Texas Regulatory Program

[[Page 30805]]

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 943

[SPATS No. TX-027-FOR]

Texas 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 approving a proposed amendment to the Texas regulatory

program (hereinafter referred to as the ``Texas program'') under the

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

proposed amendment consists of revisions to Texas' existing regulations

pertaining to identification of interests and compliance information

and Commission of Texas (Commission) review of outstanding permits and

revisions and one addition to Texas' existing statures pertaining to

rulemaking and permitting, permit approval or denial, and suspension or

rescission of improvidently issued permits. The amendment is intended

to revise the Texas program to be consistent with the corresponding

Federal regulations and SMCRA.

EFFECTIVE DATE: June 18, 1996.

FOR FURTHER INFORMATION CONTACT:

Jack R. Carson, Acting Director, Tulsa Field Office, Office of Surface

Mining Reclamation and Enforcement, 5100 East Skelly Drive, Suite 470,

Tulsa, Oklahoma 74135-6548, Telephone: (918) 581-6430.

SUPPLEMENTARY INFORMATION:

I. Background on the Texas Program

II. Submission of the 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. Background information on the Texas

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

comments, and the conditions of approval can be found in the February

27, 1980, Federal Register (45 FR 12998). Subsequent actions concerning

the conditions of approval and program amendments can be found at 30

CFR 943.10, 943.15, and 943.16.

II. Submission of the Proposed Amendment

By letter dated August 30, 1995 (Administrative Record No. TX-595),

Texas submitted a proposed amendment to its program pursuant to SMCRA.

Texas submitted the proposed amendment in response to required program

amendments codified at 30 CFR 943.16 (r), (t), and (u) [59 FR 13200,

March 21, 1994, and 60 FR 15675, March 27, 1995]. The provisions of the

Texas Coal Mining Regulations (TCMR) and of the Texas Surface Coal

Mining and Reclamation Act (TSCMRA) at Article 5920-11 that Texas

proposed to amend were TCMR 778.116(m), identification of interests and

compliance information; TCMR 788.225(g)(1), Commission review of

outstanding permits; section 6(b) of TSCMRA, rulemaking and permitting;

section 21(c) of TSCMRA, reporting notices of violation in permit

applications; and section 21a of TSCMRA, suspension or rescission of

improvidently issued permits.

OSM announced receipt of the proposed amendment in the September

20, 1995, Federal Register (60 FR 48675), and in the same document

opened the public comment period and provided an opportunity for a

public hearing on the adequacy of the proposed amendment. The public

comment period closed on October 20, 1995.

By letter dated May 13, 1993 (Administrative Record No. TX-551),

Texas submitted a proposed amendment to its program pursuant to SMCRA.

By letter dated September 18, 1995 (Administrative Record No. TX-598),

Texas revised the May 13, 1993, proposed amendment. The revised

amendment included a definition for the term ``violation notice'' at

TCMR 701.008(104), which was proposed as partial response to a required

amendment at 30 CFR 943.16(k). Since this proposed definition is

closely associated with Texas' August 30, 1995, proposed revisions

pertaining to identification of interests and compliance information,

it is being transferred to and addressed in this final rule. Decisions

concerning the rest of the proposed changes in the May 13, 1993,

proposed amendment, as revised on September 18, 1995, will be addressed

in a separate Federal Register.

OSM announced receipt of the September 18, 1995, revised amendment

in the October 25, 1995, Federal Register (60 FR 54620), and in the

same document opened the public comment period. The public comment

period closed on November 9, 1995. No comments were received pertaining

to the proposed definition of ``violation notice.''

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 concerning the

proposed amendment.

Revisions not specifically discussed below concern nonsubstantive

wording changes, or revised cross-references and paragraph notations to

reflect organizational changes resulting from this amendment.

A. Texas Coal Mining Regulations (TCMR)

1. TCMR 701.008(104) Definition of Violation Notice

Texas proposed to add the following definition of ``violation

notice'' at TCMR 701.008(104).

``Violation notice'' means any written notification from a

governmental entity of a violation of law, whether by letter,

memorandum, legal or administrative pleading, or other written

communication.

The definition for ``violation notice'' was inadvertently omitted

from the State regulations in Texas' Final Rule Adoption No. SMRD 2-88

(May 22, 1989). At 30 CFR 943.16(k), OSM required Texas to submit an

amendment that included this definition (57 FR 37447, August 19, 1992).

The proposed definition is substantively identical to the counterpart

Federal definition that existed on August 19, 1992. However, OSM

revised its definition of violation notice on October 28, 1994 (59 FR

54306). As show below, the revised Federal definition clarifies the

types of violations that would form the basis for permit denial under

section 510(c) of SMCRA and under the implementing Federal regulation

at 30 CFR 778.14(c). OSM determined that incorporating by reference the

amended definition of ``violation notice'' into 30 CFR 778.14(c)

eliminated the need for including regulation language on the types of

violation information that must be reported in a permit application.

``Violation notice'' means any written notification from a

governmental entity, whether by letter, memorandum, judicial or

administrative pleading, or other written communication, of a

violation of the Act; any Federal rule or regulation promulgated

pursuant thereto; a State program; or any Federal or State law,

rule, or regulation pertaining to air or water environmental

protection in connection with a surface coal mining operation. It

includes, but is not limited to, or notice of violation; an imminent

harm cessation order; a failure-to abate cessation order; a final

order, bill, or

[[Page 30806]]

demand letter pertaining to a delinquent civil penalty; a bill or

demand letter pertaining to delinquent abandoned mine reclamation

fees; and a notice of bond forfeiture, where one or more violations

upon which the forfeiture was based have not been corrected.

While the Texas definition lacks the clarity of the revised Federal

definition, it is not inconsistent with it. On March 15, 1996

(Administrative Record No. TX-595.06), OSM contacted Texas to discuss

this issue. Texas responded that it will interpret its proposed

definition of ``violation notice'' consistent with the revised Federal

definition. Also, as discussed in finding B.2., the Texas statute at

Article 5920-11, section 21(c) of TSCMRA does require the reporting of

notices of violation in permit applications consistent with the

requirements under section 510(c) of SMCRA. Therefore, the Director

approves the definition of ``violation notice'' at TCMR 701.008(104) to

the extent that Texas interprets it consistent with the Federal

definition. The required amendment at 30 CFR 943.16(k) is being revised

to remove the requirement for a definition of ``violation notice.''

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

Information

In response to the required amendment at 30 CFR 943.16(t) [finding

No. 3, 60 FR 15675, March 27, 1995], Texas proposed revisions to TCMR

778.116(m) that are substantive in nature and contain language that is

substantively identical to the language in the corresponding Federal

regulation provisions at 30 CFR 778.14(c). Therefore, the Director

finds that TCMR 778.116(m) is no less effective than the counterpart

Federal regulation at 30 CFR 778.14(c). The Director approves the

proposed revision to TCMR 778.116(m) and removes the required amendment

at 30 CFR 943.16(t).

3. TCMR 788.225(g)(1) Commission Review of Outstanding Permits;

Automatic Suspension and Rescission

In responds to the required amendment at 30 CFR 943.16(u) [finding

No. 5, 60 FR 15675, March 27, 1995], Texas proposed a revision to TCMR

788.225(g)(1) that is substantive in nature and contains language that

renders its provisions substantively identical to the corresponding

Federal regulation provisions at 30 CFR 773.21(a).

The Federal regulation at 30 CFR 773.21(a) provides that the

regulatory authority's findings with regard to a permittee's challenge

of its decision to suspend and rescind an improvidently issued permit

must be consistent with the provisions of 30 CFR 773.25. The provisions

of 30 CFR 773.25 specify standards for challenging ownership and

control links and the status of violations.

Since the Texas program did not have a direct counterpart to the

Federal standards for challenging ownership and control links and the

status of violations contained in 30 CFR 773.25 or to other

requirements referred to in 30 CFR 773.25, Texas proposed a revision to

TCMR 788.225(g)(1) to require that the Commission's findings with

regard to a permittee's challenge of the Commission's decision to

suspend and rescind an improvidently issued permit be consistent with

the provisions of the Federal requirements at 30 CFR 773.25. Thus,

Texas incorporated by reference the criteria for challenging ownership

and control links and the status of violations specified by the Federal

regulations.

Based on the above discussions, the Director finds the proposed

revision to TCMR 788.225(g)(1) renders its provisions no less effective

than the Federal regulation provisions at 30 CFR 773.21(a). Therefore,

the Director approves the proposed revision to TCMR 778.225(g)(1) and

removes the required amendment at 30 CFR 743.16(u).

B. Texas Surface Coal Mining and Reclamation Act (TSCMRA), Article

5920-11

Under Section 323.007 of the Government Code, the Texas Legislative

Council revised the Texas statutes in a general code update bill. This

bill, Chapter 76, Senate Bill (S.B.) 959, Acts of the 74th Legislature,

Regular Session, 1995, codified the Texas Surface Coal Mining and

Reclamation Act as Chapter 134, Natural Resources Code, and repealed

Article 5920-11, Vernon's Texas Civil Statutes, subject to certain

exceptions. During the same session, Chapter 272, S.B. 271 amended the

Texas Surface Coal Mining and Reclamation Act, Article 5920-11,

Vernon's Texas Civil Statutes. In a letter dated August 14, 1995

(Administrative Record No. TX-597), the Texas Legislative Counsel

explained that ``under Section 311.031(c), Government Code, the repeal

of a statute by a code does not affect an amendment of the statute by

the same legislature that enacted the code. The amendment is preserved

and given effect as part of the code provision that revised the statute

so amended.''

In its August 30, 1995, submittal (Administrative Record No. TX-

595), Texas provided a legal opinion of the effect of the enactments of

S.B. 271 and S.B. 959. The opinion stated that ``the S.B. 271

amendments survive the repealer provision of S.B. 959 and are preserved

as part of Chapter 134 of the Natural Resources Code. The statutory

authority for the rules exists through the preservation of the

amendments made through S.B. 271.'' S.B. 271 amends Article 5920-11 at

section 6(b) of TSCMRA, rulemaking and permitting and section 21(c) of

TSCMRA, permit approval or denial; and it adds new section 21a,

suspension or rescission of improvidently issued permits.

1. Article 5920-11 Section 6(b) of TSCMRA, Rulemaking and Permitting

Pursuant to the Administrative Procedure Act

The substantive revision proposed in section 6(b) of TSCMRA is the

addition of the following provision allowing Texas to issue a notice of

permit suspension or rescission of an improvidently issued permit

without first conducting a formal adjudicative proceeding under the

Texas Administrative Procedure Act (Chapter 2001, Government Code),

while still allowing the permittee to file an appeal for administrative

review of Texas' decision to suspend or rescind a permit.

(b) * * * The Administrative Procedure Act does not apply to

actions by the Commission to suspend or rescind an improvidently

issued permit as authorized by Section 21a of this Act, except that

a permittee who is the subject of a suspension or rescission notice

issued by the Commission under Section 21a of this Act may file an

appeal for administrative review of the notice as provided by

Commission rules, and such review shall be governed by the

Administrative Procedure Act.

In a letter dated July 7, 1993 (Administrative Record No. TX-562),

Texas had explained that it could not automatically suspend or rescind

a permit because its Administrative Procedure Act at section 13(a)

required that all parties in a contested case have the opportunity for

an adjudicative hearing before legal rights, duties or privileges are

determined. The proposed revision will allow Texas to automatically

suspend or rescind a permit.

The general authority for suspension or revocation (rescission) of

permits is found at section 201(c)(1) of SMCRA. The Federal regulation

provisions at 30 CFR 773.21(a) provide for an automatic permit

suspension and rescission process and 30 CFR 773.20(c)(2) requires

regulatory authorities to give permittees the opportunity to request

administrative review of a notice of suspension or rescission of an

improvidently issued permit. Therefore,

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the Director finds the revision to section 6(b) of TSCMRA is not

inconsistent with SMCRA or the Federal regulations and is approving it.

2. Article 5920-11 Section 21(c) of TSCMRA, Reporting Notices of

Violations in Permit Applications

In response to the required amendment at 30 CFR 943.16(r) [finding

No. 2, 59 FR 13200, March 21, 1994], Texas proposed revisions to

section 21(c) of TSCMRA that are substantive in nature and contain

language that is substantively identical to section 510(c) of SMCRA.

The substantive proposed changes include revising the existing

language of the first sentence of section 21(c) by adding the

requirement that applicants report notices of violations of SMCRA and

deleting the words ``within the state'' from the phrase ``in connection

with any surface coal mining operation within the state during the

three-year period * * *.'' Texas further clarified section 21(c) by

adding new language requiring that the schedule include notices of

violations of Federal regulations or Federal or state programs adopted

under SMCRA. Texas, also, revised the existing second sentence (now the

third sentence) by deleting the phrase ``or that the notice of

violation is being contested by the applicant'' and adding the phrase

``or other laws referred to in this subsection'' after the phrases

``with a demonstrated pattern of willful violations of this Act'' and

``with such resulting irreparable damage to the environment as to

indicate an intent not to comply with this Act.''

The proposed revisions remove the previous limitation contained in

section 21(c) of TSCMRA regarding the listing of information for

violations incurred only within the State of Texas. The proposed

revisions clarify that a permit application must include information on

(1) violations of Federal regulations and violations of Federal and

State programs approved pursuant to SMCRA, not just the Texas program,

and (2) air and water environmental protection violations of any

governmental department or agency physically located in any state of

the United States, not just Texas.

Therefore, based on the above discussions, the Director finds

section 21(c) of TSCMRA, as revised, is consistent with and no less

stringent than section 510(c) of SMCRA and is removing the required

amendment at 30 CFR 943.16(r).

3. Article 5920-11 TSCMRA, section 21a, Suspension or Rescission of

Improvidently Issued Permits

Texas proposes to add a new section which authorizes the Commission

to adopt and enforce rules relating to suspension or rescission of

improvidently issued permits that are consistent with and no less

effective than Federal regulations adopted under SMCRA.

Section 201(c)(1) of SMCRA authorizes the suspension or rescission

of permits for failure to comply with any of the provisions of SMCRA or

any rules and regulations adopted pursuant to SMCRA. Furthermore,

Section 503(a)(2) of SMCRA requires State programs to demonstrate that

the State has the capability of carrying out the provisions of SMCRA

and meeting its purposes through ``a State law which provides sanctions

for violations of State laws, regulations, or conditions of permits

concerning surface coal mining and reclamation operations, which

sanctions shall meet the minimum requirements of this Act, including

civil and criminal actions, forfeiture of bonds, suspensions,

revocations * * *''

Therefore, the Director finds section 21a of TSCMRA is consistent

with the intent of sections 201(c)(1) and 503(a)(2) of SMCRA and is

approving it.

IV. Summary and Disposition of Comments

Public Comments

The Director solicited public comments and provided an opportunity

for a public hearing on the proposed amendment. No public comments were

received, and because no one requested an opportunity to speak at a

public hearing, no hearing was held.

Federal Agency Comments

Pursuant to 30 CFR 732.17(h)(11)(i), the Director solicited

comments on the proposed amendment from various Federal agencies with

an actual or potential interest in the Texas program.

The Bureau of Land Management responded on September 15, 1995, that

the revised regulations addressed by the documents appeared to exceed

Federal coal standards, and it had no other comments to that effect

(Administrative Record No. TX-595.04).

The U.S. Army Corps of Engineers responded on September 18, 1995,

that it found the changes to be satisfactory to that agency

(Administrative Record No. TX-595.02).

The Soil Conservation Service (Natural Resources Conservation

Service) responded on October 2, 1995, that it had no comments on the

proposal (Administrative Record No. TX-595.05.

Environmental Protection Agency (EPA)

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

written concurrence of the EPA with respect to those provisions of the

proposed 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 revisions that Texas proposed to make in this amendment

pertain to air or water quality standards. Therefore, OSM did not

request EPA's concurrence.

Pursuant to 732.17(h)(11)(i), OSM solicited comments on the

proposed amendment from EPA, Region VI (Administrative Record No. TX-

595.01). EPA did not respond to OSM's request.

State Historical Preservation Officer (SHPO) and the Advisory Council

on Historic Preservation (ACHP)

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

comments on proposed amendments which may have an effect on historic

properties from the SHPO and ACHP. OSM solicited comments on the

proposed amendment from the SHPO and ACHP (Administrative Record No.

TX-595.01). Neither SHPO nor ACHP responded to OSM's request.

V. Director's Decision

Based on the above findings, the Director approves the proposed

amendment as submitted by Texas on August 30, 1995.

The Director approves, as discussed in: finding No. A.1., TCMR

701.008(104), definition of ``violation notice; finding No. A.2., TCMR

778.116(m), concerning identification of interests and compliance

information; finding No. A.3., TCMR 788.225(g)(1), concerning automatic

suspension and rescission of a permit; finding No. B.1., Article 5920-

11, section 6(b) of TSCMRA, concerning rulemaking and permitting;

finding No. B.2., Article 5920-11, section 21(c) of TSCMRA, concerning

reporting notices of violations in permit applications; and finding No.

B.3., Article 5920-11, section 21a of TSCMRA, concerning suspension or

rescission of improvidently issued permits.

The Director approves the regulations and statutes as proposed by

Texas with the provision that they be fully promulgated in identical

form to the rules submitted to and reviewed by OSM and the public.

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The Federal regulations at 30 CFR Part 943, codifying decisions

concerning the Texas program, are being 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 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. 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

Executive Order 12866

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

Budget (OMB) under Executive Order 12866 (Regulatory Planning and

Review).

Executive Order 12988

The Department of the Interior has conducted the reviews required

by section 3 of Executive Order 12988 (Civil Justice Reform) and has

determined that, to the extent allowed by law, 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 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.

National Environmental Policy Act

No evironmental 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)).

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.).

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

corresponding 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. Accordingly, 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 corresponding Federal regulations.

Unfunded Mandates

This rule will not impose a cost of $100 million or more in any

given year on any governmental entity or the private sector.

List of Subjects in 30 CFR Part 943

Intergovernmental relations, Surface mining, Underground mining.

Dated: May 28, 1996.

Brent Wahlquist,

Regional Director, Mid-Continent Regional Coordinating 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 (n) to read as

follows:

Sec. 943.15 Approval of regulatory program amendments.

* * * * *

(n) The amendment submitted by Texas to OSM by letter dated August

30, 1995, and the definition of ``violation notice'' submitted by Texas

to OSM by letter dated September 18, 1995, are approved effective June

18, 1996.

3. Section 943.16 is amended by removing paragraphs (r), (t), and

(u) and by revising paragraph (k) to read as follows:

Sec. 943.16 Required program amendments.

* * * * *

(k) By October 19, 1992, Texas shall submit to OSM a proposed

amendment for the definitions at TCMR 770.101 to replace the

definitions for ``applicant,'' ``application,'' ``complete

application,'' ``general area,'' ``principal shareholder,'' and

``property to be mined,'' or otherwise demonstrate that these

definitions are not necessary for the Texas program to be no less

effective than the Federal regulations.

* * * * *

[FR Doc. 96-15145 Filed 6-17-96; 8:45 am]

BILLING CODE 4310-05-M