[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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[[Page 30805]]

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,

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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.

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    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