Texas Regulatory Program and Abandoned Mine Land Reclamation Plan

[Federal Register: March 3, 1998 (Volume 63, Number 41)]
[Rules and Regulations]
[Page 10317-10321]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr03mr98-13]

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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 943

[SPATS No. TX-036-FOR]

Texas Regulatory Program and Abandoned Mine Land Reclamation Plan

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 and abandoned mine land reclamation plan (hereinafter referred
to as the ``Texas program'') under the Surface Mining Control and
Reclamation Act of 1977 (SMCRA). Texas proposed revisions to statutes
pertaining to eligibility of land and water, small operator assistance,
definitions, exemptions, applicability to governmental units, coal
exploration operations, prohibition on surface coal mining in certain
areas, filing of a schedule of notices of violation, effect of past or
present violation, improvidently issued permits, performance standards,
and cessation orders. The amendment is intended to revise the Texas
program to be consistent with SMCRA.

EFFECTIVE DATE: March 3, 1998.

FOR FURTHER INFORMATION CONTACT: Michael C. Wolfrom, 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 December 1, 1997 (Administrative Record No. TX-
643), Texas submitted a proposed amendment to its program pursuant to
SMCRA. Texas submitted the proposed amendment at its own initiative.
Texas proposed to amend the Texas Surface Coal Mining and Reclamation
Act (TSCMRA) to reflect changes resulting from the passage of Senate
Bills (SB) 636 and 898 by the 75th Texas Legislature.
OSM announced receipt of the proposed amendment in the December 29,
1997, Federal Register (62 FR 67596), and in the same document opened
the public comment period and provided an opportunity for a public
hearing or meeting on the adequacy of the proposed amendment. The
public comment period closed on January 28, 1998. Because no one
requested a public hearing or meeting, none was held.

[[Page 10318]]

III. Director's Findings

Set forth below, pursuant to SMCRA and the Federal regulations at
30 CFR 732.15, 732.17, 884.14 and 884.15, 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. Revisions to the Texas Abandoned Mine Land Program (SB636)

At section TSCMRA Sec. 134.142, Texas proposed to remove its
existing criteria at paragraphs (1) through (3) for determining if land
and water are eligible for reclamation or abatement under its abandoned
mine land reclamation program and add the following new criteria:

Land and water are eligible for reclamation or abatement
expenditures under this subchapter if the land and water are
eligible for reclamation or abatement expenditures under the federal
act.

The criteria Texas proposed to remove from its statutes are
substantially the same as those at section 404 of SMCRA. Removing these
existing criteria and adding criteria that bases eligibility of land
and water for reclamation or abatement expenditures on criteria
delineated in SMCRA is not inconsistent with SMCRA, and does not render
the Texas statutes less stringent than SMCRA. Therefore, the Director
is approving Texas' proposed changes at section 134.142.

B. Revisions to Texas' Regulatory Program

1. TSCMRA Sec. 134.004 Definitions (SB 898)
Texas proposed to add the following definition for the term
``applicant'' at Sec. 134.004(3) and to renumber the existing
definitions to reflect this addition:

Applicant means a person or other legal entity seeking a permit
from the commission to conduct surface coal mining activities or
underground mining activities under this chapter.

The definition for ``applicant'' at section 701(16) of SMCRA does
not include the term ``legal entity.'' However, Texas' proposal to
include the term ``legal entity'' in its definition of ``applicant'' is
not inconsistent with SMCRA and does not render the Texas statutes less
stringent than SMCRA.
2. TSCMRA Sec. 134.005 Exemptions (SB 898)
Texas proposed to remove Sec. 134.005(a)(2), which is the exemption
for extraction of coal for commercial purposes if the surface mining
operation affects two acres or less, and to renumber existing paragraph
(3) as (2) to reflect this deletion.
On May 7, 1987, section 528(2) of SMCRA was amended to remove the
exemption on surface coal mining operations affecting two acres or less
([101 STAT. 300] SMCRA Title II--Two-Acre Exemption, Section 201 Repeal
of Exemption (a)(2)). Because any State law or regulation allowing a
two-acre exemption was rendered ineffective, the Director approved
Texas' proposal to recodify Sec. 134.005(a)(2), in the January 30,
1997, Federal Register (62 FR 4453), with the recommendation that Texas
should remove the exemption from its statutes to prevent confusion and
as a housekeeping measure. Therefore, the Director finds that Texas'
proposal to remove Sec. 134.005(a)(2) from its statutes does not render
the Texas statutes less stringent than SMCRA.
3. TSCMRA Sec. 134.008 Applicability to Governmental Units (SB 898)
Texas proposed to add the following provision at section 134.008:

An agency, unit, or instrumentality of federal, state, or local
government, including a publicly owned utility or publicly owned
corporation of federal, state, or local government, that proposes to
engage in surface coal mining operations that are subject to this
chapter shall comply with this chapter.

Texas' proposed provision is substantially the same as section 524
of SMCRA. Therefore, the Director finds Texas' proposal is no less
stringent than the counterpart SMCRA provision.
4. TSCMRA Sec. 134.014 Coal Exploration Operations (SB 898)
Texas proposed to add the following new provision at 134.014(b),
and redesignate existing (b) to (c):

A person who conducts coal exploration operations that
substantially disturb the natural land surface in violation of this
section or a rule adopted under this section is subject to
Secs. 134.174 through 134.181.

Texas' proposed new provision (b) is substantially the same as
section 512(c) of SMCRA. Therefore, the Director finds that proposed
Sec. 134.014(b) is no less stringent than the counterpart SMCRA
provision.
5. TSCMRA Sec. 134.022 Prohibitions on Surface Coal Mining in Certain
Areas (SB 898)
Texas proposed to recodify Article 5920-11, Section 33(e), Vernon's
Texas Civil Statutes (Vernon's), to Sec. 134.022(c) and to revise the
language of the provision by changing the date relating to valid
existing rights from May 9, 1979, to August 3, 1977.
In the January 30, 1997, Federal Register (62 FR 4451), Texas'
proposal to extend the date relating to valid existing rights to May 9,
1979, and to recodify Article 5920-11, Section 33(e) (Vernon's) to
Sec. 134.022(c), was disapproved, and the Director required Texas to
remove the unapproved provision from its recodified statutes and to
restore its previously approved statute language. The proposal now
under consideration establishes August 3, 1977, as the date relating to
valid existing rights. This is the same date as that established by
section 522(a)(6) SMCRA. Therefore, the Director finds Texas' proposal
is no less stringent than the counterpart SMCRA provision, and she is
approving it.
6. TSCMRA Sec. 134.056 Small Mine Exemption (SB 636)
At Sec. 134.056(2), Texas proposed to increase the amount of
probable total annual production allowed for surface coal mining
operators under its small operator assistance program from 100,000 to
300,000 tons.
Section 507(c)(1) of SMCRA also establishes 300,000 tons of
probable total annual production as the coal production figure for
operators to qualify for small operator assistance. Therefore, Texas'
proposal is no less stringent than the requirements of SMCRA.
7. TSCMRA Sec. 134.068 Schedule of Notices of Violation (SB 898)
Texas proposed to replace Article 5920-11, Section 21(c)
(Vernon's), with new Sec. 134.068 which reads as follows:

(a) The applicant shall file with the application a schedule
listing any notices of violations of this chapter, the federal Act,
a federal regulation or federal or state program adopted under the
federal Act, or another law, rule, or regulation of the United
States, this state, or a department or agency in the United States
pertaining to air or water environmental protection incurred by the
applicant in connection with a surface coal mining operation during
the three years before the application date.
(b) The schedule must indicate the final resolution of any
notice of violation.

Texas' proposed language at new 134.068 is substantially the same
and no less stringent than the language at

[[Page 10319]]

section 510(c) of SMCRA pertaining to permit applicant filing of a
schedule of notices of violation. Therefore, the Director is approving
replacement of Article 5920-11, Section 21(c) with new section 134.068.
8. TSCMRA Sec. 134.069 Effect of Past or Present Violation (SB 898)
a. TSCMRA Sec. 134.069(a). Texas proposed to amend Sec. 134.069(a)
by removing paragraph (2), which allows the commission to issue a
permit to an applicant who has an unabated violation if the applicant
is contesting the violation.
The provisions relating to applicant filing of a schedule listing
notices of violation at section 510(c) of SMCRA do not include a
provision that would allow issuance of a permit if the applicant is
contesting a violation. Therefore, Texas' proposal is no less stringent
than the requirements of SMCRA.
b. TSCMRA Sec. 134.069(b). Texas proposes to amend Sec. 134.069(b)
by adding language that references Chapter 134 and other laws in
Sec. 134.068 in relation to a demonstrated pattern of willful
violations. The other laws referenced in Sec. 134.068 include the
federal Act, a federal regulation or federal or state program adopted
under the federal Act, or another law, rule, or regulation of the
United States, this state, or a department or agency in the United
States pertaining to air or water environmental protection.
The federal counterpart provisions to Sec. 134.069(b) at section
510(c) of SMCRA also include references to the Act and other laws,
rules, and regulations of the United States or any other department or
agency in the United States. Therefore, Texas' proposal is not
inconsistent with SMCRA and would not render the Texas statutes less
stringent than SMCRA.
9. TSCMRA Sec. 134.084 Suspension or Rescission of Improvidently
Issued Permit (SB 898)
a. TSCMRA Sec. 134.084(a) and (b). Article 5920-11, Section 21a
(Vernon's), 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. Texas proposed to replace Article 5920-11, Section
21a, with language that is substantively the same at new
Sec. 134.084(a) and (b). SMCRA section 201(c)(1), states that permits
shall be suspended, revoked, or withheld for failure to comply with any
of the provisions of SMCRA or any rules and regulations adopted
pursuant thereto. Therefore, the Director finds Texas' proposal is not
inconsistent with SMCRA and does not render the Texas statutes less
stringent than SMCRA.
b. TSCMRA Sec. 134.084(c) and (d). Article 5920-11, Section 6(b)
(Vernon's) provides for 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. Texas proposed to replace Article 5920-11,
Section 6(b) with language that is substantively the same at 134.084(c)
and (d).
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, the Director finds Texas'
proposal to replace Article 5920-11, Section 6(b) with language that is
substantively the same at new Sec. 134.084(c) and (d) is not
inconsistent with SMCRA or the Federal regulations and is approving it.
10. TSCMRA Sec. 134.092 Performance Standards (SB 898)
At section 134.092(a)(2), Texas proposed to add the language, ``all
highwalls, spoil piles, and'' after the word ``with'' in the phrase
``to restore the approximate original contour of the land with
depressions eliminated.''
Texas' proposed language is similar to the provisions at section
515(b)(3) of SMCRA concerning restoration of approximate original
contour. Therefore, Texas' proposal is not inconsistent with SMCRA and
does not render the Texas statutes less stringent than SMCRA.
11. TSCMRA Sec. 134.163 Terms of Cessation Order
At Sec. 134.163(1), Texas proposed to add the language,
``condition, practice, or'' after the word ``the'' in the phrase
``determines the violation has been abated.''
Texas' existing provisions at section 134.163 were approved by the
Director in the January 30, 1997, Federal Register (62 FR 4451), with
the Director's understanding that Texas may amend section 134.163 to
refer to ``the condition, practice, or violation'' in order to more
closely track the language of SMCRA at section 521(a)(2) and the Texas
implementing regulation at TCMR 843.680(c). The language Texas proposed
is that which the Director understood might be proposed to make the
Texas statutes more closely track SMCRA and Texas' implementing
regulation at TCMR 843.680(c). Therefore, Texas proposal is not
inconsistent with SMCRA and it does not render the Texas statutes less
stringent than SMCRA.

IV. Summary and Disposition of Comments

Public Comments

OSM solicited public comments on the proposed amendment, but none
were received.

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 (Administrative
Record No. TX-643.03).
By letter dated December 24, 1997 (Administrative Record No. TX-
643.05), the U.S. Army Corps of Engineers commented that it found the
changes to be satisfactory.

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 the EPA's concurrence.
Pursuant to 732.17(h)(11)(i), OSM solicited comments on the
proposed amendment from the EPA (Administrative Record No. TX-643.01).
The 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.
643.02).

[[Page 10320]]

Neither the 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 December 1, 1997.
The Director approves the statutes as proposed by Texas with the
provision that they be fully promulgated in identical form to the
statutes submitted to and reviewed by OSM and the public.
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.

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 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 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)).

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

OSM has determined and certifies pursuant to the Unfunded Mandates
Reform Act (2 U.S.C. 1502 et seq.) that this rule will not impose a
cost of $100 million or more in any given year on local, state, or
tribal governments or private entities.

List of Subjects in 30 CFR Part 943

Intergovernmental relations, Surface mining, Underground mining.

Dated: February 20, 1998.
Brent Wahlquist,
Regional Director, Mid-Continent Regional Coordinating Center.

For the reasons set out in the preamble, 30 CFR part 943 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 in the table by adding a new entry in
chronological order by ``Date of final publication'' to read as
follows:

Sec. 943.15 Approval of Texas regulatory program amendments.

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Original amendment submission date Date of final publication Citation/description
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* * * * * *
*
December 1, 1997................... March 3, 1998.............. TSCMRA 134.004(3); 134.005(a)(2); 134.008;
134.014(b); 134.022(c); 134.056(2); 134.068;
134.069(a)(2) and (b); 134.084(a) through
(d); 134.092(a)(2); 134.163(1). Vernon's
Texas Civil Statutes Article 5920-11,
Sections 6(b), 21(c), 33(e) and 21a.
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3. Section 943.25 is amended in the table by adding a new entry in
chronological order by ``Date of final publication'' to read as
follows:

Sec. 943.25 Approval of Texas abandoned mine land reclamation plan
amendments.

* * * * *

* * * * * *
*
December 1, 1997....................... March 3, 1998.................. TSCMRA 134.142.
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