Rule2023-20018
Texas Abandoned Mine Land Reclamation Plan and Regulations
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
September 20, 2023
Issuing agencies
Interior DepartmentSurface Mining Reclamation and Enforcement Office
Abstract
We, the Office of Surface Mining Reclamation and Enforcement (OSMRE), are approving an amendment to the Texas abandoned mine land reclamation plan (Texas Plan) and regulations under the Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act). Texas proposed to revise its existing Plan and regulations in response to OSMRE's request to amend the Texas Plan and to improve the readability and efficiency of the document.
Full Text
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<title>Federal Register, Volume 88 Issue 181 (Wednesday, September 20, 2023)</title>
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[Federal Register Volume 88, Number 181 (Wednesday, September 20, 2023)]
[Rules and Regulations]
[Pages 64810-64817]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-20018]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 943
[SATS No. TX-071-FOR; Docket No. OSM-2019-0011; S1D1S SS08011000
SX064A000 234S180110; S2D2S SS08011000 SX064A000 23XS501520]
Texas Abandoned Mine Land Reclamation Plan and Regulations
AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.
ACTION: Final rule; approval of amendment.
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SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement
(OSMRE), are approving an amendment to the Texas abandoned mine land
reclamation plan (Texas Plan) and regulations under the Surface Mining
Control and Reclamation Act of 1977 (SMCRA or the Act). Texas proposed
to revise its existing Plan and regulations in response to OSMRE's
request to amend the Texas Plan and to improve the readability and
efficiency of the document.
DATES: October 20, 2023.
FOR FURTHER INFORMATION CONTACT: Joe Maki, Director, Tulsa Field
Office, Office of Surface Mining Reclamation and Enforcement, 1645
South 101st East Avenue, Suite 145, Tulsa, Oklahoma 74128-4629.
Telephone (918) 581-6430, Email: <a href="/cdn-cgi/l/email-protection#315b5c505a58715e425c43541f565e47"><span class="__cf_email__" data-cfemail="7b11161a10123b140816091e551c140d">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
I. Background on the Texas Program and Plan
II. Submission of the Amendment
III. OSMRE's Findings
IV. Summary and Disposition of Comments
V. OSMRE's Decision
VI. Procedural Determinations
I. Background on the Texas Program and Plan
The Abandoned Mine Land Reclamation (AML) Program was established
by Title IV of the Act (30 U.S.C. 1201 et seq.) in response to concerns
over extensive environmental damage caused by past coal mining
activities. The program is funded primarily by a reclamation fee
collected on each ton of coal that is produced. The money collected is
used to finance the reclamation of abandoned coal mines and for other
authorized activities. Section 405 of the Act allows States and Indian
Tribes to assume exclusive responsibility for reclamation activity
within the State or on Indian lands if they develop and submit for
approval to the Secretary of the Interior a program (often referred to
as a plan) for the reclamation of coal mines abandoned or otherwise
left in an inadequate reclamation status at the time SMCRA was enacted.
On June 23, 1980, the Secretary of the Interior approved the Texas
Plan. You can find general background information on the Texas Plan,
including the Secretary's findings and the disposition of comments, in
the June 23, 1980, Federal Register (45 FR 41937). You can also find
later actions concerning Texas's AML Program and Plan amendments at 30
CFR 943.25.
II. Submission of the Amendment
Under the authority of 30 CFR 884.15, OSMRE by letter dated March
8, 2019 (Administrative Record No. TX-0707), directed Texas to update
the Texas Plan. In that letter, known as a Part 884 letter, OSMRE
indicated that the Texas Plan required revisions to meet the
requirements of SMCRA as revised on December 20, 2006, by the Tax
Relief and Health Care Act of 2006 (Pub. L. 109-432), and in response
to changes made to the implementing Federal regulations as revised on
November 14, 2008 (73 FR 67576), and February 5, 2015 (80 FR 6435). The
letter required Texas to provide either ``(1) a proposed written
Reclamation Plan amendment or, (2) a description of the Reclamation
Plan amendments you will propose in response to the revised regulations
or, (3) a detailed statement explaining why [Texas] believe[d] no
amendment to [Texas's] Reclamation Plan is necessary.'' The letter
further provided Texas with a summary of the changes to the Federal
Program that might require amendments to the Texas Plan to ensure
Texas's program was consistent with and no less effective than the
Federal Program.
By letter dated December 3, 2019 (Administrative Record No. TX-
708), Texas sent us amendments to the Texas Plan and conforming State
regulations. The Texas amendments are intended to address all required
amendments identified in OSMRE's letter dated March 8, 2019. Texas's
amendments will revise the State's existing AML Plan and AML program
regulations.
We announced receipt of the proposed amendments in the July 20,
2020, Federal Register (85 FR 43759). In the same document, we opened a
public comment period and provided an opportunity for a public hearing
or meeting on the amendment. We received three comments. We did not
hold a public hearing or meeting because none were requested. The
public comment period ended on August 19, 2020.
In compliance with 30 CFR 884.14, Texas also allowed public input
on the Texas Plan and held a public comment period during the
development of the State regulations. The comment period on the
regulatory amendments was from August 23, 2019, to September 23, 2019
(Administrative Record No. TX-708.04). Texas received no comments. In
addition, in November, 2019, the Railroad Commission of Texas provided
public notice that it was considering adoption of the amended and
restated Texas Plan and provided an opportunity for public input on the
proposal.
III. OSMRE's Findings
A. Texas's Explanation for Not Amending Certain Provisions
In response to our Part 884 letter, Texas stated that several items
mentioned in the Part 884 letter do not appear to be applicable or
require regulatory or plan changes. We agree.
First, in our Part 884 letter, we advised that certified States
such as Texas are no longer authorized to set aside AML funds for
future reclamation. In response, Texas stated that it has not
undertaken future reclamation set aside and is no longer eligible to do
so.
Second, in our Part 884 letter, we advised of certain changes
related to
[[Page 64811]]
requirements and restrictions of acid mine drainage treatment and
abatement programs for certified States. In response, Texas stated that
it has not undertaken an acid mine drainage program and does not intend
to create one in the foreseeable future.
Third, in our Part 884 letter, we advised of changes to certain
requirements for uncertified States. In response, Texas noted that
these provisions are inapplicable to Texas as a certified State.
Fourth and finally, we advised that 30 CFR part 887 has been
amended to clarify funding sources for subsidence insurance grants. In
response, Texas stated that it does not operate a subsidence insurance
program and does not intend to create one in the foreseeable future.
Texas's responses to these provisions of the Part 884 letter are
appropriate.
B. Revisions to the Texas Plan
Our review of a proposed State Reclamation Plan amendment is
governed by section 405 of SMCRA and 30 CFR part 884. Section 405(e) of
SMCRA requires a State Reclamation Plan to ``generally identify the
areas to be reclaimed, the purposes for which the reclamation is
proposed, the relationship of the lands to be reclaimed and the
proposed reclamation to surrounding areas, the specific criteria for
ranking and identifying projects to be funded, and the legal authority
and programmatic capability to perform such work[.]'' Under 30 CFR
884.15(a), we follow the procedures of 30 CFR 884.14 if the State
proposes a major amendment that changes the objectives, scope, or major
policies followed by the State in the conduct of its reclamation
program. Texas generally proposes to respond to our Part 884 letter,
update the objectives, scope, and policies of its program to reflect
its status as a certified state, and amend its plan consistent with the
2006 changes to SMCRA and the associated changes to the implementing
Federal regulations. Accordingly, we are considering Texas's proposal
as a major amendment and following the procedures set out in 30 CFR
884.14.
The rule at 30 CFR 884.14 requires: (1) public input, (2)
solicitation and consideration of the views of interested Federal
agencies, (3) a determination that the State has the legal authority,
policies, and administrative structure necessary to carry out the
proposed plan, (4) a determination that the proposed plan meets the
requirements of 30 CFR Subchapter R, (5) a determination that the State
has an approved regulatory program, and (6) a determination that the
plan is in compliance with all applicable State and Federal laws and
regulations. The rule at 30 CFR 884.13 describes the contents that each
State Reclamation Plan must include.
We make the following findings concerning Texas's AML plan
amendment under SMCRA and the Federal regulations at 30 CFR 884.13 and
884.14. We are approving the Texas Plan amendment, with an exception,
as described below.
Before approving a State Reclamation Plan, we must ``h[o]ld a
public hearing on the plan within the State which submitted it, or
ma[k]e a finding that the State provided adequate notice and
opportunity for public comment in the development of the plan.'' 30 CFR
884.14(a)(1).
We find that Texas provided adequate notice and opportunity for
public comment in the development of the plan. A Railroad Commission of
Texas Open Meeting Notice for November 19, 2019, provided notice to the
public that the Railroad Commission (Commission) was considering
adoption of the amended and restated Texas Plan. The notice stated that
the Commission would provide an opportunity for public input on any
matter under the jurisdiction of the Commission, in accordance with a
policy adopted on September 7, 2005. The notice further provided
opportunities for concerned individuals to view the open meeting via
webcast and offered accommodations and auxiliary aids or services for
persons with a disability.
Additionally, when Texas submitted the proposed Texas Plan, we
announced receipt of the proposed amendment in the Federal Register,
opened a 30-day public comment period, and provided an opportunity for
a public hearing or meeting on the amendment. We did not hold a public
hearing or meeting because none were requested.
Before approving a State Reclamation plan, we must solicit and
consider the views of other Federal agencies having an interest in the
plan. 30 CFR 884.14(a)(2). As discussed in Part IV below, we solicited
the views of other Federal agencies and received no comments.
Before approving a State Reclamation plan, we must determine that
the State has an approved State regulatory program. 30 CFR
884.14(a)(5). 30 CFR part 943 codifies the approval and amendments of
Texas's state regulatory program.
Finally, before approving a State Reclamation plan, we must
determine that the State has the legal authority, policies, and
administrative structure necessary to carry out the proposed plan, that
the plan meets the requirements of 30 CFR Part VII Subchapter R
(``Abandoned Mine Land Reclamation''), and that the plan is in
compliance with all applicable State and Federal laws and regulations.
As discussed in detail below, we find that the proposed Texas Plan
meets these requirements and the specific content requirements of 30
CFR 884.13.
Under 30 CFR 884.13(a)(1), a State Reclamation Plan must include a
designation by the Governor of the State of the agency authorized to
administer the State reclamation program and administer grants under
Part 885 or 886. The revised Texas Plan includes a copy of the
Governor's 1979 letter designating the Railroad Commission of Texas as
the agency authorized to administer the State AML Program and to
receive and administer grants. Texas has incorporated the Governor's
letter designating the Railroad Commission as the agency authorized to
administer the State AML Program and receive and administer grants in
the Texas Plan as required under 30 CFR 884.13(a)(1). The 1979
designation remains current and provides adequate authority for the
Railroad Commission to carry out the plan.
Under 30 CFR 884.13(a)(2), a State Reclamation Plan must include a
legal opinion from the State Attorney General or the chief legal
officer of the designated state agency that the agency has authority
under State law to conduct the program in accordance with the
requirements of Title IV of SMCRA. Texas provided a copy of the March
20, 1980, legal opinion from the State Assistant Attorney General
indicating that the Railroad Commission is the designated agency with
the authority to conduct the AML Program in accordance with all
requirements of SMCRA Title IV. Texas has incorporated the Assistant
Attorney General's letter in the Texas Plan as required under 30 CFR
884.13(a)(2). The 1980 legal opinion remains current, and there have
not been any State constitutional or statutory developments that would
impair the ability of the Railroad Commission to conduct its AML
Program in accordance with the requirements of Title IV of the Act.
Federal regulations at 30 CFR 884.13(a)(3) require a description of the
policies and procedures of the State agency, including the purposes of
the State AML Program. The Texas Plan includes a Policies and
Procedures section that provides succinct descriptions of, and legal
citations for, the purposes of its AML Program consistent with 30 CFR
884.13(a)(3).
[[Page 64812]]
Under 30 CFR 884.13(a)(3)(ii), a State Reclamation Plan must
include the ``specific criteria, consistent with section 403 of the Act
for ranking and identifying projects to be funded. . . .'' Section 403
of SMCRA provides that expenditures must reflect certain priorities
except as provided for under section 411 of SMCRA. Section 411(c) of
SMCRA provides that expenditures of moneys according to Section 411(b)
of SMCRA must reflect the objectives and priorities of Section 411(c)
in lieu of the priorities set forth in section 403. OSMRE's
implementing regulations at 30 CFR 874.13 and 875.15 respectively list
the priorities for coal and noncoal AML reclamation programs.
In our Part 884 letter, we advised Texas that certified States must
comply with Parts 874 and 875 to maintain certification status. We
further advised that the 2006 SMCRA amendments revised the reclamation
priorities in section 403 by removing ``general welfare'' from
Priorities 1 and 2, including an ``adjacent to'' provision in
Priorities 1 and 2, and deleting Priorities 4 and 5.
The revised Texas Plan includes a section entitled ``Ranking and
Selecting Sites'' that states that Texas will use the priority system
as outlined in 30 CFR parts 874 or 875 and operate noncoal reclamation
projects under 30 CFR part 875. The Plan also includes the
prioritization matrix Texas uses to assess and prioritize potential
project areas for reclamation. This section is consistent with the Plan
content requirements of 30 CFR 884.13(a)(3)(ii), which requires
specific criteria, consistent with SMCRA, for ranking and identifying
projects to be funded; 30 CFR parts 874 and 875, which list priorities;
and the direction in our Part 884 letter.
Reclamation projects will not be undertaken without first receiving
an Authorization to Proceed from OSMRE. This is in accordance with
section 405(l) of SMCRA and consistent with 30 CFR 874.15 and 875.19,
which provide limited liability coverage to certified State coal and
noncoal reclamation activities, unless the costs or damages were the
result of gross negligence or intentional misconduct. The requirement
to receive written authorization from OSMRE before the expenditure of
construction funds on an individual project is documented as a grant
condition under 30 CFR 885.16(e).
Under 30 CFR 844.13(a)(3)(iii), a State Reclamation Plan must
include policies and procedures for ``coordination of reclamation work
among the State reclamation program, the Rural Abandoned Mine Program
administered by the Soil Conservation Service, the reclamation programs
of any Indian tribes located within the States, and [OSMRE's]
reclamation programs . . .'' The revised Texas Plan includes a section
entitled ``Interagency Coordination'' that indicates that the State
will coordinate with other agencies and offices including the Natural
Resources Conservation Service and OSMRE, as required, as well as
multiple other State and Federal entities. By indicating it will
coordinate and work with all required agencies, Texas's proposed
section is consistent with the requirements of 30 CFR
884.13(a)(3)(iii).
Under 30 CFR 884.13(a)(3)(iv), a State Reclamation Plan must
include policies and procedures about land acquisition, management, and
disposal under 30 CFR part 879. In our Part 884 letter, we notified
Texas that it ``must comply with [30 CFR part 879] when expending funds
awarded after October 1, 2007 . . .'' We further noted that all
``moneys received from the sale of property acquired under [section 407
of SMCRA] is disposed of as if it were unused funds under 30 CFR 886.20
. . .'' The revised Texas Plan includes a section entitled ``Land
Acquisition, Management and Disposal'' that states that ``acquisition,
management, and disposal of abandoned mine(s) land shall be in
accordance with applicable provisions of 30 CFR part 879 and Texas
Natural Resources Code Chapter 134 [(Texas Surface Coal Mining and
Reclamation Act (TSCMARA))].'' By committing to act in accordance with
30 CFR part 879, Texas has taken action to address this issue on a plan
level. See 30 CFR 879.15(h) (``You must return all moneys received from
disposal of land under this part to us. We will handle all moneys
received under this paragraph as unused funds in accordance with
Sec. Sec. 885.19 and 886.20 of this chapter.'').
Under 30 CFR 884.13(a)(3)(v), a State Reclamation Plan must include
policies and procedures about reclamation on private land in accordance
with 30 CFR part 882. The revised Texas Plan includes a section
entitled ``Reclamation on Private Land'' that indicates that the State
will carry out reclamation activities on private lands in accordance
with 30 CFR part 882 and the provisions in Texas Natural Resources Code
Chapter 134 about reclamation work on private land. This section of the
Texas Plan provides the State's policies and procedures for reclamation
on private lands and is therefore consistent with the State Reclamation
Plan content requirements of 30 CFR 884.13(a)(3)(v). Furthermore, by
committing to act in accordance with 30 CFR part 882 and the previously
approved provisions of TSCMARA, Texas's proposal meets the requirements
of Federal regulations.
Before the 2006 amendments to SMCRA, 30 U.S.C. 1238(a) provided
that, ``[n]o lien shall be filed against the property of any person, in
accordance with this subsection, who owned the surface prior to May 2,
1977, and who neither consented to nor participated in nor exercised
control over the mining operation which necessitated the reclamation
performed hereunder.'' In the 2006 amendments to SMCRA, the May 2,
1977, limitation was deleted. In our Part 884 letter, we notified Texas
that this language was removed. Texas removed this language from State
statute in June 2007, and the Texas Plan does not include the former
language.
Under 30 CFR 884.13(a)(3)(vi), a State Reclamation Plan must
include policies and procedures about rights of entry under 30 CFR part
877. Our Part 884 letter did not note any necessary changes to policies
and procedures about rights of entry. The Texas Plan includes a section
entitled ``Rights of Entry'' that indicates that the State will take
all reasonable actions to obtain written voluntary permission from a
landowner before conducting reclamation activities. The Texas Plan
further outlines the authority under the provisions in Chapter 134 of
TSCMARA and the conditions under which the State can execute
reclamation activities if the landowner will not provide consent. This
section of the Texas Plan is consistent with the State Reclamation Plan
content requirements of 30 CFR 884.13(a)(3)(vi). Furthermore, the
State's policies and procedures about rights of entry are consistent
with 30 CFR part 877.
Under 30 CFR 884.13(a)(3)(vii), a State Reclamation Plan must
include policies and procedures for public participation and
involvement in the preparation of the State Reclamation Plan and in the
State reclamation program. The revised Texas Plan does not meet this
requirement. It states only that the Commission must conform to the
Texas Administrative Procedure Act when it issues or amends rules, or
issues permits under TSCMARA and allows opportunity for public comment
on adoption or amendment of rules. The general citations in the revised
Texas Plan to the Texas Administrative Procedure Act relate to
rulemaking and permit issuance and do not clearly provide procedures
for participation and involvement in the preparation of the Texas Plan
or in activities under the State reclamation program. Therefore, we are
not approving this portion of the amendment. Texas may continue to rely
[[Page 64813]]
on the public participation procedures established in its existing plan
or, if desired, propose a new amendment to its public participation
policies and procedures that also meets the requirements of 30 CFR
884.13(a)(3)(vii).
As discussed above, the revised Texas Plan includes sections
responding to the requirements of 30 CFR 884.13(a)(3)(i) through (vii).
These sections provide updated descriptions of the State's policies and
procedures for conducting its AML Program including: the purposes of
the AML Program; specific criteria for ranking and identifying projects
to be funded; coordination of reclamation work between the State and
all applicable State and Federal agencies; land acquisition;
reclamation on private land; and right of entry. The revised Texas
Plan, with the exception discussed above, is consistent with the State
Reclamation Plan content requirements of 30 CFR 884.13(a)(3).
Federal regulations at 30 CFR 884.13(a)(4)(i) require a description
of the designated agency's organization and relationship to other State
entities that may participate in or augment the State's AML reclamation
abilities. The Texas Plan includes a section entitled ``884.13
Administrative Framework, 884.13(a)(4)(i) Commission Structure and
Relationships,'' that provides an organizational chart depicting the
Railroad Commission of Texas, Surface Mining & Reclamation Division,
and the Abandoned Mine Land and Reclamation Program's place within it.
Federal regulations at 30 CFR 884.13(a)(4)(ii) require a
description of the personnel staffing policies that will govern
assignments within the AML Program. The revised Texas Plan includes a
section entitled ``Staffing and Personnel Policies'' that provides the
information required under 30 CFR 884.13(a)(4)(ii).
Federal regulations at 30 CFR 884.13(a)(4)(iii) require State
purchasing and procurement systems to meet the requirements of Office
of Management and Budget Circular A-102, Attachment 0, relating to
``Grants and Cooperative Agreements with State and Local Governments.''
Federal grantmaking agencies were previously required to issue a grants
management common rule to adopt governmentwide terms and conditions for
grants to States and local governments. As a result, we notified Texas
in our Part 884 letter that the attachments to Circular A-102,
including Attachment 0 referenced in 30 CFR 884.13(a)(4)(iii), have
been replaced by the grants management common rule at 2 CFR part 200.
The Federal regulations have not yet been updated to reflect this
change; however, it is reflected in the revised Texas Plan under the
section entitled ``Purchasing and Procurement,'' which indicates its
purchasing and procurement policies are consistent with 2 CFR part 200.
Additionally, Texas revised its plan to acknowledge, effective
September 1, 2019, that the Railroad Commission has delegated authority
to enter in all purchasing functions related to procurement under
TSCMARA. This section provides descriptions of purchasing and
procurement systems consistent with the requirements of 30 CFR
884.13(a)(4)(iii).
Federal regulations at 30 CFR 884.13(a)(4)(iv) require a
description of the accounting system to be used by the agency including
specific procedures for operation of the State AML Fund. The revised
Texas Plan includes a section entitled ``Accounting System'' that
describes the Centralized Accounting and Payroll/Personnel System
uniform statewide accounting system. Referenced Texas Government Code
Title 10 Subtitle C provides the State accounting and auditing
procedures. As a condition of its annual grant (and consistent with the
obligations outlined in the previous paragraph), Texas is required to
comply with all the conditions of 2 CFR part 200, which addresses
administrative requirements, cost principles, and audit requirements
for Federal awards.
As discussed above, the revised Texas Plan includes four sections
providing revised descriptions of the State's administrative and
management structure, staffing and personnel Policies, purchasing and
procurement; and accounting system. By providing all required
descriptions of the administrative and management structure of the
State AML agency, the revised Texas Plan is consistent with all State
Reclamation Plan content requirements under 30 CFR 884.13(a)(4).
Under 30 CFR 884.13(a)(5), a State Reclamation Plan must include a
general description, derived from available data, of the reclamation
activities to be conducted under the State Reclamation Plan. The
revised Texas Plan includes a section entitled ``Description of
Reclamation Activities.'' Texas provided general descriptions derived
from available data of the reclamation activities to be conducted under
the State Reclamation Plan including: a map showing the general
location of known or suspected eligible lands and waters; a description
of the problems occurring on those lands and waters; and how the Texas
Plan proposes to address each of the problems. Because Texas is
certified, the State has already completed reclamation of all known
high priority coal hazards. Individual project approval and funding are
appropriately handled through the Authorization to Proceed process
under 30 CFR 885.16(e). The revised Texas Plan sections entitled
``Description of Reclamation Activities,'' ``Map of Eligible
Reclamation Locations,'' ``Description of Problems,'' and ``How
Reclamation Activities Address Problems'' are consistent with the State
Reclamation Plan content requirements of 30 CFR 884.13(a)(5) in
providing general descriptions of reclamation activities to be
conducted, including maps, descriptions of AML problems, and
descriptions of hazard abatement strategies.
Under 30 CFR 884.13(a)(6), a State Reclamation Plan must include a
general description, derived from available data, of the conditions
prevailing in the different geographic areas of the State where
reclamation is planned. The revised Texas Plan includes sections
entitled: ``Conditions in Geographic Areas''; ``Economic Base'';
``Significant Esthetic, Historic or Cultural, and Recreational
Values''; and ``Endangered and Threatened Plant, Fish, and Wildlife and
Their Habitat'' that provide general descriptions on each subject
derived from available data on the conditions prevailing in the areas
of the State where reclamation may occur. The revised Texas Plan
provides descriptions of the prevailing conditions consistent with the
requirements of 30 CFR 884.13(a)(6).
Under 30 CFR 884.13(b), a certified State Reclamation Plan must
include a commitment to address eligible coal problems found or
occurring after certification. In our Part 884 letter, we reiterated
this requirement. The revised Texas Plan includes a section entitled
``Commitment to Address Eligible Coal Problems'' that provides a
commitment to address all eligible coal problems found or occurring
after certification as required under 30 CFR 875.13(a)(3) and
875.14(b). Texas has indicated it will prioritize coal hazards over
noncoal. As a condition of certification on May 21, 1992 (57 FR 21640),
Texas agreed: ``If a coal problem occurs or is identified sometime in
the future, Texas must seek immediate funding for reclaiming the coal-
related problem. In the event of concurrence with certification by the
Secretary, Texas has agreed to this condition.'' In section
884.13(a)(3)(ii) of the amendment, Texas commits to compliance with the
priority systems outlined in 30 CFR part 874 or 30 CFR part 875. By
committing to give priority to addressing eligible coal problems found
or occurring after certification as
[[Page 64814]]
required in 30 CFR 875.13(a)(3) and 875.14(b), the revised Texas Plan
is consistent with the State Reclamation Plan content requirements of
30 CFR 884.13(b).
In our Part 884 letter, we notified Texas that the State
Reclamation Plan for a certified State may provide for construction of
specific public facilities related to coal or minerals development in
accordance with 30 CFR 884.17. Texas declined to include this
provision.
In our Part 884 letter, we notified Texas that ``[c]ertified States
. . . are covered by the limited liability provision when they are
performing'' coal reclamation and certain noncoal reclamation. As
background, in 2015, we issued the rule Abandoned Mine Land Reclamation
Program; Limited Liability for Noncoal Reclamation by Certified States
and Indian Tribes, 80 FR 6435 (Feb. 5, 2015). The rule gave certified
states two options for conducting noncoal reclamation projects. First,
a certified State could expend its prior balance replacement funds and
certified in lieu funds on projects outside the scope of a SMCRA
noncoal AML reclamation program but without limited liability
protection. Second, a certified State can receive limited liability
protection if it voluntarily uses its prior balance replacement funds
and certified in lieu funds to conduct noncoal reclamation projects
pursuant to a SMCRA noncoal AML reclamation program under the
provisions of section 411(b)-(g) of SMCRA, 30 CFR part 875, and other
applicable regulations. The rule placed additional administrative
requirements on States that voluntarily choose to conduct noncoal
reclamation projects under the second option because OSMRE must verify
that such projects meet applicable statutory and regulatory
requirements. 80 FR at 6438-39. The Texas Plan states that noncoal
reclamation projects will be operated under 30 CFR part 875 to receive
the limited liability protections of SMCRA. Additionally, as discussed
in more detail below, Texas retains previously approved regulatory
language corresponding to the Federal statutory and regulatory limited
liability provisions.
In the 2015 rule, we revised Part 875 to ``set forth the procedures
that certified states must follow if they voluntarily choose to use
their Title IV funding for noncoal reclamation projects under Part 875
. . . pursuant to an approved SMCRA noncoal AML reclamation plan.'' 80
FR at 6439. Those procedures included the contractor eligibility
requirements set forth in 30 CFR 875.20. In our Part 884 letter, citing
section 405(l) of SMCRA and 30 CFR 875.20, we notified Texas that a
certified State must comply with contractor eligibility requirements
when they are voluntarily conducting noncoal reclamation. Texas's
existing regulation at 16 Texas Administrative Code (TAC) section
12.807 requires every successful bidder for an AML contract to be
eligible under section 12.215 (Review of Permit Applications) at the
time of contract award to receive a permit or conditional permit and
requires that bidder eligibility be confirmed by OSMRE's Applicant/
Violator System for each contract to be awarded. Accordingly, Texas's
program meets the contractor eligibility requirements set forth in 30
CFR 875.20 and our Part 884 letter.
Thus, we find that the revised Texas Plan, with the one exception
noted above, meets all content requirements stipulated under 30 CFR
884.13 while also updating the State Reclamation Plan and regulations
consistent with changes made to the Federal program in 2006, 2008, and
2015. The revised Texas Plan, therefore, meets the requirements of
OSMRE's March 6, 2019, letter, and we approve it.
B. Revisions to Texas's AML Regulations
Texas proposes amendments to regulations governing its AML program
at 16 TAC sections 12.801-12.809, 12.811, 12.812, 12.814-12.816, and
12.818-12.823. Generally, the changes align Railroad Commission rules
with SMCRA and the corresponding Federal regulations.
Non-substantive changes can be found in sections 16 TAC sections
12.801, 12.802, 12.806, 12.807, 12.809, 12.811, 12.812, 12.814, 12.816,
12.818, 12.820, 12.821, and 12.822. These changes define terms used
throughout the regulations, capitalize ``Commission,'' correct rule
citations and cross-references, and clarify existing language. These
changes have no substantive impact on the effectiveness of the
regulation.
Texas proposes to amend 16 TAC section12.803(a)(3) to add ``or any
prior balance replacement funds may be used.'' to the end of the
paragraph. This allows Texas to use prior balance replacement funds
where a forfeited bond is not sufficient to pay the cost of
reclamation. This is consistent with 30 CFR 874.12.
Texas's previously approved regulations at 16 TAC section 12.804
state that reclamation project expenditures ``shall reflect the
priorities of Section 403(a) of the Federal Act.'' In our Part 884
letter, we notified Texas that the 2006 amendments to SMCRA removed the
phrase ``general welfare'' from Priorities 1 and 2; added an ``adjacent
to'' provision to Priorities 1 and 2, defining that term as
``geographically contiguous''; and eliminated Priorities 4 and 5. In
response, Texas proposes to amend 16 TAC section 12.804 to state that
projects shall reflect the priorities of Section 403(a) ``in the order
stated'' and list the priorities from 30 CFR 874.13(a) in the text of
16 TAC section 12.804. Texas also proposes to provide an updated
reference to OSMRE's ``Final Guidelines for Reclamation Programs and
Projects.'' The amended language of 16 TAC section 12.804 is in
accordance with section 403(a) of SMCRA, consistent with 30 CFR
874.13(a), and meets the requirements of our Part 884 letter.
In our Part 884 letter, we further notified Texas that stand-alone
Priority 3 reclamation is restricted to projects using prior balance
replacement funds, projects undertaken after the completion of Priority
1 and 2 sites, and projects completed ``in conjunction with'' Priority
1 or 2 reclamation projects. We noted that projects ``in conjunction
with'' Priority 1 and 2 projects must either facilitate Priority 1 or 2
reclamation or provide reasonable savings toward reclaiming all
Priority 3 coal problems. Texas is retaining previously approved
language in 16 TAC Sec. 12.804(c) that addresses these aspects of our
Part 884 letter.
The 2006 amendments removed section 403(a)(4) of SMCRA. In 2008, we
amended 30 CFR 874.14 to change the section heading and revise
paragraph (a) related to water supply restoration. In response, Texas
proposes to amend 16 TAC Sec. 12.805 to match the 2008 revision to the
Federal regulation. The revised language is consistent with 30 CFR
874.14.
As discussed in the Texas Plan section above, in our Part 884
letter, we notified Texas that its State Reclamation Plan must include
a commitment to address eligible coal problems found after
certification as required in 30 CFR 875.13(a)(3) and 875.14(b).
Previously, 16 TAC section 12.808 stated that if eligible coal problems
were found or occurred after certification, Texas would ``address the
coal problem utilizing state share funds no later than the next grant
cycle, subject to the availability of funds distributed to the
commission in the cycle.'' As amended, 16 TAC section 12.808 states
that Texas will ``submit to OSMRE a plan that describes the approach
and funds that will be used to address those problems in a timely
manner.'' The amended language is in accordance with the statute,
consistent
[[Page 64815]]
with the requirements of 30 CFR 875.14(b), and meets the requirements
of our Part 884 letter.
Unrelated to our Part 884 letter, Texas amended the appraisal
valuation method in 16 TAC section 12.815 to add: ``The appraisal shall
state the estimated fair market value of the land as adversely affected
by past mining and the estimated fair market value of the property as
reclaimed.'' This edit is consistent with the Federal counterpart at 30
CFR 882.12.
Previously, 16 TAC section 12.819(a)(2)(C) stated that Texas could
acquire coal refuse disposal sites if it made certain written findings,
including a finding that acquisition of coal refuse disposal sites and
the coal refuse on those sites would serve the purposes of Texas's
program. The regulation at 16 TAC section 12.819 also provided that
OSMRE must approve acquisitions in advance. The Federal regulation at
30 CFR 879.11(b), as amended, states that a certified State conducting
noncoal reclamation projects under Part 875, if approved in advance,
may acquire coal refuse disposal sites with moneys from the Abandoned
Mine Reclamation Fund and with prior balance replacement funds and
certified in lieu funds. Texas proposes to remove the discussion of
coal refuse disposal sites from 16 TAC section 12.819(a)(2)(C) and add
a new paragraph Sec. 12.819(c) that is identical to the language of 30
CFR 879.11(b). The proposed amendment is consistent with the Federal
counterpart at 30 CFR 879.11.
Previously, 16 TAC section 12.823(f) stated that all moneys
received from disposal of land would be deposited in the Texas
Abandoned Mine Reclamation Fund. In our Part 884 letter, we notified
Texas that all ``moneys received from the sale of property acquired
under [section 407 of SMCRA] is disposed of as if it were unused funds
under 30 CFR 886.20 . . .'' In response, Texas proposes to amend 16 TAC
section 12.823(f) to state that all moneys received will be returned to
OSMRE. The proposed amendment is consistent with the Federal
counterpart at 30 CFR 879.15.
We find that the proposed regulations are in accordance with SMCRA
and consistent with Federal regulation. Therefore, we approve the
amendments.
IV. Summary and Disposition of Comments
Public Comments
During our public comment period on the amendments, we received two
anonymous public comments and one named comment. One anonymous comment
expressed the recommendation that the state of Texas be held liable for
all the extractive industry damage not covered by the entity
responsible for the damage and cleanup. We did not take any action
based on this comment as it was outside the scope of this review. The
other anonymous comment and the named comment did not contain any
substantive feedback on the proposed rule.
None of the comments asked for any changes to the Texas Plan or
regulations, and no further action by us is required. These comments
are available in their entirety at <a href="http://www.regulations.gov">www.regulations.gov</a>.
Federal Agency Comments
Pursuant to 30 CFR 884.15(a) and 884.14(a)(2), on December 11,
2019, OSMRE solicited comments on the proposed amendments from various
Federal agencies with an actual or potential interest in the Texas Plan
(Administrative Record No. TX-0708.01). We did not receive any
comments.
Environmental Protection Agency (EPA) Concurrence and Comments
OSMRE solicited EPA's comments on the proposed amendments
(Administrative Record No. TX-0708.01) on December 11, 2019. The EPA
did not respond to our request.
State Historical Preservation Officer (SHPO) and the Advisory Council
on Historic Preservation (ACHP)
OSMRE solicited comments on the proposed amendments from the SHPO
(Administrative Record No. TX-0708.01) and ACHP (Administrative Record
No. TX-0708) on December 11, 2019. Neither responded to our request.
V. OSMRE's Decision
Based on the above findings, we are approving Texas's AML Plan and
Reclamation Program amendments that were submitted on December 3, 2019
(Administrative Record No. TX-0708), with the exception described
above.
To implement this decision, we are amending the Federal regulations
at 30 CFR part 943, which codify decisions concerning the Texas Plan.
In accordance with the Administrative Procedure Act, this rule will
take effect 30 days after the date of publication.
VI. Procedural Determinations
Executive Order 12630--Governmental Actions and Interference With
Constitutionally Protected Property Rights
This rule would not affect a taking of private property or
otherwise have taking implications that would result in public property
being taken for government use without just compensation under the law.
Therefore, a takings implication assessment is not required. This
determination is based on an analysis of the corresponding Federal
regulations.
Executive Orders 12866--Regulatory Planning and Review and 13563--
Improving Regulation and Regulatory Review
Executive Order (E.O.) 12866, as amended by E.O. 14094, provides
that the Office of Information and Regulatory Affairs in the Office of
Management and Budget (OMB) will review all significant rules. Pursuant
to OMB guidance, dated October 12, 1993, the approval of State program
amendments is exempted from OMB review under Executive Order 12866.
Executive Order 13563, which reaffirms and supplements Executive Order
12866, retains this exemption.
Executive Order 12988--Civil Justice Reform
The Department of the Interior has reviewed this rule as required
by Section 3(a) of Executive Order 12988. The Department has determined
that this Federal Register notice meets the criteria of Section 3 of
Executive Order 12988, which is intended to ensure that the agency
review its legislation and regulations to minimize litigation, and that
the agency's legislation and regulations provide a clear legal standard
for affected conduct, rather than a general standard, and promote
simplification and burden reduction. Because Section 3 focuses on the
quality of Federal legislation and regulations, the Department limited
its review under this Executive Order to the quality of this Federal
Register notice and to changes to the Federal regulations. The review
under this Executive Order did not extend to the language of the Texas
Plan or to the Plan amendment that the State of Texas submitted.
Executive Order 13132--Federalism
This rule is not a ``[p]olicy that [has] Federalism implications''
as defined by Section 1(a) of Executive Order 13132 because it does not
have ``substantial direct effects on the States, on the relationship
between the national government and the States, or on the
[[Page 64816]]
distribution of power and responsibilities among the various levels of
government.'' Instead, this rule approves an amendment to the Texas
Plan submitted and drafted by that State. OSMRE reviewed the submission
with fundamental federalism principles in mind as set forth in Section
2 and 3 of the Executive Order and with the principles of cooperative
federalism as set forth in SMCRA. See, e.g., 30 U.S.C. 1201(f). As
such, pursuant to the provisions in section 503(a)(1) and (7) (30
U.S.C. 1253(a)(1) and (7)), OSMRE reviewed the revised Texas Plan to
ensure that it is ``in accordance with'' the requirements of SMCRA and
``consistent with'' the regulations issued by the Secretary pursuant to
SMCRA.
Executive Order 13175--Consultation and Coordination With Indian Tribal
Governments
The Department of the Interior strives to strengthen its
government-to-government relationship with Tribes through a commitment
to consultation with Tribes and recognition of their right to self-
governance and Tribal sovereignty. We have evaluated this rule under
the Department's consultation policy and under the criteria in
Executive Order 13175 and have determined that it has no substantial
direct effects on federally recognized Tribes or on the distribution of
power and responsibilities between the Federal government and Tribes.
Therefore, consultation under the Department's Tribal consultation
policy is not required. The basis for this determination is that our
decision is on the Texas program, which does not include Indian lands
or regulation of activities on Indian lands. AML reclamation on Indian
lands is regulated independently under the applicable, approved Federal
program or a Tribal AML program.
Executive Order 13211--Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
Executive Order 13211 requires agencies to prepare a Statement of
Energy Effects for a rulemaking that is (1) considered significant
under Executive Order 12866, as amended by E.O. 14094, and (2) likely
to have a significant adverse effect on the supply, distribution, or
use of energy. Because this rule is exempt from review under Executive
Order 12866 and is not significant energy action under the definition
in Executive Order 13211, a Statement of Energy Effects is not
required.
National Environmental Policy Act
This rule does not constitute a major Federal action significantly
affecting the quality of the human environment. We are not required to
provide a detailed statement under the National Environmental Policy
Act of 1969 because this rule qualifies for a categorical exclusion
under the U.S. Department of the Interior Departmental Manual, part
516, section 13.5(B)(29).
National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act (NTTAA; 15 U.S.C. 3701 et seq.) directs OSMRE to use voluntary
consensus standards in its regulatory activities unless to do so would
be inconsistent with applicable law or otherwise impractical. OMB
Circular A-119 at p. 14. This action is not subject to the requirements
of section 12(d) of the NTTAA because application of those requirements
would be inconsistent with SMCRA.
Paperwork Reduction Act
This rule does not include requests and requirements of an
individual, partnership, or corporation to obtain information and
report it to a Federal agency. As this rule does not contain
information collection requirements, a submission to the Office of
Management and Budget under the Paperwork Reduction Act (44 U.S.C. 3501
et seq.) is not required.
Regulatory Flexibility Act
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. 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.
Small Business Regulatory Enforcement Fairness Act
This rule is not a major rule under 5 U.S.C. 804(2), the Small
Business Regulatory Enforcement Fairness Act. This rule: (a) does not
have an annual effect on the economy of $100 million; (b) will not
cause a major increase in costs or prices for consumers; individual
industries; Federal, State, or local government agencies; or geographic
regions; and (c) does not have significant adverse effects on
competition, employment, investment, productivity, innovation, or the
ability of U.S.-based enterprises to compete with foreign-based
enterprises. This determination is based on an analysis of the
corresponding Federal regulations, which were determined not to
constitute a major rule.
Unfunded Mandates Reform Act
This rule does not impose an unfunded mandate on State, local, or
Tribal governments, or the private sector of more than $100 million per
year. The rule does not have a significant or unique effect on State,
local, or Tribal governments or the private sector. This determination
is based on an analysis of the corresponding Federal regulations, which
were determined not to impose an unfunded mandate. Therefore, a
statement containing the information required by the Unfunded Mandates
Reform Act (2 U.S.C. 1531 et seq.) is not required.
List of Subjects in 30 CFR Part 943
Intergovernmental relations, Surface mining, Underground mining.
William L. Joseph,
Acting Regional Director, OSMRE IR 3, 4 and 6.
For the reasons set out in the preamble, 30 CFR part 943 is amended
as follows:
PART 943--TEXAS
0
1. The authority citation for part 943 continues to read as follows:
Authority: 30 U.S.C. 1201 et seq.
0
2. Section 943.25 is amended in the table by adding an entry for
``December 3, 2019'' at the end of the table to read as follows:
Sec. 943.25 Approval of Texas abandoned mine land reclamation plan
amendments.
* * * * *
[[Page 64817]]
----------------------------------------------------------------------------------------------------------------
Original amendment submission date Date of final publication Citation/description
----------------------------------------------------------------------------------------------------------------
* * * * * * *
December 3, 2019...................... September 20, 2023....... Replace AML Plan in response to OSMRE 884
Letter. Updates AML Plan to be consistent
with changes to Federal program and extends
limited liability protection for certain
coal and noncoal reclamation projects. 16
TAC Texas Administrative Code Sections:
12.801; 12.802; 12.803; 12.804; 12.805;
12.806; 12.807; 12.808; 12.809; 12.811;
12.812; 12.814; 12.815; 12.815; 12.816;
12.818; 12.819; 12.820; 12.821; 12.822;
12.823.
----------------------------------------------------------------------------------------------------------------
[FR Doc. 2023-20018 Filed 9-19-23; 8:45 am]
BILLING CODE 4310-05-P
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