E7-22555. Texas Regulatory Program and Abandoned Mine Land Reclamation Plan

AGENCY:

Office of Surface Mining Reclamation and Enforcement, Interior.

ACTION:

Final rule; approval of amendments.

SUMMARY:

We, the Office of Surface Mining Reclamation and Enforcement (OSM), are approving amendments to the Texas regulatory program (Texas program) and the Texas abandoned mine land reclamation plan (Texas plan) under the Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act). Texas proposed revisions to and additions to regulations concerning post mining land uses; terms and conditions of the bond; topsoil redistribution; standards for revegetation success; public hearing; review of notice of violation or cessation order; determination of amount of penalty; assessment of separate violation for each day; request for hearing; and liens. Also, Texas proposed revisions to its statute concerning liens and administrative penalty for violation of permit conditions. Texas intends to revise its program and plan to be consistent with the corresponding Federal regulations and/or SMCRA, to clarify ambiguities, and to improve operational efficiency.

DATES:

Effective Date: November 19, 2007.

FOR FURTHER INFORMATION CONTACT:

Alfred L. Clayborne, Director, Tulsa Field Office. Telephone: [phone]. E-mail: [e-mail].

SUPPLEMENTARY INFORMATION:

I. Background on the Texas Program and Texas Plan

II. Submission of the Amendments

III. OSM's Findings

IV. Summary and Disposition of Comments

V. OSM's Decision

VI. Procedural Determinations

I. Background on the Texas Program and Texas Plan

Section 503(a) of the Act permits a State to assume primacy for the regulation of surface coal mining and reclamation operations on non-Federal and non-Indian lands within its borders by demonstrating that its State program includes, among other things, “a State law which provides for the regulation of surface coal mining and reclamation operations in accordance with the requirements of this Act * * *; and rules and regulations consistent with regulations issued by the Secretary pursuant to this Act.” See 30 U.S.C. 1253(a)(1) and (7). On the basis of these criteria, the Secretary of the Interior (Secretary) conditionally approved the Texas program effective February 16, 1980. You can find background information on the Texas program, including the Secretary's findings, the disposition of comments, and the conditions of approval, in the February 27, 1980, Federal Register (45 FR 12998). You can find later actions on the Texas program at 30 CFR 943.10, 943.15, and 943.16.

The Abandoned Mine Land Reclamation Program was established by Title IV of the Act (30 U.S.C. 1201 et seq.) in response to concerns over extensive environmental damage caused by past coal mining activities. A reclamation fee on each ton of coal supports the abandoned mine land reclamation program. The money collected is used to finance the reclamation of abandoned coal mines and for other authorized activities. Section 405 of the Act allows States and Indian Tribes to assume exclusive responsibility for reclamation activity within the State or on Indian lands if they develop and submit to the Secretary for approval, a program (often referred to as a plan) for the reclamation of abandoned coal mines. On the basis of these criteria, the Secretary approved the Texas plan on June 23, 1980. 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 find later actions concerning the Texas plan and amendments to the plan at 30 CFR 943.25.

II. Submission of the Amendments

By letter dated February 14, 2007 (Administrative Record No. TX-662), Texas sent us amendments to the Texas program and the Texas plan, at its own initiative, under SMCRA (30 U.S.C. 1201 et seq.). We announced receipt of the proposed amendments in the April 30, 2007, Federal Register (72 FR 21185). We did not receive any public comments. We did receive comments from two Federal agencies.

During our review of the amendment to the Texas program, the Railroad Commission of Texas notified us that the Texas legislators capped the State's administrative penalty at $10,000 instead of the $13,000 as proposed in the amendment to the Texas program submitted to us on February 14, 2007 (Administrative Record No. TX-662). On May 7, 2007, Texas sent us this revision to its regulatory program statutes regarding administrative penalty for violations of permit conditions along with corresponding revisions to its regulations regarding determination of amount of penalty (Administrative Record No. TX-662.03).

Also, during our review of the Texas program amendment, we identified concerns about informal public hearings and assessment of separate violations for each day. By email dated June 5, 2007 (Administrative Record No. TX-662.07) we notified Texas of these concerns. Texas sent us revisions to this amendment by e-mail dated June 7, 2007 (Administrative Record No. TX-662.08).

Based on Texas' revisions to its amendment, we reopened the public comment period in the June 11, 2007, Federal Register at 72 FR 32049. The public comment period ended on June 26, 2007. We did not receive any public comments.

III. OSM's Findings

Following are the findings we made concerning the amendments under SMCRA and the Federal regulations at 30 CFR 732.15, 732.17, 884.14, and 884.15. We are approving the amendments as described below.

A. Revisions to Texas' Statutes, Chapter 134 of the Texas Surface Coal Mining and Reclamation Act (TSCMRA)

1. Section 134.150 Lien

Texas revised its requirements at section 134.150(c) pertaining to who may not be subject to liens as a result of the reclamation of abandoned mine lands. Currently, persons who owned property before May 2, 1977, and who did not consent to, or participate in, or exercise control over the mining operation that necessitated the reclamation are exempt from liens. Texas removed the date requirement at section 134.150(c)(1) so that persons who did not consent to, or participate in, or exercise control over the mining operation (that necessitated the reclamation) are exempt from liens regardless of when they acquired the property.

We are approving the change because this date requirement of May 2, 1977, was also removed from section 408(a) of SMCRA effective December 20, 2006, and because the change will not make Texas' plan less stringent than SMCRA.

2. Section 134.174 Administrative Penalty for Violation of Permit Condition of this Chapter

Texas proposed to revise subsection (b) by increasing its penalty cap from $5,000 to $10,000 for each violation at surface coal mining operations.

Section 518(i) of SMCRA requires that the civil penalty provisions of each State program contain, at a minimum, penalties which are “no less stringent than” those set forth in SMCRA. Section 518(a) of SMCRA assesses a maximum penalty of $5,000 for each violation. Texas proposed a maximum penalty of $10,000 for each violation. We are approving Texas' change at section 134.174(b) because it is no less stringent than SMCRA.

B. Revisions to Texas' Regulations That Have the Same Meaning as the Corresponding Provisions of the Federal Regulations

Texas' regulations listed in the table below contain language that is the same as or similar to the corresponding sections of the Federal regulations or statute.

Topic	State regulation Texas Administrative Code (TAC)	Federal counterpart regulation or statute
Reclamation Plan: Postmining Land Uses	12.147(a) through (a)(3)	30 CFR 780.23(b) through (b)(3).
Letters of Credit	12.309(g)(2)	30 CFR 800.21(b)(2).
Topsoil: Redistribution	12.337(b) through (b)(3)	30 CFR 816.22(d)(1) through (d)(1)(iii).
Revegetation: Standards for Success	12.395(a)(1), (b)(1), (b)(3), (b)(3)(A) and (B), and (c)(3) and (4)	30 CFR 816.116(a)(1), (b)(1), (b)(3), (b)(3)(i) and (ii), and (c)(3)(i) and (c)(4).
Informal Public Hearing	12.681(a), (b) through (b)(3), (c), (e), (f), and (h)	30 CFR 843.15(a), (b) through (b)(3), (c), (e), and (h).
Formal Review of Notice of Violation or Cessation Order	12.682(a) and (b)	30 CFR 843.16(a) and (b).
Assessment of Separate Violations for Each Day	12.689(b) through (b)(3)	30 CFR 845.15(b) through (b)(2).
Request for Hearing	12.693	30 CFR 845.19(a).
Liens	12.816(c)	Section 408(a) of SMCRA, as amended in December 2006.

Because the above State regulations contain language that is the same as or similar to or have the same meaning as the corresponding Federal regulations or statute, we find that they are no less stringent than SMCRA and/or no less effective than the Federal regulations.

B. TAC 12.337 Topsoil: Redistribution

In section 12.337(a), Texas added topsoil substitutes to the list of materials to be redistributed after final grading during surface mining reclamation. The counterpart Federal regulation at 30 CFR 816.22(d)(2) includes topsoil substitutes as one of the materials being redistributed after the land is regraded during surface mining reclamation. We are approving this addition because it is no less affective than the above Federal regulation.

C. TAC 12.681 Informal Public Hearing

Texas added the word, informal, to the section heading. Texas also revised paragraph (g) by changing “public hearing” to “informal public hearing” and by changing “review” to “formal review.” The revised paragraph (g) reads as follows:

(g) The granting or wavier of the above informal public hearing shall not affect the right of any person to formal review under §§ 134.175 and 134.176 of the Act and §§ 2001.141-2001.147 of the APA (relating to Contested Cases: Final Decisions and Orders; Motions for Rehearing). At such review proceedings, no evidence as to statements made or evidence produced at the informal public hearing pursuant to this section shall be introduced as evidence to impeach a witness.

The counterpart Federal regulation at 30 CFR 843.15(g) refers to “hearings” and “reviews” under enforcement procedures as “informal hearings” and “formal reviews.” We are approving the above revisions because they simply clarify that under Texas' enforcement procedures, public hearings are “informal public hearings” and reviews are “formal reviews” and because the revisions are no less effective than the Federal regulations at 30 CFR 843.15(g).

D. TAC 12.688 Determination of Amount of Penalty

Texas' current regulation regarding administrative penalties was promulgated in 1979. Texas proposed to increase these penalties to reflect the decreased value in the dollar since 1979. The current penalties begin with $20 increments for each penalty assessment point and increase to a maximum penalty of $5,000. The revised penalties begin with $550 and increase to $10,000.

Section 518(i) of SMCRA requires that the civil penalty provisions of each State program contain penalties which are “no less stringent than” those set forth in SMCRA. Our regulations at 30 CFR 840.13(a) specify that each State program shall contain penalties which are no less stringent than those set forth in section 518 of the Act and shall be consistent with 30 CFR part 845. However, in a 1980 decision on OSM's regulations governing civil monetary penalties (CMPs), the U.S. District Court for the District of Columbia held that because section 518 of SMCRA fails to enumerate a point system for assessing civil penalties, the imposition of this requirement upon the States is inconsistent with SMCRA. In response to the Secretary's request for clarification, the Court further stated that it could not uphold requiring the States to impose penalties as stringent as those appearing in 30 CFR 845.15. Instead, section 518(i) of the Act requires only the incorporation of penalties and procedures explained in section 518. The system proposed by the State must incorporate the four criteria of section 518(a) of SMCRA: (1) History of previous violations, (2) seriousness of the violation, (3) negligence of the permittee, and (4) good faith of the permittee in attempting to achieve compliance. As a result of the litigation, 30 CFR 840.13(a) was suspended in part on August 4, 1980 (45 FR 51548) by suspending the requirement that penalties shall be consistent with 30 CFR part 845. Consequently, we cannot require that the CMP provisions contained in a State's regulatory program mirror the point system and resulting dollar amounts specified in our regulations.

We are approving Texas' revised penalties because the penalties are no less stringent than those specified in SMCRA and the procedural requirements are the same or similar to the procedures specified in SMCRA and the Federal regulations.

IV. Summary and Disposition of Comments

Public Comments

We asked for public comments on the Texas program and Texas plan amendments, but did not receive any.

Federal Agency Comments

On March 16, 2007 (Administrative Record No. TX-662.01) and May 31, 2007 (Administrative Record No. TX-662.06), under 30 CFR 732.17(h)(11)(i), 884.14(a)(2), and 884.15(a), and section 503(b) of SMCRA, we requested comments on the amendments from various Federal agencies with an actual or potential interest in the Texas program and Texas plan. On March 22, 2007, the Natural Resources Conservation Service stated that it had no comments pertaining to the proposed changes (Administrative Record No. TX-662.02). The U.S. Army Corps of Engineers responded on April 20, 2007 (Administrative Record No. TX-662.04), that both its Southwestern Division representatives and its Regulatory Branch in its Headquarters office had no additional comments at this time to the proposed changes to the Texas abandoned mine land reclamation plan.

Environmental Protection Agency (EPA) Concurrence and Comments

Under 30 CFR 732.17(h)(11)(ii), we are required to get a written concurrence from EPA for those provisions of the Texas program amendment that relate to air or water quality standards issued 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, we did not ask EPA to concur on the amendment.

On March 16, 2007 (Administrative Record No. TX-662.01) and July 10, 2007 (Administrative Record No. TX-662.06), under 30 CFR 732.17(h)(11)(i), 884.14(a)(2), and 884.15(a), we requested comments on the Texas program and Texas plan amendments from the EPA. The EPA did not respond to our request.

State Historical Preservation Officer (SHPO) and the Advisory Council on Historic Preservation (ACHP)

Under 30 CFR 732.17(h)(4), we are required to request comments from the SHPO and ACHP on State regulatory program amendments that may have an effect on historic properties. On March 16, 2007 (Administrative Record No. TX-662.01) and May 31, 2007 (Administrative Record No. TX-662.06), we requested comments on the Texas program amendment, but neither responded to our request.

V. OSM's Decision

Based on the above findings, we approve the amendments to the Texas program and the Texas plan that Texas sent us on February 14, 2007, and as revised on May 7, 2007, and June 7, 2007.

To implement this decision, we are amending the Federal regulations at 30 CFR part 943, which codify decisions concerning the Texas program and Texas plan. We find that good cause exists under 5 U.S.C. 553(d)(3) to make this final rule effective immediately. Section 503(a) of SMCRA requires that the State's program demonstrate that the State has the capability of carrying out the provisions of the Act and meeting its purposes. Making this rule effective immediately will expedite that process. SMCRA requires consistency of State and Federal standards.

VI. Procedural Determinations

Executive Order 12630—Takings

This rule does not have takings implications. This determination is based on the analysis performed for the counterpart Federal regulation.

Executive Order 12866—Regulatory Planning and Review

This rule is exempted from review by the Office of Management and Budget (OMB) under Executive Order 12866.

Executive Order 12988—Civil Justice Reform

The Department of the Interior has conducted the reviews required by section 3 of Executive Order 12988 and has determined that 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 because each program is drafted and promulgated by a specific State, not by OSM. Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and the Federal regulations at 30 CFR 730.11, 732.15, and 732.17(h)(10), decisions on proposed State regulatory programs and program amendments submitted by the States must be based solely on a determination of whether the submittal is consistent with SMCRA and its implementing Federal regulations and whether the other requirements of 30 CFR parts 730, 731, and 732 have been met.

Executive Order 13132—Federalism

This rule does not have Federalism implications. SMCRA delineates the roles of the Federal and State governments with regard to the regulation of surface coal mining and reclamation operations. One of the purposes of SMCRA is to “establish a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations.” Section 503(a)(1) of SMCRA requires that State laws regulating surface coal mining and reclamation operations be “in accordance with” the requirements of SMCRA, and section 503(a)(7) requires that State programs contain rules and regulations “consistent with” regulations issued by the Secretary pursuant to SMCRA.

Executive Order 13175—Consultation and Coordination With Indian Tribal Governments

In accordance with Executive Order 13175, we have evaluated the potential effects of this rule on Federally-recognized Indian tribes and have determined that the rule does not have substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. This determination is based on the fact that the Texas program does not regulate coal exploration and surface coal mining and reclamation operations on Indian lands. Therefore, the Texas program has no effect on federally-recognized Indian tribes.

Executive Order 13211—Regulations That Significantly Affect The Supply, Distribution, or Use of Energy

On May 18, 2001, the President issued Executive Order 13211 which requires agencies to prepare a Statement of Energy Effects for a rule that is (1) considered significant under Executive Order 12866, and (2) likely to have a significant adverse effect on the supply, distribution, or use of energy. Because this rule is exempt from review under Executive Order 12866 and is not expected to have a significant adverse effect on the supply, distribution, or use of energy, a Statement of Energy Effects is not required.

National Environmental Policy Act

This rule does not require an environmental impact statement because 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 certifies 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 counterpart 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. 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 counterpart Federal regulations.

Small Business Regulatory Enforcement Fairness Act

This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule: (a) Does not have an annual effect on the economy of $100 million; (b) Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; and (c) Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises. This determination is based upon the fact that the State submittal, which is the subject of this rule, is based upon counterpart Federal regulations for which an analysis was prepared and a determination made that the Federal regulation was not considered a major rule.

Unfunded Mandates

This rule will not impose an unfunded mandate on State, local, or tribal governments or the private sector of $100 million or more in any given year. This determination is based upon the fact that the State submittal, which is the subject of this rule, is based upon counterpart Federal regulations for which an analysis was prepared and a determination made that the Federal regulation did not impose an unfunded mandate.

List of Subjects in 30 CFR Part 943

• Intergovernmental relations
• Surface mining
• Underground mining

Dated: October 19, 2007.

Ervin J. Barchenger,

Acting Regional Director, Mid-Continent Region.

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:

§ 943.15

Approval of Texas regulatory program amendments.

* * * * *

Original amendment submission date	Date of final publication	Citation/description
	*         *         *         *         *         *         *
February 14, 2007	November 19, 2007	TSCMRA 134.174(b); TAC 12.147(a) through (a)(3); 12.309(g)(2); 12.337(a) and (b) through (b)(3); 12.395(a)(1), (b)(1), (b)(3), (b)(3)(A) and (B), and (c)(3) and (4); 12.681(a), (b) through (b)(3), (c), (e), (f), (g), and (h); 12.682(a) and (b); 12.688; 12.689(b) through (b)(3); and 12.693.

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:

§ 943.25

Approval of Texas abandoned mine land reclamation plan amendments.

* * * * *

Original amendment submission date	Date of final publication	Citation/description
	*         *         *         *         *         *         *
February 14, 2007	November 19, 2007	TSCMRA 134.150(c) and TAC 12.816(c),