Texas Abandoned Mine Land Reclamation Plan

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 943

[SPATS No. TX-039-FOR]

Texas 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 an amendment to the Texas abandoned mine land

reclamation plan (from now on referred to as the ``Texas plan'') under

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

proposed additions, deletions, and revisions to its plan pertaining to

Responsibilities; Definitions; Abandoned mine land reclamation fund;

Eligible coal lands and water; Reclamation objectives and priorities;

Reclamation project evaluations; Utilities and other facilities;

Limited liability; Entry for studies or exploration; Contractor

responsibility; Eligible noncoal lands and water; Reclamation

priorities for noncoal program; Exclusion of certain noncoal

reclamation sites; Land acquisition authority--noncoal; Lien

requirements; Written consent for entry; Operations on private land;

Entry and consent to reclaim; Appraisals; Liens; Satisfaction of liens;

Entry for emergency reclamation; Land eligible for acquisition;

Procedures for acquisition; Acceptance of gifts of land; Management of

acquired land; and Disposition of reclaimed lands. Texas intended to

revise its plan to be consistent with the corresponding Federal

regulations.

EFFECTIVE DATE: November 25, 1998.

FOR FURTHER INFORMATION CONTACT: Michael C. Wolfrom, Director, Tulsa

Field Office, Office of Surface Mining, 5100 East Skelly Drive, Suite

470, Tulsa, Oklahoma 74135-6547, Telephone: (918) 581-6430, E-mail:

[email protected].

SUPPLEMENTARY INFORMATION:

I. Background on the Texas Plan

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 Plan

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

plan. You can find background information on the Texas plan, including

the Secretary's findings, the disposition of comments, and the approval

of the plan in the June 23, 1980, Federal Register (45 FR 41937). You

can also find later actions concerning the Texas plan and amendments at

30 CFR 943.25.

II. Submission of the Proposed Amendment

By letter dated December 1, 1997 (Administrative Record No. TAML-

61), Texas submitted a proposed amendment to its plan under the

provisions of SMCRA. Texas submitted the amendment at its own

initiative. We announced receipt of the amendment in the December 29,

1997, Federal Register (62 FR 67592). In the same document, we opened

the public comment period and provided an opportunity for a public

hearing on the adequacy of the amendment. The public comment period

closed on January 28, 1998.

During our review of the amendment, we identified concerns relating

to the following sections: Eligible coal lands and water; Reclamation

priorities for noncoal program; Land acquisition authority-noncoal;

Lien requirements; Satisfaction of liens; Entry and consent to reclaim;

Appraisals; Entry for emergency reclamation; Land eligible for

acquisition; Disposition of reclaimed lands; Liens. We also identified

editorial corrections in the two sections, Responsibilities and

Definitions. We notified Texas of the concerns by facsimiles dated

March 9, and August 25, 1998 (Administrative Record Nos. TAML-61.08 and

TAML-61.10, respectively). Texas responded in letters dated July 20,

and September 3, 1998, by submitting additional explanatory information

and a revised amendment (Administrative Record Nos. TAML-61.09 and

TAML-61.12, respectively).

Texas proposed additional revisions to the following sections:

12.803 Eligible coal lands and water; 12.809 Reclamation priorities for

noncoal program; 12.811 Land acquisition authority-noncoal; 12.812 Lien

requirements; 12.814 Entry and consent to reclaim; 12.815 Appraisals;

12.816 Liens; 12.817 Satisfaction of liens; 12.818 Entry for emergency

reclamation; 12.819 Land eligible for acquisition; 12.820 Procedures

for acquisition; 12.821 Acceptance of gifts of lands; 12.822 Management

of acquired land; and 12.823 Disposition of reclaimed lands.

Based upon the additional explanatory information and revisions to

the proposed plan amendment submitted by Texas, we reopened the public

comment period in the October 2, 1998, Federal Register (63 FR 53003).

The public comment period closed on October 19, 1998.

III. Director's Findings

Set forth below, under the provisions of SMCRA and the Federal

regulations at 30 CFR 884.14 and 884.15, are our 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. Sections That Texas Deleted From Its Regulations

1. Section 12.805, Reclamation Project Evaluation

Texas proposed to delete this section. We are approving this

deletion because we have no counterpart Federal regulation and the

deletion will not make the Texas regulations inconsistent with the

Federal regulations.

2. Section 12.814, Operations on Private Lands

Texas proposed to delete this section. We are approving this

deletion because the provisions in this section are contained in new

Sections 12.814, Entry and Consent to Reclaim and 12.815, Entry for

Emergency Reclamation. Also, the deletion will not make the Texas

regulations inconsistent with the Federal regulations.

B. Revisions to Texas' Plan That Are Substantively Identical to the

Corresponding Provisions of the Federal Regulations

The proposed State regulations listed in the table contain language

that is the same as or similar to the corresponding sections of the

Federal regulations. Differences between the proposed State provisions

and the Federal provisions are nonsubstantive.

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Topic State regulation Federal counterpart regulation

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Definitions for abandoned mine Section 12.801....................... 30 CFR 870.5.

reclamation fund or fund,

eligible lands and water,

emergency, extreme danger, left

or abandoned in either an

unreclaimed or inadequately

reclaimed condition, mineral

owner, OSM, permanent facility,

project, reclamation activity,

State reclamation program, Texas

abandoned mine reclamation fund

or State fund.

Texas Abandoned Mine Reclamation Section 12.802....................... 30 CFR 872.12.

Fund.

Eligible Coal Lands and Water.... Section 12.803....................... 30 CFR 874.12.

Reclamation Objectives and Section 12.804....................... 30 CFR 874.13.

Priorities.

Utilities and other Facilities... Section 12.805....................... 30 CFR 874.14 (b) and (d).

Limited Liability................ Section 12.806....................... 30 CFR 874.15.

Contractor Responsibility........ Section 12.807....................... 30 CFR 874.16 and 875.20.

Eligible Noncoal Lands and Water. Section 12.808....................... 30 CFR 875.14.

Reclamation Priorities for Section 12.809....................... 30 CFR 875.15.

Noncoal Program.

Exclusion of Certain Noncoal Section 12.810....................... 30 CFR 875.16.

Reclamation Sites.

Land Acquisition Authority-- Section 12.811....................... 30 CFR 875.17.

Noncoal.

Lien Requirements................ Section 12.812....................... 30 CFR 875.18.

Written Consent for Entry........ Section 12.813....................... 30 CFR 877.11

Procedures for Acquisition....... Section 12.820....................... 30 CFR 879.12.

Management of Acquired Land...... Section 12.822....................... 30 CFR 879.14.

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Because the above proposed revisions are identical in meaning to

the corresponding Federal regulations, we find that Texas' revised plan

is in compliance with the Federal regulations.

C. Revisions to Texas' Plan That Are Not Substantively Identical to the

Corresponding Provisions of the Federal Regulations

1. Section 12.814, Entry and Consent to Reclaim

Texas proposed to repeal section 12.814, Operations on Private

lands, and adopt new section 12.814, Entry and Consent to Reclaim. This

new section authorizes the Commission to enter land to perform

reclamation activities or conduct studies or exploratory work to

determine the existence of the adverse effects of past coal mining with

or without the landowner's permission. The Commission must give a

minimum of 30 days written notice to the landowner before entering

property where the landowner's permission to enter has not been

obtained or where the landowner is not known or is readily available.

If the landowner is known, the Commission will send the written notice

by mail, return receipt requested, along with a copy of the written

findings required under paragraph (c)(1) of this section. If the

landowner is not known, or if the current mailing address of the

landowner is not known, the Commission will post a notice in one or

more places on the property to be entered where it is readily visible

to the public. The Commission will also advertise once in a newspaper

of general circulation in the locality in which the land is located.

The advertisement must include a statement of where the findings

required under paragraph (c)(1) of this section may be inspected or

obtained.

We are approving this revision because it is consistent with the

counterpart Federal regulations at 30 CFR 877.13.

2. 12.816, Liens

In paragraph (a)(2), Texas proposed to add a provision that allows

it to notify landowners of the amount of the proposed lien and to give

the landowners a reasonable amount of time to pay the lien before the

lien is placed against the property.

Also, in paragraph (d), Texas proposed to conduct hearings and any

appeals by landowners concerning the amounts of the liens under Chapter

2001, Government Code.

The State removed language that required it to place a lien against

reclaimed land if the reclamation results in an increase in the fair

market value with one exception. This exception is that the State may

waive the lien if the cost of filing it exceeds the increase in fair

market value as a result of the reclamation activities. The State

proposed to allow itself the discretion to place a lien against the

reclaimed land and to also retain the exception for waiving liens.

We are approving these revisions because they are in compliance

with the counterpart Federal regulations at 30 CFR 882.13.

3. 12.818, Entry for Emergency Reclamation

Texas proposed to adopt this new section to conform with the Texas

Natural Resources Code, Section 134.152 (b) and (c). This new section

allows the Commission to enter land where an emergency exists and other

land necessary to have access to that land. It also allows the

Commission to restore, reclaim, abate, control, or prevent the adverse

effects of coal mining practices, and to do whatever is necessary and

suitable to protect the public health, safety, or general welfare.

We are approving this new section because it is consistent with the

counterpart Federal regulations at 30 CFR 877.14(a). However, because

Texas has not formally assumed responsibility for its abandoned mine

land emergency program, we are under no obligation to reimburse it for

expenses it acquires in handling any emergencies under this section.

4. Section 12.819, Land Eligible for Acquisition

This section sets forth the criteria that any land must meet before

the State can purchase the land with abandoned mine land reclamation

funds. We are approving this section because it is in compliance with

the Federal regulations at 30 CFR 879.11.

5. Section 12.821, Acceptance of Gifts of Land

Texas proposed to renumber this section from Section 12.812 to

12.821. Texas revised paragraphs (a) and (c) to read as follows:

(a) The Commission under an approved reclamation plan may accept

donations of title to land or interests in land if the land proposed

for donation meets the requirements set out in Sec. 12.819 of this

title (relating to Land Eligible for Acquisition).

(c) If the offer is accepted, a deed of conveyance shall be

executed, acknowledged and recorded. The deed shall state that it is

made ``as a gift under the Texas Surface Coal Mining and Reclamation

Act.'' Title to donated land shall be in the name of the state of

Texas.

[[Page 65070]]

We are approving these revisions because they are consistent with

the Federal regulations at 30 CFR 879.13.

6. Section 12.823, Disposition of Reclaimed Land

Texas proposed to renumber this section from Section 12.813 to

12.823, and to reformat this section. This section sets forth the

criteria under which the State may dispose of land acquired under

Section 12.819, Land Eligible for Acquisition. We are approving this

revision because it is in compliance with the Federal regulations at 30

CFR 879.15.

D. Revisions to Texas' Plan That Do Not Have Corresponding Provisions

in the Federal Regulations

Texas proposed section 12.800 Responsibilities as an addition to

its regulations. This section sets forth the responsibilities that the

Commission will have regarding the Texas Abandoned Mine Land

Reclamation Program. We previously approved this section in the April

22, 1998, Federal Register notice (63 FR 19821).

IV. Summary and Disposition of Comments

Public Comments

We asked the public for comments and provided an opportunity for a

public hearing on the proposed amendment. We did not receive any public

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

public hearing, we did not hold one.

Federal Agency Comments

Under the provisions of 30 CFR 884.14(a)(2) and 884.15(a), we

requested comments on the proposed amendment from various other Federal

agencies with an actual or potential interest in the Texas plan. We

received comments from the U.S. Army Corps of Engineers in letters

dated January 27, and October 5, 1998 (Administrative Record Nos. TAML-

61.06 and TAML-61.16, respectively). The letters stated that the

changes Texas proposed in its amendment were satisfactory.

V. Director's Decision

Based on the above findings, we approve the proposed plan amendment

as submitted by Texas on December 1, 1997, and as revised on September

3, 1998. We approve the regulations as proposed by Texas with the

provision that Texas fully issue, in identical form, the regulations

they submitted and we and the public reviewed.

We are amending the Federal regulations at 30 CFR Part 943, that

codify decisions concerning the Texas plan. We are also making this

final rule effective immediately to expedite the State plan amendment

process and to encourage States to bring their plans into conformity

with the Federal standards without undue delay. SMCRA requires

consistency of State and Federal standards.

VI. Procedural Determinations

Executive Order 12866

This proposed 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 and Tribal abandoned mine land reclamation plans and revisions

since each plan is drafted and issued by a specific State or Tribe, not

by OSM. Decisions on proposed abandoned mine land reclamation plans and

revisions submitted by a State or Tribe 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 Part 884.

National Environmental Policy Act

This rule does not require an environmental impact statement since

agency decisions on proposed State and Tribal abandoned mine land

reclamation plans and revisions 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 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 the regulations would not have a

significant economic effect upon a substantial number of small

entities. Accordingly, this rule will ensure that existing requirements

previously issued by OSM will be implemented. In making the

determination as to whether this rule would have a significant economic

impact, the Department relied upon the data and assumptions in the

analyses for the corresponding Federal regulations.

Unfunded Mandates

OSM has determined and certifies under the provisions of the

Unfunded Mandates Reform Act (2 U.S.C. 1502 et seq.) that this rule

will not impose a cost of $100 million or more in any given year on

local, state, or tribal governments or private entities.

List of Subjects in 30 CFR Part 943

Intergovernmental relations, Surface mining, Underground mining.

Dated: November 6, 1998.

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:

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 943.25 is amended in the table by adding a new entry in

chronological order by ``Date of final publication'' to read as

follows:

Sec. 943.25 Approval of Texas abandoned mine land reclamation plan

amendments.

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Original amendment submission date Date of final publication Citation/description

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December 1, 1997........................ November 25, 1998.......... 12.800 through .814; .815(d); .816; .818

through .823.

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[[Page 65071]]

[FR Doc. 98-31491 Filed 11-24-98; 8:45 am]

BILLING CODE 4310-05-P