Missouri Permanent Regulatory Program

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 925

Missouri Permanent Regulatory Program

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

Interior.

ACTION: Final rule; approval of amendment.

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SUMMARY: OSM is announcing approval of a proposed amendment submitted

by the State of Missouri as a modification to its permanent regulatory

program (hereinafter, the ``Missouri program'') approved under the

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

amendment was submitted to OSM on September 24, 1993, and addresses

State statutes concerning civil penalties. The amendment is intended to

revise the State program to be consistent with the corresponding

Federal standards.

EFFECTIVE DATE: April 22, 1994.

FOR FURTHER INFORMATION CONTACT:

Jerry R. Ennis, Telephone: (816) 374-6405.

SUPPLEMENTARY INFORMATION:

I. Background on the Missouri Program

On November 21, 1980, the Secretary of Interior conditionally

approved the Missouri program. General background information on the

Missouri program, including the Secretary's findings, the disposition

of comments, and the conditions of approval of the Missouri program can

be found in the November 21, 1980, Federal Register (45 FR 77017).

Subsequent actions concerning Missouri's program and program amendments

can be found at 30 CFR 925.12, 925.15, and 925.16.

II. Submission of Proposed Amendment

By letter dated September 24, 1993 (Administrative Record No. MO-

576), Missouri submitted a proposed amendment to its program pursuant

to SMCRA. Missouri submitted the proposed amendment to its statute to

satisfy a required program amendment placed on its program and to be

consistent with the corresponding Federal standards. Missouri proposes

to amend the Revised Statutes of Missouri (RSMo) at sections 444.870.1

through 444.870.8, and 444.873.1 through 444.873.4, concerning

penalties.

The Director announced receipt of the proposed amendment in the

October 18, 1993 Federal Register (58 FR 53686) and, in the same

notice, opened the public comment period and provided opportunity for a

public hearing on its substantive adequacy. The public comment period

closed on November 17, 1993. No public hearing was held since none was

requested.

III. Director's Findings

Set forth below, pursuant to SMCRA and the Federal regulations at

30 CFR 732.15 and 732.17, are the Director's findings for the proposed

amendment submitted by Missouri on September 24, 1993.

1. RSMo 444.870.3, Right to Contest Amount of Penalty or Fact of

Violation

Existing RSMo 444.870.3 provides an operator served with notice of

a violation of the Missouri program an opportunity to contest the

notice:

The operator, if he wishes to contest the notice, may within

thirty days of receipt of the notice request a hearing before the

commission.

Missouri proposes to revise its statute at RSMo 444.870.3 by

replacing the word ``notice,'' in the passage quoted above, with the

phrase ``either the amount of the penalty or the fact of the

violation,'' so that the operator may contest the amount of the

penalty, in addition to or instead of contesting the fact of the

violation, at the requested hearing. The request for a hearing would

still have to be accompanied by a penalty bond in the amount of the

proposed penalty.

Section 518(c) of SMCRA requires the person charged with the

penalty to, within 30 days, either pay the proposed penalty in full,

or, if the person wishes to contest either the amount of the penalty or

the fact of the violation, forward the proposed amount to the Secretary

for placement in an escrow account.

Missouri's proposed revision would provide an operator with the

same procedural rights and remedies that are afforded under section

518(c) of SMCRA.

Therefore, the Director finds that Missouri's revision to RSMo

444.870.3 is no less stringent than SMCRA and is approving it.

2. RSMo 444.870.5 Through 444.870.8, Penalties

Missouri proposes to delete the existing statutory provisions at

RSMo 444.870.5, .6, .7, and .8.

a. RSMo 444.5, Administrative Penalties Paid

Missouri proposes to delete RSMo 444.870.5 from its statue. This

statutory provision requires the following:

5. Any administrative penalty paid pursuant to sections 444.800

to 444.940 shall be placed in the state treasury and credited to the

general revenue fund. An action may be brought in the appropriate

circuit court to collect any unpaid administrative penalty, and for

attorney's fees and costs incurred directly in the collection

thereof.

According to a finding made by Missouri's attorney general in

conjunction with a previous submittal dated November 8, 1991

(Administrative Record No. MO-541), the portion of RSMo 444.870.5

requiring penalty monies to be placed into Missouri's general revenue

fund conflicts with Article IX, section 7 of the Missouri Constitution

which requires penalty monies to be distributed to several Missouri

school districts. The attorney general found that RSMo 444.870.5 was

unconstitutional and pre-empted by Article IX, section 7 of the

Missouri Constitution.

Section 518 of SMCRA and the Federal regulations at 30 CFR 845 do

not place explicit requirements with regard to how administrative

penalty money must be distributed by a State. Missouri's deletion of

the requirement, at RSMo 444.870.5, to place any administrative penalty

paid into the general revenue fund does not render its program less

stringent than SMCRA.

In deleting RSMo 444.870.5 in its entirety, Missouri is also

deleting the second portion of that provision, which provides that)--

[A]n action may be brought in the appropriate circuit court to

collect any unpaid administrative penalty, and for attorney's fees

and costs incurred directly in the collection thereof.

Delection of this language does not render the Missouri statute

less stringent than section 518(d) of SMCRA, which allows a suit to be

brought to collect unpaid civil penalties, because a provision

containing equivalent language already exists in the Missouri surface

mining statute at RSMo 444.870.4. Therefore, the Director is approving

the proposed deletion at RSMo 444.870.5.

b. RSMo 444.870.6, .7, and .8, Assessment of ``Administrative''

Penalty, Judicial, Review of Final Orders, and Assessment of ``Civil''

Penalty

Missouri proposes to delete RSMo 444.870.6, .7, and .8 from its

statute. These sections currently require the following:

6. An administrative penalty shall not be increased in those

instances where department action, or failure to act, has caused a

continuation of the violation that was a basis for the penalty. Any

administrative penalty must be assessed within two years following

the department's initial discovery of such alleged violation, or

from the date the department in the exercise of ordinary diligence

should have discovered such alleged violation.

7. Any final order imposing an administrative penalty is subject

to judicial review upon the filing of a petition pursuant to section

536.100, RSMo, by any person subject to administrative penalty;

however, either party may require that the judicial appeal is tried

as a trial de novo in the circuit court of the jurisdiction where

the violation occurred.

8. The state may elect to assess an administrative penalty, or,

in lieu thereof, to request that the attorney general or prosecutor

file an appropriate legal action seeking a civil penalty in the

appropriate circuit court. The assessment of an administrative

penalty shall preclude the assessment of a monetary penalty for the

same violation by the attorney general and the judicial assessment

of a civil penalty for the same violation except that this

limitation shall not apply to persons who the department has

determined habitually violated the requirements of the Missouri

surface coal mining law, the surface coal mining laws of other

states or federal laws pertaining to surface coal mining. The

commission shall promulgate rules and regulations to provide further

clarification of a habitual violator under this subsection.

In OSM's rulemaking action on September 24, 1992, (57 FR 44114)

RSMo 444.870.6, .7, and .8 were found, for the reasons explained in the

preamble to the rulemaking, to be less stringent than SMCRA and were

not approved. As a result, OSM placed a required program amendment on

the Missouri program at 30 CFR 925.16(i) directing Missouri to remove

RSMo 444.870.6, .7, and .8. Missouri has addressed the required program

amendment by proposing to remove RSMo 444.870.6, .7, and .8. Therefore,

the Director finds this proposed revision satisfies, in part, the

required program amendment placed on Missouri's program at 30 CFR

925.16(i).

c. RSMo 444.873.1, .2, .3, and .4, Administrative Penalties: Individual

Liability

Missouri proposes to revise its program by removing RSMo 444.873.1,

.2, .3, and .4 and replacing them at RSMo 444.870.5, .6, .7, and .8,

respectively. In its September 24, 1992 (57 FR 44118), rulemaking

action, OSM approved RSMo 444.873.1, .3, and .4. OSM, however, did not

approve RSMo 444.873.2, for several reasons, and directed Missouri to

remove RSMo 444.873.2. RSMo 444.873.2 currently reads:

Whenever a corporate permittee violates a condition of a permit

or fails or refuses to comply with any order issued under section

444.885 [cessation orders], or any order incorporated in a decision

issued under subsection 2 of section 444.870, any director, officer,

or agent of such corporation who willfully and knowingly authorized,

ordered, or carried out such violation, failure, or refusal shall be

subject to hearings with other proceedings under section 444.885.

Any hearing under this section shall be of record and shall be the

same civil penalties, fines and imprisonment that may be imposed

upon a person under this section.

In its September 24, 1992, disapproval, OSM discovered the

following deficiencies in the above provision. First, RSMo 444.873.2

failed to include the ``except'' clause as used in section 518(f) of

SMCRA, resulting in the State provision providing for an individual

civil penalty (ICP) only for failure to abide by an order requiring

cessation of operations or assessing a civil penalty. This is the

reverse of the requirement at section 518(f) of SMCRA, which provides

for an ICP for failing to abide by an order issued pursuant to any

section of SMCRA except an order issued pursuant to the assessment of a

civil penalty under section 518(b).

Second, RSMo 444.873.2 contains a nonsensical passage asserting

that any ``director, officer, or agent'' may be subject to

``hearings.'' Under section 518(f) of SMCRA, a director, officer, or

agent may be subject to ``civil penalties, fines and imprisonment.''

Third, RSMo 444.873.2, in its last sentence, purports to apply to a

director, officer, or agent, the ``same civil penalties, fines and

imprisonment that may be imposed upon a person under this section.''

The State's use of the term, ``this section,'' is inappropriate, as

RSMo 444.873 includes no provision for the imposition of penalties,

fines, or imprisonment.

As now proposed, however, Missouri has recodified the above

provision to RSMo 444.870.6. This recodification to the appropriate

portion of the statute remedies the third deficiency noted above. Newly

proposed RSMo 444.870.6, as can be seen from the quoted passage below,

has also been revised to remedy the first and second deficiencies noted

above:

Whenever a corporate permittee violates a condition of a permit

or fails or refuses to comply with any order issued under section

444.885, or any order incorporated in a final decision issued by the

commission except an order incorporated in a decision issued under

subsection 2 of this section, any director, officer, or agent of

such corporation who willfully and knowingly authorized, ordered, or

carried out such violation, failure, or refusal shall be subject to

the same administrative penalties, fines and imprisonment that may

be imposed upon a person under subsections 1 and 5 of this section.

Finally, Missouri, as suggested by OSM in its September 24, 1992,

Federal Register notice (57 FR 44114), has replaced the term, ``civil

penalty,'' as used in RSMo 444.870.6, with the term, ``administrative

penalty,'' to make the statutory provision consistent with the Missouri

coal mining regulations, which use the term, ``administrative

penalty.'' The Missouri term, ``administrative penalty,'' is synonymous

with the Federal term, ``civil penalty.''

Given the revisions proposed by Missouri, as discussed in Findings

No. 2b and c, above, the Director finds that Missouri has adequately

responded to the required program amendment at 30 CFR 925.16(i) and is

therefore removing the required program amendment. The Director also

finds that the recodification of RSMo 444.873.1 through 4 to RSMo

444.870.5 through 8, and the revisions to RSMo 444.870.6, do not render

the Missouri program less stringent than SMCRA and is approving the

recodification.

IV. Public and Agency Comments

Public Comments

The Director solicited public comment on the proposed amendment and

provided opportunity for a public hearing. No comments were received.

The scheduled public hearing was not held because no one requested an

opportunity to provide testimony.

Agency Comments

Pursuant to section 503(b) of SMCRA and the implementing

regulations at 30 CFR 732.17(h)(11), OSM solicited comments from

various Federal agencies with an actual or potential interest in the

Missouri program. Comments were also solicited from various State

agencies. The following comments were received.

By letter dated October 29, 1993, (Administrative Record No. MO-

584), the Soil Conservation Service responded that it had no comment.

State Historic Preservation Officer (SHPO) and the Advisory Council on

Historic Preservation (ACHP) Comments

As required by 30 CFR 732.17(h)(4), OSM provided the proposed

amendment to the SHPO and the ACHP for comment. By letter dated October

27, 1993 (Administrative Record No. MO-585), SHPO responded that it had

no objection to the proposed amendment. No comments were received from

the ACHP.

Environmental Protection Agency (EPA) Concurrence

Under 30 CFR 732.17(h)(11), the Director 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.).

Missouri did not propose any revisions to its program that relate

to air or water quality standards in this amendment. However, EPA's

Regional and Headquarters offices were afforded opportunity to comment

on this amendment. No comments were received.

V. Director's Decision

Based on the above findings, the Director is approving the proposed

amendment submitted by Missouri on September 24, 1993, as identified in

the codified portion of this notice under 30 CFR 925.15.

The Federal regulations at 30 CFR part 925 codifying decisions

concerning the Missouri program are amended to implement this decision.

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 between State and Federal standards is required by

SMCRA.

VII. Procedural Determinations

Compliance With 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 12550) and the Federal regulations at 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.

Compliance With 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).

Compliance With the 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 of 1969, 42 U.S.C.

4332(2)(C).

Paperwork Reduction Act

This rule does not contain information collection requirements that

require approval by the Office of Management and Budget under the

Paperwork Reduction Act, 44 U.S.C. 3507 et seq.

Compliance With the Regulatory Flexibility Act

The Department of the Interior has determined that this rule will

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

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

The State submittal which 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 925

Intergovernmental relations, Surface mining, Underground mining.

Dated: April 18, 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 925--MISSOURI

1. The authority citation for part 925 continues to read as

follows:

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

2. Section 925.15 is amended by adding paragraph (r) to read as

follows:

Sec. 925.15 Approval of regulatory program amendments.

* * * * *

(r) The following provisions of the Missouri statute as submitted

to OSM on September 24, 1993, are approved effective April 22, 1994:

RSMo 444.870.3, and the newly codified language at 444.870.5 through 8

concerning penalties.

Sec. 925.16 [Amended]

3. Section 925.16 is amended by removing and reserving paragraph

(i).

[FR Doc. 94-9826 Filed 4-21-94; 8:45 am]

BILLING CODE 4310-05-M