be

notified. Therefore, to the extent that Texas' use of the phrase ``any

person who has been identified as owning or controlling the permittee''

at proposed TCMR 843.680(c) means the persons identified pursuant to

the requirements at TCMR 786.221(d) and 778.116 (c) and (d), Texas'

proposed rule is consistent with the Federal regulations at 30 CFR

843.11(g).

For the aforementioned reasons, the Director finds that proposed

TCMR 843.680(c) is no less effective than the corresponding Federal

regulations at 30 CFR 843.11 (c) and (g) in meeting SMCRA's

requirements and approves it.

IV. Summary and Disposition of Comments

1. Public Comments

OSM solicited public comments and provided opportunity for a public

hearing on the proposed amendment. No comments were received from the

public. Because no one requested an opportunity to testify at a public

hearing, no hearing was held.

2. Agency Comments

Pursuant to section 503(b)(1) of SMCRA and 30 CFR 732.17(h)(11)(i),

OSM solicited comments from the Administrator of the Environmental

Protection Agency (EPA) and various other Federal agencies with an

actual or potential interest in the Texas program.

The Soil Conservation Service, Forest Service, Bureau of Mines, and

National Park Service responded that they had no comments concerning

the proposed amendment (Administrative Record Nos. TX-544, TX-545, TX-

546 and TX-571, and TX-549).

The U.S. Army Corps of Engineers responded that it found the

amendment satisfactory to that agency (Administrative Record No. TX-

548).

The Bureau of Land Management responded that it could suggest no

additional improvements to the ownership and control rules

(Administrative Record No. TX-547).

3. State Historic Preservation Officer (SHPO) and Advisory Council on

Historic Preservation (ACHP) Comments

Pursuant to 30 CFR 732.17(h)(4), OSM is required to solicit

comments from the SHPO and ACHP for all amendments that may have an

effect on historic properties. The Director solicited comments from

these offices (Administrative Record No. TX-543). Neither the SHPO nor

ACHP responded.

4. EPA Concurrence

Under 30 CFR 732.17(h)(11)(ii), OSM is required to obtain the

written concurrence of the Administrator of the EPA with respect to any

provisions of a State program amendment that relate to air or water

quality standards promulgated under the authority of the Clean Water

Act (33 U.S.C. 1251 et seq.) or the Clean Air Act (42 U.S.C. 7401 et

seq.)

None of the regulation changes that Texas proposed pertain to air

or water quality standards. Nevertheless, OSM requested EPA's

concurrence. On October 25, 1993, EPA give its concurrence

(Administrative Record No. TX-573).

V. Director's Decision

Based on the above findings, the Director approves, with certain

exceptions and additional requirements, the proposed amendment as

submitted by Texas on February 8, 1993, and as revised by it on July 7,

1993.

As discussed in finding Nos. 1, 3(c), 4(a), and (5), the Director

approves (1) TCMR 778.116(l), identification of interests and

compliance information; (2) TCMR 786.215(e)(2), review of permit

applications; (3) TCMR 786.215(g), review of permit applications: Final

compliance review; (4) TCMR 788.225(e), review criteria, except for

subparagraph TCMR 788.225(e)(1)(B) that allows the Commission to

presume that a notice of violation has or is being corrected; (5) TCMR

788.225(g), right of appeal, and (6) TCMR 843.680(c), cessation orders.

As discussed in finding Nos. 2, 3(a), and 4(b), the Director

approves but requires Texas to submit further regulatory program

amendments regarding (1) TCMR 778.116(m), violation information; (2)

TCMR 786.215(e)(1), review of violations; and (3) TCMR 788.225(f),

(f)(1), and (f)(2), remedial measures.

As discussed in finding Nos. 3(b), and 4(b), the Director does not

approve and requires Texas to submit further regulatory program

amendments regarding (1) TCMR 786.215(f), permit denial for pattern of

violations and (2) TCMR 788.225(f)(3), remedial measures.

As discussed in finding Nos. 2 and 3(b), the Director requires

Texas to (1) revise section 21(c) of TSCMRA to remove the words

``within the state'' from the phrase ``in connection with any surface

coal mining operation within the state during the three-year period''

in the first sentence of section 21(c) and (2) either delete TCMR

786.216(i) or revise it to be no less effective than the Federal

requirements at 30 CFR 773.15(b)(3).

As discussed in finding Nos. 3(a) and 4(a), the Director defers

decision on proposed TCMR 786.215(e)(1) and 788.225(e)(1)(B) to the

extent that these subsections allow the Commission to presume that a

notice of violation has been or is being corrected in the absence of a

failure-to-abate cessation order. In response to litigation, the

Secretary has indicated an intention to reconsider this presumption

issue in the corresponding Federal regulations.

In accordance with 30 CFR 732.17(f)(1), The Director is also taking

this opportunity to clarify in the required amendment section at 30 CFR

943.16 that, within 60 days of the publishing of this notice, Texas

must either submit a proposed written amendment, or a description of an

amendment to be proposed that meets the requirements of SMCRA and 30

CFR Chapter VII and a timetable for enactment that is consistent with

Texas' established administrative or legislative procedures.

To implement this decision, the Director is amending the Federal

regulations at 30 CFR part 943 that codify all decisions concerning the

Texas program. This final rule is being made effective immediately to

expedite the State program amendment process and to encourage States to

bring their programs into conformity with the Federal standards without

undue delay. Consistency of State and Federal standards is required by

SMCRA.

Effect of Director's Decision

Section 503 of SMCRA provides that a State may not exercise

jurisdiction under SMCRA unless the State program is approved by the

Secretary. Similarly, 30 CFR 732.17(a) requires that any alteration of

an approved State program be submitted to OSM for review as a program

amendment. Thus, any changes to the State program are not enforceable

until approved by OSM. The Federal regulations at 30 CFR 732.17(g)

prohibit any unilateral changes to approved State programs. In the

oversight of the Texas program, the Director will recognize only the

statutes, regulations and other materials approved by OSM, together

with any consistent implementing policies, directives and other

materials, and will require the enforcement by Texas of only such

provisions.

VI. Procedural Determinations

1. Executive Order 12866

This final rule is exempted from review by the Office of Management

and Budget under Executive Order 12866 (Regulatory Planning and

Review).

2. Executive Order 12778

The Department of the Interior has conducted the reviews required

by section 2 of Executive Order 12778 (Civil Justice Reform) and has

determined that this rule meets the applicable standards of subsections

(a) and (b) of that section. However, these standards are not

applicable to the actual language of State regulatory programs and

program amendments since each such program is drafted and promulgated

by a specific State, not by OSM. Under sections 503 and 505 of SMCRA

(30 U.S.C. 1253 and 1255) and 30 CFR 730.11, 732.15 and 732.17(h)(10),

decisions on proposed State regulatory programs and program amendments

submitted by the States must be based solely on a determination of

whether the submittal is consistent with SMCRA and its implementing

Federal regulations and whether the other requirements of 30 CFR Parts

730, 731, and 732 have been met.

3. National Environmental Policy Act

No environmental impact statement is required for this rule since

section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency

decisions on proposed State regulatory program provisions do not

constitute major Federal actions within the meaning of section

102(2)(C) of the National Environmental Policy Act, 42 U.S.C.

4332(2)(C).

4. Paperwork Reduction Act

This rule does not contain information collection requirements that

require approval by OMB under the Paperwork Reduction Act, 44 U.S.C.

3507 et seq.

5. Regulatory Flexibility Act

The Department of the Interior has determined that this rule will

not have a significant economic effect on a substantial number of small

entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

The State submittal that is the subject of this rule is based upon

counterpart Federal regulations for which an economic analysis was

prepared and certification made that such regulations would not have a

significant economic effect upon a substantial number of small

entities. Hence, this rule will ensure that existing requirements

previously promulgated by OSM will be implemented by the State. In

making the determination as to whether this rule would have a

significant economic impact, the Department relied upon the data and

assumptions for the counterpart Federal regulations.

List of Subjects in 30 CFR Part 943

Intergovernmental relations, Surface mining, Underground mining.

Dated: March 14, 1994.

Raymond L. Lowrie,

Assistant Director, Western Support Center.

For the reasons set out in the preamble, Title 30, Chapter VII,

Subchapter T, of the Code of Federal Regulations is amended as set

forth below:

PART 943--TEXAS

1. The authority citation for Part 943 continues to read as

follows:

Authority: 30 U.S.C. 1201 et seq.

2. Section 943.15 is amended by adding paragraph (i) to read as

follows:

943.15 Approval of regulatory program amendments.

* * * * *

(i) With the exceptions of TCMR 786.215(e)(1), review of

violations, to the extent that it allows the Commission to presume that

a notice of violation has been or is being corrected; TCMR 786.215(f),

permit denial for pattern of violations; TCMR 788.225(e)(1)(B), review

criteria, to the extent that it allows the Commission to presume that a

notice of violation has been or is being corrected; and TCMR

788.225(f)(3), remedial measures, the revisions to 16 Texas

Administrative Code 11.221, the Coal Mining Regulations of the Railroad

Commission of Texas, as submitted on February 8, 1993, and as revised

on July 7, 1993, are approved effective March 21, 1994. Revisions to

the following regulations are approved:

TCMR 778.116(l) and (m), identification of interests and compliance

information.

TCMR 786.215(e)(1) and (2), review of permit applications.

TCMR 786.215(g), final compliance review.

TCMR 788.225(e), (e)(1)(A), (e)(2), and (e)(3), commission review

of outstanding permits: review criteria.

TCMR 788.225(f), (f)(1) and (f)(2), commission review of

outstanding permits: remedial measures.

TCMR 788.225(g), right of appeal.

TCMR 843.680(c), cessation orders.

3. Section 943.16 is amended by revising the introductory

paragraph, removing and reserving paragraphs (b), (e), (g), (h), and

(i), revising paragraphs (c), (d), (f), and (j), and adding paragraphs

(r) and (s), to read as follows:

943.16 Required program amendments.

Pursuant to 30 CFR 732.17(f)(1), Texas is required to submit to OSM

by the specified date the following written, proposed program

amendment, or a description of an amendment to be proposed that meets

the requirements of SMCRA and 30 CFR Chapter VII and a timetable for

enactment that is consistent with Texas' established administrative or

legislative procedures.

* * * * *

(b) [Reserved]

(c) By May 20, 1994, Texas shall formally propose an amendment to

OSM for TCMR 778.116(m) or otherwise modify its program to require a

permit application to also include information on

(1) Violations received pursuant to SMCRA's implementing Federal

regulations, all SMCRA-approved Federal programs (OSM-administered

Indian lands program and Federal programs for States), and all SMCRA-

approved State programs, not just the Texas program, and

(2) Air or water environmental protection violations received

pursuant to any State laws, rules or regulations enacted pursuant to

Federal laws, rules, or regulations and incurred by the applicant in

any State, not just Texas.

(d) By May 20, 1994, Texas shall formally propose an amendment to

OSM for TCMR 786.215(e)(1) to require the Commission to consider, as a

basis for permit denial, information on cessation orders issued by

States other than Texas.

(e) [Reserved]

(f) By May 20, 1994, Texas shall formally propose an amendment to

OSM for TCMR 786.215(f) addressing the review of permit applications to

require that issuance of permits is specifically prohibited whenever

the Commission makes a determination that the applicant, anyone who

owns or controls the applicant, or the operator specified in the

application controls or has controlled surface coal mining and

reclamation operations with a demonstrated pattern of willful

violations of TSCMRA, SMCRA, SMCRA's implementing Federal regulations,

SMCRA-approved Federal programs, and all SMCRA-approved State programs,

not just the Texas program, of such nature, duration, and with such

resulting irreparable damage to the environment, as to indicate an

intent not to comply with these laws, rules, and regulations.

(g) [Reserved]

(h) [Reserved]

(i) [Reserved]

(j) By May 20, 1994, Texas shall formally purpose an amendment to

OSM for TCMR 788.225(f), concerning remedial measures for improvidently

issued permits, or otherwise revise its program to

(1) Provide, as a counterpart to 30 CFR 773.20(c)(3), another

possible remedial measure for improvidently issued permits that allows

suspension of the improvidently issued permit until the violation is

abated or the penalty or fee is paid,

(2) Specify the conditions no less effective than those at 30 CFR

773.21(a) (1) through (4) that must be met in order to prevent

suspension or rescission of an improvidently issued permit.

(3) Require that after a permit is suspended or rescinded all

surface coal mining and reclamation operations being conducted under

that permit must cease, except for violation abatement and for

reclamation and other environmental protection measures as required by

the regulatory authority.

(4) Provide for the same time periods as those specified in the

Federal regulations at 30 CFR 773.21, require that a decision to

suspend or rescind an improvidently issued permit must become effective

within these specified time periods, and allow the Commission

sufficient flexibility and discretion to suspend and rescind a permit

rapidly when it is appropriate.

* * * * *

(r) By May 20, 1994, Texas shall formally propose to OSM an

amendment revising section 21(c) of the Texas Surface Coal Mining and

Reclamation Act to remove the words ``within the state'' from the

phrase ``inconnection with any surface coal mining operation within the

state during the three-year period'' in the first sentence of section

21(c).

(s) By May 20, 1994, Texas shall formally propose an amendment to

OSM for TCMR 786.216(i) to either

(1) Delete TCMR 786.216(i) or

(2) revise it to specifically prohibit issuance of permits in all

situations where it is determined that the applicant, anyone who owns

or controls the applicant, or the operator specified in the application

controls or has controlled surface coal mining and reclamation

operations with a demonstrated pattern of willful violation of TSCMRA,

SMCRA, SMCRA's implementing Federal regulations, SMCRA-approved Federal

programs, and the SMCRA-approved programs of all States, of such

nature, duration, and with such resulting irreparable damage to the

environment that indicates an intent not to comply with these laws,

rules, and regulations.

[FR Doc. 94-6495 Filed 3-18-94; 8:45 am]

BILLING CODE 4310-05-M