[Federal Register Volume 59, Number 54 (Monday, March 21, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-6495]


[[Page Unknown]]

[Federal Register: March 21, 1994]


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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 
exceptions and 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 
regulations pertaining to identification of interests and compliance 
information, review of permit applications, conditions of permits, 
Railroad Commission of Texas (Commission) review of outstanding 
permits, and cessation orders. The amendment was intended to revise the 
Texas program to be consistent with the corresponding Federal 
standards.

EFFECTIVE DATE: March 21, 1994.

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 February 8, 1993 (Administrative Record No. TX-
542), 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(b), (c), (d)(1), 
(2) and (3), (e), (f), (g), (h)(1) and (2), (i)(1) and (2), and (j)(1), 
(2), and (3) (57 FR 21600, May 21, 1992). The provisions of the Texas 
Coal Mining Regulations (TCMR) at 16 Texas Administrative Code (TAC) 
11.221 that Texas proposed to revise were the identification of 
interests and compliance information at TCMR 778.116(1) and (m), review 
of permit applications at TCMR 786.215(e)(1) and (2), (f), and (g), and 
Commission review of outstanding permits at TCMR 788.225(f), (f)(1)(A), 
(g) and (g)(3).
    OSM published a notice in the March 30, 1993, Federal Register (58 
FR 16834) announcing receipt of the amendment and inviting public 
comment on the adequacy of the proposed amendment (Administrative 
Record No. TX-550). The public comment period closed April 29, 1993.
    During its review of the amendment, OSM identified concerns 
relating to the provisions of TCMR 778.116(m), identification of 
interests and compliance information: Violation information; TCMR 
786.215(e)(1), review of permit applications: Review of violations; 
TCMR 786.215(f), review of permit applications: Pattern of willful 
violations; TCMR 786.215(g), review of permit applications: Final 
compliance review; TCMR 788.225(e), Commission review of outstanding 
permits: Improvidently issued permits; TCMR 788.225(f), Commission 
review of outstanding permits: Review criteria; and TCMR 788.225(g), 
Commission review of outstanding permits: Remedial measures. OSM also 
noted that the proposed amendment did not contain revisions to the 
Texas program adopting procedural requirements no less effective than 
the Federal regulation at 30 CFR 843.11(g), which requires that, within 
60 days of the issuance of a cessation order, the regulatory authority 
must notify all owners and controllers identified as owning or 
controlling the permittee.
    OSM notified Texas of these concerns by letter dated June 8, 1993 
(Administrative Record No. TX-565). Texas responded in a letter dated 
July 7, 1993, by submitting additional explanatory information and a 
revised amendment (Administrative Record No. TX-562). The regulations 
that Texas proposed to further revise were TCMR 778.116(m), 
identification of interests and compliance information: Violation 
information; TCMR 786.215(e)(1), review of permit applications: Review 
of violations; TCMR 786.215(f), review of permit applications: Pattern 
of willful violations; TCMR 786.215(g), review of permit applications: 
Final compliance review; TCMR 788. 225(e), Commission review of 
outstanding permits: Review criteria; TCMR 788.225(f), Commission 
review of outstanding permits: Remedial measures; and TCMR 788.225(g), 
Commission review of outstanding permits: Right of appeal. In this 
revised amendment, Texas also submitted for the first time proposed 
revisions to TCMR 843.680(c), cessation orders.
    OSM published a notice in the August 12, 1993, Federal Register (58 
FR 42901) announcing receipt of the amendment and inviting public 
comment on the adequacy of the proposed amendment (Administrative 
Record No. TX-567). The public comment period closed August 27, 1993.

III. Director's Findings

    After a thorough review, pursuant to SMCRA and the Federal 
regulations at 30 CFR 732.15 and 732.17, the Director finds, with 
certain exceptions and additional requirements discussed herein, that 
the proposed amendment as submitted by Texas on February 8, 1993, and 
subsequently revised on July 7, 1993, is no less stringent than SMCRA 
and no less effective than the corresponding Federal regulations in 
meeting SMCRA's requirements.

1. Revisions to Texas' Regulations That Are Substantively Identical to 
the Corresponding Federal Regulations

    Texas proposed revisions to the following regulations that are 
substantive in nature and contain language that is substantively 
identical to the corresponding Federal regulations (listed in 
parentheses): TCMR 778.116(1) (30 CFR 778.14(b)), identification of 
interests and compliance information; TCMR 786.215(e)(2) (30 CFR 
773.15(b)(2)), review of permit applications; and TCMR 788.225(g) (30 
CFR 773.21(c)), right of appeal.
    Because these proposed Texas regulations are substantively 
identical to the corresponding Federal regulations, the Director finds 
that they are no less effective than the corresponding Federal 
regulations and approves them. Accordingly, the Director removes the 
required amendments at 30 CFR 943.16(b) and (e).

2. TCMR 778.116(m), Identification of Interests and Compliance 
Information

    Proposed TCMR 778.116(m) requires that an application for a permit 
to conduct surface coal mining and reclamation operations (a permit 
application) include, among other things,

    [f]or any violations of a provision of the Act, Federal Act, or 
of any law, rule or regulation of the United States, or of any State 
law, rule or regulation enacted pursuant to Federal law, rule or 
regulation pertaining to air or water environmental protection 
incurred in connection with any surface coal mining operation, 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 by 
any surface coal mining and reclamation operation owned or 
controlled by either the applicant or by any person who owns or 
controls the applicant.

    Proposed TCMR 778.116(m) is similar to the corresponding Federal 
regulation at 30 CFR 778.14(c). In fact, the proposed Texas provision 
follows the language of the Federal counterpart regulation almost 
verbatim, with the exception that Texas has added the term ``Federal 
Act.'' However, as discussed below, the requirements of the proposed 
TCMR 778.116(m) differ substantively from the Federal requirements, and 
the Director has two specific concerns with Texas' proposal.
    The Director's first concern relates to Texas' use of the terms 
``Act'' and ``Federal Act.'' At TCMR 700.003(1), Texas defines the term 
``Act'' to mean the ``Texas Surface Coal Mining Control and Reclamation 
Act'' (TSCMRA) 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) 
information ``for any violations of a provision of the Act, [or the] 
Federal Act,'' it requires a permit application to include information 
regarding violations of TSCMRA and SMCRA.
    In contrast, the term ``Act'' as used in 30 CFR 778.14(c) and 
section 510(c) of SMCRA, includes not only SMCRA, but also its 
implementing Federal regulations, and all Federal and State programs 
approved under SMCRA (53 FR 38868, 38882-38883, October 3, 1988; and 48 
FR 44344, 44389, September 28, 1983). Therefore, the corresponding 
Federal regulation at 30 CFR 778.14(c) requires permit applications to 
include information regarding violations received pursuant to SMCRA, 
SMCRA's implementing Federal regulations (e.g., 30 CFR part 865), all 
SMCRA-approved Federal programs (OSM-administered Indian lands programs 
(30 CFR part 750) and Federal programs for States (various sections of 
30 CFR part 900; e.g. 30 CFR part 942)), and all SMCRA-approved State 
programs.
    Although Texas, by adding the term ``Federal Act,'' requires permit 
applications to include information regarding violations of SMCRA, it 
is not clear that this term, as used in the Texas proposal, includes 
SMCRA's implementing Federal regulations, SMCRA-approved Federal 
programs, and all SMCRA-approved State programs, not just the Texas 
program. In its June 8, 1993 letter to Texas, OSM requested Texas to 
clarify whether the term ``Federal Act'' included SMCRA's implementing 
Federal regulations, SMCRA-approved Federal programs, and all SMCRA-
approved State programs. In its submittal of July 8, 1993, Texas 
responded that inclusion of information on such violations in permit 
applications is not necessary because section 21(b) of TSCMRA and TCMR 
786.215 (e)(1) and (g) allow the regulatory authority to consider other 
available information in making its decision regarding a permit 
application.
    The Federal regulation at 30 CFR 778.14(c) does not provide any 
exception to the requirement that violations of the specified laws 
rules and regulations be included in a permit application. In addition, 
section 510(c) of SMCRA requires that ``any and all'' such violations 
be listed. There is no exception for information that may be available 
to the regulatory authority from other sources.
    The Director's second concern with proposed TCMR 778.116(m) relates 
to the phrase ``of any law, rule or regulation of the United States, or 
of any State law, rule or regulation enacted pursuant to Federal law, 
rule or regulation pertaining to air or water environmental 
protection'' (emphasis added). In its June 8, 1993 letter to Texas, OSM 
observed that, in its proposals, Texas sometimes capitalizes the word 
``State.'' OSM requested Texas to clarify whether or not the State 
intended the word ``State'' to have different meanings, depending upon 
whether or not it was capitalized in any particular proposed provision. 
In its submittal of July 8, 1993, Texas responded that the word 
``State,'' when capitalized, refers to Texas and, when uncapitalized, 
refers to all States within the United States of America. Therefore, 
the word ``State'' in the phrase ``of any law, rule or regulation of 
the United States, or of any State law, rule or regulation enacted 
pursuant to Federal law, rule or regulation pertaining to air or water 
environmental protection'' limits the applicable violations that must 
be included in a permit application to those incurred in Texas.
    In its July 8, 1993 submittal, Texas indicated that its proposed 
regulation at TCMR 778.116(m) limited the information regarding 
violations that must be included in a permit application to violations 
incurred within the State of Texas because section 21(c) of TSCMRA is 
similarly limited in scope. Section 21(c) of TSCMRA requires a permit 
application to include a listing of ``notices of violations of this Act 
and any law, rule, or regulation of the United States, or the State of 
Texas, or of any department or agency in the United States pertaining 
to air or water environmental protection incurred by the applicant in 
connection with any surface coal mining operation within the state * * 
*'' (emphasis added).
    This limitation of section 21(c) of TSCMRA is inconsistent with 
section 510(c) of SMCRA and OSM's interpretation of the phrase ``any 
department or agency in the United States'' included in that section of 
SMCRA. The preamble to the Federal regulations at 30 CFR 778.14 states 
that

    [t]he phrase ``in the United States'' is construed by courts to 
mean physically located within the United States * * *. Therefore, 
the preferred way to read section 510(c) is to construe ``department 
or agency in the United States'' to mean any governmental department 
or agency'' physically located in the United States, which would 
include State and local governmental entities

(44 FR 14902, 15023, March 13, 1979). This includes the State and local 
governmental entities of all States, not just those within the State in 
which the permit application is submitted.
    In conclusion, the Director finds that Texas' proposed regulation 
at TCMR 778.116(m) is less effective than the corresponding regulation 
at 30 CFR 778.14(c) in meeting SMCRA's requirements and less stringent 
than section 510(c) of SMCRA because it does not require permit 
applications to include information regarding (1) violations received 
pursuant to SMCRA's implementing Federal regulations, SMCRA-approved 
Federal programs, and SMCRA-approved State programs, other than the 
Texas program, and (2) air or water environmental protection violations 
received pursuant to State laws, rules or regulations enacted pursuant 
to Federal laws, rules, or regulations and incurred by the applicant 
outside of the State of Texas. The Director approves proposed TCMR 
778.116(m) but requires Texas to revise it or otherwise modify its 
program to provide that a permit application must include information 
on (1) violations received pursuant to SMCRA's implementing Federal 
regulations, SMCRA-approved Federal programs, and all SMCRA-approved 
State programs, not just the Texas program and (2) air or water 
environmental protection violations received pursuant to State laws, 
rules or regulations enacted pursuant to Federal laws, rules, or 
regulations and incurred by the applicant in any State, not just Texas.
    The Director also finds that section 21(c) TSCMRA is less stringent 
than section 510(c) of SMCRA because it limits the information 
regarding violations that must be included in a permit application to 
those that occur in Texas. Therefore, the Director requires Texas to 
revise section 21(c) of TSCMRA to remove the words ``within the state'' 
from the phrase ``in connection with any surface coal mining operation 
within the state during the three-year period'' in the first sentence 
of section 21(c).

3. TCMR 786.215(e)(1), (f), and (g), and 786.216(i), Review of Permit 
Applications

(a) TCMR 786.215(e)(1)
    Proposed TCMR 786.215(e)(1) provides, in part, that,

    [i]f the Commission determines from either the schedule 
submitted as part of an application * * * or from other available 
information concerning Federal and State failure-to-abate cessation 
orders, unabated Federal and State imminent harm cessation orders, 
delinquent civil penalties issued pursuant to the Act or Federal Act 
or Federally-approved coal regulatory program, bond forfeitures 
where violations upon which the forfeitures were based have not been 
corrected, delinquent abandoned mine reclamation fees, and unabated 
violations of Federal and any state laws, rules, and regulations 
pertaining to air or water environmental protection incurred in 
connection with any surface coal mining and reclamation operation 
owned or controlled by either the applicant or by any person who 
owns or controls the applicant is currently in violation of the Act 
or any other law, rule, or regulation referred to in this paragraph

(emphasis added).
    Proposed TCMR 786.215(e)(1) differs from the corresponding Federal 
requirements at 30 CFR 773.15(b)(1) in three ways. First, as discussed 
in finding No. 2, Texas has stated that the word ``State,'' when 
capitalized, refers to the State of Texas and, when uncapitalized, 
refers to all States within the United States of America. Thus, the 
reference in Texas' proposal to ``Federal and State failure-to-abate 
cessation orders [and] unabated Federal and State imminent harm 
cessation orders'' is limited to cessation orders incurred in Texas. 
Therefore, Texas' proposal is inconsistent with the Federal 
requirements at 30 CFR 773.15(b)(1), which require the regulatory 
authority to consider information on cessation orders incurred in all 
States, not just Texas.
    Second, proposed TCMR 786.215(e)(1) requires the Commission to 
consider, as a basis for permit denial, information on ``delinquent 
civil penalties issued pursuant to the Act or Federal Act or federally-
approved coal regulatory program.'' The corresponding Federal 
regulation at 30 CFR 773.15(b)(1) requires the regulatory authority to 
consider, as a basis for permit denial, among other things, information 
concerning delinquent civil penalties issued pursuant to ``the Act,'' 
meaning SMCRA. The preamble to 30 CFR 778.14(c) (53 FR 38868, 38882-
38883, October 3, 1988; also 48 FR 44344, 44389, September 28, 1983) 
explains that the reference to the ``Act'' in section 510(c) of SMCRA, 
on which the Federal regulation is based, includes, in addition to 
SMCRA, SMCRA's implementing Federal regulations and all Federal and 
State programs approved under SMCRA (53 FR 38868, 38882-38883, October 
3, 1988).
    As discussed in finding No. 2, Texas defines the term ``Act'' to 
mean 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 (SMCRA, Pub. L. 95-87). In its submittal dated 
February 8, 1993, Texas stated that it interprets the phrase ``the 
Federal Act or federally-approved coal regulatory program'' in TCMR 
786.215(e)(1) to include available information concerning delinquent 
civil penalties issued pursuant to any OSM Federal programs, or any 
SMCRA-approved State programs other than the Texas program, as a basis 
for permit denial.
    On the basis of this interpretation, proposed TCMR 786.215(e)(1) is 
no less effective than 30 CFR 773.15(b)(1) because it requires that the 
Commission consider, as a basis for permit denial, information 
concerning delinquent civil penalties issued pursuant to the Texas 
program, SMCRA, SMCRA's implementing Federal regulations, SMCRA-
approved Federal programs, and all SMCRA-approved State programs, not 
just the Texas program.
    Third, proposed TCMR 786.215(e)(1) also provides, in part, that 
``[i]n the absence of a failure-to-abate cessation order, the 
Commission may presume that a notice of violation issued pursuant to 
Section .681 or under a Federal or State program has been or is being 
corrected to the satisfaction of the agency with jurisdiction over the 
violation * * *.'' This proposed language includes the same 
requirements as the Federal provisions at 30 CFR 773.15(b)(1). However, 
on May 21, 1992 (57 FR 21600, 21602), the Director deferred decision on 
this provision of TCMR 786.215(e)(1) because the Secretary of the 
Interior, in National Wildlife Federation v. Lujan, Civ. Nos. 88-3117, 
et seq. (Consolidated, D.D.C. filed October 27, 1988), had expressed an 
intention to reconsider the issue of whether, in the absence of a 
failure-to-abate cessation order, the regulatory authority may presume 
that a notice of violation has been or is being corrected, as set forth 
in the Federal regulation (Memorandum of Points and Authorities In 
Support of the Federal Defendants' Cross-Motion For Summary Judgment 
and In Opposition to Plaintiffs' Motions For Summary Judgment, pp. 89-
90). The final resolution of this reconsideration is pending.
    In conclusion, the Director finds that proposed TCMR 786.215(e)(1) 
is less stringent than section 510(c) of SMCRA and less effective in 
meeting SMCRA's requirements than the corresponding Federal regulation 
at 30 CFR 773.15(b)(1) to the extent that it does not require the 
Commission to consider information on cessation orders incurred in 
States other than Texas. The Director requires Texas to revise TCMR 
786.215(e)(1) to require the Commission to additionally consider, as a 
basis for permit denial, information on cessation orders issued by 
States other than Texas. With the exception of the part of proposed 
TCMR 786.215(e)(1) that addresses the presumption that, in the absence 
of a failure-to-abate cessation order, a notice of violation has been 
or is being corrected, the Director approves proposed TCMR 
786.215(e)(1). On the part of TCMR 786.215(e)(1) that addresses this 
presumption, the Director continues to defer decision.
(b) TCMR 786.215(f) and 786.216(i)
    Proposed TCMR 786.215(f) provides, in part, that,

[b]efore 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 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 or State laws as used in 30 CFR 
773.15(b), no permit shall be issued and a hearing shall be held.

    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 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). This 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.
    The Director has three concerns with proposed TCMR 786.215(f). 
First, as discussed in finding No. 2, Texas stated in its submittal of 
July 7, 1993, that the word ``State,'' when capitalized, means the 
State of Texas and, when uncapitalized, means all States within the 
United States of America. Because proposed TCMR 786.215(f) uses the 
term ``State laws'' in the phrase ``Federal or State laws as used in 30 
CFR 773.15(b),'' the Commission would be required to consider 
violations of the applicable laws, rules, and regulations of Texas, but 
not of other States. This is inconsistent with the corresponding 
Federal regulation at 30 CFR 773.15(b)(3) that requires consideration 
of the specified violations incurred in all States.
    Second, the proposed regulation does not explicitly require denial 
of a permit once the Commission makes a determination that a pattern of 
willful violations exists. Instead, the proposed rule only requires 
that a permit not be issued and a hearing held ``before any final 
determination by the Commission.'' Accordingly, the State proposal is 
less effective than the Federal regulation at 30 CFR 773.15(b)(3), 
which does explicitly require denial of a permit once the regulatory 
authority makes a finding that a pattern of willful violation exists.
    Third, another Texas regulation directly related to proposed TCMR 
786.215(f) is inconsistent with proposed TCMR 786.215(f) and the 
Federal requirements at 30 CFR 773.15(b)(3). TCMR 786.216(i), like 
proposed TCMR 786.215(f), addresses permit denial based upon the 
existence of a pattern of willful violations. However, the scope of 
TCMR 786.215(i) is more limited than the scope of proposed TCMR 
786.215(f).
    TCMR 786.216(i) prohibits Commission approval of a permit only if 
the applicant or the operator, if other than the applicant, controls or 
has controlled operations with a pattern of willful violations. By 
comparison, proposed TCMR 786.215(f) and the Federal regulations at 30 
CFR 773.15(b)(3) encompass, in addition to the applicant and the 
operator, anyone who owns or controls the applicant. In addition, TCMR 
786.216(i) only addresses violations of TSCMRA. It does not encompass 
violations of SMCRA, SMCRA's implementing Federal regulations, SMCRA-
approved Federal programs, and SMCRA-approved State programs. 
Therefore, existing TCMR 786.216(i) is inconsistent with proposed TCMR 
786.215(f) and is less effective than the Federal regulations at 30 CFR 
773.15(b)(3).
    In conclusion, the Director finds that proposed TCMR 786.215(f) is 
less stringent than section 510(c) of SMCRA and less effective than the 
corresponding Federal regulation at 30 CFR 773.15(b)(3) in meeting 
SMCRA's requirements because the proposed provision (1) does not 
specifically require denial of a permit when the Commission determines 
that a pattern of willful violations exists and (2) does not require 
the Commission to consider violations of the applicable laws, rules, 
and regulations of States other than Texas. The Director does not 
approve proposed TCMR 786.215(f) and requires Texas to revise it to 
prohibit issuance of a permit whenever the Commission makes a 
determination 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 TSCMRA, SMCRA, SMCRA's 
implementing Federal regulations, SMCRA-approved Federal programs, and 
all SMCRA-approved State programs, not just the Texas program, of such 
nature, duration, and with such resulting irreparable damage to the 
environment, as to indicate an intent not to comply with these laws, 
rules, and regulations.
    In addition, because TCMR 786.216(i) creates internal 
inconsistencies in the Texas program and it is less effective than the 
Federal regulations at 30 CFR 773.15(b)(3) in meeting SMCRA's 
requirements, the Director requires Texas to delete TCMR 786.216(i) or 
revise it to be no less effective than the Federal requirements in 
meeting SMCRA's requirements.
(c) TCMR 786.215(g)
    Proposed TCMR 786.215(g) requires the Commission, prior to issuing 
a permit, to review and consider, under the criteria of TCMR 
786.215(e)(1), any new compliance information submitted pursuant to 
TCMR 778.116 (i) and (n). If the applicant fails or refuses to respond 
as required, or if the new information shows that the applicant, anyone 
who owns or controls the applicant, or the operator is in violation, 
the Commission must deny the permit.
    Under the Federal regulation at 30 CFR 773.15(b)(1), the regulatory 
authority cannot issue a permit if any surface coal mining and 
reclamation operation owned or controlled by either the applicant or by 
any person who owns or controls the applicant is currently in violation 
of SMCRA or certain other laws and regulations. The Federal regulation 
at 30 CFR 773.15(e), which corresponds to proposed TCMR 786.215(g), 
requires that after an application is approved, but before a permit is 
issued, the regulatory authority must reconsider its decision to 
approve the application, based upon the compliance review required by 
30 CFR 773.15(b)(1), in light of any new information submitted pursuant 
to 30 CFR 778.13(i) and 778.14(d).
    Because proposed TCMR 786.215(g) requires the Commission, after an 
application is approved but before the permit is issued, to conduct a 
final compliance review in accordance with TCMR 786.215(e)(1), the 
Director finds that proposed TCMR 786.215(g) is no less effective than 
the corresponding Federal regulation at 30 CFR 773.15(e). The Director 
approves TCMR 786.215(g) and removes the required amendment at 30 CFR 
943.16(g).

4. TCMR 788.225 (e) and (f), Commission Review of Outstanding Permits

(a) TCMR 788.225(e)
    Proposed TCMR 788.225(e) requires the Commission to review a permit 
under the authority of section 22(c) of TSCMRA when it has reason to 
believe that the permit was improvidently issued. The Commission must 
find, after notice and opportunity for a hearing, that the permit was 
improvidently issued if the conditions set forth at TCMR 788.225(e) (1) 
through (3) are met.
    The corresponding Federal regulation at 30 CFR 773.20(a) provides, 
in part, that a regulatory authority that has reason to believe that it 
improvidently issued a surface coal mining and reclamation permit must 
review the circumstances under which the permit was issued, using the 
criteria at 30 CFR 773.20(b). The Federal regulations at 30 CFR 
773.20(b) require the regulatory authority to make a finding that a 
permit was improvidently issued when the conditions specified at 30 CFR 
773.20(b) (1) through (3) are met.
    Proposed TCMR 788.225(e) includes the phrase ``under the authority 
of Section 22(c) of the Act.'' In its June 8, 1993, letter to Texas, 
OSM requested that Texas clarify the meaning of this phrase. In its 
July 8, 1993, submittal, Texas responded that the phrase merely cited 
the section of TSCMRA that provides the basis for Commission review of 
a final order which issued a permit. Section 22(c) of TSCMRA requires 
the Commission to review outstanding permits and allows it to require 
reasonable revisions or modifications of the permit provisions. On the 
basis of this explanation, this part of proposed TCMR 788.225(e) is no 
less effective than the Federal regulations at 30 CFR 773.20(a) and (b) 
because it requires a review of an outstanding permit any time the 
Commission has reason to believe that the permit was improvidently 
issued.
    Proposed TCMR 788.225(e) does not specifically identify the 
violations review criteria that the Commission will use to determine 
whether a permit was improvidently issued. In its June 8, 1993, letter 
to Texas, OSM requested that Texas identify the permit review criteria 
that would be used. As OSM noted, the Federal regulations contain only 
the procedures the regulatory authority must employ to determine 
whether a surface coal mining and reclamation permit was improvidently 
issued. The preamble to the Federal regulation at 30 CFR 773.20 
specifies certain review and decision criteria (including effective 
dates relative to various types of violations, penalties, and fees) 
that apply in all Federal and State cases (54 FR 18438, 18440-18441, 
April 28, 1989). Texas responded in its July 8, 1993, submittal that it 
intends to apply the same permit review criteria that are applied by 
the Federal rules. Thus, Texas has adopted the minimum violation review 
criteria specified by the Federal regulations. Texas has not specified 
the actual calendar dates on which each of the criteria became or will 
become effective. Therefore, at the time a review is conducted, Texas 
must specify criteria and effective dates corresponding with those of 
the Federal regulations. On this basis, this part of proposed TCMR 
788.225(e) is no less effective than the Federal regulations at 30 CFR 
773.20(a) and (b) in meeting SMCRA's requirements.
    Proposed TCMR 788.225(e)(1)(B) provides that the Commission shall 
review a permit if ``[t]he permit was issued on the information that a 
notice of violation was in the process of being corrected to the 
satisfaction of the agency with jurisdiction over the violation * * 
*.'' This proposed language is substantively identical to the 
corresponding Federal regulation at 30 CFR 773.20(b)(1)(ii). However, 
this subsection relates to the same presumption issue discussed in 
finding No. 3(a). On May 21, 1992 (57 FR 21600, 21602), the Director 
deferred decision on this provision of TCMR 788.225(e) because the 
Secretary had indicated an intention to reconsider the corresponding 
Federal regulation at 30 CFR 773.20(b)(1)(ii) in addition to 30 CFR 
773.15(b)(1)(i) (Memorandum of Points and Authorities, p. 124). The 
final resolution of this reconsideration is pending.
    For the aforementioned reasons, and with the exception of 
subsection TCMR 788.225(e)(1)(B) which allows the Commission to presume 
that a notice of violation has been or is being corrected in the 
absence of a failure-to-abate cessation order, the Director finds that 
proposed TCMR 788.225(e) is no less effective than 30 CFR 773.20(a) and 
(b), approves it, and removes the required amendments at 30 CFR 
943.16(h)(1), (i)(1) and (i)(2). The Director continues to defer 
decision on proposed TCMR 788.225(e)(1)(B).
(b) TCMR 788.225(f)
    Proposed TCMR 788.225(f) requires that if the Commission, under 
TCMR 788.225(e), finds that a permit was improvidently issued, it shall 
use one or more of the following three remedial measures specified at 
TCMR 788.225(f)(1) through (3):

    (1) Implement, with the cooperation of the permittee or other 
person responsible, and of the responsible agency, a plan for 
abatement of the violation or a schedule for payment of the penalty 
or fee;
    (2) Require revision of the permit to impose a condition that in 
a reasonable period of time the permittee abate the violation or pay 
the penalty or fee;
    (3) Issue a show cause order to suspend or revoke the permit 
based upon its improvident issuance in accordance with [the 
Administrative Procedures and Texas Register Act (APTRA)]. A 
decision on suspension shall be made within ninety days and a 
decision on rescission shall be made within a further ninety days.

    The corresponding Federal regulation at 30 CFR 773.20(c) requires a 
regulatory authority, when it finds that a permit was improvidently 
issued, to use one or more of the four remedial measures specified at 
30 CFR 773.20(c)(1) through (4).
    The remedial measure proposed by Texas at TCMR 778.225(f)(1) and 
(2) are almost identical to the counterpart Federal provisions at 30 
CFR 773.20(c)(1) and (2). They differ only in that under TCMR 
778.225(f)(2) the Commission can impose a condition on a permit that, 
in a reasonable amount of time, the ``permittee'' abate the violation 
or pay the penalty or fee, whereas the Federal regulation at 30 CFR 
773.20(c)(2) allows the same permit condition for the ``permittee or 
other persons responsible'' to abate the violations or pay the penalty 
or fee. Texas' proposal to make the permittee solely responsible for 
the violation abatement or payment is no less effective than the 
Federal regulations at 30 CFR 773.20(c)(2).
    The Director has two concerns with the remainder of proposed TCMR 
778.225(f). First, proposed TCMR 788.225(f) does not include provisions 
corresponding to the Federal remedial measures at 30 CFR 773.20(c)(3). 
This remedial measure allows the regulatory authority to suspend the 
permit until the violation is abated or the penalty or fee is paid. 
This possible remedial measure is separate and distinct from the one at 
30 CFR 773.20(c)(4) that allows the regulatory authority to rescind the 
permit in accordance with 30 CFR 773.21. The Federal regulation at 30 
CFR 773.21 provides for permit suspension in connection with the 
rescission process provided for by that regulation.
    The preamble to the Federally regulations makes clear that the 
suspension referred to in 30 CFR 773.21 is separate and distinct from 
the suspension revered to in 30 CFR 773.20(c)(3). The suspension 
referred to at 30 CFR 773.21 is merely a preliminary step in the permit 
rescission process; OSM stated that it was providing for the permit 
suspension at 30 CFR 773.20(c)(3) as a separate possible remedial 
action ``to give a regulatory authority discretion to tailor a 
suspension to the unique circumstances involving a particular permit * 
* *'' (54 FR 18438, 18450; April 28, 1989). OSM also stated that

    Section 773.20(c)(3) does not set out specific suspension 
procedures, but allows the regulatory authority to use any 
appropriate procedures that are consistent with the regulatory 
program, including a reasonable period of time between notifying a 
permittee of a suspension and when the suspension becomes effective

(54 FR 18438, 18450, April 28, 1989).
    Proposed TCMR 788.225(f)(3) appears to be a counterpart provision 
to the Federal regulations at 30 CFR 773.20(c)(4) and 773.21. That is, 
Texas' proposed possible remedially measure involving a show cause 
order to suspend or revoke a permit seems to corespond to the Federal 
provisions at 30 CFR 773.20(c)(4) and 773.21 for permit rescission. 
Texas has not proposed any counterpart provision to the Federal 
regulation at 30 CFR 773.20(c)(3) for permit suspension as a possible 
remedial measure. The preamble to 30 CFR 773.20(c) explains that four 
alternative remedial measures are provided ``because of the diversity 
of circumstances under which a regulatory authority might find that a 
permit was improvidently issued, and the resulting need to apply a 
remedy that not only is administratively appropriate, but also is fair 
and equitable to the permitted'' (54 FR 18438, 18447, April 28, 1989).
    Since the availability of various possible remedial measures is a 
matter bearing upon procedural rights and remedies, the State proposal 
must be evaluated from the point of view of is similarity to the 
Federal rules in affording rights and remedies to persons (46 FR 53376, 
53377, October 28, 1981). To the extent Texas' proposal does not 
provide any counterpart provision to 30 CFR 773.20(c)(3), it fails to 
afford rights and remedies to persons similar to those afforded under 
the Federal regulations. Accordingly, the Director finds that proposed 
TCMR 788.225(f) is less effective than the Federal regulations in 
meeting SMCRA's requirements insofar as the State proposal fails to 
provide a counterpart provision to 30 CFR 773.20(c)(3).
    Second, proposed TCMR 788.225(f)(3) differs considerably from and 
is less effective in meeting SMCRA's requirements than the Federal 
counterpart provisions at 30 CFR 773.20(c)(4) and 773.21. While the 
Federal regulation at 30 CFR 773.21 sets forth detailed procedures 
governing rescission of a permit pursuant to 30 CFR 773.20(c)(4), 
proposed TCMR 788.225(f)(3) merely states that a possible remedial 
measure is to

    [i]ssue a show cause order to suspend or revoke the permit based 
upon its improvident issuance in accordance with APTRA. A decision 
on suspension shall be made within ninety days and a decision on 
rescission shall be made within a further ninety days.

    In its letter to the State dated June 8, 1993, OSM notified Texas 
that its provision appeared to provide for rescission only through 
formal adjudicative proceedings, as compared to the automatic 
suspension and rescission process provided for in the Federal 
regulations at 30 CFR 773.21(a). Texas explained, in its letter of July 
7, 1993, that because section 13(a) of APTRA, which is part of the 
approved Texas program, requires that all parties in a contested case 
have the opportunity for an adjudicative hearing before legal rights, 
duties or privileges are determined, the suspension or revocation of 
permits cannot be automatic. Texas further explained that proposed TCMR 
788.225(f)(3) provides that decisions on suspension and rescission of 
permits must be made within the same time periods as required by the 
Federal provisions.
    Although the concept of providing for a formal adjudicative 
proceeding in connection with permit suspension and revocation 
proceedings does not, by itself, render proposed TCMR 788.225(f)(3) 
less effective than the Federal regulations at 30 CFR 773.21(a) in 
meeting SMCRA's requirements, there are ambiguities and deficiencies 
with the State proposal that do render it less effective than the 
Federal counterpart regulations.
    First, although Texas states that its proposal provides for the 
same time periods as the corresponding Federal provisions, it is not 
clear that the Texas proposal does so. The Texas proposal only states 
when a ``decision'' regarding permit suspension and revocation will be 
made. It does not discuss when such a decision will become effective 
and the permit will actually be suspended or rescinded. Although the 
proposal would require Texas to make a ``decision'' on permit 
suspension and rescission within the specified time periods, the 
effective date of the suspension and rescission could occur beyond the 
specified time periods. By comparison, the Federal regulation at 30 CFR 
773.21(a) provides for the suspension of a permit to become effective 
on a specified date not to exceed 90 days after notice is served on the 
permittee and for the rescission of the permit to become effective 
within a specified period not to exceed 90 days after the suspension is 
effective.
    It also is not clear that the specified time periods in the State 
proposal are the same as those in the Federal regulations. The Federal 
regulation at 30 CFR 773.21(a) requires that ``[a]fter a specified 
period of time not to exceed 90 days [after service of the notice of 
permit suspension and rescission] the permit automatically will become 
suspended, and not to exceed 90 days thereafter rescinded'' (emphasis 
added) unless, within those time frames, the permittee submits proof 
and the regulatory authority makes findings on certain matters 
specified at 30 CFR 773.21(a)(1) through (4). By comparison, the State 
proposal merely states that a decision on suspension will be made 
``within ninety days'' and a decision on rescission will be made 
``within a further ninety days.''
    Under the Federal regulations, the regulatory authority has the 
ability to specify any particular period of time in its notice of 
permit suspension and rescission, as long as the specified time period 
does not exceed 90 days. That is, the regulatory authority has the 
flexibility and discretion to suspend and rescind the permit very 
rapidly if deemed appropriate. Because Texas has indicated that it must 
follow its adjudicative procedures for permit suspension and rescission 
under this State rule but has not indicated the time periods associated 
with those procedures, it is not clear that Texas retains similar 
flexibility and discretion under its proposal.
    In addition, the Federal regulations explicitly detail at 30 CFR 
773.21(a)(1) through (4) the matters upon which the permittee must 
submit proof, and the findings the regulatory authority must make, in 
order to prevent permit suspension and rescission. If the permittee 
fails to submit proof or the regulatory authority fails to make 
findings on such specified matters, the permit must be suspended and 
rescinded. Moreover, the Federal regulations explicitly require that 
the permittee be given advance notice of those necessary matters of 
proof and required findings. The Texas proposal contains no such 
requirements.
    Similarly, proposed TCMR 788.225(f) does not address the cessation 
of operations once a permit is suspended or rescinded. By comparison, 
the Federal regulation at 30 CFR 773.21(b) explicitly requires that 
after a permit is suspended or rescinded, all surface coal mining and 
reclamation operations being conducted under that permit must cease, 
except for violation abatement and for reclamation and other 
environmental protection measures as required by the regulatory 
authority. Permit suspension or rescission must not preclude the 
operator from completing such required operations. Again, Texas' 
proposal contains no counterpart provision.
    In conclusion, the Director finds that proposed TCMR 788.225(f) is 
less effective than the corresponding Federal regulations at 30 CFR 
773.20(c) and 773.21 (a) and (b) because it does not (1) include, as a 
counterpart to 30 CFR 773.20(c)(3), another possible remedial measure 
for improvidently issued permits that allows suspension of the 
improvidently issued permit until the violation is abated or the 
penalty or fee is paid, (2) specify the conditions no less effective 
than those at 30 CFR 773.21(a) (1) through (4) that must be met in 
order to prevent suspension or rescission an improvidently issued 
permit, (3) require that after a permit is suspended or rescinded, the 
only surface coal mining and reclamation operations that may continue 
to be conducted are those required for violation abatement and those 
required for completion of reclamation and other environmental 
protection measures as specified by the Commission, and (4) provide for 
the same time periods as those specified in the Federal regulations at 
30 CFR 773.21, require that a decision to suspend or rescind an 
improvidently issued permit must become effective within these 
specified time periods, or allow the Commission sufficient flexibility 
and discretion to suspend and rescind a permit rapidly when it is 
appropriate. Accordingly, the Director does not approve proposed 
subparagraph TCMR 788.225(f)(3).
    With the exception of subparagraph (f)(3), the Director approves 
proposed TCMR 788.225(f). The Director requires Texas to further revise 
TCMR 788.225(f) to (1) include, as a counterpart to 30 CFR 
773.20(c)(3), another possible remedial measure for improvidently 
issued permits that allows suspension of the improvidently issued 
permit until the violation is abated or the penalty or fee is paid, (2) 
specify the conditions no less effective than those at 30 CFR 773.21(a) 
(1) through (4) that must be met in order to prevent suspension or 
rescission an improvidently issued permit, (3) require that, after a 
permit is suspended or rescinded, the only surface coal mining and 
reclamation operations that may continue to be conducted under that 
permit are those required by the Commission for violation abatement and 
for completion of reclamation and other environmental protection 
measures, and (4) provide for the same time periods as those specified 
in the Federal regulations at 30 CFR 773.21, require that a decision to 
suspend or rescind an improvidently issued permit must become effective 
within these specified time periods, and allow the Commission 
sufficient flexibility and discretion to suspend and rescind a permit 
rapidly when it is appropriate. Because the Director is revising 30 CFR 
943.16(j) to require that TCMR 788.225(f) be revised as discussed 
above, the Director removes the required amendment to 30 CFR 
943.16(h)(2).

5. TCMR 843.680(c), Cessation Orders

    Proposed TCMR 843.680(c) sets forth the minimum information that 
must be specified in a cessation order issued under the provisions of 
TCMR 843.680 (a) or (b), including (1) the nature of the violation, (2) 
the remedial action or affirmative obligation required, if any, 
including interim steps, if appropriate, (3) the time established for 
abatement, if appropriate, including the time for meeting any interim 
steps, and (4) a reasonable description of the portion of the coal 
exploration or surface coal mining and reclamation operation to which 
it applies.
    Proposed TCMR 843.680(c) also requires that (1) a cessation order 
shall remain in effect until the condition, practice, or violation has 
been abated or until vacated, modified or terminated in writing by an 
authorized representative of the Commission, and (2) the Commission, 
within 60 days after issuing a cessation order, shall notify in writing 
any person who has been identified as owning or controlling the 
permittee that the cessation order was issued and that the person has 
been identified as an owner or controller.
    The provisions of proposed TCMR 843.680(c) are similar to the 
corresponding Federal provisions at 30 CFR 843.11 (c) and (g), with 
three exceptions. Proposed TCMR 843.680(c) requires a cessation order 
to set forth, among other things, ``the nature of the violation.'' The 
corresponding Federal regulations at 30 CFR 843.11(c) require a 
cessation order to set forth ``the nature of the conditions, practice 
or violation.'' This difference in wording is not substantive. Section 
521(a)(5) of SMCRA requires a cessation order to set forth ``the nature 
of the violation'' and OSM's original program at 30 CFR 843.11(c) had 
the same requirement (44 FR 14902, 15458, March 13, 1979). 
Subsequently, the words ``condition, practice or'' were added to the 
phrase ``the nature of the violation'' (47 FR 35620, 35630, August 16, 
1982). The preamble to that rulemaking states that, except for 
paragraph (a)(2), section 843.11 was promulgated as proposed, and 
further indicates that the promulgated changes were made to more 
closely reflect the provisions for cessation orders contained in 
section 521 of SMCRA (47 FR 35620, 35630, August 16, 1982). OSM stated 
in the proposed rule that it was proposing various language changes 
throughout 30 CFR 843.11(c) for clarity and that no changes in effect 
were intended (46 FR 58464, 58467, December 1, 1981).
    The requirements of SMCRA at section 521(a)(5) to set forth in a 
cessation order ``the nature of the violation'' and of the Federal 
regulations at 30 CFR 843.11(c) to set forth ``the nature of the 
condition, practice or violation'' are both, in effect, requirements to 
explain to the permittee, in writing, why cessation of operations is 
being ordered. The omission of the words ``condition, practice or'' 
from the requirements at TCMR 843.680(c) does not relieve the 
Commission or its representatives from including in the cessation order 
the reason for the order, regardless of whether the reason is a 
condition, practice, violation, or a combination of thereof. Therefore, 
to the extent that it requires a cessation order to include the reasons 
for the order, whether the reason is a condition, practice, violation, 
proposed TCMR 843.680(c) is no less effective than the requirements of 
the corresponding Federal regulations at 30 CFR 843.11(c) in meeting 
SMCRA's requirements.
    In addition, proposed TCMR 843.680(c) does not require, as do 30 
CFR 843.11(c), section 521(a)(5) of SMCRA, and 30 CFR 843.15, that a 
cessation order expire within 30 days after it is served unless an 
informal public hearing has been held within that time. Texas' 
regulations at TCMR 843.684(a) provide that a cessation order must be 
reviewed at a public hearing within 30 days after it is served, but 
there is no provision for terminating the order if such hearing is not 
held within 30 days. However, consistent with section 521(a)(5) of 
SMCRA, section 32(e) of TSCMRA provides that a cessation order shall 
expire within 30 days of notice unless a public hearing is held. 
Therefore, proposed TCMR 843.680(c), in conjunction with section 32(e) 
of TSCMRA, is no less effective than the Federal regulations at 30 CFR 
843.11(c) and is no less stringent than section 521(a)(5) of SMCRA with 
regard to the expiration of cessation orders.
    The additional requirements that Texas proposed to add at TCMR 
843.680(c), concerning notification of persons identified as owning or 
controlling the permittee, differ from the Federal requirements to 30 
CFR 843.11(g) only to the extent that they do not reference the 
specific Texas regulations that require identification of all persons 
that own or control the permittee. The proposed regulations, instead, 
require notification of ``any person who has been identified as owning 
or controlling a permittee.'' The requirements for identification of 
such persons are found in the Texas program at TCMR 786.221(d) and 
778.116 (c) and (d). These regulations correspond, respectively, to the 
Federal regulations at 30 CFR 773.17(i) and 778.13 (c) and (d).
    Although proposed TCMR 843.680(c) does not specifically reference 
Texas' regulations at TCMR 786.221(d) and 778.116 (c) and (d), which 
provide for the identification of all persons that own or control the 
permittee, it does require notification of ``any person who has been 
identified as owning or controlling a permittee.'' Because the only 
regulations in the Texas program that address the identification of 
persons who own or control the permittee, are TCMR 786.221(d) and 
778.116 (c) and (d), there should be no confusion as to who must be 
notified. Therefore, to the extent that Texas' use of the phrase ``any 
person who has been identified as owning or controlling the permittee'' 
at proposed TCMR 843.680(c) means the persons identified pursuant to 
the requirements at TCMR 786.221(d) and 778.116 (c) and (d), Texas' 
proposed rule is consistent with the Federal regulations at 30 CFR 
843.11(g).
    For the aforementioned reasons, the Director finds that proposed 
TCMR 843.680(c) is no less effective than the corresponding Federal 
regulations at 30 CFR 843.11 (c) and (g) in meeting SMCRA's 
requirements and approves it.

IV. Summary and Disposition of Comments

1. Public Comments

    OSM solicited public comments and provided opportunity for a public 
hearing on the proposed amendment. No comments were received from the 
public. Because no one requested an opportunity to testify at a public 
hearing, no hearing was held.

2. Agency Comments

    Pursuant to section 503(b)(1) of SMCRA and 30 CFR 732.17(h)(11)(i), 
OSM solicited comments from the Administrator of the Environmental 
Protection Agency (EPA) and various other Federal agencies with an 
actual or potential interest in the Texas program.
    The Soil Conservation Service, Forest Service, Bureau of Mines, and 
National Park Service responded that they had no comments concerning 
the proposed amendment (Administrative Record Nos. TX-544, TX-545, TX-
546 and TX-571, and TX-549).
    The U.S. Army Corps of Engineers responded that it found the 
amendment satisfactory to that agency (Administrative Record No. TX-
548).
    The Bureau of Land Management responded that it could suggest no 
additional improvements to the ownership and control rules 
(Administrative Record No. TX-547).

3. State Historic Preservation Officer (SHPO) and Advisory Council on 
Historic Preservation (ACHP) Comments

    Pursuant to 30 CFR 732.17(h)(4), OSM is required to solicit 
comments from the SHPO and ACHP for all amendments that may have an 
effect on historic properties. The Director solicited comments from 
these offices (Administrative Record No. TX-543). Neither the SHPO nor 
ACHP responded.

4. EPA Concurrence

    Under 30 CFR 732.17(h)(11)(ii), OSM 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.)
    None of the regulation changes that Texas proposed pertain to air 
or water quality standards. Nevertheless, OSM requested EPA's 
concurrence. On October 25, 1993, EPA give its concurrence 
(Administrative Record No. TX-573).

V. Director's Decision

    Based on the above findings, the Director approves, with certain 
exceptions and additional requirements, the proposed amendment as 
submitted by Texas on February 8, 1993, and as revised by it on July 7, 
1993.
    As discussed in finding Nos. 1, 3(c), 4(a), and (5), the Director 
approves (1) TCMR 778.116(l), identification of interests and 
compliance information; (2) TCMR 786.215(e)(2), review of permit 
applications; (3) TCMR 786.215(g), review of permit applications: Final 
compliance review; (4) TCMR 788.225(e), review criteria, except for 
subparagraph TCMR 788.225(e)(1)(B) that allows the Commission to 
presume that a notice of violation has or is being corrected; (5) TCMR 
788.225(g), right of appeal, and (6) TCMR 843.680(c), cessation orders.
    As discussed in finding Nos. 2, 3(a), and 4(b), the Director 
approves but requires Texas to submit further regulatory program 
amendments regarding (1) TCMR 778.116(m), violation information; (2) 
TCMR 786.215(e)(1), review of violations; and (3) TCMR 788.225(f), 
(f)(1), and (f)(2), remedial measures.
    As discussed in finding Nos. 3(b), and 4(b), the Director does not 
approve and requires Texas to submit further regulatory program 
amendments regarding (1) TCMR 786.215(f), permit denial for pattern of 
violations and (2) TCMR 788.225(f)(3), remedial measures.
    As discussed in finding Nos. 2 and 3(b), the Director requires 
Texas to (1) revise section 21(c) of TSCMRA to remove the words 
``within the state'' from the phrase ``in connection with any surface 
coal mining operation within the state during the three-year period'' 
in the first sentence of section 21(c) and (2) either delete TCMR 
786.216(i) or revise it to be no less effective than the Federal 
requirements at 30 CFR 773.15(b)(3).
    As discussed in finding Nos. 3(a) and 4(a), the Director defers 
decision on proposed TCMR 786.215(e)(1) and 788.225(e)(1)(B) to the 
extent that these subsections allow the Commission to presume that a 
notice of violation has been or is being corrected in the absence of a 
failure-to-abate cessation order. In response to litigation, the 
Secretary has indicated an intention to reconsider this presumption 
issue in the corresponding Federal regulations.
    In accordance with 30 CFR 732.17(f)(1), The Director is also taking 
this opportunity to clarify in the required amendment section at 30 CFR 
943.16 that, within 60 days of the publishing of this notice, Texas 
must either submit a proposed written amendment, or a description of an 
amendment to be proposed that meets the requirements of SMCRA and 30 
CFR Chapter VII and a timetable for enactment that is consistent with 
Texas' established administrative or legislative procedures.
    To implement this decision, the Director is amending the Federal 
regulations at 30 CFR part 943 that codify all decisions concerning the 
Texas program. 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. Thus, any changes to the State program are not enforceable 
until approved by OSM. 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

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 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 14, 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 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 (i) to read as 
follows:


943.15  Approval of regulatory program amendments.

* * * * *
    (i) With the exceptions of TCMR 786.215(e)(1), review of 
violations, to the extent that it allows the Commission to presume that 
a notice of violation has been or is being corrected; TCMR 786.215(f), 
permit denial for pattern of violations; TCMR 788.225(e)(1)(B), review 
criteria, to the extent that it allows the Commission to presume that a 
notice of violation has been or is being corrected; and TCMR 
788.225(f)(3), remedial measures, the revisions to 16 Texas 
Administrative Code 11.221, the Coal Mining Regulations of the Railroad 
Commission of Texas, as submitted on February 8, 1993, and as revised 
on July 7, 1993, are approved effective March 21, 1994. Revisions to 
the following regulations are approved:
    TCMR 778.116(l) and (m), identification of interests and compliance 
information.
    TCMR 786.215(e)(1) and (2), review of permit applications.
    TCMR 786.215(g), final compliance review.
    TCMR 788.225(e), (e)(1)(A), (e)(2), and (e)(3), commission review 
of outstanding permits: review criteria.
    TCMR 788.225(f), (f)(1) and (f)(2), commission review of 
outstanding permits: remedial measures.
    TCMR 788.225(g), right of appeal.
    TCMR 843.680(c), cessation orders.
    3. Section 943.16 is amended by revising the introductory 
paragraph, removing and reserving paragraphs (b), (e), (g), (h), and 
(i), revising paragraphs (c), (d), (f), and (j), and adding paragraphs 
(r) and (s), to read as follows:


943.16  Required program amendments.

    Pursuant to 30 CFR 732.17(f)(1), Texas is required to submit to OSM 
by the specified date the following written, proposed program 
amendment, or a description of an amendment to be proposed that meets 
the requirements of SMCRA and 30 CFR Chapter VII and a timetable for 
enactment that is consistent with Texas' established administrative or 
legislative procedures.
* * * * *
    (b) [Reserved]
    (c) By May 20, 1994, Texas shall formally propose an amendment to 
OSM for TCMR 778.116(m) or otherwise modify its program to require a 
permit application to also include information on
    (1) Violations received pursuant to SMCRA's implementing Federal 
regulations, all SMCRA-approved Federal programs (OSM-administered 
Indian lands program and Federal programs for States), and all SMCRA-
approved State programs, not just the Texas program, and
    (2) Air or water environmental protection violations received 
pursuant to any State laws, rules or regulations enacted pursuant to 
Federal laws, rules, or regulations and incurred by the applicant in 
any State, not just Texas.
    (d) By May 20, 1994, Texas shall formally propose an amendment to 
OSM for TCMR 786.215(e)(1) to require the Commission to consider, as a 
basis for permit denial, information on cessation orders issued by 
States other than Texas.
    (e) [Reserved]
    (f) By May 20, 1994, Texas shall formally propose an amendment to 
OSM for TCMR 786.215(f) addressing the review of permit applications to 
require that issuance of permits is specifically prohibited whenever 
the Commission makes a determination 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 TSCMRA, SMCRA, SMCRA's implementing Federal regulations, 
SMCRA-approved Federal programs, and all SMCRA-approved State programs, 
not just the Texas program, of such nature, duration, and with such 
resulting irreparable damage to the environment, as to indicate an 
intent not to comply with these laws, rules, and regulations.
    (g) [Reserved]
    (h) [Reserved]
    (i) [Reserved]
    (j) By May 20, 1994, Texas shall formally purpose an amendment to 
OSM for TCMR 788.225(f), concerning remedial measures for improvidently 
issued permits, or otherwise revise its program to
    (1) Provide, as a counterpart to 30 CFR 773.20(c)(3), another 
possible remedial measure for improvidently issued permits that allows 
suspension of the improvidently issued permit until the violation is 
abated or the penalty or fee is paid,
    (2) Specify the conditions no less effective than those at 30 CFR 
773.21(a) (1) through (4) that must be met in order to prevent 
suspension or rescission of an improvidently issued permit.
    (3) Require that after a permit is suspended or rescinded all 
surface coal mining and reclamation operations being conducted under 
that permit must cease, except for violation abatement and for 
reclamation and other environmental protection measures as required by 
the regulatory authority.
    (4) Provide for the same time periods as those specified in the 
Federal regulations at 30 CFR 773.21, require that a decision to 
suspend or rescind an improvidently issued permit must become effective 
within these specified time periods, and allow the Commission 
sufficient flexibility and discretion to suspend and rescind a permit 
rapidly when it is appropriate.
* * * * *
    (r) By May 20, 1994, Texas shall formally propose to OSM an 
amendment revising section 21(c) of the Texas Surface Coal Mining and 
Reclamation Act to remove the words ``within the state'' from the 
phrase ``inconnection with any surface coal mining operation within the 
state during the three-year period'' in the first sentence of section 
21(c).
    (s) By May 20, 1994, Texas shall formally propose an amendment to 
OSM for TCMR 786.216(i) to either
    (1) Delete TCMR 786.216(i) or
    (2) revise it to specifically prohibit issuance of permits in all 
situations where it is determined 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 violation of TSCMRA, 
SMCRA, SMCRA's implementing Federal regulations, SMCRA-approved Federal 
programs, and the SMCRA-approved programs of all States, of such 
nature, duration, and with such resulting irreparable damage to the 
environment that indicates an intent not to comply with these laws, 
rules, and regulations.

[FR Doc. 94-6495 Filed 3-18-94; 8:45 am]
BILLING CODE 4310-05-M