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-036-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 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 proposed revisions to statutes

pertaining to eligibility of land and water, small operator assistance,

definitions, exemptions, applicability to governmental units, coal

exploration operations, prohibition on surface coal mining in certain

areas, filing of a schedule of notices of violation, effect of past or

present violation, improvidently issued permits, performance standards,

and cessation orders. The amendment is intended to revise the Texas

program to be consistent with SMCRA.

EFFECTIVE DATE: March 3, 1998.

FOR FURTHER INFORMATION CONTACT: Michael C. Wolfrom, 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 December 1, 1997 (Administrative Record No. TX-

643), Texas submitted a proposed amendment to its program pursuant to

SMCRA. Texas submitted the proposed amendment at its own initiative.

Texas proposed to amend the Texas Surface Coal Mining and Reclamation

Act (TSCMRA) to reflect changes resulting from the passage of Senate

Bills (SB) 636 and 898 by the 75th Texas Legislature.

OSM announced receipt of the proposed amendment in the December 29,

1997, Federal Register (62 FR 67596), and in the same document opened

the public comment period and provided an opportunity for a public

hearing or meeting on the adequacy of the proposed amendment. The

public comment period closed on January 28, 1998. Because no one

requested a public hearing or meeting, none was held.

[[Page 10318]]

III. Director's Findings

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

30 CFR 732.15, 732.17, 884.14 and 884.15, 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. Revisions to the Texas Abandoned Mine Land Program (SB636)

At section TSCMRA Sec. 134.142, Texas proposed to remove its

existing criteria at paragraphs (1) through (3) for determining if land

and water are eligible for reclamation or abatement under its abandoned

mine land reclamation program and add the following new criteria:

Land and water are eligible for reclamation or abatement

expenditures under this subchapter if the land and water are

eligible for reclamation or abatement expenditures under the federal

act.

The criteria Texas proposed to remove from its statutes are

substantially the same as those at section 404 of SMCRA. Removing these

existing criteria and adding criteria that bases eligibility of land

and water for reclamation or abatement expenditures on criteria

delineated in SMCRA is not inconsistent with SMCRA, and does not render

the Texas statutes less stringent than SMCRA. Therefore, the Director

is approving Texas' proposed changes at section 134.142.

B. Revisions to Texas' Regulatory Program

1. TSCMRA Sec. 134.004 Definitions (SB 898)

Texas proposed to add the following definition for the term

``applicant'' at Sec. 134.004(3) and to renumber the existing

definitions to reflect this addition:

Applicant means a person or other legal entity seeking a permit

from the commission to conduct surface coal mining activities or

underground mining activities under this chapter.

The definition for ``applicant'' at section 701(16) of SMCRA does

not include the term ``legal entity.'' However, Texas' proposal to

include the term ``legal entity'' in its definition of ``applicant'' is

not inconsistent with SMCRA and does not render the Texas statutes less

stringent than SMCRA.

2. TSCMRA Sec. 134.005 Exemptions (SB 898)

Texas proposed to remove Sec. 134.005(a)(2), which is the exemption

for extraction of coal for commercial purposes if the surface mining

operation affects two acres or less, and to renumber existing paragraph

(3) as (2) to reflect this deletion.

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)). Because any State law or regulation allowing a

two-acre exemption was rendered ineffective, the Director approved

Texas' proposal to recodify Sec. 134.005(a)(2), in the January 30,

1997, Federal Register (62 FR 4453), with the recommendation that Texas

should remove the exemption from its statutes to prevent confusion and

as a housekeeping measure. Therefore, the Director finds that Texas'

proposal to remove Sec. 134.005(a)(2) from its statutes does not render

the Texas statutes less stringent than SMCRA.

3. TSCMRA Sec. 134.008 Applicability to Governmental Units (SB 898)

Texas proposed to add the following provision at section 134.008:

An agency, unit, or instrumentality of federal, state, or local

government, including a 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 this

chapter shall comply with this chapter.

Texas' proposed provision is substantially the same as section 524

of SMCRA. Therefore, the Director finds Texas' proposal is no less

stringent than the counterpart SMCRA provision.

4. TSCMRA Sec. 134.014 Coal Exploration Operations (SB 898)

Texas proposed to add the following new provision at 134.014(b),

and redesignate existing (b) to (c):

A person who conducts coal exploration operations that

substantially disturb the natural land surface in violation of this

section or a rule adopted under this section is subject to

Secs. 134.174 through 134.181.

Texas' proposed new provision (b) is substantially the same as

section 512(c) of SMCRA. Therefore, the Director finds that proposed

Sec. 134.014(b) is no less stringent than the counterpart SMCRA

provision.

5. TSCMRA Sec. 134.022 Prohibitions on Surface Coal Mining in Certain

Areas (SB 898)

Texas proposed to recodify Article 5920-11, Section 33(e), Vernon's

Texas Civil Statutes (Vernon's), to Sec. 134.022(c) and to revise the

language of the provision by changing the date relating to valid

existing rights from May 9, 1979, to August 3, 1977.

In the January 30, 1997, Federal Register (62 FR 4451), Texas'

proposal to extend the date relating to valid existing rights to May 9,

1979, and to recodify Article 5920-11, Section 33(e) (Vernon's) to

Sec. 134.022(c), was disapproved, and the Director required Texas to

remove the unapproved provision from its recodified statutes and to

restore its previously approved statute language. The proposal now

under consideration establishes August 3, 1977, as the date relating to

valid existing rights. This is the same date as that established by

section 522(a)(6) SMCRA. Therefore, the Director finds Texas' proposal

is no less stringent than the counterpart SMCRA provision, and she is

approving it.

6. TSCMRA Sec. 134.056 Small Mine Exemption (SB 636)

At Sec. 134.056(2), Texas proposed to increase the amount of

probable total annual production allowed for surface coal mining

operators under its small operator assistance program from 100,000 to

300,000 tons.

Section 507(c)(1) of SMCRA also establishes 300,000 tons of

probable total annual production as the coal production figure for

operators to qualify for small operator assistance. Therefore, Texas'

proposal is no less stringent than the requirements of SMCRA.

7. TSCMRA Sec. 134.068 Schedule of Notices of Violation (SB 898)

Texas proposed to replace Article 5920-11, Section 21(c)

(Vernon's), with new Sec. 134.068 which reads as follows:

(a) The applicant shall file with the application a schedule

listing any notices of violations of this chapter, the federal Act,

a federal regulation or federal or state program adopted under the

federal Act, or another law, rule, or regulation of the United

States, this state, or a department or agency in the United States

pertaining to air or water environmental protection incurred by the

applicant in connection with a surface coal mining operation during

the three years before the application date.

(b) The schedule must indicate the final resolution of any

notice of violation.

Texas' proposed language at new 134.068 is substantially the same

and no less stringent than the language at

[[Page 10319]]

section 510(c) of SMCRA pertaining to permit applicant filing of a

schedule of notices of violation. Therefore, the Director is approving

replacement of Article 5920-11, Section 21(c) with new section 134.068.

8. TSCMRA Sec. 134.069 Effect of Past or Present Violation (SB 898)

a. TSCMRA Sec. 134.069(a). Texas proposed to amend Sec. 134.069(a)

by removing paragraph (2), which allows the commission to issue a

permit to an applicant who has an unabated violation if the applicant

is contesting the violation.

The provisions relating to applicant filing of a schedule listing

notices of violation at section 510(c) of SMCRA do not include a

provision that would allow issuance of a permit if the applicant is

contesting a violation. Therefore, Texas' proposal is no less stringent

than the requirements of SMCRA.

b. TSCMRA Sec. 134.069(b). Texas proposes to amend Sec. 134.069(b)

by adding language that references Chapter 134 and other laws in

Sec. 134.068 in relation to a demonstrated pattern of willful

violations. The other laws referenced in Sec. 134.068 include the

federal Act, a federal regulation or federal or state program adopted

under the federal Act, or another law, rule, or regulation of the

United States, this state, or a department or agency in the United

States pertaining to air or water environmental protection.

The federal counterpart provisions to Sec. 134.069(b) at section

510(c) of SMCRA also include references to the Act and other laws,

rules, and regulations of the United States or any other department or

agency in the United States. Therefore, Texas' proposal is not

inconsistent with SMCRA and would not render the Texas statutes less

stringent than SMCRA.

9. TSCMRA Sec. 134.084 Suspension or Rescission of Improvidently

Issued Permit (SB 898)

a. TSCMRA Sec. 134.084(a) and (b). Article 5920-11, Section 21a

(Vernon's), 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. Texas proposed to replace Article 5920-11, Section

21a, with language that is substantively the same at new

Sec. 134.084(a) and (b). SMCRA section 201(c)(1), states that permits

shall be suspended, revoked, or withheld for failure to comply with any

of the provisions of SMCRA or any rules and regulations adopted

pursuant thereto. Therefore, the Director finds Texas' proposal is not

inconsistent with SMCRA and does not render the Texas statutes less

stringent than SMCRA.

b. TSCMRA Sec. 134.084(c) and (d). Article 5920-11, Section 6(b)

(Vernon's) provides for 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. Texas proposed to replace Article 5920-11,

Section 6(b) with language that is substantively the same at 134.084(c)

and (d).

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, the Director finds Texas'

proposal to replace Article 5920-11, Section 6(b) with language that is

substantively the same at new Sec. 134.084(c) and (d) is not

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

10. TSCMRA Sec. 134.092 Performance Standards (SB 898)

At section 134.092(a)(2), Texas proposed to add the language, ``all

highwalls, spoil piles, and'' after the word ``with'' in the phrase

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

depressions eliminated.''

Texas' proposed language is similar to the provisions at section

515(b)(3) of SMCRA concerning restoration of approximate original

contour. Therefore, Texas' proposal is not inconsistent with SMCRA and

does not render the Texas statutes less stringent than SMCRA.

11. TSCMRA Sec. 134.163 Terms of Cessation Order

At Sec. 134.163(1), Texas proposed to add the language,

``condition, practice, or'' after the word ``the'' in the phrase

``determines the violation has been abated.''

Texas' existing provisions at section 134.163 were approved by the

Director in the January 30, 1997, Federal Register (62 FR 4451), with

the Director's understanding that Texas may amend section 134.163 to

refer to ``the condition, practice, or violation'' in order to more

closely track the language of SMCRA at section 521(a)(2) and the Texas

implementing regulation at TCMR 843.680(c). The language Texas proposed

is that which the Director understood might be proposed to make the

Texas statutes more closely track SMCRA and Texas' implementing

regulation at TCMR 843.680(c). Therefore, Texas proposal is not

inconsistent with SMCRA and it does not render the Texas statutes less

stringent than SMCRA.

IV. Summary and Disposition of Comments

Public Comments

OSM solicited public comments on the proposed amendment, but none

were received.

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 (Administrative

Record No. TX-643.03).

By letter dated December 24, 1997 (Administrative Record No. TX-

643.05), the U.S. Army Corps of Engineers commented that it found the

changes to be satisfactory.

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 the EPA's concurrence.

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

proposed amendment from the EPA (Administrative Record No. TX-643.01).

The 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.

643.02).

[[Page 10320]]

Neither the 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 December 1, 1997.

The Director approves the statutes as proposed by Texas with the

provision that they be fully promulgated in identical form to the

statutes submitted to and reviewed by OSM and the public.

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.

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 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 environmental impact statement is required for this rule since

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

decisions on proposed State regulatory program provisions do not

constitute major Federal actions within the meaning of section

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

4332(2)(C)).

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

OSM has determined and certifies pursuant to 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: February 20, 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 943.15 is amended in the table by adding a new entry in

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

follows:

Sec. 943.15 Approval of Texas regulatory program amendments.

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Original amendment submission date Date of final publication Citation/description

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December 1, 1997................... March 3, 1998.............. TSCMRA 134.004(3); 134.005(a)(2); 134.008;

134.014(b); 134.022(c); 134.056(2); 134.068;

134.069(a)(2) and (b); 134.084(a) through

(d); 134.092(a)(2); 134.163(1). Vernon's

Texas Civil Statutes Article 5920-11,

Sections 6(b), 21(c), 33(e) and 21a.

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3. 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....................... March 3, 1998.................. TSCMRA 134.142.

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[FR Doc. 98-5390 Filed 3-2-98; 8:45 am]

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