[Federal Register Volume 62, Number 20 (Thursday, January 30, 1997)]
[Rules and Regulations]
[Pages 4451-4458]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-2329]
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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eliminate repealed, invalid, and duplicated provisions in order to make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
[[Page 4452]]
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
[[Page 4453]]
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
[[Page 4454]]
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
[[Page 4455]]
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
