[Federal Register Volume 61, Number 118 (Tuesday, June 18, 1996)]
[Rules and Regulations]
[Pages 30804-30808]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-15145]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 943
[SPATS No. TX-027-FOR]
Texas 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 approving a proposed amendment to the Texas regulatory
program (hereinafter referred to as the ``Texas program'') under the
Surface Mining Control and Reclamation Act of 1977 (SMCRA). The
proposed amendment consists of revisions to Texas' existing regulations
pertaining to identification of interests and compliance information
and Commission of Texas (Commission) review of outstanding permits and
revisions and one addition to Texas' existing statures pertaining to
rulemaking and permitting, permit approval or denial, and suspension or
rescission of improvidently issued permits. The amendment is intended
to revise the Texas program to be consistent with the corresponding
Federal regulations and SMCRA.
EFFECTIVE DATE: June 18, 1996.
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 program. Background information on the Texas
program, including the Secretary's findings, the disposition of
comments, and the conditions of approval can be found in the February
27, 1980, Federal Register (45 FR 12998). Subsequent actions concerning
the conditions of approval and program amendments can be found at 30
CFR 943.10, 943.15, and 943.16.
II. Submission of the Proposed Amendment
By letter dated August 30, 1995 (Administrative Record No. TX-595),
Texas submitted a proposed amendment to its program pursuant to SMCRA.
Texas submitted the proposed amendment in response to required program
amendments codified at 30 CFR 943.16 (r), (t), and (u) [59 FR 13200,
March 21, 1994, and 60 FR 15675, March 27, 1995]. The provisions of the
Texas Coal Mining Regulations (TCMR) and of the Texas Surface Coal
Mining and Reclamation Act (TSCMRA) at Article 5920-11 that Texas
proposed to amend were TCMR 778.116(m), identification of interests and
compliance information; TCMR 788.225(g)(1), Commission review of
outstanding permits; section 6(b) of TSCMRA, rulemaking and permitting;
section 21(c) of TSCMRA, reporting notices of violation in permit
applications; and section 21a of TSCMRA, suspension or rescission of
improvidently issued permits.
OSM announced receipt of the proposed amendment in the September
20, 1995, Federal Register (60 FR 48675), 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 October 20, 1995.
By letter dated May 13, 1993 (Administrative Record No. TX-551),
Texas submitted a proposed amendment to its program pursuant to SMCRA.
By letter dated September 18, 1995 (Administrative Record No. TX-598),
Texas revised the May 13, 1993, proposed amendment. The revised
amendment included a definition for the term ``violation notice'' at
TCMR 701.008(104), which was proposed as partial response to a required
amendment at 30 CFR 943.16(k). Since this proposed definition is
closely associated with Texas' August 30, 1995, proposed revisions
pertaining to identification of interests and compliance information,
it is being transferred to and addressed in this final rule. Decisions
concerning the rest of the proposed changes in the May 13, 1993,
proposed amendment, as revised on September 18, 1995, will be addressed
in a separate Federal Register.
OSM announced receipt of the September 18, 1995, revised amendment
in the October 25, 1995, Federal Register (60 FR 54620), and in the
same document opened the public comment period. The public comment
period closed on November 9, 1995. No comments were received pertaining
to the proposed definition of ``violation notice.''
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.
A. Texas Coal Mining Regulations (TCMR)
1. TCMR 701.008(104) Definition of Violation Notice
Texas proposed to add the following definition of ``violation
notice'' at TCMR 701.008(104).
``Violation notice'' means any written notification from a
governmental entity of a violation of law, whether by letter,
memorandum, legal or administrative pleading, or other written
communication.
The definition for ``violation notice'' was inadvertently omitted
from the State regulations in Texas' Final Rule Adoption No. SMRD 2-88
(May 22, 1989). At 30 CFR 943.16(k), OSM required Texas to submit an
amendment that included this definition (57 FR 37447, August 19, 1992).
The proposed definition is substantively identical to the counterpart
Federal definition that existed on August 19, 1992. However, OSM
revised its definition of violation notice on October 28, 1994 (59 FR
54306). As show below, the revised Federal definition clarifies the
types of violations that would form the basis for permit denial under
section 510(c) of SMCRA and under the implementing Federal regulation
at 30 CFR 778.14(c). OSM determined that incorporating by reference the
amended definition of ``violation notice'' into 30 CFR 778.14(c)
eliminated the need for including regulation language on the types of
violation information that must be reported in a permit application.
``Violation notice'' means any written notification from a
governmental entity, whether by letter, memorandum, judicial or
administrative pleading, or other written communication, of a
violation of the Act; any Federal rule or regulation promulgated
pursuant thereto; a State program; or any Federal or State law,
rule, or regulation pertaining to air or water environmental
protection in connection with a surface coal mining operation. It
includes, but is not limited to, or notice of violation; an imminent
harm cessation order; a failure-to abate cessation order; a final
order, bill, or
[[Page 30806]]
demand letter pertaining to a delinquent civil penalty; a bill or
demand letter pertaining to delinquent abandoned mine reclamation
fees; and a notice of bond forfeiture, where one or more violations
upon which the forfeiture was based have not been corrected.
While the Texas definition lacks the clarity of the revised Federal
definition, it is not inconsistent with it. On March 15, 1996
(Administrative Record No. TX-595.06), OSM contacted Texas to discuss
this issue. Texas responded that it will interpret its proposed
definition of ``violation notice'' consistent with the revised Federal
definition. Also, as discussed in finding B.2., the Texas statute at
Article 5920-11, section 21(c) of TSCMRA does require the reporting of
notices of violation in permit applications consistent with the
requirements under section 510(c) of SMCRA. Therefore, the Director
approves the definition of ``violation notice'' at TCMR 701.008(104) to
the extent that Texas interprets it consistent with the Federal
definition. The required amendment at 30 CFR 943.16(k) is being revised
to remove the requirement for a definition of ``violation notice.''
2. TCMR 778.116(m) Identification of Interests and Compliance
Information
In response to the required amendment at 30 CFR 943.16(t) [finding
No. 3, 60 FR 15675, March 27, 1995], Texas proposed revisions to TCMR
778.116(m) that are substantive in nature and contain language that is
substantively identical to the language in the corresponding Federal
regulation provisions at 30 CFR 778.14(c). Therefore, the Director
finds that TCMR 778.116(m) is no less effective than the counterpart
Federal regulation at 30 CFR 778.14(c). The Director approves the
proposed revision to TCMR 778.116(m) and removes the required amendment
at 30 CFR 943.16(t).
3. TCMR 788.225(g)(1) Commission Review of Outstanding Permits;
Automatic Suspension and Rescission
In responds to the required amendment at 30 CFR 943.16(u) [finding
No. 5, 60 FR 15675, March 27, 1995], Texas proposed a revision to TCMR
788.225(g)(1) that is substantive in nature and contains language that
renders its provisions substantively identical to the corresponding
Federal regulation provisions at 30 CFR 773.21(a).
The Federal regulation at 30 CFR 773.21(a) provides that the
regulatory authority's findings with regard to a permittee's challenge
of its decision to suspend and rescind an improvidently issued permit
must be consistent with the provisions of 30 CFR 773.25. The provisions
of 30 CFR 773.25 specify standards for challenging ownership and
control links and the status of violations.
Since the Texas program did not have a direct counterpart to the
Federal standards for challenging ownership and control links and the
status of violations contained in 30 CFR 773.25 or to other
requirements referred to in 30 CFR 773.25, Texas proposed a revision to
TCMR 788.225(g)(1) 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 be consistent with
the provisions of the Federal requirements at 30 CFR 773.25. Thus,
Texas incorporated by reference the criteria for challenging ownership
and control links and the status of violations specified by the Federal
regulations.
Based on the above discussions, the Director finds the proposed
revision to TCMR 788.225(g)(1) renders its provisions no less effective
than the Federal regulation provisions at 30 CFR 773.21(a). Therefore,
the Director approves the proposed revision to TCMR 778.225(g)(1) and
removes the required amendment at 30 CFR 743.16(u).
B. Texas Surface Coal Mining and Reclamation Act (TSCMRA), Article
5920-11
Under Section 323.007 of the Government Code, the Texas Legislative
Council revised the Texas statutes in a general code update bill. This
bill, Chapter 76, Senate Bill (S.B.) 959, Acts of the 74th Legislature,
Regular Session, 1995, codified the Texas Surface Coal Mining and
Reclamation Act as Chapter 134, Natural Resources Code, and repealed
Article 5920-11, Vernon's Texas Civil Statutes, subject to certain
exceptions. During the same session, Chapter 272, S.B. 271 amended the
Texas Surface Coal Mining and Reclamation Act, Article 5920-11,
Vernon's Texas Civil Statutes. In a letter dated August 14, 1995
(Administrative Record No. TX-597), the Texas Legislative Counsel
explained that ``under Section 311.031(c), Government Code, the repeal
of a statute by a code does not affect an amendment of the statute by
the same legislature that enacted the code. The amendment is preserved
and given effect as part of the code provision that revised the statute
so amended.''
In its August 30, 1995, submittal (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. The statutory
authority for the rules exists through the preservation of the
amendments made through S.B. 271.'' S.B. 271 amends Article 5920-11 at
section 6(b) of TSCMRA, rulemaking and permitting and section 21(c) of
TSCMRA, permit approval or denial; and it adds new section 21a,
suspension or rescission of improvidently issued permits.
1. Article 5920-11 Section 6(b) of TSCMRA, Rulemaking and Permitting
Pursuant to the Administrative Procedure Act
The substantive revision proposed in section 6(b) of TSCMRA is the
addition of the following provision allowing Texas to issue a notice of
permit suspension or rescission of an improvidently issued permit
without first conducting a formal adjudicative proceeding under the
Texas Administrative Procedure Act (Chapter 2001, Government Code),
while still allowing the permittee to file an appeal for administrative
review of Texas' decision to suspend or rescind a permit.
(b) * * * The Administrative Procedure Act does not apply to
actions by the Commission to suspend or rescind an improvidently
issued permit as authorized by Section 21a of this Act, except that
a permittee who is the subject of a suspension or rescission notice
issued by the Commission under Section 21a of this Act may file an
appeal for administrative review of the notice as provided by
Commission rules, and such review shall be governed by the
Administrative Procedure Act.
In a letter dated July 7, 1993 (Administrative Record No. TX-562),
Texas had explained that it could not automatically suspend or rescind
a permit because its Administrative Procedure Act at section 13(a)
required that all parties in a contested case have the opportunity for
an adjudicative hearing before legal rights, duties or privileges are
determined. The proposed revision will allow Texas to automatically
suspend or rescind a permit.
The general authority for suspension or revocation (rescission) of
permits is found at section 201(c)(1) of SMCRA. The Federal regulation
provisions at 30 CFR 773.21(a) provide for an automatic permit
suspension and rescission process and 30 CFR 773.20(c)(2) requires
regulatory authorities to give permittees the opportunity to request
administrative review of a notice of suspension or rescission of an
improvidently issued permit. Therefore,
[[Page 30807]]
the Director finds the revision to section 6(b) of TSCMRA is not
inconsistent with SMCRA or the Federal regulations and is approving it.
2. Article 5920-11 Section 21(c) of TSCMRA, Reporting Notices of
Violations in Permit Applications
In response to the required amendment at 30 CFR 943.16(r) [finding
No. 2, 59 FR 13200, March 21, 1994], Texas proposed revisions to
section 21(c) of TSCMRA that are substantive in nature and contain
language that is substantively identical to section 510(c) of SMCRA.
The substantive proposed changes include revising the existing
language of the first sentence of section 21(c) by adding the
requirement that applicants report notices of violations of SMCRA and
deleting the words ``within the state'' from the phrase ``in connection
with any surface coal mining operation within the state during the
three-year period * * *.'' Texas further clarified section 21(c) by
adding new language requiring that the schedule include notices of
violations of Federal regulations or Federal or state programs adopted
under SMCRA. Texas, also, revised the existing second sentence (now the
third sentence) by deleting the phrase ``or that the notice of
violation is being contested by the applicant'' and adding the phrase
``or other laws referred to in this subsection'' after the phrases
``with a demonstrated pattern of willful violations of this Act'' and
``with such resulting irreparable damage to the environment as to
indicate an intent not to comply with this Act.''
The proposed revisions remove the previous limitation contained in
section 21(c) of TSCMRA regarding the listing of information for
violations incurred only within the State of Texas. The proposed
revisions clarify that a permit application must include information on
(1) violations of Federal regulations and violations of Federal and
State programs approved pursuant to SMCRA, not just the Texas program,
and (2) air and water environmental protection violations of any
governmental department or agency physically located in any state of
the United States, not just Texas.
Therefore, based on the above discussions, the Director finds
section 21(c) of TSCMRA, as revised, is consistent with and no less
stringent than section 510(c) of SMCRA and is removing the required
amendment at 30 CFR 943.16(r).
3. Article 5920-11 TSCMRA, section 21a, Suspension or Rescission of
Improvidently Issued Permits
Texas proposes to add a new section which authorizes the Commission
to adopt and enforce rules relating to suspension or rescission of
improvidently issued permits that are consistent with and no less
effective than Federal regulations adopted under SMCRA.
Section 201(c)(1) of SMCRA authorizes the suspension or rescission
of permits for failure to comply with any of the provisions of SMCRA or
any rules and regulations adopted pursuant to SMCRA. Furthermore,
Section 503(a)(2) of SMCRA requires State programs to demonstrate that
the State has the capability of carrying out the provisions of SMCRA
and meeting its purposes through ``a State law which provides sanctions
for violations of State laws, regulations, or conditions of permits
concerning surface coal mining and reclamation operations, which
sanctions shall meet the minimum requirements of this Act, including
civil and criminal actions, forfeiture of bonds, suspensions,
revocations * * *''
Therefore, the Director finds section 21a of TSCMRA is consistent
with the intent of sections 201(c)(1) and 503(a)(2) of SMCRA and is
approving it.
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. No public comments were
received, and because no one requested an opportunity to speak at a
public hearing, 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.
The Bureau of Land Management responded on September 15, 1995, that
the revised regulations addressed by the documents appeared to exceed
Federal coal standards, and it had no other comments to that effect
(Administrative Record No. TX-595.04).
The U.S. Army Corps of Engineers responded on September 18, 1995,
that it found the changes to be satisfactory to that agency
(Administrative Record No. TX-595.02).
The Soil Conservation Service (Natural Resources Conservation
Service) responded on October 2, 1995, that it had no comments on the
proposal (Administrative Record No. TX-595.05.
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, Region VI (Administrative Record No. TX-
595.01). 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 comments on the
proposed amendment from the SHPO and ACHP (Administrative Record No.
TX-595.01). Neither SHPO nor ACHP responded to OSM's request.
V. Director's Decision
Based on the above findings, the Director approves the proposed
amendment as submitted by Texas on August 30, 1995.
The Director approves, as discussed in: finding No. A.1., TCMR
701.008(104), definition of ``violation notice; finding No. A.2., TCMR
778.116(m), concerning identification of interests and compliance
information; finding No. A.3., TCMR 788.225(g)(1), concerning automatic
suspension and rescission of a permit; finding No. B.1., Article 5920-
11, section 6(b) of TSCMRA, concerning rulemaking and permitting;
finding No. B.2., Article 5920-11, section 21(c) of TSCMRA, concerning
reporting notices of violations in permit applications; and finding No.
B.3., Article 5920-11, section 21a of TSCMRA, concerning suspension or
rescission of improvidently issued permits.
The Director approves the regulations and statutes as proposed by
Texas with the provision that they be fully promulgated in identical
form to the rules submitted to and reviewed by OSM and the public.
[[Page 30808]]
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 approved 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 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 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.
National Environmental Policy Act
No evironmental impact statement is required for this rule since
section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency
decisions on proposed State regulatory program provisions do not
constitute major Federal actions within the meaning of section
102(2)(C) of the National Environmental Policy Act (42 U.S.C.
4332(2)(C)).
Paperwork Reduction Act
This rule does not contain information collection requirements that
require approval by OMB under the Paperwork Reduction Act (44 U.S.C.
3507 et seq.).
Regulatory Flexibility Act
The Department of the Interior has determined that this rule will
not have a significant economic impact on a substantial number of small
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
The State submittal which is the subject of this rule is based upon
corresponding Federal regulations for which an economic analysis was
prepared and certification made that such regulations would not have a
significant economic effect upon a substantial number of small
entities. Accordingly, this rule will ensure that existing requirements
previously promulgated by OSM will be implemented by the State. In
making the determination as to whether this rule would have a
significant economic impact, the Department relied upon the data and
assumptions for the corresponding Federal regulations.
Unfunded Mandates
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: May 28, 1996.
Brent Wahlquist,
Regional Director, Mid-Continent Regional Coordinating 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 paragraph (n) to read as
follows:
Sec. 943.15 Approval of regulatory program amendments.
* * * * *
(n) The amendment submitted by Texas to OSM by letter dated August
30, 1995, and the definition of ``violation notice'' submitted by Texas
to OSM by letter dated September 18, 1995, are approved effective June
18, 1996.
3. Section 943.16 is amended by removing paragraphs (r), (t), and
(u) and by revising paragraph (k) to read as follows:
Sec. 943.16 Required program amendments.
* * * * *
(k) By October 19, 1992, Texas shall submit to OSM a proposed
amendment for the definitions at TCMR 770.101 to replace the
definitions for ``applicant,'' ``application,'' ``complete
application,'' ``general area,'' ``principal shareholder,'' and
``property to be mined,'' or otherwise demonstrate that these
definitions are not necessary for the Texas program to be no less
effective than the Federal regulations.
* * * * *
[FR Doc. 96-15145 Filed 6-17-96; 8:45 am]
BILLING CODE 4310-05-M
