[Federal Register Volume 59, Number 78 (Friday, April 22, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-9826]


[[Page Unknown]]

[Federal Register: April 22, 1994]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 925

 

Missouri Permanent Regulatory Program

AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM), 
Interior.

ACTION: Final rule; approval of amendment.

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SUMMARY: OSM is announcing approval of a proposed amendment submitted 
by the State of Missouri as a modification to its permanent regulatory 
program (hereinafter, the ``Missouri program'') approved under the 
Surface Mining Control and Reclamation Act of 1977 (SMCRA). The 
amendment was submitted to OSM on September 24, 1993, and addresses 
State statutes concerning civil penalties. The amendment is intended to 
revise the State program to be consistent with the corresponding 
Federal standards.

EFFECTIVE DATE: April 22, 1994.

FOR FURTHER INFORMATION CONTACT:
Jerry R. Ennis, Telephone: (816) 374-6405.

SUPPLEMENTARY INFORMATION:

I. Background on the Missouri Program

    On November 21, 1980, the Secretary of Interior conditionally 
approved the Missouri program. General background information on the 
Missouri program, including the Secretary's findings, the disposition 
of comments, and the conditions of approval of the Missouri program can 
be found in the November 21, 1980, Federal Register (45 FR 77017). 
Subsequent actions concerning Missouri's program and program amendments 
can be found at 30 CFR 925.12, 925.15, and 925.16.

II. Submission of Proposed Amendment

    By letter dated September 24, 1993 (Administrative Record No. MO-
576), Missouri submitted a proposed amendment to its program pursuant 
to SMCRA. Missouri submitted the proposed amendment to its statute to 
satisfy a required program amendment placed on its program and to be 
consistent with the corresponding Federal standards. Missouri proposes 
to amend the Revised Statutes of Missouri (RSMo) at sections 444.870.1 
through 444.870.8, and 444.873.1 through 444.873.4, concerning 
penalties.
    The Director announced receipt of the proposed amendment in the 
October 18, 1993 Federal Register (58 FR 53686) and, in the same 
notice, opened the public comment period and provided opportunity for a 
public hearing on its substantive adequacy. The public comment period 
closed on November 17, 1993. No public hearing was held since none was 
requested.

III. Director's Findings

    Set forth below, pursuant to SMCRA and the Federal regulations at 
30 CFR 732.15 and 732.17, are the Director's findings for the proposed 
amendment submitted by Missouri on September 24, 1993.

1. RSMo 444.870.3, Right to Contest Amount of Penalty or Fact of 
Violation

    Existing RSMo 444.870.3 provides an operator served with notice of 
a violation of the Missouri program an opportunity to contest the 
notice:

    The operator, if he wishes to contest the notice, may within 
thirty days of receipt of the notice request a hearing before the 
commission.

    Missouri proposes to revise its statute at RSMo 444.870.3 by 
replacing the word ``notice,'' in the passage quoted above, with the 
phrase ``either the amount of the penalty or the fact of the 
violation,'' so that the operator may contest the amount of the 
penalty, in addition to or instead of contesting the fact of the 
violation, at the requested hearing. The request for a hearing would 
still have to be accompanied by a penalty bond in the amount of the 
proposed penalty.
    Section 518(c) of SMCRA requires the person charged with the 
penalty to, within 30 days, either pay the proposed penalty in full, 
or, if the person wishes to contest either the amount of the penalty or 
the fact of the violation, forward the proposed amount to the Secretary 
for placement in an escrow account.
    Missouri's proposed revision would provide an operator with the 
same procedural rights and remedies that are afforded under section 
518(c) of SMCRA.
    Therefore, the Director finds that Missouri's revision to RSMo 
444.870.3 is no less stringent than SMCRA and is approving it.

2. RSMo 444.870.5 Through 444.870.8, Penalties

    Missouri proposes to delete the existing statutory provisions at 
RSMo 444.870.5, .6, .7, and .8.
a. RSMo 444.5, Administrative Penalties Paid
    Missouri proposes to delete RSMo 444.870.5 from its statue. This 
statutory provision requires the following:

    5. Any administrative penalty paid pursuant to sections 444.800 
to 444.940 shall be placed in the state treasury and credited to the 
general revenue fund. An action may be brought in the appropriate 
circuit court to collect any unpaid administrative penalty, and for 
attorney's fees and costs incurred directly in the collection 
thereof.

    According to a finding made by Missouri's attorney general in 
conjunction with a previous submittal dated November 8, 1991 
(Administrative Record No. MO-541), the portion of RSMo 444.870.5 
requiring penalty monies to be placed into Missouri's general revenue 
fund conflicts with Article IX, section 7 of the Missouri Constitution 
which requires penalty monies to be distributed to several Missouri 
school districts. The attorney general found that RSMo 444.870.5 was 
unconstitutional and pre-empted by Article IX, section 7 of the 
Missouri Constitution.
    Section 518 of SMCRA and the Federal regulations at 30 CFR 845 do 
not place explicit requirements with regard to how administrative 
penalty money must be distributed by a State. Missouri's deletion of 
the requirement, at RSMo 444.870.5, to place any administrative penalty 
paid into the general revenue fund does not render its program less 
stringent than SMCRA.
    In deleting RSMo 444.870.5 in its entirety, Missouri is also 
deleting the second portion of that provision, which provides that)--

    [A]n action may be brought in the appropriate circuit court to 
collect any unpaid administrative penalty, and for attorney's fees 
and costs incurred directly in the collection thereof.

    Delection of this language does not render the Missouri statute 
less stringent than section 518(d) of SMCRA, which allows a suit to be 
brought to collect unpaid civil penalties, because a provision 
containing equivalent language already exists in the Missouri surface 
mining statute at RSMo 444.870.4. Therefore, the Director is approving 
the proposed deletion at RSMo 444.870.5.
b. RSMo 444.870.6, .7, and .8, Assessment of ``Administrative'' 
Penalty, Judicial, Review of Final Orders, and Assessment of ``Civil'' 
Penalty
    Missouri proposes to delete RSMo 444.870.6, .7, and .8 from its 
statute. These sections currently require the following:

    6. An administrative penalty shall not be increased in those 
instances where department action, or failure to act, has caused a 
continuation of the violation that was a basis for the penalty. Any 
administrative penalty must be assessed within two years following 
the department's initial discovery of such alleged violation, or 
from the date the department in the exercise of ordinary diligence 
should have discovered such alleged violation.
    7. Any final order imposing an administrative penalty is subject 
to judicial review upon the filing of a petition pursuant to section 
536.100, RSMo, by any person subject to administrative penalty; 
however, either party may require that the judicial appeal is tried 
as a trial de novo in the circuit court of the jurisdiction where 
the violation occurred.
    8. The state may elect to assess an administrative penalty, or, 
in lieu thereof, to request that the attorney general or prosecutor 
file an appropriate legal action seeking a civil penalty in the 
appropriate circuit court. The assessment of an administrative 
penalty shall preclude the assessment of a monetary penalty for the 
same violation by the attorney general and the judicial assessment 
of a civil penalty for the same violation except that this 
limitation shall not apply to persons who the department has 
determined habitually violated the requirements of the Missouri 
surface coal mining law, the surface coal mining laws of other 
states or federal laws pertaining to surface coal mining. The 
commission shall promulgate rules and regulations to provide further 
clarification of a habitual violator under this subsection.

    In OSM's rulemaking action on September 24, 1992, (57 FR 44114) 
RSMo 444.870.6, .7, and .8 were found, for the reasons explained in the 
preamble to the rulemaking, to be less stringent than SMCRA and were 
not approved. As a result, OSM placed a required program amendment on 
the Missouri program at 30 CFR 925.16(i) directing Missouri to remove 
RSMo 444.870.6, .7, and .8. Missouri has addressed the required program 
amendment by proposing to remove RSMo 444.870.6, .7, and .8. Therefore, 
the Director finds this proposed revision satisfies, in part, the 
required program amendment placed on Missouri's program at 30 CFR 
925.16(i).
c. RSMo 444.873.1, .2, .3, and .4, Administrative Penalties: Individual 
Liability
    Missouri proposes to revise its program by removing RSMo 444.873.1, 
.2, .3, and .4 and replacing them at RSMo 444.870.5, .6, .7, and .8, 
respectively. In its September 24, 1992 (57 FR 44118), rulemaking 
action, OSM approved RSMo 444.873.1, .3, and .4. OSM, however, did not 
approve RSMo 444.873.2, for several reasons, and directed Missouri to 
remove RSMo 444.873.2. RSMo 444.873.2 currently reads:

    Whenever a corporate permittee violates a condition of a permit 
or fails or refuses to comply with any order issued under section 
444.885 [cessation orders], or any order incorporated in a decision 
issued under subsection 2 of section 444.870, any director, officer, 
or agent of such corporation who willfully and knowingly authorized, 
ordered, or carried out such violation, failure, or refusal shall be 
subject to hearings with other proceedings under section 444.885. 
Any hearing under this section shall be of record and shall be the 
same civil penalties, fines and imprisonment that may be imposed 
upon a person under this section.

    In its September 24, 1992, disapproval, OSM discovered the 
following deficiencies in the above provision. First, RSMo 444.873.2 
failed to include the ``except'' clause as used in section 518(f) of 
SMCRA, resulting in the State provision providing for an individual 
civil penalty (ICP) only for failure to abide by an order requiring 
cessation of operations or assessing a civil penalty. This is the 
reverse of the requirement at section 518(f) of SMCRA, which provides 
for an ICP for failing to abide by an order issued pursuant to any 
section of SMCRA except an order issued pursuant to the assessment of a 
civil penalty under section 518(b).
    Second, RSMo 444.873.2 contains a nonsensical passage asserting 
that any ``director, officer, or agent'' may be subject to 
``hearings.'' Under section 518(f) of SMCRA, a director, officer, or 
agent may be subject to ``civil penalties, fines and imprisonment.''
    Third, RSMo 444.873.2, in its last sentence, purports to apply to a 
director, officer, or agent, the ``same civil penalties, fines and 
imprisonment that may be imposed upon a person under this section.'' 
The State's use of the term, ``this section,'' is inappropriate, as 
RSMo 444.873 includes no provision for the imposition of penalties, 
fines, or imprisonment.
    As now proposed, however, Missouri has recodified the above 
provision to RSMo 444.870.6. This recodification to the appropriate 
portion of the statute remedies the third deficiency noted above. Newly 
proposed RSMo 444.870.6, as can be seen from the quoted passage below, 
has also been revised to remedy the first and second deficiencies noted 
above:

    Whenever a corporate permittee violates a condition of a permit 
or fails or refuses to comply with any order issued under section 
444.885, or any order incorporated in a final decision issued by the 
commission except an order incorporated in a decision issued under 
subsection 2 of this section, any director, officer, or agent of 
such corporation who willfully and knowingly authorized, ordered, or 
carried out such violation, failure, or refusal shall be subject to 
the same administrative penalties, fines and imprisonment that may 
be imposed upon a person under subsections 1 and 5 of this section.

    Finally, Missouri, as suggested by OSM in its September 24, 1992, 
Federal Register notice (57 FR 44114), has replaced the term, ``civil 
penalty,'' as used in RSMo 444.870.6, with the term, ``administrative 
penalty,'' to make the statutory provision consistent with the Missouri 
coal mining regulations, which use the term, ``administrative 
penalty.'' The Missouri term, ``administrative penalty,'' is synonymous 
with the Federal term, ``civil penalty.''
    Given the revisions proposed by Missouri, as discussed in Findings 
No. 2b and c, above, the Director finds that Missouri has adequately 
responded to the required program amendment at 30 CFR 925.16(i) and is 
therefore removing the required program amendment. The Director also 
finds that the recodification of RSMo 444.873.1 through 4 to RSMo 
444.870.5 through 8, and the revisions to RSMo 444.870.6, do not render 
the Missouri program less stringent than SMCRA and is approving the 
recodification.

IV. Public and Agency Comments

Public Comments

    The Director solicited public comment on the proposed amendment and 
provided opportunity for a public hearing. No comments were received. 
The scheduled public hearing was not held because no one requested an 
opportunity to provide testimony.

Agency Comments

    Pursuant to section 503(b) of SMCRA and the implementing 
regulations at 30 CFR 732.17(h)(11), OSM solicited comments from 
various Federal agencies with an actual or potential interest in the 
Missouri program. Comments were also solicited from various State 
agencies. The following comments were received.
    By letter dated October 29, 1993, (Administrative Record No. MO-
584), the Soil Conservation Service responded that it had no comment.

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

    As required by 30 CFR 732.17(h)(4), OSM provided the proposed 
amendment to the SHPO and the ACHP for comment. By letter dated October 
27, 1993 (Administrative Record No. MO-585), SHPO responded that it had 
no objection to the proposed amendment. No comments were received from 
the ACHP.

Environmental Protection Agency (EPA) Concurrence

    Under 30 CFR 732.17(h)(11), the Director is required to obtain the 
written concurrence of the Administrator of the EPA with respect to any 
provisions of a State program amendment that relate to air or water 
quality standards promulgated under the authority of the Clean Water 
Act (33 U.S.C. 1251 et seq.) or the Clean Air Act (42 U.S.C. 7401 et 
seq.).
    Missouri did not propose any revisions to its program that relate 
to air or water quality standards in this amendment. However, EPA's 
Regional and Headquarters offices were afforded opportunity to comment 
on this amendment. No comments were received.

V. Director's Decision

    Based on the above findings, the Director is approving the proposed 
amendment submitted by Missouri on September 24, 1993, as identified in 
the codified portion of this notice under 30 CFR 925.15.
    The Federal regulations at 30 CFR part 925 codifying decisions 
concerning the Missouri program are amended to implement this decision. 
This final rule is being made effective immediately to expedite the 
State program amendment process and to encourage States to bring their 
programs into conformity with the Federal standards without undue 
delay. Consistency between State and Federal standards is required by 
SMCRA.

VII. Procedural Determinations

Compliance With Executive Order 12778

    The Department of the Interior has conducted the reviews required 
by section 2 of Executive Order 12778 (Civil Justice Reform) and has 
determined that this rule meets the applicable standards of subsections 
(a) and (b) of that section. However, these standards are not 
applicable to the actual language of State regulatory programs and 
program amendments since each such program is drafted and promulgated 
by a specific State, not by OSM. Under sections 503 and 505 of SMCRA 
(30 U.S.C. 1253 and 12550) and the Federal regulations at 30 CFR 
730.11, 732.15, and 732.17(h)(10), decisions on proposed State 
regulatory programs and program amendments submitted by the States must 
be based solely on a determination of whether the submittal is 
consistent with SMCRA and its implementing Federal regulations and 
whether the other requirements of 30 CFR parts 730, 731, and 732 have 
been met.

Compliance With Executive Order 12866

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

Compliance With the National Environmental Policy Act

    No environmental impact statement is required for this rule since 
section 702(d) of SMCRA, 30 U.S.C. 1292(d), provides that agency 
decisions on proposed State regulatory program provisions do not 
constitute major Federal actions within the meaning of section 
102(2)(C) of the National Environmental Policy Act of 1969, 42 U.S.C. 
4332(2)(C).

Paperwork Reduction Act

    This rule does not contain information collection requirements that 
require approval by the Office of Management and Budget under the 
Paperwork Reduction Act, 44 U.S.C. 3507 et seq.

Compliance With the Regulatory Flexibility Act

    The Department of the Interior has determined that this rule will 
not have a significant economic impact on a substantial number of small 
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). 
The State submittal which is the subject of this rule is based upon 
counterpart Federal regulations for which an economic analysis was 
prepared and certification made that such regulations would not have a 
significant economic effect upon a substantial number of small 
entities. Hence, this rule will ensure that existing requirements 
previously promulgated by OSM will be implemented by the State. In 
making the determination as to whether this rule would have a 
significant economic impact, the Department relied upon the data and 
assumptions for the counterpart Federal regulations.

List of Subjects in 30 CFR Part 925

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: April 18, 1994.
Raymond L. Lowrie,
Assistant Director, Western Support Center.

    For the reasons set out in the preamble, title 30, chapter VII, 
subchapter T of the Code of Federal Regulations is amended as set forth 
below:

PART 925--MISSOURI

    1. The authority citation for part 925 continues to read as 
follows:

    Authority: 30 U.S.C. 1201 et seq.

    2. Section 925.15 is amended by adding paragraph (r) to read as 
follows:


Sec. 925.15  Approval of regulatory program amendments.

* * * * *
    (r) The following provisions of the Missouri statute as submitted 
to OSM on September 24, 1993, are approved effective April 22, 1994: 
RSMo 444.870.3, and the newly codified language at 444.870.5 through 8 
concerning penalties.


Sec. 925.16  [Amended]

    3. Section 925.16 is amended by removing and reserving paragraph 
(i).
[FR Doc. 94-9826 Filed 4-21-94; 8:45 am]
BILLING CODE 4310-05-M