[Federal Register Volume 62, Number 20 (Thursday, January 30, 1997)]
[Rules and Regulations]
[Pages 4451-4458]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-2329]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 943

[SPATS No. TX-025-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, with certain exceptions, 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 is proposing to recodify the Texas Surface Coal Mining and 
Reclamation Act. Texas intends to reclassify and rearrange its statutes 
into a format that will accommodate further expansion of the law and to 
eliminate repealed, invalid, and duplicated provisions in order to make 
the statutes more understandable and usable without altering the 
meaning or effect of the law.

EFFECTIVE DATE: January 30, 1997.

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 regulatory 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.
    On June 23, 1980, the Secretary of the Interior approved the Texas 
abandoned mine plan as submitted on April 24, 1980, and amended on May 
30, and June 2 and 4, 1980. Information pertaining to the general 
background, revisions, and amendments to the initial plan submission, 
as well as the Secretary's findings and the disposition of comments can 
be found in the June 23, 1980, Federal Register (45 FR 41940). 
Subsequent actions concerning plan amendments can be found at 30 CFR 
943.25.

II. Submission of the Proposed Amendment

    By letter dated August 24, 1995 (Administrative Record No. TX-594), 
Texas submitted a proposed amendment to its program pursuant to SMCRA. 
Texas submitted the proposed amendment at its own initiative. Texas 
proposed to recodify the Texas Surface Coal Mining and Reclamation Act 
(TSCMRA) as enacted by Senate Bill (S.B.) 959 (Section 12.02), 74th 
Texas Legislature (1995). S.B. 959 codified, with revisions, the TSCMRA 
at Chapter 134 of Title 4, Natural Resources Code, and it repealed 
Article 5920-11, Vernon's Texas Civil Statutes with exceptions, 
including Sections 11 (b), (c), and (d).
    OSM announced receipt of the proposed amendment in the October 16, 
1995, Federal Register (60 FR 53569), 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 November 15, 1995.
    During its review of the amendment, OSM identified concerns 
relating to: (1) A definition for ``permit applicant'' or ``applicant'' 
[Article 5920-11, Section 3(2)]; (2) repeal of the exemption for 
surface coal mining operations affecting two acres or less [Article 
5920-11, Section 35(2) and Chapter 134, Section 134.005(a)(2), as 
recodified]; (3) coal exploration operations being subject to penalties 
for violating statutes and/or regulations [Article 5920-11, Section 
27(c) and Chapter 134, Section 134.014, as recodified]; (4) the 
determination date on which surface coal mining operations are exempted 
from being subject to designations of areas unsuitable for mining 
[Article 5920-11, Section 33(e) and Chapter 134, Section 134.022, as 
recodified]; (5) notices of violations that permit applicants are 
required to disclose when applying for a coal mining permit [Article 
5920-11, Section 21(c) and Chapter 134, Section 134.068, as 
recodified]; (6) performance standards regarding the elimination of all 
highwalls and spoil piles [Article 5920-11, Section 23(b)(3) and 
Chapter 134, Section 134.092(a)(2), as recodified]; (7) violations not 
creating

[[Page 4452]]

imminent danger or causing imminent harm [Article 5920-11, Section 
32(b) and Chapter 134, Section 134.162(a)(2)(A), as recodified]; (8) 
the termination of cessation orders [Article 5920-11, Section 32(a) and 
Chapter 134, Section 134.163(1), as recodified]; (9) the payment of 
penalties [Article 5920-11, Section 30(c) and Chapter 134, Section 
134.176, as recodified]; and (10) mining by government agencies 
[Article 5920-11, Section 34(b)]. OSM discussed these concerns with 
Texas by telephone on February 9, and 27, 1996, and August 19, 1996 
(Administrative Record Nos. TX-594.06, TX-594.07, and TX-594.12, 
respectively); by telefax dated February 28, 1996 (Administrative 
Record No. TX-594.09); and by letter dated July 10, 1996 
(Administrative Record No. TX-594.12).
    By letters dated April 2 and July 30, 1996 (Administrative Record 
Nos. TX-594.08 and TX-594.11, respectively), Texas responded to OSM's 
concerns by submitting additional explanatory information to its 
proposed program amendment.

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.
    The previously approved provisions at Article 5920-11, Vernon's 
Texas Civil Statutes are shown in brackets. When applicable.

A. Nonsubstantive Recodification of Texas's Statutes

    With the exceptions discussed in the findings below, the proposed 
recodification of the Texas statutes is nonsubstantive in nature, and 
the Director finds that the recodification does not make these statutes 
less stringent than SMCRA.

B. Revisions to Texas' Statutes With no Corresponding Federal 
Provisions

1. Short Title
    At Chapter 134, Section 134.001 [Article 5920-11, Section 1], Texas 
proposes to change the reference for the Texas Surface Coal Mining and 
Reclamation Act (TSCMRA) from ``Act'' to ``chapter'' throughout the 
recodified statutes. The Director finds that this change is not 
inconsistent with SMCRA because Texas proposes only a change in the 
term used to describe the statutes that govern coal mining in the 
State.
2. Definitions
    a. At Chapter 134, Section 134.004(1), Texas proposes to add a new 
definition, ``Affected person,'' which means ``a person having an 
interest that is or may be affected.'' Accordingly, all references to 
``a person having an interest that is or may be affected'' are proposed 
to be changed to ``affected person'' throughout the recodified 
statutes. The Director finds that the proposal to add existing language 
to the new definition and to refer to the defined term is not 
inconsistent with SMCRA and will not render the Texas program less 
stringent than SMCRA or less effective than the Federal regulations.
    b. Texas proposes to change the definition for ``Secretary'' at 
Chapter 134, Section 134.004(16) [Article 5902-11, Section 3(19)] to 
``Secretary of Agriculture,'' which means the secretary of the United 
States Department of Agriculture. Accordingly, all references to 
``Secretary'' are proposed to be change to ``Secretary of Agriculture'' 
throughout the recodified statutes. The Director finds that the 
definition for ``Secretary of Agriculture'' is substantively identical 
to that for ``Secretary'' which is previously approved language.
3. Jurisdiction of Commission over Surface Coal, Iron Ore, and Iron Ore 
Gravel Mining and Reclamation Operations
    Texas proposes to add provisions for jurisdiction of the commission 
over iron ore and iron ore gravel mining and reclamation operations. 
Chapter 134, Section 134.012(a)(2) [Article 5902-11, Section 4(b)], 
would provide for exclusive jurisdiction over iron ore and iron ore 
gravel mining and reclamation operations in the State. Chapter 134, 
Section 134.012(b) [Article 5902-11, Section 4(b)] would provide for 
Chapter 134, Natural Resources Code, to govern these operations to the 
extent it can be made applicable. Chapter 134, Section 134.012(c) 
[Article 5902-11, Section 4(b)(1) and (2)] would provide exceptions for 
iron ore and iron ore gravel mining and reclamation activities in 
progress on or before September 1, 1985, or for iron ore and iron ore 
gravel mining operations and reclamation activities that are conducted 
solely on real property owned in fee simple by the person authorizing 
the operations or reclamation activities and that is confined to a 
single, contiguous tract of land if the activities are conducted in an 
area not larger than 20 acres, the depth of mining operations is 
restricted to 30 inches or less, and the fee simple owner receives 
surface damages. Chapter 134, Section 134.188 [Article 5902-11, Section 
4(c)] would provide that it is a defense to a civil or criminal penalty 
under Chapter 134 that a person allegedly conducting an iron ore or 
iron ore gravel mining and reclamation operation in violation in 
Chapter 134 has a written general warranty or ownership of land, 
separate from any lease, from the person authorizing the operation. 
There are not counterpart provisions in SMCRA or the Federal 
regulations pertaining to iron ore or iron ore gravel mining and 
reclamation. However, the Director finds that the proposed provisions 
do not make the Texas program less stringent than SMCRA or less 
effective than the Federal regulations.

C. Revisions to Texas' Statutes That Are Substantively Identical to the 
Corresponding Federal Provisions

1. Definitions
    a. At Chapter 134, Section 134.004(7), Texas proposes to add a new 
definition, ``Federal Act,'' which is defined as ``the Surface Mining 
Control and Reclamation Act of 1977 (30 U.S.C. Section 1201 et seq.).'' 
Consequently, all references to SMCRA are proposed to be changed to 
``Federal Act'' throughout the recodified statutes. The proposed 
definition is substantively the same as the Federal definition of 
``Act'' at 30 CFR 700.5. Therefore, the Director finds that defining 
and referring the SMCRA as the ``Federal Act'' is not inconsistent with 
SMCRA or the Federal regulations, which define and reference SMCRA as 
the ``Act.''
    b. At Chapter 134, Section 134.004(13) [Article 5920-11, Section 
3(13)], Texas proposes to change the term ``permittee'' to ``permit 
holder,'' with no change in the definition. Accordingly, all references 
to ``permittee'' are proposed to be changed to ``permit holder'' 
throughout the recodified statutes. The Director finds that the 
definition for ``permit holder'' is substantively identical to that 
previously approved for ``permittee'' and the proposed change in 
terminology will not make the definition less stringent than the 
definition for ``permittee'' at section 701(18) of SMCRA.
    c. At Chapter 134, Section 134.004(17), Texas proposes to add the 
definition, ``Secretary of the interior,'' as meaning ``the Secretary 
of the United States Department of the Interior.'' Accordingly, all 
references to ``the Secretary of the United States Department of the 
Interior'' are

[[Page 4453]]

proposed to be changed to ``Secretary of the interior'' throughout the 
recodified statutes. The Director finds that this definition is 
substantively identical to the definition of ``Secretary'' found at 
section 701(23) of SMCRA and is, therefore, approving its addition.
    d. At Article 5920-11, Section 3(7), Texas proposes to remove the 
definition for ``Eligible land and water'' and to recodify its 
substantively identical provisions at Chapter 134, Section 134.142, 
Eligibility of Land and Water. The Director finds that removing these 
provisions from the general definition section of the Texas statutes 
and adding them to the abandoned mine reclamation section is consistent 
with section 404 of SMCRA.

D. Revisions to Texas' Statutes That Are Not Substantively Identical to 
the Corresponding Federal Provisions

1. Definitions
    a. At Article 5920-11, Section 3(2), Texas proposes to delete the 
definition for ``applicant'' and not include the definition in its 
recodified statutes. The Director is approving the removal of this 
definition because Texas proposed to add a definition for ``applicant'' 
to the Texas Coal Mining Regulations in a revised amendment submittal 
dated July 31, 1996 (Administrative Record No. TX-621).
    b. At Chapter 134, Section 134.004(3) [Article 5920-11, Section 
3(3)], Texas proposes to remove, from the definition of ``Approximate 
Original Contour,'' the language ``and water impoundments may be 
permitted if the commission determines that they are in compliance with 
Section 23(b)(8) of this Act.'' The Federal definition for 
``approximate original contour'' at section 701(2) of SMCRA allows 
regulatory authorities to permit water impoundments if they determine 
that the impoundments are in compliance with section 515(b)(8) of 
SMCRA. Since the Texas program continues to allow permanent water 
impoundments to be permitted under Chapter 134 if they meet the 
performance standards of Section 134.092(8), which is a counterpart to 
section 515(b)(8) of SMCRA, the Director finds that the change to the 
definition does not render the Texas program less stringent than SMCRA.
    c. At Article 5920-11, Section 3(15), Texas proposes to remove the 
following sentence from the definition of prime farmland: ``The slope 
of the land can be a factor in determining whether a given soil is 
outside the purview of prime farmland and the commission may thus make 
a negative determination based upon soil type and slope,'' and to 
recodify this sentence at Chapter 134, Section 134.032, Determination 
Regarding Prime Farmland. Texas also proposes to recodify the new 
definition for prime farmland at Chapter 134, Section 134.004(15). The 
Director finds that the recodified sections contain previously approved 
language and is approving them.
2. Exemptions
    a. At Chapter 134, Section 134.005(a)(2) [Article 5920-11, Section 
35(2)], Texas proposes to recodify a provision that states that, ``This 
chapter does not apply to the extraction of coal: * * * for commercial 
purposes if the surface mining operation affects two acres or less.'' 
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)}. In addition, {101 STAT. 301} Title II, Section 
201(d), Effect on State Law, rendered ineffective any provision of a 
State law, or of a State regulation that allowed this exemption. 
Therefore, the Director finds that keeping this exemption in the Texas 
statutes does not render the statutes less stringent than SMCRA. 
Nevertheless, in order to prevent confusion as to whether or not this 
exemption is allowable, and as a housekeeping measure, Texas should 
remove this exemption from its statutes.
    In an enclosure to a letter dated April 2, 1996 (Administrative 
Record No. TX-594.08), Texas agreed that it was appropriate to repeal 
this exemption.
    b. At Article 5920-11, Section 35(4), Texas proposes to remove an 
exemption, from the provisions of TSCMRA, regarding the extraction of 
coal incidental to the extraction of other minerals. In the exemption 
that is proposed to be removed, the extracted coal cannot exceed 16\2/
3\ percent of the total tonnage of coal and other minerals removed 
annually for purposes of commercial use or sale or coal explorations 
subject to TSCMRA. The removed exemption is a duplication of language 
in Texas' definition of ``Surface coal mining operations'' at Chapter 
134, Section 134.004(19) [Article 5920-11, Section 3(17)]. Therefore, 
the Director finds that the proposal to remove this exemption does not 
make the Texas statutes less stringent than SMCRA.
3. Coal Exploration Operations
    Texas proposes not to recodify the provision at Article 5920-11, 
Section 27(c) that provides for penalties for any person who conducts 
any coal exploration operations, that substantially disturb the natural 
land surface, in violation of Article 5920-11, Section 27, Coal 
Exploration Permits, or the rules issued pursuant to Section 27. In the 
recodified statutes at Chapter 134, Section 134.014, Coal Exploration 
Operations, the proposed amendment states that, ``A person who conducts 
coal exploration operations that substantially disturb the natural land 
surface shall comply with commission rules adopted to govern those 
operations.'' Also, in the recodified statute at Chapter 134, Section 
134.174, Administrative Penalty for Violation of Permit Condition or 
this Chapter, Texas proposes that, ``The commission may assess an 
administrative penalty against a person who violates a permit condition 
or this chapter.'' The Director finds that the decision of the State 
not to recodify Article 5920-11, Section 27(c) will not render this 
portion of the State statutes less stringent than SMCRA because the 
provisions for administrative penalties at recodified Chapter 134, 
Section 134.174 apply to violations of permit conditions and/or 
violations of the statutes governing the Texas surface coal mining 
program.
4. Rules Regarding Monitoring, Reporting, and Inspections
    At Chapter 134, Section 134.030(2) [Article 5920-11, Section 
29(d)], Texas proposes to add a provision that would prohibit it from 
disclosing confidential information, as discussed under Chapter 134, 
Section 134.031, when making public all inspection and monitoring 
reports and other records and reports required to be kept under Chapter 
134 and rules adopted under Chapter 134. The confidential information 
discussed under Chapter 134, Section 134.031 refers only to the 
analysis of the chemical and physical properties of the coal, except 
information regarding the mineral and chemical content that is 
potentially toxic in the environment. The Director finds that this 
provision is no less stringent than section 507(b)(17) of SMCRA and 
that it adds clarification that confidential information will not be 
disclosed.
5. Contents of Permit Application
    At Chapter 134, Section 134.052(a)(18), Texas proposes to add a 
provision that would require the submittal of a schedule listing any 
notices of violations, incurred by the applicant at coal mining 
operations, as part of the permit application. Section 510(c) of SMCRA, 
Permit Approval and Denial, requires that the permit applicant file, 
with his permit application, a schedule of notices of

[[Page 4454]]

violations. Therefore, the Director finds the proposed provision is 
consistent with SMCRA.
6. Application Fees
    At Chapter 143, Section 134.054(b) [Article 5920-11, Section 
18(b)], Texas proposes to change its initial application fee for a 
permit to a minimum of $5,000. In the previous Texas statutes there was 
no minimum application fee, but the maximum fee could not exceed 
$1,000. Texas also proposes to add requirements for a minimum 
application fee of $3,000 for renewal of a permit, and a minimum 
application fee of $500 for revision of a permit. At Chapter 134, 
Section 134.054(c) [Article 5920-11, Section 18(b)], Texas proposes to 
allow initial application fees and renewal application fees to be paid 
in equal annual installments during the term of the permit. Also, Texas 
proposes to remove the provision at Article 5920-11, Section 18(d), as 
amended, that requires fees to be deposited in the State treasury and 
credited to the general revenue fund. The Director finds that the Texas 
proposals regarding a fee structure for initial, renewal, and revision 
permit applications are no less stringent than section 507(a) of SMCRA 
which allows application fees to be determined by the regulatory 
authority. Also, the proposal to allow initial and renewal application 
fees to be paid in equal installments during the term of the permit is 
in accordance with section 507(a) of SMCRA which allows the regulatory 
authority to develop procedures to enable the cost of fees to be paid 
over the term of the permit. The proposal to stop requiring fees to be 
deposited in the State treasury and credited to the general revenue 
fund is not inconsistent with SMCRA.
7. Annual Fee
    At Chapter 134, Section 134.055 [Article 5920-11, Section 18(c)], 
Texas proposes to add a new provision that requires a permit holder to 
pay the commission an annual fee, in an amount determined by the 
commission, for each acre of land in the permit area on which the 
permit holder actually conducted operations for removing coal during 
the year. The fee is due by March 15 of the year following the year of 
the removal operations. The minimum fee is $120 per acre. Section 
507(a) of SMCRA provides that an application for a surface coal mining 
and reclamation permit shall be accompanied by a fee determined by the 
regulatory authority. Such fee may be less than, but shall not exceed 
the actual or anticipated cost of reviewing, administering, and 
enforcing the permit. The regulatory authority may develop procedures 
to allow the fee to be paid over the term of the permit. The Director 
finds that the income will be less than the anticipated cost of 
reviewing, administering, and enforcing permits under the Texas 
program. Therefore, the proposed provision pertaining to an annual fee 
does not render the Texas statutes less stringent than section 507(a) 
of SMCRA.
8. Public Inspection of Application
    Texas proposes to amend Chapter 134, Section 134.057(b) [Article 
5920-11, Section 17(b)], to include a provision that specifies that 
subsection (b) does not apply to records, reports, inspection 
materials, or information that is confidential under Chapter 134, 
Section 134.031. The Director finds that the inclusion of this 
provision only adds clarification that confidential information will 
not be disclosed and does not render the State statute less stringent 
than section 507(b)(17) of SMCRA.
9. Notice by Applicant
    At Chapter 134, Section 134.058(2) [Article 5920-11, Section 
20(a)], Texas proposes to add a new provision that specifies that the 
advertisement published in the newspaper of general circulation in the 
locality of the proposed mining operation state that the application is 
available for public inspection at the county courthouse of the county 
in which the property lies. The Director finds that the addition of 
this provision is consistent with section 507(b)(6) of SMCRA, which 
requires the advertisement to include the location of where the 
application is available for public inspection.
10. Lien
    Previously approved Article 5920-11, Section 9(a) concerns past 
mining practices on privately owned land and makes reference to the 
completion of projects ``* * * to restore, reclaim, abate, control, or 
prevent the adverse effects * * *'' on these lands. At Chapter 134, 
Section 134.150(A), Texas proposes to remove the words ``restore,'' 
``abate,'' ``control,'' and ``prevent,'' and to use only the word 
``reclaim.'' The Director finds that the omitted words or variations 
thereof are included in Chapter 134, Section 134.150(a)(2) and when 
Section 134.150, as recodified, is read in its entirety, the proposed 
revision is no less stringent than section 408(a) of SMCRA.
11. Prohibition on Surface Coal Mining in Certain Areas
    At Article 5920-11, Section 33(e), pertaining to areas unsuitable 
for surface coal mining, Texas provided that after May 9, 1979, and 
subject to valid existing rights, no surface coal mining operation 
except those that existed on August 3, 1977, shall be permitted to mine 
in areas designated as unsuitable for mining. At Chapter 134, Section 
134.022(c), as recodified, Texas proposes to extend the date for valid 
existing rights to May 9, 1979, and to provide that this section does 
not affect surface coal mining operations that existed on August 3, 
1977. Section 522(e) of SMCRA provides that after August 3, 1977, and 
subject to valid existing rights, no surface coal mining operations 
except those that existed on August 3, 1977, shall be permitted to mine 
in areas designated as unsuitable for mining. Therefore, the Director 
finds that Texas is requiring a less stringent provision than SMCRA and 
is not approving this proposed amendment. The Director is requiring 
Texas to remove this unapproved provision from its recodified statutes 
and to restore its previously approved statute language. Texas is also 
directed to notify OSM when the previously approved language has been 
restored. It is the understanding of the Director that if any 
provisions of Chapter 134, Natural Resources Code are disapproved by 
OSM, the provisions of the former TSCMRA from which the disapproved 
provisions were derived are continued in effect for the purposes of 
those provisions until September 1, 1997.
    In addition, it is the Director's understanding that Texas may 
amend Section 134.022(c) to refer to ``rights existing on August 3, 
1977,'' rather than ``rights existing on May 9, 1979,'' so as to 
conform the Texas statute with SMCRA (Administrative Record No. TX-
594.08).
12. Schedule of Notices of Violations
    At Chapter 134, Section 134.068 [Article 5920-11, Section 21(c)], 
Texas proposes to remove the requirement that the applicant file a 
schedule listing any and all notices of violations (NOV's) of any 
department or agency in the United States pertaining to air or water 
environmental protection incurred by the applicant. Instead, Texas 
proposes that the applicant file a schedule that lists only NOV's of 
the proposed recodified Chapter 134 or of a law, rule, or regulation of 
the United States or Texas pertaining to air or water environmental 
protection incurred by the applicant in connection with a

[[Page 4455]]

surface coal mining operation in Texas during the three years before 
the application date. Because section 510(c) of SMCRA requires that the 
schedule list any and all NOV's 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, and not just those incurred at operations located in 
Texas, the Director finds the proposed statute amendment is less 
stringent than SMCRA and is not approving it.
    However, Texas corrected this deficiency by revising Article 5920-
11, Section 21(c) in an amendment submitted on August 30, 1995 
(Administrative Record No. TX-595), which was approved in a separate 
Federal Register notice dated June 18, 1996 (61 FR 30805). This 
revision was enacted by Chapter 272, Senate Bill (S.B.) 271 during the 
same legislative session that S.B. 959 was enacted. In the amendment 
submitted on August 30, 1995 (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.
13. Performance Standards
    At Article 5920-11, Section 23(b)(3), Texas requires coal operators 
to ``* * * restore the approximate original contour of the land with 
all highwalls, spoils piles, and depressions eliminated, * * *'' At 
recodified Chapter 134, Section 134.092(a)(2), Texas proposes to remove 
the words ``highwalls'' and ``spoil piles'' from the requirement to 
restore the approximate original contour. The Director finds that the 
removal of the words ``highwalls'' and ``spoil piles'' from the 
requirement to restore the approximate original contour does not make 
this portion of the Texas statute less stringent than section 515(b)(3) 
of SMCRA because at recodified Chapter 134, Section 134.004(3), the 
definition for ``approximate original contour'' includes the 
elimination of all highwalls and spoils piles.
14. Violation not Creating Imminent Danger or Causing Imminent Harm
    At Chapter 134, Section 134.162(a) [Article 5920-11, Section 
32(b)], Texas requires the commission or its authorized representative 
to issue a notice, for abating a violation, to the permit holder if the 
violation does not create an imminent danger to the health or safety of 
the public ``and'' is not causing or reasonably expected to cause 
significant, imminent environmental harm to land, air, or water 
resources. Section 521(a)(3) of SMCRA requires issuance of a notice if 
the violation does not create imminent danger to the health or safety 
of the public ``or'' cannot be reasonably expected to cause 
significant, imminent environmental harm to land, air or water 
resources. However, in a letter dated April 2, 1996 (Administrative 
Record No. TX-594.08), Texas indicated that it had no authority to 
issue a notice of violation if the violation creates an imminent danger 
or imminent environmental harm. Texas stated that, ``If the violation 
meets either of those criteria, the commission is required to 
``immediately'' order the cessation of operations.'' Thus, Texas' 
interpretation of the intent of Chapter 134, Section 134.162(a) is 
consistent with Section 521(a)(3) of SMCRA. It is also noted that the 
Texas Coal Mining Regulations (TCMR) 843.681(a) require an authorized 
representative of the commission to issue a notice of violation to any 
permit holder having a violation that does not create imminent danger 
``or'' imminent environmental harm. Therefore, the Director finds that 
the intent and implementation of the proposed, recodified statute will 
be consistent with SMCRA and the Federal regulations and he is 
approving the recodification.
15. Term of Cessation Order
    The currently approved Texas statutes at Article 5920-11, Sections 
32 (a) and (b) set forth requirements under which a cessation order 
issued for two different classifications of violations can be 
terminated. For a cessation order that is issued when a violation 
``creates'' an imminent danger to the health or safety of the public or 
is causing or can reasonably be expected to cause significant, imminent 
environmental harm to land, air, or water resources, ``* * * The 
cessation order shall remain in effect until the Commission or its 
authorized representative determines that the condition, practice, or 
violation has been abated * * *'' For a cessation order that is issued 
when a violation ``does not create'' an imminent danger to the health 
or safety of the public or is not causing or cannot be reasonably 
expected to cause significant, imminent environmental harm to land, 
air, or water resources, ``* * * The cessation order shall remain in 
effect until the Commission or its authorized representative determines 
that the violation has been abated * * *'' The requirements of section 
521(a)(2) of SMCRA are substantively the same as the currently approved 
Texas statutes. In the proposed recodified statute at Chapter 134, 
Section 134.163, Texas proposes that a cessation order for both 
classifications of violations; i.e., those that ``create'' imminent 
danger or significant, imminent environmental harm and those that ``do 
not create'' imminent danger or significant, imminent environmental 
harm will remain in effect only until the Commission determines that 
the violation has been abated. However, Texas' implementing regulation 
at TCMR 843.680(c) requires a cessation order to remain in effect until 
the condition, practice or violation has been abated. Therefore, the 
Director finds that the implementation of the proposed, recodified 
statute will be consistent with SMCRA and the Federal regulations and 
he is approving the recodification.
    It is the Director's understanding that Texas may amend Chapter 
134, Section 134.163 to refer to ``the condition, practice, or 
violation'' in order to more closely track the language of SMCRA and 
the Texas regulation (Administrative Record No. TX-594.08).
16. Payment of Penalty; Refund
    Texas proposes to amend its statute at recodified Chapter 134, 
Section 134.176 [Article 5920-11, Section 30(c)] by removing the 
provision which states that failure to forward money to the Commission 
within 30 days of notification of the proposed penalty shall result in 
a waiver of all legal rights to contest the violation or the amount of 
the penalty. Moreover, Texas has indicated an intention to interpret 
its statute such that no prepayment of penalty is required. Section 
518(c) of SMCRA contains the procedural requirement that failure to 
forward the proposed penalty within 30 days results in a waiver of all 
legal rights to contest the violation or the amount of the penalty. 
Section 518(i) of SMCRA requires that the civil penalty provisions of a 
State program contain the same or similar procedural requirements 
relating thereto as does SMCRA. Since SMCRA has a prepayment 
requirement and consequences for failure to prepay, and Texas' 
recodified statute does not, the proposed amendment to the Texas Act is 
not consistent with SMCRA. Therefore, the Director finds that Chapter 
134, Section 134.176 is less stringent than Section 518(c) of SMCRA and 
is not approving the proposed removal of the provision discussed above. 
The Director is requiring Texas to restore this previously approved 
statute language and to notify OSM when the previously approved 
language has been

[[Page 4456]]

restored. It is the understanding of the Director that if any 
provisions of Chapter 134, Natural Resources Code are disapproved by 
OSM, the provisions of the former TSCMRA from which the disapproved 
provisions were derived are continued in effect for the purposes of 
those provisions until September 1, 1997.
    It should be noted that OSM has considered an amendment to 30 CFR 
845.19 which would require prepayment only with respect to proceedings 
that occur after an administrative law judge has determined that a 
penalty is lawfully due. OSM has deferred final rulemaking on this 
issue. However, OSM has approved an amendment to the Kentucky State law 
regulating surface coal mining which allows for a waiver of the 
prepayment requirement under very limited circumstances. See 58 FR 
42001, August 6, 1993. Texas may amend its program to include a limited 
waiver provision similar to the one approved for Kentucky.
17. Mining by Governmental Agencies; Mining on Government Land
    Texas proposes not to recodify Article 5920-11, Section 34(b) which 
requires any agency, unit, or instrumentality of Federal, State, or 
local government, including any 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 the 
requirements of TSCMRA to comply with all provisions of TSCMRA. The 
Director finds that the removal of this provision does not render the 
Texas program less stringent than section 524 of SMCRA and is approving 
it because the Texas Act requires all surface coal mining operations to 
be permitted, and, therefore, every permit has a permit holder. The 
State's definition for permit holder is ``a person holding a permit to 
conduct surface coal mining and reclamation operations or underground 
mining activities * * *'' (Chapter 134, Section 134.004(13), as 
recodified). Texas further defines ``person'' to mean ``an individual, 
partnership, society, joint-stock company, firm, company, corporation, 
business organization, governmental agency, or any organization or 
association of citizens'' (Chapter 134, Section 134.004(14), as 
recodified). The definition for ``person'' includes ``governmental 
agency,'' and because it does, the Texas statutes include a provision 
that government entities engaging in surface coal mining operations are 
subject to the requirements of TSCMRA.

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. OSM received only one 
public comment from the Texas Utilities Services, Incorporated, by 
letter dated November 15, 1995 (Administrative Record No. TX-594-05), 
thanking OSM for the opportunity to comment. No actual comments were 
offered on the proposed amendment. No one requested an opportunity to 
speak at a public hearing, therefore, 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.
    By a letter dated September 18, 1995 (Administrative Record No. TX-
594.02), OSM received a response from the Department of the Army, 
United States Army Corps of Engineers, Engineering Division stating 
that the proposed changes were satisfactory.
    By letter dated October 2, 1995 (Administrative Record No. TX-
594.04), OSM received comments on the proposed program amendment from 
the United States Department of Agriculture, Natural Resources 
Conservation Service (NRCS). These comments concerned the definition 
Texas proposed for prime farmland at Chapter 134, Section 134.004(15), 
as recodified. The NRCS stated that the Texas State Office of the 
Natural Resources Conservation Service in cooperation with the Texas 
State Soil and Water Conservation Board, and the Texas Agricultural 
Extension Service developed guidelines to insure consistent 
interpretation of the prime farmland criteria prescribed by the United 
States Secretary of Agriculture and published in the Federal Register. 
The NRCS suggested that the State may wish to reference the ``Texas'' 
criteria, in its definition for prime farmland, as well as the Federal 
criteria that is published in the Federal Register. Because the 
Director considers the proposed definition for prime farmland to be a 
nonsubstantive recodification of a previously approved definition, it 
is unnecessary for Texas to reference the ``Texas'' criteria in its 
definition for prime farmland.
    The NRCS had other comment on the proposed amendment at Chapter 
134, Section 134.032, Determination Regarding Prime Farmland, as 
recodified. The NRCS stated that the sentence, ``The commission may 
determine that land is not prime farmland because of its soil type or 
slope,'' is very open-ended and does not refer back to the definition 
of prime farmland at Chapter 134, Section 134.004(15), and that Texas 
needs to provide more guidance regarding determination of prime 
farmland. The Director has determined that the language in Chapter 134, 
Section 134.032 is previously approved language.
    By letter dated September 15, 1995 (Administrative Record No. TX-
594.03), OSM received three comments from the United States Department 
of the Interior, Bureau of Land Management (BLM). BLM stated that 
Chapter 134, Sections 134.092(a)(8) and 134.107, as recodified, appear 
to conflict. Section 134.092(a)(8) pertains to the surface coal mining 
and reclamation operations performance standards regarding permanent 
impoundments. Section 134.107 pertains to permits that may be granted a 
variance from having to restore the land to approximate original 
contour after mining. BLM also had a comment regarding mining through 
abandoned underground mines. BLM believed that Chapter 134, Sections 
134.092(a)(12) and 134.100 conflicted. The third comment from BLM 
pertained to the proposed recodified Chapter 134, Section 134.098, 
Prohibition on Augering. The Director finds that no substantive changes 
were made to these previously approved provisions.

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 (Administrative Record No. 594.01). 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

[[Page 4457]]

comments on the proposed amendment from the SHPO an ACHP 
(Administrative Record No. 594.01). Neither SHPO nor ACHP responded to 
OSM's request.

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 August 24, 1995.
    As discussed in finding number D.2.a., the Director is recommending 
that Texas remove Chapter 134, Section 134.005(a)(2) from its statutes 
concerning an exemption for surface coal mining operations affecting 
two acres or less. Texas should notify OSM when the removal is 
completed.
    As discussed in finding number D.11., the Director does not approve 
Chapter 134, Section 134.022(c) which extends the date for valid 
existing rights to May 9, 1979, for the provisions relating to 
designating areas unsuitable for mining and is requiring Texas to 
remove the disapproved language at recodified Chapter 134.022(c), to 
restore its previously approved statute language, and to notify OSM 
when the removal and restoration are completed.
    As discussed in finding number D.12., the Director does not approve 
Chapter 134, Section 134.068 which requires an applicant to file a 
schedule listing only notices of violations of Chapter 134 or of a law, 
rule, or regulation of the United States or Texas pertaining to air or 
water environmental protection and is requiring Texas to remove the 
disapproved provision and to notify OSM when the removal is completed.
    As discussed in finding number D.16., the Director does not approve 
at Chapter 134, Section 134.176 the removal of a provision that the 
person charged with a violation waives all legal rights to contest the 
violation or amount of the penalty unless the proposed penalty is paid 
within 30 days of notification of the proposed penalty and is requiring 
Texas to restore this previously approved statute language, and to 
notify OSM when the restoration is completed.
    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 approve 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 abandoned mine land reclamation plans, 
and program and plan amendments since each such program and plan 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. Decisions on proposed abandoned mine land 
reclamation plans and revisions thereof submitted by a State are based 
on a determination of whether the submittal meets the requirements of 
Title IV of SMCRA (30 U.S.C. 1231-1243) and 30 CFR Parts 884 and 888.

National Environmental Policy Act

    No environmental impact statement is required for this rule 
regarding the regulatory program amendment 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)). Also, no environmental 
impact statement is required for this rule regarding the abandoned mine 
land reclamation plan amendment since agency decisions on proposed 
State abandoned mine land reclamation plans and revisions thereof are 
categorically excluded from compliance with the National Environmental 
Policy Act (42 U.S.C. 4332) by the Manual of the Department of the 
Interior (516 DM 6, appendix 8, paragraph 8.4B(29)).

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: December 19, 1996.
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:

[[Page 4458]]

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 (p) to read as 
follows:


Sec. 943.15  Approval of regulatory program amendments.

* * * * *
    (p) With the exceptions noted below, the recodification of Article 
5920-11, Vernon's Texas Civil Statutes, Sections 1 through 38 to 
Chapter 134 of Title 4, Natural Resources Code, Sections 134.001 
through 134.188, the revisions to and the addition of statutes to the 
Texas Surface Coal Mining and Reclamation Act as submitted to OSM on 
August 24, 1995, and supplemented with explanatory information on April 
2 and July 30, 1996, are approved effective January 30, 1997.
    (1) The Director is not approving Chapter 134, Section 134.022(c) 
which extends the date for valid existing rights to May 9, 1979, for 
the provisions relating to areas unsuitable for mining.
    (2) The Director is not approving Chapter 134, Section 134.068, 
which requires an applicant to file a schedule listing only notices of 
violations of Chapter 134 or of a law, rule, or regulation of the 
United States or Texas pertaining to air or water environmental 
protection.
    (3) The Director is approving Chapter 134, Section 134.176, except 
to the extent that the recodified statute does not include the 
previously approved provision that the person charged with a penalty 
waives all legal rights to contest the violation or amount of the 
penalty unless the proposed penalty is paid within 30 days.
    3. Section 943.25 is revised to read as follows:


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

    (a) The amendment, as submitted by Texas on May 11 and 26, 1989, 
and clarified by it on April 13, 1992, certifying completion of 
reclamation on all lands adversely impacted by past coal mining, is 
approved effective August 19, 1992.
    (b) The recodification of Article 5920-11, Vernon's Texas Civil 
Statutes, Section 3(7) to Chapter 134 of Title 4, Natural Resources 
Code, Section 134.142 and revision to statutes of the Texas Surface 
Coal Mining and Reclamation Act concerning the Texas abandoned mine 
land reclamation plan as submitted to OSM on August 24, 1995, are 
approved effective January 30, 1997.

[FR Doc. 97-2329 Filed 1-29-97; 8:45 am]
BILLING CODE 4310-05-M