Texas Regulatory Program and Abandoned Mine Land Reclamation Plan

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 943

[SPATS No. TX-025-FOR]

Texas Regulatory Program and Abandoned Mine Land Reclamation Plan

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

Interior.

ACTION: Final rule; approval of amendment.

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SUMMARY: OSM is approving, with certain exceptions, a proposed

amendment to the Texas regulatory program and abandoned mine land

reclamation plan (hereinafter referred to as the ``Texas program'')

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

Texas is proposing to recodify the Texas Surface Coal Mining and

Reclamation Act. Texas intends to reclassify and rearrange its statutes

into a format that will accommodate further expansion of the law and to

eliminate repealed, invalid, and duplicated provisions in order to make

the statutes more understandable and usable without altering the

meaning or effect of the law.

EFFECTIVE DATE: January 30, 1997.

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 regulatory 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.

On June 23, 1980, the Secretary of the Interior approved the Texas

abandoned mine plan as submitted on April 24, 1980, and amended on May

30, and June 2 and 4, 1980. Information pertaining to the general

background, revisions, and amendments to the initial plan submission,

as well as the Secretary's findings and the disposition of comments can

be found in the June 23, 1980, Federal Register (45 FR 41940).

Subsequent actions concerning plan amendments can be found at 30 CFR

943.25.

II. Submission of the Proposed Amendment

By letter dated August 24, 1995 (Administrative Record No. TX-594),

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

Texas submitted the proposed amendment at its own initiative. Texas

proposed to recodify the Texas Surface Coal Mining and Reclamation Act

(TSCMRA) as enacted by Senate Bill (S.B.) 959 (Section 12.02), 74th

Texas Legislature (1995). S.B. 959 codified, with revisions, the TSCMRA

at Chapter 134 of Title 4, Natural Resources Code, and it repealed

Article 5920-11, Vernon's Texas Civil Statutes with exceptions,

including Sections 11 (b), (c), and (d).

OSM announced receipt of the proposed amendment in the October 16,

1995, Federal Register (60 FR 53569), 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 November 15, 1995.

During its review of the amendment, OSM identified concerns

relating to: (1) A definition for ``permit applicant'' or ``applicant''

[Article 5920-11, Section 3(2)]; (2) repeal of the exemption for

surface coal mining operations affecting two acres or less [Article

5920-11, Section 35(2) and Chapter 134, Section 134.005(a)(2), as

recodified]; (3) coal exploration operations being subject to penalties

for violating statutes and/or regulations [Article 5920-11, Section

27(c) and Chapter 134, Section 134.014, as recodified]; (4) the

determination date on which surface coal mining operations are exempted

from being subject to designations of areas unsuitable for mining

[Article 5920-11, Section 33(e) and Chapter 134, Section 134.022, as

recodified]; (5) notices of violations that permit applicants are

required to disclose when applying for a coal mining permit [Article

5920-11, Section 21(c) and Chapter 134, Section 134.068, as

recodified]; (6) performance standards regarding the elimination of all

highwalls and spoil piles [Article 5920-11, Section 23(b)(3) and

Chapter 134, Section 134.092(a)(2), as recodified]; (7) violations not

creating

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imminent danger or causing imminent harm [Article 5920-11, Section

32(b) and Chapter 134, Section 134.162(a)(2)(A), as recodified]; (8)

the termination of cessation orders [Article 5920-11, Section 32(a) and

Chapter 134, Section 134.163(1), as recodified]; (9) the payment of

penalties [Article 5920-11, Section 30(c) and Chapter 134, Section

134.176, as recodified]; and (10) mining by government agencies

[Article 5920-11, Section 34(b)]. OSM discussed these concerns with

Texas by telephone on February 9, and 27, 1996, and August 19, 1996

(Administrative Record Nos. TX-594.06, TX-594.07, and TX-594.12,

respectively); by telefax dated February 28, 1996 (Administrative

Record No. TX-594.09); and by letter dated July 10, 1996

(Administrative Record No. TX-594.12).

By letters dated April 2 and July 30, 1996 (Administrative Record

Nos. TX-594.08 and TX-594.11, respectively), Texas responded to OSM's

concerns by submitting additional explanatory information to its

proposed program amendment.

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.

The previously approved provisions at Article 5920-11, Vernon's

Texas Civil Statutes are shown in brackets. When applicable.

A. Nonsubstantive Recodification of Texas's Statutes

With the exceptions discussed in the findings below, the proposed

recodification of the Texas statutes is nonsubstantive in nature, and

the Director finds that the recodification does not make these statutes

less stringent than SMCRA.

B. Revisions to Texas' Statutes With no Corresponding Federal

Provisions

1. Short Title

At Chapter 134, Section 134.001 [Article 5920-11, Section 1], Texas

proposes to change the reference for the Texas Surface Coal Mining and

Reclamation Act (TSCMRA) from ``Act'' to ``chapter'' throughout the

recodified statutes. The Director finds that this change is not

inconsistent with SMCRA because Texas proposes only a change in the

term used to describe the statutes that govern coal mining in the

State.

2. Definitions

a. At Chapter 134, Section 134.004(1), Texas proposes to add a new

definition, ``Affected person,'' which means ``a person having an

interest that is or may be affected.'' Accordingly, all references to

``a person having an interest that is or may be affected'' are proposed

to be changed to ``affected person'' throughout the recodified

statutes. The Director finds that the proposal to add existing language

to the new definition and to refer to the defined term is not

inconsistent with SMCRA and will not render the Texas program less

stringent than SMCRA or less effective than the Federal regulations.

b. Texas proposes to change the definition for ``Secretary'' at

Chapter 134, Section 134.004(16) [Article 5902-11, Section 3(19)] to

``Secretary of Agriculture,'' which means the secretary of the United

States Department of Agriculture. Accordingly, all references to

``Secretary'' are proposed to be change to ``Secretary of Agriculture''

throughout the recodified statutes. The Director finds that the

definition for ``Secretary of Agriculture'' is substantively identical

to that for ``Secretary'' which is previously approved language.

3. Jurisdiction of Commission over Surface Coal, Iron Ore, and Iron Ore

Gravel Mining and Reclamation Operations

Texas proposes to add provisions for jurisdiction of the commission

over iron ore and iron ore gravel mining and reclamation operations.

Chapter 134, Section 134.012(a)(2) [Article 5902-11, Section 4(b)],

would provide for exclusive jurisdiction over iron ore and iron ore

gravel mining and reclamation operations in the State. Chapter 134,

Section 134.012(b) [Article 5902-11, Section 4(b)] would provide for

Chapter 134, Natural Resources Code, to govern these operations to the

extent it can be made applicable. Chapter 134, Section 134.012(c)

[Article 5902-11, Section 4(b)(1) and (2)] would provide exceptions for

iron ore and iron ore gravel mining and reclamation activities in

progress on or before September 1, 1985, or for iron ore and iron ore

gravel mining operations and reclamation activities that are conducted

solely on real property owned in fee simple by the person authorizing

the operations or reclamation activities and that is confined to a

single, contiguous tract of land if the activities are conducted in an

area not larger than 20 acres, the depth of mining operations is

restricted to 30 inches or less, and the fee simple owner receives

surface damages. Chapter 134, Section 134.188 [Article 5902-11, Section

4(c)] would provide that it is a defense to a civil or criminal penalty

under Chapter 134 that a person allegedly conducting an iron ore or

iron ore gravel mining and reclamation operation in violation in

Chapter 134 has a written general warranty or ownership of land,

separate from any lease, from the person authorizing the operation.

There are not counterpart provisions in SMCRA or the Federal

regulations pertaining to iron ore or iron ore gravel mining and

reclamation. However, the Director finds that the proposed provisions

do not make the Texas program less stringent than SMCRA or less

effective than the Federal regulations.

C. Revisions to Texas' Statutes That Are Substantively Identical to the

Corresponding Federal Provisions

1. Definitions

a. At Chapter 134, Section 134.004(7), Texas proposes to add a new

definition, ``Federal Act,'' which is defined as ``the Surface Mining

Control and Reclamation Act of 1977 (30 U.S.C. Section 1201 et seq.).''

Consequently, all references to SMCRA are proposed to be changed to

``Federal Act'' throughout the recodified statutes. The proposed

definition is substantively the same as the Federal definition of

``Act'' at 30 CFR 700.5. Therefore, the Director finds that defining

and referring the SMCRA as the ``Federal Act'' is not inconsistent with

SMCRA or the Federal regulations, which define and reference SMCRA as

the ``Act.''

b. At Chapter 134, Section 134.004(13) [Article 5920-11, Section

3(13)], Texas proposes to change the term ``permittee'' to ``permit

holder,'' with no change in the definition. Accordingly, all references

to ``permittee'' are proposed to be changed to ``permit holder''

throughout the recodified statutes. The Director finds that the

definition for ``permit holder'' is substantively identical to that

previously approved for ``permittee'' and the proposed change in

terminology will not make the definition less stringent than the

definition for ``permittee'' at section 701(18) of SMCRA.

c. At Chapter 134, Section 134.004(17), Texas proposes to add the

definition, ``Secretary of the interior,'' as meaning ``the Secretary

of the United States Department of the Interior.'' Accordingly, all

references to ``the Secretary of the United States Department of the

Interior'' are

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proposed to be changed to ``Secretary of the interior'' throughout the

recodified statutes. The Director finds that this definition is

substantively identical to the definition of ``Secretary'' found at

section 701(23) of SMCRA and is, therefore, approving its addition.

d. At Article 5920-11, Section 3(7), Texas proposes to remove the

definition for ``Eligible land and water'' and to recodify its

substantively identical provisions at Chapter 134, Section 134.142,

Eligibility of Land and Water. The Director finds that removing these

provisions from the general definition section of the Texas statutes

and adding them to the abandoned mine reclamation section is consistent

with section 404 of SMCRA.

D. Revisions to Texas' Statutes That Are Not Substantively Identical to

the Corresponding Federal Provisions

1. Definitions

a. At Article 5920-11, Section 3(2), Texas proposes to delete the

definition for ``applicant'' and not include the definition in its

recodified statutes. The Director is approving the removal of this

definition because Texas proposed to add a definition for ``applicant''

to the Texas Coal Mining Regulations in a revised amendment submittal

dated July 31, 1996 (Administrative Record No. TX-621).

b. At Chapter 134, Section 134.004(3) [Article 5920-11, Section

3(3)], Texas proposes to remove, from the definition of ``Approximate

Original Contour,'' the language ``and water impoundments may be

permitted if the commission determines that they are in compliance with

Section 23(b)(8) of this Act.'' The Federal definition for

``approximate original contour'' at section 701(2) of SMCRA allows

regulatory authorities to permit water impoundments if they determine

that the impoundments are in compliance with section 515(b)(8) of

SMCRA. Since the Texas program continues to allow permanent water

impoundments to be permitted under Chapter 134 if they meet the

performance standards of Section 134.092(8), which is a counterpart to

section 515(b)(8) of SMCRA, the Director finds that the change to the

definition does not render the Texas program less stringent than SMCRA.

c. At Article 5920-11, Section 3(15), Texas proposes to remove the

following sentence from the definition of prime farmland: ``The slope

of the land can be a factor in determining whether a given soil is

outside the purview of prime farmland and the commission may thus make

a negative determination based upon soil type and slope,'' and to

recodify this sentence at Chapter 134, Section 134.032, Determination

Regarding Prime Farmland. Texas also proposes to recodify the new

definition for prime farmland at Chapter 134, Section 134.004(15). The

Director finds that the recodified sections contain previously approved

language and is approving them.

2. Exemptions

a. At Chapter 134, Section 134.005(a)(2) [Article 5920-11, Section

35(2)], Texas proposes to recodify a provision that states that, ``This

chapter does not apply to the extraction of coal: * * * for commercial

purposes if the surface mining operation affects two acres or less.''

On May 7, 1987, section 528(2) of SMCRA was amended to remove the

exemption on surface coal mining operations affecting two acres or less

{[101 STAT. 300] SMCRA Title II--Two-Acre Exemption, Section 201 Repeal

of Exemption (a)(2)}. In addition, {101 STAT. 301} Title II, Section

201(d), Effect on State Law, rendered ineffective any provision of a

State law, or of a State regulation that allowed this exemption.

Therefore, the Director finds that keeping this exemption in the Texas

statutes does not render the statutes less stringent than SMCRA.

Nevertheless, in order to prevent confusion as to whether or not this

exemption is allowable, and as a housekeeping measure, Texas should

remove this exemption from its statutes.

In an enclosure to a letter dated April 2, 1996 (Administrative

Record No. TX-594.08), Texas agreed that it was appropriate to repeal

this exemption.

b. At Article 5920-11, Section 35(4), Texas proposes to remove an

exemption, from the provisions of TSCMRA, regarding the extraction of

coal incidental to the extraction of other minerals. In the exemption

that is proposed to be removed, the extracted coal cannot exceed 16\2/

3\ percent of the total tonnage of coal and other minerals removed

annually for purposes of commercial use or sale or coal explorations

subject to TSCMRA. The removed exemption is a duplication of language

in Texas' definition of ``Surface coal mining operations'' at Chapter

134, Section 134.004(19) [Article 5920-11, Section 3(17)]. Therefore,

the Director finds that the proposal to remove this exemption does not

make the Texas statutes less stringent than SMCRA.

3. Coal Exploration Operations

Texas proposes not to recodify the provision at Article 5920-11,

Section 27(c) that provides for penalties for any person who conducts

any coal exploration operations, that substantially disturb the natural

land surface, in violation of Article 5920-11, Section 27, Coal

Exploration Permits, or the rules issued pursuant to Section 27. In the

recodified statutes at Chapter 134, Section 134.014, Coal Exploration

Operations, the proposed amendment states that, ``A person who conducts

coal exploration operations that substantially disturb the natural land

surface shall comply with commission rules adopted to govern those

operations.'' Also, in the recodified statute at Chapter 134, Section

134.174, Administrative Penalty for Violation of Permit Condition or

this Chapter, Texas proposes that, ``The commission may assess an

administrative penalty against a person who violates a permit condition

or this chapter.'' The Director finds that the decision of the State

not to recodify Article 5920-11, Section 27(c) will not render this

portion of the State statutes less stringent than SMCRA because the

provisions for administrative penalties at recodified Chapter 134,

Section 134.174 apply to violations of permit conditions and/or

violations of the statutes governing the Texas surface coal mining

program.

4. Rules Regarding Monitoring, Reporting, and Inspections

At Chapter 134, Section 134.030(2) [Article 5920-11, Section

29(d)], Texas proposes to add a provision that would prohibit it from

disclosing confidential information, as discussed under Chapter 134,

Section 134.031, when making public all inspection and monitoring

reports and other records and reports required to be kept under Chapter

134 and rules adopted under Chapter 134. The confidential information

discussed under Chapter 134, Section 134.031 refers only to the

analysis of the chemical and physical properties of the coal, except

information regarding the mineral and chemical content that is

potentially toxic in the environment. The Director finds that this

provision is no less stringent than section 507(b)(17) of SMCRA and

that it adds clarification that confidential information will not be

disclosed.

5. Contents of Permit Application

At Chapter 134, Section 134.052(a)(18), Texas proposes to add a

provision that would require the submittal of a schedule listing any

notices of violations, incurred by the applicant at coal mining

operations, as part of the permit application. Section 510(c) of SMCRA,

Permit Approval and Denial, requires that the permit applicant file,

with his permit application, a schedule of notices of

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violations. Therefore, the Director finds the proposed provision is

consistent with SMCRA.

6. Application Fees

At Chapter 143, Section 134.054(b) [Article 5920-11, Section

18(b)], Texas proposes to change its initial application fee for a

permit to a minimum of $5,000. In the previous Texas statutes there was

no minimum application fee, but the maximum fee could not exceed

$1,000. Texas also proposes to add requirements for a minimum

application fee of $3,000 for renewal of a permit, and a minimum

application fee of $500 for revision of a permit. At Chapter 134,

Section 134.054(c) [Article 5920-11, Section 18(b)], Texas proposes to

allow initial application fees and renewal application fees to be paid

in equal annual installments during the term of the permit. Also, Texas

proposes to remove the provision at Article 5920-11, Section 18(d), as

amended, that requires fees to be deposited in the State treasury and

credited to the general revenue fund. The Director finds that the Texas

proposals regarding a fee structure for initial, renewal, and revision

permit applications are no less stringent than section 507(a) of SMCRA

which allows application fees to be determined by the regulatory

authority. Also, the proposal to allow initial and renewal application

fees to be paid in equal installments during the term of the permit is

in accordance with section 507(a) of SMCRA which allows the regulatory

authority to develop procedures to enable the cost of fees to be paid

over the term of the permit. The proposal to stop requiring fees to be

deposited in the State treasury and credited to the general revenue

fund is not inconsistent with SMCRA.

7. Annual Fee

At Chapter 134, Section 134.055 [Article 5920-11, Section 18(c)],

Texas proposes to add a new provision that requires a permit holder to

pay the commission an annual fee, in an amount determined by the

commission, for each acre of land in the permit area on which the

permit holder actually conducted operations for removing coal during

the year. The fee is due by March 15 of the year following the year of

the removal operations. The minimum fee is $120 per acre. Section

507(a) of SMCRA provides that an application for a surface coal mining

and reclamation permit shall be accompanied by a fee determined by the

regulatory authority. Such fee may be less than, but shall not exceed

the actual or anticipated cost of reviewing, administering, and

enforcing the permit. The regulatory authority may develop procedures

to allow the fee to be paid over the term of the permit. The Director

finds that the income will be less than the anticipated cost of

reviewing, administering, and enforcing permits under the Texas

program. Therefore, the proposed provision pertaining to an annual fee

does not render the Texas statutes less stringent than section 507(a)

of SMCRA.

8. Public Inspection of Application

Texas proposes to amend Chapter 134, Section 134.057(b) [Article

5920-11, Section 17(b)], to include a provision that specifies that

subsection (b) does not apply to records, reports, inspection

materials, or information that is confidential under Chapter 134,

Section 134.031. The Director finds that the inclusion of this

provision only adds clarification that confidential information will

not be disclosed and does not render the State statute less stringent

than section 507(b)(17) of SMCRA.

9. Notice by Applicant

At Chapter 134, Section 134.058(2) [Article 5920-11, Section

20(a)], Texas proposes to add a new provision that specifies that the

advertisement published in the newspaper of general circulation in the

locality of the proposed mining operation state that the application is

available for public inspection at the county courthouse of the county

in which the property lies. The Director finds that the addition of

this provision is consistent with section 507(b)(6) of SMCRA, which

requires the advertisement to include the location of where the

application is available for public inspection.

10. Lien

Previously approved Article 5920-11, Section 9(a) concerns past

mining practices on privately owned land and makes reference to the

completion of projects ``* * * to restore, reclaim, abate, control, or

prevent the adverse effects * * *'' on these lands. At Chapter 134,

Section 134.150(A), Texas proposes to remove the words ``restore,''

``abate,'' ``control,'' and ``prevent,'' and to use only the word

``reclaim.'' The Director finds that the omitted words or variations

thereof are included in Chapter 134, Section 134.150(a)(2) and when

Section 134.150, as recodified, is read in its entirety, the proposed

revision is no less stringent than section 408(a) of SMCRA.

11. Prohibition on Surface Coal Mining in Certain Areas

At Article 5920-11, Section 33(e), pertaining to areas unsuitable

for surface coal mining, Texas provided that after May 9, 1979, and

subject to valid existing rights, no surface coal mining operation

except those that existed on August 3, 1977, shall be permitted to mine

in areas designated as unsuitable for mining. At Chapter 134, Section

134.022(c), as recodified, Texas proposes to extend the date for valid

existing rights to May 9, 1979, and to provide that this section does

not affect surface coal mining operations that existed on August 3,

1977. Section 522(e) of SMCRA provides that after August 3, 1977, and

subject to valid existing rights, no surface coal mining operations

except those that existed on August 3, 1977, shall be permitted to mine

in areas designated as unsuitable for mining. Therefore, the Director

finds that Texas is requiring a less stringent provision than SMCRA and

is not approving this proposed amendment. The Director is requiring

Texas to remove this unapproved provision from its recodified statutes

and to restore its previously approved statute language. Texas is also

directed to notify OSM when the previously approved language has been

restored. It is the understanding of the Director that if any

provisions of Chapter 134, Natural Resources Code are disapproved by

OSM, the provisions of the former TSCMRA from which the disapproved

provisions were derived are continued in effect for the purposes of

those provisions until September 1, 1997.

In addition, it is the Director's understanding that Texas may

amend Section 134.022(c) to refer to ``rights existing on August 3,

1977,'' rather than ``rights existing on May 9, 1979,'' so as to

conform the Texas statute with SMCRA (Administrative Record No. TX-

594.08).

12. Schedule of Notices of Violations

At Chapter 134, Section 134.068 [Article 5920-11, Section 21(c)],

Texas proposes to remove the requirement that the applicant file a

schedule listing any and all notices of violations (NOV's) of any

department or agency in the United States pertaining to air or water

environmental protection incurred by the applicant. Instead, Texas

proposes that the applicant file a schedule that lists only NOV's of

the proposed recodified Chapter 134 or of a law, rule, or regulation of

the United States or Texas pertaining to air or water environmental

protection incurred by the applicant in connection with a

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surface coal mining operation in Texas during the three years before

the application date. Because section 510(c) of SMCRA requires that the

schedule list any and all NOV's 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, and not just those incurred at operations located in

Texas, the Director finds the proposed statute amendment is less

stringent than SMCRA and is not approving it.

However, Texas corrected this deficiency by revising Article 5920-

11, Section 21(c) in an amendment submitted on August 30, 1995

(Administrative Record No. TX-595), which was approved in a separate

Federal Register notice dated June 18, 1996 (61 FR 30805). This

revision was enacted by Chapter 272, Senate Bill (S.B.) 271 during the

same legislative session that S.B. 959 was enacted. In the amendment

submitted on August 30, 1995 (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.

13. Performance Standards

At Article 5920-11, Section 23(b)(3), Texas requires coal operators

to ``* * * restore the approximate original contour of the land with

all highwalls, spoils piles, and depressions eliminated, * * *'' At

recodified Chapter 134, Section 134.092(a)(2), Texas proposes to remove

the words ``highwalls'' and ``spoil piles'' from the requirement to

restore the approximate original contour. The Director finds that the

removal of the words ``highwalls'' and ``spoil piles'' from the

requirement to restore the approximate original contour does not make

this portion of the Texas statute less stringent than section 515(b)(3)

of SMCRA because at recodified Chapter 134, Section 134.004(3), the

definition for ``approximate original contour'' includes the

elimination of all highwalls and spoils piles.

14. Violation not Creating Imminent Danger or Causing Imminent Harm

At Chapter 134, Section 134.162(a) [Article 5920-11, Section

32(b)], Texas requires the commission or its authorized representative

to issue a notice, for abating a violation, to the permit holder if the

violation does not create an imminent danger to the health or safety of

the public ``and'' is not causing or reasonably expected to cause

significant, imminent environmental harm to land, air, or water

resources. Section 521(a)(3) of SMCRA requires issuance of a notice if

the violation does not create imminent danger to the health or safety

of the public ``or'' cannot be reasonably expected to cause

significant, imminent environmental harm to land, air or water

resources. However, in a letter dated April 2, 1996 (Administrative

Record No. TX-594.08), Texas indicated that it had no authority to

issue a notice of violation if the violation creates an imminent danger

or imminent environmental harm. Texas stated that, ``If the violation

meets either of those criteria, the commission is required to

``immediately'' order the cessation of operations.'' Thus, Texas'

interpretation of the intent of Chapter 134, Section 134.162(a) is

consistent with Section 521(a)(3) of SMCRA. It is also noted that the

Texas Coal Mining Regulations (TCMR) 843.681(a) require an authorized

representative of the commission to issue a notice of violation to any

permit holder having a violation that does not create imminent danger

``or'' imminent environmental harm. Therefore, the Director finds that

the intent and implementation of the proposed, recodified statute will

be consistent with SMCRA and the Federal regulations and he is

approving the recodification.

15. Term of Cessation Order

The currently approved Texas statutes at Article 5920-11, Sections

32 (a) and (b) set forth requirements under which a cessation order

issued for two different classifications of violations can be

terminated. For a cessation order that is issued when a violation

``creates'' an imminent danger to the health or safety of the public or

is causing or can reasonably be expected to cause significant, imminent

environmental harm to land, air, or water resources, ``* * * The

cessation order shall remain in effect until the Commission or its

authorized representative determines that the condition, practice, or

violation has been abated * * *'' For a cessation order that is issued

when a violation ``does not create'' an imminent danger to the health

or safety of the public or is not causing or cannot be reasonably

expected to cause significant, imminent environmental harm to land,

air, or water resources, ``* * * The cessation order shall remain in

effect until the Commission or its authorized representative determines

that the violation has been abated * * *'' The requirements of section

521(a)(2) of SMCRA are substantively the same as the currently approved

Texas statutes. In the proposed recodified statute at Chapter 134,

Section 134.163, Texas proposes that a cessation order for both

classifications of violations; i.e., those that ``create'' imminent

danger or significant, imminent environmental harm and those that ``do

not create'' imminent danger or significant, imminent environmental

harm will remain in effect only until the Commission determines that

the violation has been abated. However, Texas' implementing regulation

at TCMR 843.680(c) requires a cessation order to remain in effect until

the condition, practice or violation has been abated. Therefore, the

Director finds that the implementation of the proposed, recodified

statute will be consistent with SMCRA and the Federal regulations and

he is approving the recodification.

It is the Director's understanding that Texas may amend Chapter

134, Section 134.163 to refer to ``the condition, practice, or

violation'' in order to more closely track the language of SMCRA and

the Texas regulation (Administrative Record No. TX-594.08).

16. Payment of Penalty; Refund

Texas proposes to amend its statute at recodified Chapter 134,

Section 134.176 [Article 5920-11, Section 30(c)] by removing the

provision which states that failure to forward money to the Commission

within 30 days of notification of the proposed penalty shall result in

a waiver of all legal rights to contest the violation or the amount of

the penalty. Moreover, Texas has indicated an intention to interpret

its statute such that no prepayment of penalty is required. Section

518(c) of SMCRA contains the procedural requirement that failure to

forward the proposed penalty within 30 days results in a waiver of all

legal rights to contest the violation or the amount of the penalty.

Section 518(i) of SMCRA requires that the civil penalty provisions of a

State program contain the same or similar procedural requirements

relating thereto as does SMCRA. Since SMCRA has a prepayment

requirement and consequences for failure to prepay, and Texas'

recodified statute does not, the proposed amendment to the Texas Act is

not consistent with SMCRA. Therefore, the Director finds that Chapter

134, Section 134.176 is less stringent than Section 518(c) of SMCRA and

is not approving the proposed removal of the provision discussed above.

The Director is requiring Texas to restore this previously approved

statute language and to notify OSM when the previously approved

language has been

[[Page 4456]]

restored. It is the understanding of the Director that if any

provisions of Chapter 134, Natural Resources Code are disapproved by

OSM, the provisions of the former TSCMRA from which the disapproved

provisions were derived are continued in effect for the purposes of

those provisions until September 1, 1997.

It should be noted that OSM has considered an amendment to 30 CFR

845.19 which would require prepayment only with respect to proceedings

that occur after an administrative law judge has determined that a

penalty is lawfully due. OSM has deferred final rulemaking on this

issue. However, OSM has approved an amendment to the Kentucky State law

regulating surface coal mining which allows for a waiver of the

prepayment requirement under very limited circumstances. See 58 FR

42001, August 6, 1993. Texas may amend its program to include a limited

waiver provision similar to the one approved for Kentucky.

17. Mining by Governmental Agencies; Mining on Government Land

Texas proposes not to recodify Article 5920-11, Section 34(b) which

requires any agency, unit, or instrumentality of Federal, State, or

local government, including any publicly owned utility or publicly

owned corporation of Federal, State, or local government that proposes

to engage in surface coal mining operations that are subject to the

requirements of TSCMRA to comply with all provisions of TSCMRA. The

Director finds that the removal of this provision does not render the

Texas program less stringent than section 524 of SMCRA and is approving

it because the Texas Act requires all surface coal mining operations to

be permitted, and, therefore, every permit has a permit holder. The

State's definition for permit holder is ``a person holding a permit to

conduct surface coal mining and reclamation operations or underground

mining activities * * *'' (Chapter 134, Section 134.004(13), as

recodified). Texas further defines ``person'' to mean ``an individual,

partnership, society, joint-stock company, firm, company, corporation,

business organization, governmental agency, or any organization or

association of citizens'' (Chapter 134, Section 134.004(14), as

recodified). The definition for ``person'' includes ``governmental

agency,'' and because it does, the Texas statutes include a provision

that government entities engaging in surface coal mining operations are

subject to the requirements of TSCMRA.

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. OSM received only one

public comment from the Texas Utilities Services, Incorporated, by

letter dated November 15, 1995 (Administrative Record No. TX-594-05),

thanking OSM for the opportunity to comment. No actual comments were

offered on the proposed amendment. No one requested an opportunity to

speak at a public hearing, therefore, 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.

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

594.02), OSM received a response from the Department of the Army,

United States Army Corps of Engineers, Engineering Division stating

that the proposed changes were satisfactory.

By letter dated October 2, 1995 (Administrative Record No. TX-

594.04), OSM received comments on the proposed program amendment from

the United States Department of Agriculture, Natural Resources

Conservation Service (NRCS). These comments concerned the definition

Texas proposed for prime farmland at Chapter 134, Section 134.004(15),

as recodified. The NRCS stated that the Texas State Office of the

Natural Resources Conservation Service in cooperation with the Texas

State Soil and Water Conservation Board, and the Texas Agricultural

Extension Service developed guidelines to insure consistent

interpretation of the prime farmland criteria prescribed by the United

States Secretary of Agriculture and published in the Federal Register.

The NRCS suggested that the State may wish to reference the ``Texas''

criteria, in its definition for prime farmland, as well as the Federal

criteria that is published in the Federal Register. Because the

Director considers the proposed definition for prime farmland to be a

nonsubstantive recodification of a previously approved definition, it

is unnecessary for Texas to reference the ``Texas'' criteria in its

definition for prime farmland.

The NRCS had other comment on the proposed amendment at Chapter

134, Section 134.032, Determination Regarding Prime Farmland, as

recodified. The NRCS stated that the sentence, ``The commission may

determine that land is not prime farmland because of its soil type or

slope,'' is very open-ended and does not refer back to the definition

of prime farmland at Chapter 134, Section 134.004(15), and that Texas

needs to provide more guidance regarding determination of prime

farmland. The Director has determined that the language in Chapter 134,

Section 134.032 is previously approved language.

By letter dated September 15, 1995 (Administrative Record No. TX-

594.03), OSM received three comments from the United States Department

of the Interior, Bureau of Land Management (BLM). BLM stated that

Chapter 134, Sections 134.092(a)(8) and 134.107, as recodified, appear

to conflict. Section 134.092(a)(8) pertains to the surface coal mining

and reclamation operations performance standards regarding permanent

impoundments. Section 134.107 pertains to permits that may be granted a

variance from having to restore the land to approximate original

contour after mining. BLM also had a comment regarding mining through

abandoned underground mines. BLM believed that Chapter 134, Sections

134.092(a)(12) and 134.100 conflicted. The third comment from BLM

pertained to the proposed recodified Chapter 134, Section 134.098,

Prohibition on Augering. The Director finds that no substantive changes

were made to these previously approved provisions.

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 (Administrative Record No. 594.01). 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

[[Page 4457]]

comments on the proposed amendment from the SHPO an ACHP

(Administrative Record No. 594.01). Neither SHPO nor ACHP responded to

OSM's request.

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 August 24, 1995.

As discussed in finding number D.2.a., the Director is recommending

that Texas remove Chapter 134, Section 134.005(a)(2) from its statutes

concerning an exemption for surface coal mining operations affecting

two acres or less. Texas should notify OSM when the removal is

completed.

As discussed in finding number D.11., the Director does not approve

Chapter 134, Section 134.022(c) which extends the date for valid

existing rights to May 9, 1979, for the provisions relating to

designating areas unsuitable for mining and is requiring Texas to

remove the disapproved language at recodified Chapter 134.022(c), to

restore its previously approved statute language, and to notify OSM

when the removal and restoration are completed.

As discussed in finding number D.12., the Director does not approve

Chapter 134, Section 134.068 which requires an applicant to file a

schedule listing only notices of violations of Chapter 134 or of a law,

rule, or regulation of the United States or Texas pertaining to air or

water environmental protection and is requiring Texas to remove the

disapproved provision and to notify OSM when the removal is completed.

As discussed in finding number D.16., the Director does not approve

at Chapter 134, Section 134.176 the removal of a provision that the

person charged with a violation waives all legal rights to contest the

violation or amount of the penalty unless the proposed penalty is paid

within 30 days of notification of the proposed penalty and is requiring

Texas to restore this previously approved statute language, and to

notify OSM when the restoration is completed.

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 approve 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 abandoned mine land reclamation plans,

and program and plan amendments since each such program and plan 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. Decisions on proposed abandoned mine land

reclamation plans and revisions thereof submitted by a State are based

on a determination of whether the submittal meets the requirements of

Title IV of SMCRA (30 U.S.C. 1231-1243) and 30 CFR Parts 884 and 888.

National Environmental Policy Act

No environmental impact statement is required for this rule

regarding the regulatory program amendment 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)). Also, no environmental

impact statement is required for this rule regarding the abandoned mine

land reclamation plan amendment since agency decisions on proposed

State abandoned mine land reclamation plans and revisions thereof are

categorically excluded from compliance with the National Environmental

Policy Act (42 U.S.C. 4332) by the Manual of the Department of the

Interior (516 DM 6, appendix 8, paragraph 8.4B(29)).

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: December 19, 1996.

Brent Wahlquist,

Regional Director, Mid-Continent Regional Coordinating Center.

For the reasons set out in the preamble, 30 CFR Part 943 is amended

as set forth below:

[[Page 4458]]

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 (p) to read as

follows:

Sec. 943.15 Approval of regulatory program amendments.

* * * * *

(p) With the exceptions noted below, the recodification of Article

5920-11, Vernon's Texas Civil Statutes, Sections 1 through 38 to

Chapter 134 of Title 4, Natural Resources Code, Sections 134.001

through 134.188, the revisions to and the addition of statutes to the

Texas Surface Coal Mining and Reclamation Act as submitted to OSM on

August 24, 1995, and supplemented with explanatory information on April

2 and July 30, 1996, are approved effective January 30, 1997.

(1) The Director is not approving Chapter 134, Section 134.022(c)

which extends the date for valid existing rights to May 9, 1979, for

the provisions relating to areas unsuitable for mining.

(2) The Director is not approving Chapter 134, Section 134.068,

which requires an applicant to file a schedule listing only notices of

violations of Chapter 134 or of a law, rule, or regulation of the

United States or Texas pertaining to air or water environmental

protection.

(3) The Director is approving Chapter 134, Section 134.176, except

to the extent that the recodified statute does not include the

previously approved provision that the person charged with a penalty

waives all legal rights to contest the violation or amount of the

penalty unless the proposed penalty is paid within 30 days.

3. Section 943.25 is revised to read as follows:

Sec. 943.25 Approval of abandoned mine land reclamation plan

amendments.

(a) The amendment, as submitted by Texas on May 11 and 26, 1989,

and clarified by it on April 13, 1992, certifying completion of

reclamation on all lands adversely impacted by past coal mining, is

approved effective August 19, 1992.

(b) The recodification of Article 5920-11, Vernon's Texas Civil

Statutes, Section 3(7) to Chapter 134 of Title 4, Natural Resources

Code, Section 134.142 and revision to statutes of the Texas Surface

Coal Mining and Reclamation Act concerning the Texas abandoned mine

land reclamation plan as submitted to OSM on August 24, 1995, are

approved effective January 30, 1997.

[FR Doc. 97-2329 Filed 1-29-97; 8:45 am]

BILLING CODE 4310-05-M