[Federal Register Volume 59, Number 78 (Friday, April 22, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-9826]
[[Page Unknown]]
[Federal Register: April 22, 1994]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 925
Missouri Permanent Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),
Interior.
ACTION: Final rule; approval of amendment.
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SUMMARY: OSM is announcing approval of a proposed amendment submitted
by the State of Missouri as a modification to its permanent regulatory
program (hereinafter, the ``Missouri program'') approved under the
Surface Mining Control and Reclamation Act of 1977 (SMCRA). The
amendment was submitted to OSM on September 24, 1993, and addresses
State statutes concerning civil penalties. The amendment is intended to
revise the State program to be consistent with the corresponding
Federal standards.
EFFECTIVE DATE: April 22, 1994.
FOR FURTHER INFORMATION CONTACT:
Jerry R. Ennis, Telephone: (816) 374-6405.
SUPPLEMENTARY INFORMATION:
I. Background on the Missouri Program
On November 21, 1980, the Secretary of Interior conditionally
approved the Missouri program. General background information on the
Missouri program, including the Secretary's findings, the disposition
of comments, and the conditions of approval of the Missouri program can
be found in the November 21, 1980, Federal Register (45 FR 77017).
Subsequent actions concerning Missouri's program and program amendments
can be found at 30 CFR 925.12, 925.15, and 925.16.
II. Submission of Proposed Amendment
By letter dated September 24, 1993 (Administrative Record No. MO-
576), Missouri submitted a proposed amendment to its program pursuant
to SMCRA. Missouri submitted the proposed amendment to its statute to
satisfy a required program amendment placed on its program and to be
consistent with the corresponding Federal standards. Missouri proposes
to amend the Revised Statutes of Missouri (RSMo) at sections 444.870.1
through 444.870.8, and 444.873.1 through 444.873.4, concerning
penalties.
The Director announced receipt of the proposed amendment in the
October 18, 1993 Federal Register (58 FR 53686) and, in the same
notice, opened the public comment period and provided opportunity for a
public hearing on its substantive adequacy. The public comment period
closed on November 17, 1993. No public hearing was held since none was
requested.
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 for the proposed
amendment submitted by Missouri on September 24, 1993.
1. RSMo 444.870.3, Right to Contest Amount of Penalty or Fact of
Violation
Existing RSMo 444.870.3 provides an operator served with notice of
a violation of the Missouri program an opportunity to contest the
notice:
The operator, if he wishes to contest the notice, may within
thirty days of receipt of the notice request a hearing before the
commission.
Missouri proposes to revise its statute at RSMo 444.870.3 by
replacing the word ``notice,'' in the passage quoted above, with the
phrase ``either the amount of the penalty or the fact of the
violation,'' so that the operator may contest the amount of the
penalty, in addition to or instead of contesting the fact of the
violation, at the requested hearing. The request for a hearing would
still have to be accompanied by a penalty bond in the amount of the
proposed penalty.
Section 518(c) of SMCRA requires the person charged with the
penalty to, within 30 days, either pay the proposed penalty in full,
or, if the person wishes to contest either the amount of the penalty or
the fact of the violation, forward the proposed amount to the Secretary
for placement in an escrow account.
Missouri's proposed revision would provide an operator with the
same procedural rights and remedies that are afforded under section
518(c) of SMCRA.
Therefore, the Director finds that Missouri's revision to RSMo
444.870.3 is no less stringent than SMCRA and is approving it.
2. RSMo 444.870.5 Through 444.870.8, Penalties
Missouri proposes to delete the existing statutory provisions at
RSMo 444.870.5, .6, .7, and .8.
a. RSMo 444.5, Administrative Penalties Paid
Missouri proposes to delete RSMo 444.870.5 from its statue. This
statutory provision requires the following:
5. Any administrative penalty paid pursuant to sections 444.800
to 444.940 shall be placed in the state treasury and credited to the
general revenue fund. An action may be brought in the appropriate
circuit court to collect any unpaid administrative penalty, and for
attorney's fees and costs incurred directly in the collection
thereof.
According to a finding made by Missouri's attorney general in
conjunction with a previous submittal dated November 8, 1991
(Administrative Record No. MO-541), the portion of RSMo 444.870.5
requiring penalty monies to be placed into Missouri's general revenue
fund conflicts with Article IX, section 7 of the Missouri Constitution
which requires penalty monies to be distributed to several Missouri
school districts. The attorney general found that RSMo 444.870.5 was
unconstitutional and pre-empted by Article IX, section 7 of the
Missouri Constitution.
Section 518 of SMCRA and the Federal regulations at 30 CFR 845 do
not place explicit requirements with regard to how administrative
penalty money must be distributed by a State. Missouri's deletion of
the requirement, at RSMo 444.870.5, to place any administrative penalty
paid into the general revenue fund does not render its program less
stringent than SMCRA.
In deleting RSMo 444.870.5 in its entirety, Missouri is also
deleting the second portion of that provision, which provides that)--
[A]n action may be brought in the appropriate circuit court to
collect any unpaid administrative penalty, and for attorney's fees
and costs incurred directly in the collection thereof.
Delection of this language does not render the Missouri statute
less stringent than section 518(d) of SMCRA, which allows a suit to be
brought to collect unpaid civil penalties, because a provision
containing equivalent language already exists in the Missouri surface
mining statute at RSMo 444.870.4. Therefore, the Director is approving
the proposed deletion at RSMo 444.870.5.
b. RSMo 444.870.6, .7, and .8, Assessment of ``Administrative''
Penalty, Judicial, Review of Final Orders, and Assessment of ``Civil''
Penalty
Missouri proposes to delete RSMo 444.870.6, .7, and .8 from its
statute. These sections currently require the following:
6. An administrative penalty shall not be increased in those
instances where department action, or failure to act, has caused a
continuation of the violation that was a basis for the penalty. Any
administrative penalty must be assessed within two years following
the department's initial discovery of such alleged violation, or
from the date the department in the exercise of ordinary diligence
should have discovered such alleged violation.
7. Any final order imposing an administrative penalty is subject
to judicial review upon the filing of a petition pursuant to section
536.100, RSMo, by any person subject to administrative penalty;
however, either party may require that the judicial appeal is tried
as a trial de novo in the circuit court of the jurisdiction where
the violation occurred.
8. The state may elect to assess an administrative penalty, or,
in lieu thereof, to request that the attorney general or prosecutor
file an appropriate legal action seeking a civil penalty in the
appropriate circuit court. The assessment of an administrative
penalty shall preclude the assessment of a monetary penalty for the
same violation by the attorney general and the judicial assessment
of a civil penalty for the same violation except that this
limitation shall not apply to persons who the department has
determined habitually violated the requirements of the Missouri
surface coal mining law, the surface coal mining laws of other
states or federal laws pertaining to surface coal mining. The
commission shall promulgate rules and regulations to provide further
clarification of a habitual violator under this subsection.
In OSM's rulemaking action on September 24, 1992, (57 FR 44114)
RSMo 444.870.6, .7, and .8 were found, for the reasons explained in the
preamble to the rulemaking, to be less stringent than SMCRA and were
not approved. As a result, OSM placed a required program amendment on
the Missouri program at 30 CFR 925.16(i) directing Missouri to remove
RSMo 444.870.6, .7, and .8. Missouri has addressed the required program
amendment by proposing to remove RSMo 444.870.6, .7, and .8. Therefore,
the Director finds this proposed revision satisfies, in part, the
required program amendment placed on Missouri's program at 30 CFR
925.16(i).
c. RSMo 444.873.1, .2, .3, and .4, Administrative Penalties: Individual
Liability
Missouri proposes to revise its program by removing RSMo 444.873.1,
.2, .3, and .4 and replacing them at RSMo 444.870.5, .6, .7, and .8,
respectively. In its September 24, 1992 (57 FR 44118), rulemaking
action, OSM approved RSMo 444.873.1, .3, and .4. OSM, however, did not
approve RSMo 444.873.2, for several reasons, and directed Missouri to
remove RSMo 444.873.2. RSMo 444.873.2 currently reads:
Whenever a corporate permittee violates a condition of a permit
or fails or refuses to comply with any order issued under section
444.885 [cessation orders], or any order incorporated in a decision
issued under subsection 2 of section 444.870, any director, officer,
or agent of such corporation who willfully and knowingly authorized,
ordered, or carried out such violation, failure, or refusal shall be
subject to hearings with other proceedings under section 444.885.
Any hearing under this section shall be of record and shall be the
same civil penalties, fines and imprisonment that may be imposed
upon a person under this section.
In its September 24, 1992, disapproval, OSM discovered the
following deficiencies in the above provision. First, RSMo 444.873.2
failed to include the ``except'' clause as used in section 518(f) of
SMCRA, resulting in the State provision providing for an individual
civil penalty (ICP) only for failure to abide by an order requiring
cessation of operations or assessing a civil penalty. This is the
reverse of the requirement at section 518(f) of SMCRA, which provides
for an ICP for failing to abide by an order issued pursuant to any
section of SMCRA except an order issued pursuant to the assessment of a
civil penalty under section 518(b).
Second, RSMo 444.873.2 contains a nonsensical passage asserting
that any ``director, officer, or agent'' may be subject to
``hearings.'' Under section 518(f) of SMCRA, a director, officer, or
agent may be subject to ``civil penalties, fines and imprisonment.''
Third, RSMo 444.873.2, in its last sentence, purports to apply to a
director, officer, or agent, the ``same civil penalties, fines and
imprisonment that may be imposed upon a person under this section.''
The State's use of the term, ``this section,'' is inappropriate, as
RSMo 444.873 includes no provision for the imposition of penalties,
fines, or imprisonment.
As now proposed, however, Missouri has recodified the above
provision to RSMo 444.870.6. This recodification to the appropriate
portion of the statute remedies the third deficiency noted above. Newly
proposed RSMo 444.870.6, as can be seen from the quoted passage below,
has also been revised to remedy the first and second deficiencies noted
above:
Whenever a corporate permittee violates a condition of a permit
or fails or refuses to comply with any order issued under section
444.885, or any order incorporated in a final decision issued by the
commission except an order incorporated in a decision issued under
subsection 2 of this section, any director, officer, or agent of
such corporation who willfully and knowingly authorized, ordered, or
carried out such violation, failure, or refusal shall be subject to
the same administrative penalties, fines and imprisonment that may
be imposed upon a person under subsections 1 and 5 of this section.
Finally, Missouri, as suggested by OSM in its September 24, 1992,
Federal Register notice (57 FR 44114), has replaced the term, ``civil
penalty,'' as used in RSMo 444.870.6, with the term, ``administrative
penalty,'' to make the statutory provision consistent with the Missouri
coal mining regulations, which use the term, ``administrative
penalty.'' The Missouri term, ``administrative penalty,'' is synonymous
with the Federal term, ``civil penalty.''
Given the revisions proposed by Missouri, as discussed in Findings
No. 2b and c, above, the Director finds that Missouri has adequately
responded to the required program amendment at 30 CFR 925.16(i) and is
therefore removing the required program amendment. The Director also
finds that the recodification of RSMo 444.873.1 through 4 to RSMo
444.870.5 through 8, and the revisions to RSMo 444.870.6, do not render
the Missouri program less stringent than SMCRA and is approving the
recodification.
IV. Public and Agency Comments
Public Comments
The Director solicited public comment on the proposed amendment and
provided opportunity for a public hearing. No comments were received.
The scheduled public hearing was not held because no one requested an
opportunity to provide testimony.
Agency Comments
Pursuant to section 503(b) of SMCRA and the implementing
regulations at 30 CFR 732.17(h)(11), OSM solicited comments from
various Federal agencies with an actual or potential interest in the
Missouri program. Comments were also solicited from various State
agencies. The following comments were received.
By letter dated October 29, 1993, (Administrative Record No. MO-
584), the Soil Conservation Service responded that it had no comment.
State Historic Preservation Officer (SHPO) and the Advisory Council on
Historic Preservation (ACHP) Comments
As required by 30 CFR 732.17(h)(4), OSM provided the proposed
amendment to the SHPO and the ACHP for comment. By letter dated October
27, 1993 (Administrative Record No. MO-585), SHPO responded that it had
no objection to the proposed amendment. No comments were received from
the ACHP.
Environmental Protection Agency (EPA) Concurrence
Under 30 CFR 732.17(h)(11), the Director is required to obtain the
written concurrence of the Administrator of the EPA with respect to any
provisions of a State 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.).
Missouri did not propose any revisions to its program that relate
to air or water quality standards in this amendment. However, EPA's
Regional and Headquarters offices were afforded opportunity to comment
on this amendment. No comments were received.
V. Director's Decision
Based on the above findings, the Director is approving the proposed
amendment submitted by Missouri on September 24, 1993, as identified in
the codified portion of this notice under 30 CFR 925.15.
The Federal regulations at 30 CFR part 925 codifying decisions
concerning the Missouri program are 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 between State and Federal standards is required by
SMCRA.
VII. Procedural Determinations
Compliance With 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 12550) 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.
Compliance With 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).
Compliance With the 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 of 1969, 42 U.S.C.
4332(2)(C).
Paperwork Reduction Act
This rule does not contain information collection requirements that
require approval by the Office of Management and Budget under the
Paperwork Reduction Act, 44 U.S.C. 3507 et seq.
Compliance With the 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
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 925
Intergovernmental relations, Surface mining, Underground mining.
Dated: April 18, 1994.
Raymond L. Lowrie,
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 925--MISSOURI
1. The authority citation for part 925 continues to read as
follows:
Authority: 30 U.S.C. 1201 et seq.
2. Section 925.15 is amended by adding paragraph (r) to read as
follows:
Sec. 925.15 Approval of regulatory program amendments.
* * * * *
(r) The following provisions of the Missouri statute as submitted
to OSM on September 24, 1993, are approved effective April 22, 1994:
RSMo 444.870.3, and the newly codified language at 444.870.5 through 8
concerning penalties.
Sec. 925.16 [Amended]
3. Section 925.16 is amended by removing and reserving paragraph
(i).
[FR Doc. 94-9826 Filed 4-21-94; 8:45 am]
BILLING CODE 4310-05-M
