Permanent program and abandoned mine land reclamation plan submissions: Texas,

[Federal Register: November 25, 1998 (Volume 63, Number 227)]

[Rules and Regulations]

[Page 65068-65071]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr25no98-13]

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 943

[SPATS No. TX-039-FOR]

Texas Abandoned Mine Land Reclamation Plan

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

ACTION: Final rule; approval of amendment.

SUMMARY: OSM is approving an amendment to the Texas abandoned mine land reclamation plan (from now on referred to as the ``Texas plan'') under the Surface Mining Control and Reclamation Act of 1977 (SMCRA). Texas proposed additions, deletions, and revisions to its plan pertaining to Responsibilities; Definitions; Abandoned mine land reclamation fund; Eligible coal lands and water; Reclamation objectives and priorities; Reclamation project evaluations; Utilities and other facilities; Limited liability; Entry for studies or exploration; Contractor responsibility; Eligible noncoal lands and water; Reclamation priorities for noncoal program; Exclusion of certain noncoal reclamation sites; Land acquisition authority--noncoal; Lien requirements; Written consent for entry; Operations on private land; Entry and consent to reclaim; Appraisals; Liens; Satisfaction of liens; Entry for emergency reclamation; Land eligible for acquisition; Procedures for acquisition; Acceptance of gifts of land; Management of acquired land; and Disposition of reclaimed lands. Texas intended to revise its plan to be consistent with the corresponding Federal regulations.

EFFECTIVE DATE: November 25, 1998.

FOR FURTHER INFORMATION CONTACT: Michael C. Wolfrom, Director, Tulsa Field Office, Office of Surface Mining, 5100 East Skelly Drive, Suite 470, Tulsa, Oklahoma 74135-6547, Telephone: (918) 581-6430, E-mail: mwolfrom@mcrgw.osmre.gov.

SUPPLEMENTARY INFORMATION: I. Background on the Texas Plan II. Submission of the Proposed Amendment III. Director's Findings IV. Summary and Disposition of Comments V. Director's Decision VI. Procedural Determinations

1. Background on the Texas Plan

   On June 23, 1980, the Secretary of the Interior approved the Texas plan. You can find background information on the Texas plan, including the Secretary's findings, the disposition of comments, and the approval of the plan in the June 23, 1980, Federal Register (45 FR 41937). You can also find later actions concerning the Texas plan and amendments at 30 CFR 943.25.

2. Submission of the Proposed Amendment

   By letter dated December 1, 1997 (Administrative Record No. TAML- 61), Texas submitted a proposed amendment to its plan under the provisions of SMCRA. Texas submitted the amendment at its own initiative. We announced receipt of the amendment in the December 29, 1997, Federal Register (62 FR 67592). In the same document, we opened the public comment period and provided an opportunity for a public hearing on the adequacy of the amendment. The public comment period closed on January 28, 1998.

   During our review of the amendment, we identified concerns relating to the following sections: Eligible coal lands and water; Reclamation priorities for noncoal program; Land acquisition authority-noncoal; Lien requirements; Satisfaction of liens; Entry and consent to reclaim; Appraisals; Entry for emergency reclamation; Land eligible for acquisition; Disposition of reclaimed lands; Liens. We also identified editorial corrections in the two sections, Responsibilities and Definitions. We notified Texas of the concerns by facsimiles dated March 9, and August 25, 1998 (Administrative Record Nos. TAML-61.08 and TAML-61.10, respectively). Texas responded in letters dated July 20, and September 3, 1998, by submitting additional explanatory information and a revised amendment (Administrative Record Nos. TAML-61.09 and TAML-61.12, respectively).

   Texas proposed additional revisions to the following sections: 12.803 Eligible coal lands and water; 12.809 Reclamation priorities for noncoal program; 12.811 Land acquisition authority-noncoal; 12.812 Lien requirements; 12.814 Entry and consent to reclaim; 12.815 Appraisals; 12.816 Liens; 12.817 Satisfaction of liens; 12.818 Entry for emergency reclamation; 12.819 Land eligible for acquisition; 12.820 Procedures for acquisition; 12.821 Acceptance of gifts of lands; 12.822 Management of acquired land; and 12.823 Disposition of reclaimed lands.

   Based upon the additional explanatory information and revisions to the proposed plan amendment submitted by Texas, we reopened the public comment period in the October 2, 1998, Federal Register (63 FR 53003). The public comment period closed on October 19, 1998.

3. Director's Findings

   Set forth below, under the provisions of SMCRA and the Federal regulations at 30 CFR 884.14 and 884.15, are our 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.

   1. Sections That Texas Deleted From Its Regulations

      1. Section 12.805, Reclamation Project Evaluation

      Texas proposed to delete this section. We are approving this deletion because we have no counterpart Federal regulation and the deletion will not make the Texas regulations inconsistent with the Federal regulations. 2. Section 12.814, Operations on Private Lands

      Texas proposed to delete this section. We are approving this deletion because the provisions in this section are contained in new Sections 12.814, Entry and Consent to Reclaim and 12.815, Entry for Emergency Reclamation. Also, the deletion will not make the Texas regulations inconsistent with the Federal regulations.

   2. Revisions to Texas' Plan That Are Substantively Identical to the Corresponding Provisions of the Federal Regulations

      The proposed State regulations listed in the table contain language that is the same as or similar to the corresponding sections of the Federal regulations. Differences between the proposed State provisions and the Federal provisions are nonsubstantive.

      [[Page 65069]]

      Topic

      State regulation

      Federal counterpart regulation

      Definitions for abandoned mine Section 12.801....................... 30 CFR 870.5. reclamation fund or fund, eligible lands and water, emergency, extreme danger, left or abandoned in either an unreclaimed or inadequately reclaimed condition, mineral owner, OSM, permanent facility, project, reclamation activity, State reclamation program, Texas abandoned mine reclamation fund or State fund. Texas Abandoned Mine Reclamation Section 12.802....................... 30 CFR 872.12. Fund. Eligible Coal Lands and Water.... Section 12.803....................... 30 CFR 874.12. Reclamation Objectives and

      Section 12.804....................... 30 CFR 874.13. Priorities. Utilities and other Facilities... Section 12.805....................... 30 CFR 874.14 (b) and (d). Limited Liability................ Section 12.806....................... 30 CFR 874.15. Contractor Responsibility........ Section 12.807....................... 30 CFR 874.16 and 875.20. Eligible Noncoal Lands and Water. Section 12.808....................... 30 CFR 875.14. Reclamation Priorities for

      Section 12.809....................... 30 CFR 875.15. Noncoal Program. Exclusion of Certain Noncoal Section 12.810....................... 30 CFR 875.16. Reclamation Sites. Land Acquisition Authority-- Section 12.811....................... 30 CFR 875.17. Noncoal. Lien Requirements................ Section 12.812....................... 30 CFR 875.18. Written Consent for Entry........ Section 12.813....................... 30 CFR 877.11 Procedures for Acquisition....... Section 12.820....................... 30 CFR 879.12. Management of Acquired Land...... Section 12.822....................... 30 CFR 879.14.

      Because the above proposed revisions are identical in meaning to the corresponding Federal regulations, we find that Texas' revised plan is in compliance with the Federal regulations.

   3. Revisions to Texas' Plan That Are Not Substantively Identical to the Corresponding Provisions of the Federal Regulations

      1. Section 12.814, Entry and Consent to Reclaim

      Texas proposed to repeal section 12.814, Operations on Private lands, and adopt new section 12.814, Entry and Consent to Reclaim. This new section authorizes the Commission to enter land to perform reclamation activities or conduct studies or exploratory work to determine the existence of the adverse effects of past coal mining with or without the landowner's permission. The Commission must give a minimum of 30 days written notice to the landowner before entering property where the landowner's permission to enter has not been obtained or where the landowner is not known or is readily available. If the landowner is known, the Commission will send the written notice by mail, return receipt requested, along with a copy of the written findings required under paragraph (c)(1) of this section. If the landowner is not known, or if the current mailing address of the landowner is not known, the Commission will post a notice in one or more places on the property to be entered where it is readily visible to the public. The Commission will also advertise once in a newspaper of general circulation in the locality in which the land is located. The advertisement must include a statement of where the findings required under paragraph (c)(1) of this section may be inspected or obtained.

      We are approving this revision because it is consistent with the counterpart Federal regulations at 30 CFR 877.13. 2. 12.816, Liens

      In paragraph (a)(2), Texas proposed to add a provision that allows it to notify landowners of the amount of the proposed lien and to give the landowners a reasonable amount of time to pay the lien before the lien is placed against the property.

      Also, in paragraph (d), Texas proposed to conduct hearings and any appeals by landowners concerning the amounts of the liens under Chapter 2001, Government Code.

      The State removed language that required it to place a lien against reclaimed land if the reclamation results in an increase in the fair market value with one exception. This exception is that the State may waive the lien if the cost of filing it exceeds the increase in fair market value as a result of the reclamation activities. The State proposed to allow itself the discretion to place a lien against the reclaimed land and to also retain the exception for waiving liens.

      We are approving these revisions because they are in compliance with the counterpart Federal regulations at 30 CFR 882.13. 3. 12.818, Entry for Emergency Reclamation

      Texas proposed to adopt this new section to conform with the Texas Natural Resources Code, Section 134.152 (b) and (c). This new section allows the Commission to enter land where an emergency exists and other land necessary to have access to that land. It also allows the Commission to restore, reclaim, abate, control, or prevent the adverse effects of coal mining practices, and to do whatever is necessary and suitable to protect the public health, safety, or general welfare.

      We are approving this new section because it is consistent with the counterpart Federal regulations at 30 CFR 877.14(a). However, because Texas has not formally assumed responsibility for its abandoned mine land emergency program, we are under no obligation to reimburse it for expenses it acquires in handling any emergencies under this section. 4. Section 12.819, Land Eligible for Acquisition

      This section sets forth the criteria that any land must meet before the State can purchase the land with abandoned mine land reclamation funds. We are approving this section because it is in compliance with the Federal regulations at 30 CFR 879.11. 5. Section 12.821, Acceptance of Gifts of Land

      Texas proposed to renumber this section from Section 12.812 to 12.821. Texas revised paragraphs (a) and (c) to read as follows:

      (a) The Commission under an approved reclamation plan may accept donations of title to land or interests in land if the land proposed for donation meets the requirements set out in Sec. 12.819 of this title (relating to Land Eligible for Acquisition).

      (c) If the offer is accepted, a deed of conveyance shall be executed, acknowledged and recorded. The deed shall state that it is made ``as a gift under the Texas Surface Coal Mining and Reclamation Act.'' Title to donated land shall be in the name of the state of Texas.

      [[Page 65070]]

      We are approving these revisions because they are consistent with the Federal regulations at 30 CFR 879.13. 6. Section 12.823, Disposition of Reclaimed Land

      Texas proposed to renumber this section from Section 12.813 to 12.823, and to reformat this section. This section sets forth the criteria under which the State may dispose of land acquired under Section 12.819, Land Eligible for Acquisition. We are approving this revision because it is in compliance with the Federal regulations at 30 CFR 879.15.

   4. Revisions to Texas' Plan That Do Not Have Corresponding Provisions in the Federal Regulations

      Texas proposed section 12.800 Responsibilities as an addition to its regulations. This section sets forth the responsibilities that the Commission will have regarding the Texas Abandoned Mine Land Reclamation Program. We previously approved this section in the April 22, 1998, Federal Register notice (63 FR 19821).

4. Summary and Disposition of Comments

   Public Comments

   We asked the public for comments and provided an opportunity for a public hearing on the proposed amendment. We did not receive any public comments, and because no one requested an opportunity to speak at a public hearing, we did not hold one.

   Federal Agency Comments

   Under the provisions of 30 CFR 884.14(a)(2) and 884.15(a), we requested comments on the proposed amendment from various other Federal agencies with an actual or potential interest in the Texas plan. We received comments from the U.S. Army Corps of Engineers in letters dated January 27, and October 5, 1998 (Administrative Record Nos. TAML- 61.06 and TAML-61.16, respectively). The letters stated that the changes Texas proposed in its amendment were satisfactory.

5. Director's Decision

   Based on the above findings, we approve the proposed plan amendment as submitted by Texas on December 1, 1997, and as revised on September 3, 1998. We approve the regulations as proposed by Texas with the provision that Texas fully issue, in identical form, the regulations they submitted and we and the public reviewed.

   We are amending the Federal regulations at 30 CFR Part 943, that codify decisions concerning the Texas plan. We are also making this final rule effective immediately to expedite the State plan amendment process and to encourage States to bring their plans into conformity with the Federal standards without undue delay. SMCRA requires consistency of State and Federal standards.

6. Procedural Determinations

   Executive Order 12866

   This proposed 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 and Tribal abandoned mine land reclamation plans and revisions since each plan is drafted and issued by a specific State or Tribe, not by OSM. Decisions on proposed abandoned mine land reclamation plans and revisions submitted by a State or Tribe 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 Part 884.

   National Environmental Policy Act

   This rule does not require an environmental impact statement since agency decisions on proposed State and Tribal abandoned mine land reclamation plans and revisions 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 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 the regulations would not have a significant economic effect upon a substantial number of small entities. Accordingly, this rule will ensure that existing requirements previously issued by OSM will be implemented. In making the determination as to whether this rule would have a significant economic impact, the Department relied upon the data and assumptions in the analyses for the corresponding Federal regulations.

   Unfunded Mandates

   OSM has determined and certifies under the provisions of 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: November 6, 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 943.25 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.

      * * * * *

      Original amendment submission date Date of final publication

      Citation/description

      *

      *

      *

      *

      *

      * * December 1, 1997........................ November 25, 1998.......... 12.800 through .814; .815(d); .816; .818 through .823.

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      [FR Doc. 98-31491Filed11-24-98; 8:45 am]

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