[Federal Register Volume 60, Number 58 (Monday, March 27, 1995)]
[Rules and Regulations]
[Pages 15675-15680]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-7440]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 943
Texas Permanent Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),
Interior.
ACTION: Final rule; approval of proposed amendment.
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SUMMARY: OSM is announcing its decision to approve, with certain
additional requirements, a proposed amendment to the Texas permanent
regulatory program (hereinafter, the Texas program) under the Surface
Mining Control and Reclamation Act of 1977 (SMCRA). The proposed
amendment consisted of changes to Texas' existing rules pertaining to
identification of interests and compliance information, review of
permit applications, criteria for permit approval or denial, and
Railroad Commission of Texas (Commission) review of outstanding
permits. The amendment was intended to revise the Texas program to be
consistent with the corresponding Federal regulations.
EFFECTIVE DATE: March 27, 1995.
FOR FURTHER INFORMATION CONTACT: James H. Moncrief, telephone: (918)
581-6430.
SUPPLEMENTARY INFORMATION:
I. Background on the Texas Program.
II. 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. General background information on the Texas
program including the Secretary's findings, the disposition of
comments, and the conditions of approval of the Texas program can be
found in the February 27, 1980, Federal Register (45 FR 12998).
Subsequent actions concerning the Texas program and program amendments
are codified at 30 CFR 943.15 and 943.16.
II. Proposed Amendment
By letter dated May 24, 1994 (Administrative Record No. TX-576),
Texas submitted to OSM a proposed amendment to its program pursuant to
SMCRA. Texas submitted the proposed amendment in response to the
required amendments codified at 30 CFR 943.16 [[Page 15676]] (c) (1)
and (2), (d), (f), (j) (1), (2), (3), and (4), (r), and (s) (59 FR
13200, March 21, 1994). The provisions of the Texas Coal Mining
Regulations (TCMR) at 16 Texas Administrative Code (TAC) 11.221 and of
the Texas Surface Coal Mining and Reclamation Act (TSCMRA) at Article
5920-11 of the Texas Revised Civil Statutes Annotated that Texas
proposed to amend were: TCMR 778.116(m), identification of interests
and compliance information; TCMR 786.215 (e)(1) and (f), review of
permit applications; TCMR 786.216 (i) through (o), criteria for permit
approval or denial; TCMR 788.225 (f) through (i), commission review of
outstanding permits; and section 21(c) of TSCMRA, reporting notices of
violations in permit applications.
OSM announced receipt of the proposed amendment in the June 30,
1994, Federal Register (59 FR 33705), provided an opportunity for a
public hearing or meeting on its substantive adequacy, and invited
public comment on its adequacy (Administrative Record No. TX-576.07).
Because no one requested a public hearing or meeting, none was held.
The public comment period ended August 1, 1994.
During its review of the amendment, OSM identified concerns
relating to the provisions of Texas' regulations and statute at TCMR
778.116(m), identification of interests and compliance information;
TCMR 786.215(e)(1), review of permit applications; TCMR 788.225(g),
Commission review of outstanding permits; and section 21(c) of TSCMRA,
reporting notices of violations in permit applications. OSM notified
Texas of the concerns by letter dated August 11, 1994 (Administrative
Record No. TX-576.12).
Texas responded in a letter dated October 6, 1994, by submitting a
revised amendment (Administrative Record No. TX-576.13). Texas proposed
further revisions to TCMR 778.116(m), identification of interests and
compliance information; TCMR 786.215(e)(1), review of permit
applications; and TCMR 788.225(g), Commission review of outstanding
permits. Texas also proposed to recodify previously proposed TCMR
788.225 (h) and (i), respectively, as TCMR 788.226(g)(2) and (h). Texas
also stated that it was not, at this time, proposing any formal program
amendment pertaining to section 21(c) of TSCMRA. Therefore, OSM
considers section 21(c) of TSCMRA to be withdrawn from consideration in
this amendment, and the required amendment at 30 CFR 943.16(r) remains
outstanding.
Based upon the revisions to the proposed program amendment
submitted by Texas, OSM reopened the public comment period in the
October 27, 1994, Federal Register (59 FR 53949, Administrative Record
No. TX-576.20). The public comment period ended November 14, 1994.
III. Director's Findings
As discussed below, the Director, in accordance with SMCRA and 30
CFR 732.15 and 732.17, finds, with two additional requirements, that
the proposed regulation revisions submitted by Texas on May 24, 1994,
and as further revised on October 6, 1994, are consistent with the
corresponding provisions of the Federal regulations. Accordingly, the
Director approves the proposed regulation revisions.
In taking this action, the Director notes that, effective November
28, 1994, OSM revised the Federal regulations at 30 CFR Parts 701, 773,
778, 840, and 843 pertaining to the applicant/violator computer system
(AVS) and procedures for ownership and control determinations (59 FR
54306, October 28, 1994). Also, effective November 28, 1994, the Office
of Hearings and Appeals revised related Federal regulations at 43 CFR
part 4, subpart L, pertaining to special rules applicable to surface
coal mining hearings and appeals (59 FR 54356, October 28, 1994). By
letter dated January 18, 1995, OSM notified Texas of these revisions to
the Federal regulations (Administrative Record No. TX-585). The
Director's action in this amendment does not relieve Texas from the
need to further amend its regulations to comply with other provisions
in the revised Federal regulations. When OSM determines which Texas
regulation provisions pertaining to AVS and ownership and control must
be amended to be no less effective than the revised Federal
regulations, it will notify Texas in accordance with 30 CFR 732.17(d).
1. Nonsubstantive Revisions to Texas' Regulations
Texas proposed to recodify its previously-approved right of appeal
regulation at TCMR 788.225(g) (corresponding Federal regulation at 30
CFR 773.21) as TCMR 788.225(h).
Because the proposed recodification of this previously-approved
regulation is nonsubstantive in nature, the Director finds that this
proposed recodification is not inconsistent with SMCRA or the Federal
regulations. The Director approves this proposed recodification.
2. Substantive Revisions to Texas' Regulations That Are Substantively
Identical to the Corresponding Provisions of the Federal Regulations
In response to the required amendments at 30 CFR 943.16(j)(1)
through (3) (finding No. 4(b), 59 FR 13200, 13205, March 21, 1994),
Texas proposed revisions to the following regulations that are
substantive in nature and contain language that is substantively
identical to the corresponding Federal regulation provisions (listed in
parentheses).
TCMR 788.225(f) (3) and (4) (30 CFR 773.20(c)(1)(iii) and (iv)),
remedial measures,
TCMR 788.225(g) and (g)(1) (i) through (iv) (30 CFR 773.21 and
773.21(a)(1) through (4)), rescission procedures, and
TCMR 788.225(g)(2) (30 CFR 773.21(b), cessation of operations.
Because these proposed revisions to Texas' regulations are
substantively identical to the corresponding provisions of the Federal
regulations, the Director finds that they are no less effective in
meeting SMCRA's requirements than the corresponding provisions of the
Federal regulations. The Director approves these regulation revisions
and removes the required amendments at 30 CFR 943.16(j)(1) through (3).
3. TCMR 778.116(m), Identification of Interests and Compliance
Information
In response to the required amendments at 30 CFR 943.16(c)(1) and
(2) (finding No. 2, 59 FR 13200, 13201-13203, March 21, 1994), Texas
proposed to revise TCMR 778.116(m) to require that a permit application
must include,
For any violations of a provision of the Act, Federal Act and
its implementing Federal regulations and all Federal and state
programs under the Federal Act, or of any law, rule or regulation of
the United States, or of any [State] state law, rule or regulation
enacted pursuant to Federal law, rule, or regulation pertaining to
air or water environmental protection * * * a list of all violation
notices received by the applicant during the three year period
preceding the application date, and a list of all unabated cessation
orders and unabated air and water quality violation notices received
prior to the date of the application * * *.
Texas proposed to add the italicized language and to delete the
bracketed language.
The corresponding Federal regulations at 30 CFR 778.14(c), through
the Federal definition of ``violation notice'' at 30 CFR 773.5, require
that a permit application must include information on violation notices
received pursuant to SMCRA, SMCRA's implementing Federal regulations, a
[[Page 15677]] State program, or any Federal or State law, rule, or
regulation pertaining to air or water environmental protection.
At TCMR 700.003(1), Texas defines the term ``Act'' to mean the
``Texas Surface Coal Mining Control and Reclamation Act'' and at TCMR
700.003(10) defines the term ``Federal Act'' to mean the ``Surface
Mining Control and Reclamation Act of 1977 (Pub. L. 95-87).''
Therefore, when Texas requires, at proposed TCMR 778.116(m), that a
permit application include information ``for any violations of a
provision of the Act, Federal Act and its implementing Federal
regulations and all Federal * * * programs approved under the Federal
Act,'' it requires a permit application to include information
regarding violations of TSCMRA, SMCRA, SMCRA's implementing
regulations, and SMCRA-approved Federal programs (OSM-administered
Indian lands program and Federal programs for States).
Furthermore, in a previously proposed and approved amendment
(Administrative Record No. TX-562), Texas stated that the word
``State,'' when capitalized, refers to Texas and, when uncapitalized,
refers to all States within the United States of America. Therefore,
where Texas requires, at proposed TCMR 778.116(m), information for
``violations of a provision of * * * all * * * state programs approved
under the Federal Act,'' it requires a permit application to include
information regarding violations of all SMCRA-approved State programs,
not just the Texas program.
Likewise, where proposed TCMR 778.116(m) requires information on
violations ``of any state law, rule or regulation enacted pursuant to
Federal law, rule or regulation pertaining to air or water
environmental protection,'' it requires a permit application to include
information regarding violations of a law, rule or regulation of any
State, including Texas, enacted pursuant to Federal law, rule or
regulation pertaining to air or water environmental protection.
However, the corresponding Federal regulations at 30 CFR 778.14(c),
through the definition of ``violation notice'' at 30 CFR 773.5, require
information on violation notices of all State laws, rules, and
regulations pertaining to air or water environmental protection, not
just those enacted pursuant to Federal law, rule, or regulation.
Because proposed TCMR 778.116(m) limits the information about
violation notices required in a permit applications to violations of
those State laws, rules, and regulations pertaining to air or water
environmental protection that are enacted pursuant to Federal law,
rule, or regulation, the Director finds that proposed TCMR 778.116(m)
is less effective in meeting SMCRA's requirements than the
corresponding provisions of the Federal regulation at 30 CFR 778.14(c).
Therefore, the Director requires Texas to further revise TCMR
778.116(m) to require a permit application to include information on
all violations of any State law, rule or regulation that pertains to
air or water environmental protection, not just those violations that
were enacted pursuant to Federal law, rule, or regulation. Otherwise,
for the reasons discussed above, the Director approves the proposed
addition of the phrase ``and its implementing Federal regulations and
all Federal and state programs under the Federal Act'' and the use of
the word ``state,'' uncapitalized, in place of the word ``State''
capitalized, and removes the required amendments at 30 CFR 943.16(c)
(1) and (2).
4. TCMR 786.215 (e)(1), and (f), and 786.216(i), Review of Permit
Application
(a) TCMR 786.215(e)(1). In response to the required amendment at 30
CFR 943.16(d), Texas proposed to revise TCMR 786.215(e)(1) to require
the Commission to consider, as a basis for permit denial, information
on ``state'' failure-to-abate cessation orders and unabated imminent
harm cessation orders (finding No. 3(a), 59 FR 13200, 13202, March 21,
1994).
Texas proposed to revise TCMR 786.215(e)(1) by inserting the word
``state,'' uncapitalized, in place of ``State,'' capitalized. As
discussed in finding No. 3, Texas stated in a previously proposed and
approved amendment (Administrative Record No. TX-562) that the word
``State,'' when capitalized, refers to Texas and, when uncapitalized,
refers to all States within the United States of America. Thus, where
proposed TCMR 786.215(e)(1) requires the Commission to consider
information on ``state'' failure-to-abate cessation orders and unabated
``state'' imminent harm cessation orders, it means cessation order and
violation notices incurred in all States, including those incurred in
Texas.
The corresponding Federal regulations at 30 CFR 773.15(b)(1),
through the definition of ``violation notice'' at 30 CFR 773.5,
require, in part, that the regulatory authority consider information on
State failure-to-abate cessation orders and unabated State imminent
harm cessation orders incurred in all States, not just those incurred
in the State where the application is submitted.
Because revised TCMR 786.215(e)(1) requires, as does the Federal
regulation at 30 CFR 773.15(b)(1), that the State regulatory authority
consider, as a basis for permit denial, cessation orders incurred by a
permit applicant in all States, the Director finds that the proposed
revisions to TCMR 786.215(e)(1) are no less effective in meeting
SMCRA's requirements than the corresponding provisions of the Federal
regulation at 30 CFR 773.15(b)(1). The Director approves the proposed
use of the word ``state,'' uncapitalized, in place of the word
``State,'' capitalized, at TCMR 786.215(e)(1) and removes the required
amendment at 30 CFR 943.16(d).
(b) TCMR 786.215(f). In response to the required amendment at 30
CFR 943.16(f) (finding No. 3(b), 59 FR 13200, 13203, March 21, 1994),
Texas proposed to revise TCMR 786.215(f) to require, in part, that,
Before any final determination by the Commission that the
applicant, anyone who owns or controls the applicant, or the
operator specified in the application, controls or has controlled
mining operations with a demonstrated pattern of willful violation
of the Act or Federal Act and its implementing Federal regulations
and all Federal and state programs approved under the Federal Act or
Federal or state laws as used in 30 CFR 773.15(b) of such nature,
duration, and with such resulting irreparable damage to the
environment that indicates an intent not to comply with the
provisions of the Act or Federal Act and its implementing Federal
regulations and all Federal and state programs approved under the
Federal Act or Federal or state laws as used in 30 CFR 773.15(b),
no permit shall be issued and [before] a hearing shall be held [and
a final determination that no pattern of willful violations exists].
* * * The Commission shall deny an application after a determination
has been made that a pattern of willful violations exists.
Texas proposed to add the italicized language and to delete the
bracketed language. The proposed regulation further provides that the
applicant or operator shall be afforded the opportunity for an
adjudicatory hearing in accordance with TCMR 787.222.
Section 510(c) of SMCRA and the Federal regulation at 30 CFR
773.15(b)(3) prohibit issuance of a permit when the regulatory
authority makes a finding that the applicant, anyone who owns or
controls the applicant, or the operator specified in the application,
controls or has controlled surface coal mining and reclamation
operations with a demonstrated pattern of willful violations of the Act
of such nature and duration, and with resulting irreparable damage to
the environment, as to [[Page 15678]] indicate an intent not to comply
with the Act. The term ``Act,'' as used in section 510(c) of SMCRA and
30 CFR 773.15(b)(3), includes SMCRA, its implementing Federal
regulations, and all Federal and State programs approved under SMCRA
(48 FR 44344, 44389, September 28, 1983). The Federal regulation also
requires that the applicant or operator be given an opportunity for an
adjudicatory hearing on the determination, as provided for at 30 CFR
775.11, before such a finding becomes final.
As discussed in finding No. 3, Texas defines the term ``Act'' to
mean the ``Texas Surface Coal Mining Control and Reclamation Act'' and
defines the term ``Federal Act'' to mean the ``Surface Mining Control
and Reclamation Act of 1977 (Pub. L. 95-87).'' Therefore, where
proposed TCMR 786.215(f) requires the Commission to consider as a
demonstrated pattern of willful violation of or as an intent not to
comply with the provisions of ``the Act or Federal Act and its
implementing Federal regulations and all Federal * * * programs
approved under the Federal Act,'' it refers to violations of provisions
of TSCMRA, SMCRA, SMCRA's implementing regulations, and SMCRA-approved
Federal programs (OSM-administered Indian lands program and Federal
programs for States).
As also discussed in finding No. 3, Texas stated in a previously
proposed and approved amendment (Administrative Record No. TX-562) that
the word ``State,'' when capitalized, refers to Texas and, when
uncapitalized, refers to all States within the United States of
America. Therefore, where proposed TCMR 786.215(f) requires the
Commission to consider ``state programs approved under the Federal
Act'' it means the SMCRA programs of any State within the United States
of America, not just the Texas program. Proposed TCMR 786.215(f) also
requires the Commission, when determining whether a pattern of
violations exists, to consider, in part, violations of ``Federal or
state laws as used in 30 CFR 773.15(b).'' The Federal regulations at 30
CFR 773.15(b)(1) require the regulatory authority to consider, as a
basis for permit denial, information concerning, among other things,
violations of SMCRA, any Federal rule or regulation promulgated
pursuant to SMCRA, a State program, and any Federal or State law, rule,
or regulation pertaining to air or water environmental protection.
Because the State provision already specifically encompasses violations
of TSCMRA, SMCRA, SMCRA's implementing regulations, and SMCRA-approved
Federal and State programs, the proposed phrase ``Federal or state laws
as used in 30 CFR 773.15(b)'' must refer only to Federal and State
laws, rules, and regulations pertaining to air or water environmental
protection.
However, the provision of the Federal regulations dealing with
pattern of willful violation determinations, 30 CFR 773.15(b)(3), does
not require the regulatory authority to consider non-SMCRA violations
of Federal and State laws, rules, or regulations pertaining to air or
water environmental protection. The regulatory authority is required to
consider only violations of SMCRA, its implementing Federal
regulations, and SMCRA-approved Federal and State programs. Thus, the
proposed phrase would require the Commission to consider, when
determining whether a pattern of violation exists, a larger set of
violations than is required by the Federal regulations at 30 CFR
773.15(b)(3), thereby increasing the possibility that a pattern of
willful violations exists.
In accordance with section 505(b) of SMCRA and 30 CFR 730.11(b), a
State regulatory authority has the discretion to impose land use and
environmental controls and regulations on surface coal mining and
reclamation operations that are more stringent than those imposed under
SMCRA and the Federal regulations or for which no Federal counterpart
exists. Section 505(b) of SMCRA and 30 CFR 730.11(b) provisions dictate
that such State provisions shall not be construed to be inconsistent
with SMCRA or the Federal regulations. Therefore, the Director approves
the proposed revisions at TCMR 786.215(f) and removes the required
amendment at 30 CFR 943.16(f).
(c) TCMR 786.216(i). In response to the required amendment at 30
CFR 943.16(s) (finding No. 3(b), 59 FR 13200, 13203, March 21, 1994),
Texas proposed to delete existing TCMR 786.216(i) and recodify existing
paragraphs (j) through (o), respectively, as paragraphs (i) through
(n). Existing TCMR 786.216 sets forth criteria for permit approval or
denial, and TCMR 786.216(i) provides that the Commission shall not
approve an application for a permit or permit revision unless the
application affirmatively demonstrates and the Commission finds, in
writing, that a pattern of willful violations of TSCMRA does not exist.
The Federal regulations at 30 CFR 773.15(c) pertain to written
findings required for permit application approval. These regulations do
not require the regulatory authority to make, as a condition for permit
approval, a written finding that a demonstrated pattern of willful
violations of the Act does not exist. However, the Federal regulation
at 30 CFR 773.15(b)(3) prohibits issuance of a permit if the regulatory
authority finds that the applicant, anyone who owns or controls the
applicant, or the operator specified in the application, controls or
has controlled surface coal mining and reclamation operations with a
demonstrated pattern of willful violations of SMCRA of such nature and
duration, and with resulting irreparable damage to the environment as
to indicate an intent not to comply with SMCRA. As discussed in finding
No. 4(b), Texas has proposed at TCMR 786.215(f) requirements for
patterns of willful violations of SMCRA and TSCMRA that are no less
effective than the Federal regulations at 30 CFR 773.15(b)(3).
Because the Federal regulations do not require the regulatory
authority to make, as a condition for permit approval, a written
finding that a demonstrated pattern of willful violations of the Act
does not exist and because Texas has proposed at TCMR 786.215(f)
requirements concerning the existence of a pattern of willful
violations of SMCRA and TSCMRA that are no less effective than the
Federal regulation at 30 CFR 773.15(b)(3), the Director finds that the
provisions of deleted TCMR 786.216(i) are duplicative and unnecessary.
Also, because recodification does not alter the content or meaning of
the recodified regulations, the Director finds that the proposed
recodification of TCMR 786.216 (j) through (o) as (i) through (n) is
not inconsistent with any Federal requirements. Therefore, the Director
(1) approves the deletion of TCMR 786.216(i) and the recodification of
the remaining paragraphs of section .216 and (2) removes the required
amendment at 30 CFR 943.16(s).
5. TCMR 788.225(g)(1), Automatic Suspension and Rescission
In response to the required amendment at 30 CFR 943.16(j)(4), Texas
proposed to revise TCMR 788.225(g)(1) to require that, after a
specified period of time not to exceed 90 days after the Commission has
served on the permittee a notice of a proposed suspension and
rescission, the permit will automatically become suspended and, after a
subsequent period not to exceed 90 days, the permit will automatically
be rescinded, unless the permittee submits adequate proof for the
Commission to find that the permit should not be suspended or
rescinded. [[Page 15679]]
The corresponding Federal regulation at 30 CFR 773.21(a) provides
that,
After a specified period of time not to exceed 90 days the
permit automatically will become suspended, and not to exceed 90
days thereafter rescinded, unless within those periods the permittee
submits proof, and the regulatory authority finds, consistent with
the provisions of Sec. 773.25 of this part, that * * *.''
With one exception, proposed TCMR 788.225(g)(1) is substantively
identical the corresponding Federal regulations at 30 CFR 773.21(a).
The exception is that proposed TCMR 788.225(g)(1) does not include
provisions equivalent to those provided by the Federal phrase
``consistent with the provisions of Sec. 773.25.'' 30 CFR 773.25
specifies standards for challenging ownership and control links and the
status of violations. The Texas program does not have a direct
counterpart to the Federal standards for challenging ownership and
control links and the status of violations at 30 CFR 773.25 or to other
requirements referred to at 30 CFR 773.25.
Therefore, the Director finds that the proposed revisions to TCMR
788.225(g)(1) are less effective than the corresponding Federal
provisions at 30 CFR 773.21(a). The Director approves the proposed
revisions to TCMR 788.225(g)(1) and removes the required amendment at
30 CFR 743.16(j)(4). However, the Director requires Texas to further
revise TCMR 788.225(g)(1), or otherwise revise the Texas program, to
require that the Commission's findings with regard to a permittee's
challenge of the Commission's decision to suspend and rescind an
improvidently issued permit must be consistent with the provisions of
the Federal requirements at 30 CFR 773.25.
IV. Summary and Disposition of Comments
Following are summaries of all substantive written comments on the
proposed amendment that were received by OSM, and OSM's responses to
them.
1. Public Comments
OSM invited public comments on the proposed amendment. In response
to OSM's invitation, the Texas Natural Resource Conservation Commission
responded on July 5, 1994, that it supported the proposed changes and
on November 7, 1994, that it had no comment on the proposed changes
(Administrative Record Nos. TX-576.08 and TX-576.21).
The Texas Department of Health responded on June 16, 1994, that it
supported the proposed changes to the Railroad Commission of Texas'
coal mining and reclamation regulatory program (Administrative Record
No. TX-576.05).
2. Federal Agency Comments
Pursuant to 30 CFR 732.17(h)(11)(i), OSM solicited comments on the
proposed amendment from various Federal agencies with an actual or
potential interest in the Texas program.
The Bureau of Land Management responded on October 31, 1994, that
it had no comments on the revised submittal (Administrative Record No.
TX-576.18).
The Bureau of Mines responded on June 14, 1994, and October 31,
1994, that it had no comments (Administrative Record Nos. TX-576.03 and
TX-576.19).
The Forest Service responded on June 15, 1994, that it had no
comments to offer and on October 20, 1994, that it had no additions or
corrections to offer (Administrative Record Nos. TX-576.04 and TX-
576.15).
The Soil Conservation Service responded on June 22, 1994, that the
proposed amendment should have no adverse effect on the technical
aspects of reconstruction or reclamation and on October 20, 1994, that
it had no comments on the proposal (Administrative Record Nos. TX-
576.06 and TX-576.16).
The U.S. Army Corps of Engineers responded on June 8, 1994, and
October 25, 1994, that it found the amendment satisfactory to that
agency (Administrative Record Nos. TX-576.02 and TX-576.17).
3. Environmental Protection Agency (EPA) Concurrence and Comments
Pursuant to 30 CFR 732.17(h)(11)(ii), OSM is required to solicit
the written concurrence of 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 its amendment
pertain to air or water quality standards. Therefore, OSM did not
request EPA's concurrence.
Pursuant to 30 CFR 732.17(h)(11)(i), OSM solicited comments on the
proposed amendment from EPA, Region VI (Administrative Record No. TX-
576.14). EPA did not respond to OSM's request.
4. State Historic Preservation Officer (SHPO) and Advisory Council on
Historic Preservation (ACHP) Comments
Pursuant to 30 CFR 732.17(h)(4), OSM solicited comments on the
proposed amendment from the SHPO and ACHP (Administrative Record No.
TX-576.14). Neither responded to OSM's request.
V. Director's Decision
Based on the above findings, the Director approves, with two
additional requirements, the proposed revisions as submitted by Texas
on May 24, 1994, and as further revised by it on October 6, 1994.
The Director approves (1) as discussed in finding No. 1, the
recodification of existing TCMR 788.225(g) as paragraph (h), concerning
right of appeal and (2) as discussed in finding No. 2, the proposed
revisions to TCMR 788.225(f) (3) and (4), (g), (g)(1) (i) through (iv),
and (g)(2), concerning Commission review of outstanding permits;
finding No. 4a, the proposed use of the word ``state,'' uncapitalized,
in place of the word ``State,'' capitalized, at TCMR 786.215(e)(1),
review of permit applications; finding No. 4b, the proposed revisions
to TCMR 786.215(f) concerning patterns of willful violations; and
finding No. 4c, the deletion of TCMR 786.216(i) and the recodification
of existing TCMR 786.216 (j) through (o), respectively, as TCMR 786.216
(i) through (n), concerning criteria for permit approval or denial.
With the requirement that Texas further revise its rules, the
Director approves, as discussed in finding No. 3, the proposed addition
of the phrase ``and its implementing Federal regulations and all
Federal and state programs under the Federal Act'' and the use of the
word ``state,'' uncapitalized, in place of the word ``State''
capitalized, at TCMR 778.116(m), concerning identification of interests
and compliance information; and finding No. 5, the proposed revisions
to TCMR 788.225(g)(1), concerning Commission review of outstanding
reports.
The Director approves the revisions proposed by Texas with the
provision that they be fully promulgated in identical form to the
revisions 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 [[Page 15680]] conformity with the Federal
standards without undue delay. Consistency of State and Federal
standards is required by SMCRA.
VI. Procedural Determinations
1. Executive Order 12866
This final rule is exempted from review by the Office of Management
and Budget under Executive Order 12866 (Regulatory Planning and
Review).
2. Executive Order 12778
The Department of the Interior has conducted the reviews required
by section 2 of Executive Order 12778 (Civil Justice Reform) 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 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.
3. 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)).
4. 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.).
5. Regulatory Flexibility Act
The Department of the Interior has determined that this rule will
not have a significant economic effect on a substantial number of a
small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et
seq.) The State submittal that 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. Hence, 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 counterpart Federal regulations.
List of Subjects in 30 CFR Part 943
Intergovernmental relations, Surface mining, Underground mining.
Dated: March 21, 1995.
Charles E. Sandberg,
Acting Assistant Director, Western Support Center.
For the reasons set out in the preamble, title 30, chapter VII,
subchapter T, of the Code of Federal Regulations 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 by adding a new paragraph (j) as
follows:
Sec. 943.15 Approval of amendments to the Texas regulatory program.
* * * * *
(j) The revisions to 16 Texas Administrative Code 11.221, the Coal
Mining Regulations of the Railroad Commission of Texas, as submitted on
May 24, 1994, and as further revised on October 6, 1994, are approved
effective March 27, 1995.
Revisions to the following regulations are approved:
TCMR 778.116(m), identification of interests and compliance
information.
TCMR 786.215(e)(1), review of violations.
TCMR 786.215(f), patterns of willful violations.
TCMR 786.216(i), existing paragraph deleted.
TCMR 786.216(j) through (o), recodified as (i) through (n).
TCMR 786.225(f)(3) and (4), Commission review of outstanding
permits: remedial measures.
TCMR 786.225(g), (g)(1), (g)(1) (i) through (iv), rescission
procedures.
TCMR 786.225(g)(2), cessation of operations.
TCMR 786.225(h), recodification.
3. Section 943.16 is amended by removing and reserving paragraphs
(c), (d), (f), (j), and (s), and adding paragraphs (t) and (u) to read
as follows:
Sec. 943.16 Requried program amendments.
* * * * *
(a)-(j) [Reserved]
* * * * *
(s) [Reserved]
(t) By September 25, 1995, Texas shall formally propose an
amendment to OSM for TCMR 778.116(m) to require a permit application to
include information on all violations of any State law, rule, or
regulation that pertains to air or water environmental protection, not
just those violations that were enacted pursuant to Federal law, rule,
or regulation.
(u) By September 25, 1995, Texas shall formally propose an
amendment to OSM for TCMR 788.225(g)(1) or otherwise revise the Texas
program to require that the Commission's findings with regard to the
permittee's challenge of the Commission's decision to suspend and
rescind an improvidently issued permit must be consistent with the
provisions of the Federal requirements at 30 CFR 773.25.
[FR Doc. 95-7440 Filed 3-24-95; 8:45 am]
BILLING CODE 4310-05-M
