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Substituted Federal Enforcement of Portions of Missouri's Permanent Regulatory Program and Findings on the Status of Missouri's Permanent Regulatory Program
Note: EPA no longer updates this information, but it may be useful as a reference or resource.
[Federal Register: August 22, 2003 (Volume 68, Number 163)]
[Rules and Regulations]
[Page 50943-50949]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr22au03-20]
Part V
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 925
Substituted Federal Enforcement of Portions of Missouri's
Permanent Regulatory Program and Findings on the Status of Missouri's
Permanent Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.
ACTION: Final rule.
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SUMMARY: On November 21, 1980, the Secretary of the Interior (the
Secretary) conditionally approved the Missouri permanent regulatory
program (Missouri program) under the Surface Mining Control and
Reclamation Act of 1977 (SMCRA or the Act). On August 4, 2003, we, the
Office of Surface Mining Reclamation and Enforcement (OSM), notified
the Governor of Missouri that serious problems exist that are adversely
affecting implementation and enforcement of the Missouri program. The
Missouri Department of Natural Resources, Air and Land Protection
Division, Land Reclamation Program (MLRP) is the regulatory authority
responsible for implementing and enforcing the Missouri program. We
also told the Governor that because of the severity of these problems,
we must immediately substitute Federal enforcement for portions of the
Missouri program in the areas of inspection, enforcement, permitting,
and bonding activities. Therefore, in accordance with the provisions of
our regulations, we are instituting direct Federal enforcement for
those portions of the Missouri program that the MLRP is not adequately
implementing or enforcing.
Because we believe that it is preferable that States hold the
primary responsibility for regulating surface coal mining and
reclamation operations, we will provide the MLRP with assistance and
guidance, as necessary, to resolve the issues and to regain full
authority for those portions of the Missouri program that are not being
adequately implemented or enforced. This document also sets forth our
findings regarding this action and the status of those portions of the
Missouri program that the MLRP will continue to administer.
EFFECTIVE DATE: August 22, 2003.
FOR FURTHER INFORMATION CONTACT: John W. Coleman, Mid-Continent
Regional Coordinating Center, Office of Surface Mining, 501 Belle
Street, Alton, Illinois 62002. Telephone: (618) 463-6460. Internet
address: jcoleman@osmre.gov.
SUPPLEMENTARY INFORMATION:
I. Background on the Missouri Program
II. OSM's Findings on the Status of the Missouri Program
III. OSM's Decision
IV. OSM's Actions and State Remedial Actions
V. Procedural Determinations
I. Background on the Missouri Program
Section 503(a) of the Act permits a State to assume primacy for the
regulation of surface coal mining and reclamation operations on non-
Federal and non-Indian lands within its borders by demonstrating that
its State program includes, among other things, ``a State law which
provides for the regulation of surface coal mining and reclamation
operations in accordance with the requirements of this Act * * *; and
rules and regulations consistent with regulations issued by the
Secretary pursuant to this Act.'' See 30 U.S.C. 1253(a)(1) and (7). On
the basis of these criteria, the Secretary conditionally approved the
Missouri program on November 21, 1980. You can find background
information on the Missouri program, including the Secretary's
findings, the disposition of comments, and conditions of approval, in
the November 21, 1980, Federal Register (45 FR 77017). You can also
find later actions concerning the Missouri program and program
amendments at 30 CFR 925.10, 925.12, 925.15, and 925.16.
The Abandoned Mine Land Reclamation (AMLR) 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 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 to the
Secretary for approval, a program (often referred to as a plan) for the
reclamation of abandoned coal mines. Section 405(c) of the Act also
requires States to have an approved State regulatory program before the
Secretary can approve a State program for the reclamation of abandoned
coal mines. On the basis of these criteria, the Secretary approved the
Missouri plan on January 29, 1982. You can find background information
on the Missouri plan, including the Secretary's findings, the
disposition of comments, and the approval of the plan in the January
29, 1982, Federal Register (47 FR 4253). You can find later actions
concerning the Missouri plan and amendments to the plan at 30 CFR
925.25.
Section 410 of SMCRA authorizes the Secretary to use funds under
the AMLR program to abate or control emergency situations in which
adverse effects of past coal mining pose an immediate danger to the
public health, safety, or general welfare. In a Federal Register notice
dated September 29, 1982 (47 FR 42729), we invited States to amend
their AMLR plans for the purpose of undertaking emergency reclamation
programs on our behalf. We approved Missouri's assumption of the AMLR
emergency program on June 24, 1998. You can find background
information, including our findings, the disposition of comments, and
the approval of the Missouri AMLR emergency program in the June 24,
1998, Federal Register (63 FR 34277).
On June 19, 2003, the MLRP notified us that the Missouri
Legislature passed House Bill (HB) 6 that appropriated funds for the
Missouri program. HB 6 did not fully fund the Missouri program for the
period beginning July 1, 2003, and ending June 30, 2004. The Governor
of Missouri signed the appropriation bill on May 30, 2003
(Administrative Record No. MO-664).
On July 2, 2003, we met with the MLRP at the Missouri Department of
Natural Resources' office in Jefferson City, Missouri (Administrative
Record No. MO-664.1). During the meeting, the MLRP made a presentation,
including a series of slides, describing the recently approved
appropriation bill. HB 6 contained a severe cut in general revenue
dollars available as State matching funds for the regulatory program.
The MLRP advised us that the moneys that are available for the
regulatory program would only be used for bond forfeiture reclamation
activities. Also, the MLRP advised us that the State Legislature
appropriated funds for the AMLR program. In addition, the MLRP
explained that as of July 18, 2003, existing regulatory program staff,
with the exception of four full-time employees, would be transferred to
other programs and that it would not be able to implement and maintain
its inspection, enforcement, permitting, or bond release
responsibilities under the currently approved Missouri program. The
four full-time employees would perform the bond forfeiture reclamation
activities that were funded by the State Legislature. The MLRP
indicated that it
[[Page 50945]]
would try to gain full program funding from the Missouri Legislature
next year.
On July 11, 2003, the MLRP notified the Missouri coal operators
that the Legislature had decided, through the budget process, to
withhold funding and staffing for the Missouri program. The MLRP also
notified the operators that after July 18, 2003, it would no longer be
available for surface coal mining and reclamation regulatory issues
(Administrative Record No. MO-664.2).
On July 21, 2003, the Governor of Missouri notified us that the
State of Missouri is experiencing difficult budget and revenue
shortfalls (Administrative Record No. MO-664.3). As a result of the
revenue shortfalls, he requested assistance with permit reviews,
inspection activities, and general oversight of the active coal mining
operations in the State. He indicated that Missouri continues to have
adequate funding and staff available to maintain design and reclamation
efforts for bond forfeiture sites, as well as sufficient funding and
staff to maintain the AMLR program, including the emergency program. He
also indicated that he was hopeful his request would be temporary and
that he would continue to work with the Legislature in an attempt to
assure adequate funding for all of Missouri's regulatory program
responsibilities.
On August 4, 2003, we notified the Governor of Missouri that we
were obligated, in accordance with 30 CFR 733.12(e), to substitute
Federal enforcement for those portions of the Missouri program that
were not fully funded and staffed (Administrative Record No. MO-664.4).
We cited Missouri's failure to fund and staff the Missouri program in
several areas including inspection, enforcement, permitting, and
bonding activities.
All Missouri Administrative Record documents from MO-664 (June 19,
2003) through MO-664.4 (August 4, 2003) are being considered in this
rulemaking.
II. OSM's Findings on the Status of the Missouri Program
On the basis of the record described above, we are making the
following findings in accordance with sections 504 and 521(b) of SMCRA
and 30 CFR 733.12.
A. Inspection and Enforcement
The MLRP currently has approximately 46 active and inactive mine
sites to inspect. By State law, each active site requires four complete
and eight partial inspections per year. Inactive sites require four
complete inspections per year and sufficient partial inspections to
ensure compliance with the State program. On July 2, 2003, the MLRP
notified us that effective July 18, 2003, existing regulatory program
staff, including inspection and enforcement staff, would be transferred
to other programs. Therefore, we find that the MLRP does not have the
program staff necessary to implement and maintain its inspection and
enforcement provisions in the Code of State Regulations (CSR) at 10 CSR
40-8.030 or its civil and criminal penalty provisions at 10 CSR 40-
8.040 and 40-8.045. Thus, the MLRP cannot effectively implement,
maintain, or enforce the inspection and enforcement aspects of the
approved Missouri program and has not demonstrated that it intends to
administer these aspects of the program.
B. Permitting
The MLRP currently has one new permit and several permit revisions
that are pending review for possible approval. On July 2, 2003, the
MLRP notified us that effective July 18, 2003, existing regulatory
program staff, including permitting staff, would be transferred to
other programs. Therefore, we find that the MLRP does not have the
program staff necessary to implement and maintain its permitting
provisions at 10 CSR 40-6.010 through 40-6.120. Thus, the MLRP cannot
effectively implement, maintain, or enforce this permitting aspect of
the approved Missouri program and has not demonstrated that it intends
to administer this aspect of the program.
C. Bonding
1. Performance Bond Requirements
On July 2, 2003, the MLRP told us that effective July 18, 2003,
existing regulatory program staff, with the exception of bond
forfeiture reclamation staff, would be transferred to other programs.
Therefore, we find that the MLRP does not have the program staff
necessary to implement and maintain its general bonding provisions at
10 CSR 40-7.011, bond release provisions at 10 CSR 40-7.021, or bond
forfeiture provisions at 10 CSR 40-7.031, with the exception of 10 CSR
40-7.031(3) concerning bond forfeiture reclamation activities. Thus,
the MLRP cannot effectively implement, maintain, or enforce all of the
bonding aspects of the approved Missouri program and has not
demonstrated that it intends to administer these aspects, with the
exception of bond forfeiture reclamation activities.
2. Bond Forfeiture Reclamation Activities
On July 2, 2003, Missouri told us that the Missouri Legislature
appropriated funds for bond forfeiture reclamation. Missouri indicated
that it would use the funds to provide four full-time regulatory
program staff to implement this activity. Missouri had approximately 33
sites with bonds forfeited and collected that were unreclaimed as of
September 30, 2002. In our 2002 annual evaluation report for Missouri,
we found that the State took several actions to improve the
effectiveness of its bond forfeiture reclamation. The MLRP developed a
work plan for completing reclamation at several forfeiture sites and
instituted changes in its internal procedures for handling forfeiture
projects. Therefore, we find that Missouri has the program staff
necessary to implement, maintain, and enforce the bond forfeiture
reclamation requirements of the approved Missouri program.
III. OSM's Decision
Having reviewed and considered all available information on the
MLRP's capability and intent to implement, maintain, and enforce the
Missouri program, we made the following determinations.
Missouri has indicated its intent to take steps to resolve the
funding and staffing issues for the entire program. For this reason, we
find that, at this time, withdrawing approval of Missouri's program is
not justified.
We determined that the MLRP does have sufficient funding and staff
to implement and maintain bond forfeiture reclamation activities. We
also determined that the MLRP does not have adequate staff and
resources to implement all other aspects of its program. To ensure that
the adverse effects of surface mining are controlled as required under
SMCRA, we must assume the responsibility for enforcement of parts of
the Missouri program until the MLRP is able to administer all segments
of its program.
We will directly enforce the inspection and enforcement provisions,
the permitting provisions, and the bonding and insurance provisions,
with the exception of bond forfeiture reclamation activities.
We have developed a process by which the MLRP could resume full
authority for all aspects of the approved Missouri program. Failure by
the MLRP to seek and obtain full authority for the Missouri program or
failure by the MLRP to perform satisfactorily in the areas in which it
retains enforcement
[[Page 50946]]
authority will result in additional Federal action.
To implement this decision, we are amending the Federal regulations
at 30 CFR part 925, which codify decisions concerning the Missouri
program. We find that good cause exists under 5 U.S.C. 553(d)(3) to
make this final rule effective immediately. Section 503(a)(3) of SMCRA
requires that a State's program demonstrate that the State regulatory
authority has sufficient administrative and technical personnel and
sufficient funding to enable the State to regulate surface coal mining
and reclamation operations in accordance with the requirements of
SMCRA. Effective July 18, 2003, Missouri no longer had sufficient
administrative and technical personnel or adequate funding to
implement, maintain, and enforce its approved program. Therefore,
Federal enforcement of Missouri's program must be made effective
immediately to ensure the protection of the public through effective
control of surface coal mining and reclamation operations in the State.
IV. OSM Actions and State Remedial Actions
A. Direct Federal Enforcement of the Missouri Program
Starting on August 22, 2003, we will directly implement, administer
and enforce the Missouri program requirements to the extent outlined
below in accordance with the enforcement provisions of SMCRA and the
Federal regulations. The authority of the MLRP to implement the
Missouri program is suspended with regard to those provisions listed
below, with the following exceptions. With respect to State enforcement
actions initiated before the effective date of this notice, the MLRP
will have authority to take administrative actions to process
outstanding violations to a final disposition (including issuing
proposed assessments, assessing penalties, holding informal conferences
and hearings, and collecting penalties). However, any actions by the
MLRP to terminate or vacate enforcement actions will not take effect
until we approve them. With respect to State bond forfeiture actions
initiated before the effective date of this notice, the MLRP will have
authority to perform bond forfeiture reclamation activities.
1. Inspection and enforcement
a. We will conduct inspections of all coal exploration and surface
coal mining and reclamation operations, including bond release
inspections, in accordance with sections 517, 518, 521, 525, and 526 of
SMCRA (30 U.S.C. 1267, 1268, 1271, 1275, and 1276), 30 CFR parts 842
through 845, and 43 CFR part 4. With respect to enforcement actions
initiated by the MLRP before the effective date of this decision, we
will conduct follow-up inspections at all sites with outstanding
violations on or after the abatement dates specified in the State-
issued notices of violation.
b. We will issue, modify, enforce, and terminate notices of
violation, cessation orders, and show cause orders in accordance with
sections 517, 518, 521, 525, and 526 of SMCRA (30 U.S.C. 1257, 1268,
1271, 1275, and 1276), 30 CFR parts 842 through 845, and 43 CFR part 4.
With respect to enforcement actions initiated by the MLRP before the
effective date of this decision, we will reinspect the site and if the
operator has not abated the violation by the abatement date set in the
State-issued notice of violation, we will take appropriate enforcement
action. We will issue a notice of violation for any violation observed
by us that has not been previously cited by the MLRP. We will issue a
cessation order for any condition or practice that 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.
c. We will impose civil and criminal sanctions, as appropriate, for
violations of the approved Missouri program in accordance with sections
517, 518, 521, 525, and 526 of SMCRA (30 U.S.C. 1267, 1268, 1271, 1275,
and 1276), 30 CFR parts 843 through 845, and 43 CFR part 4.
d. We will promptly inform the MLRP of the results of all follow-up
inspections conducted and of enforcement actions taken that pertain to
enforcement actions initiated by the MLRP before the effective date of
this decision.
e. Administrative and judicial review of our enforcement actions
will be in accordance with 43 CFR part 4.
2. Permitting
a. We will review all new applications and issue all new permits,
permit revisions, permit renewals, transfer and assignment or sale of
permit rights for all surface coal mining and reclamation operations in
accordance with the approved Missouri program at sections 444.815
through 444.825, 444.835 through 444.845, and 444.850 of the Missouri
Surface Coal Mining Law (MSCML) and 10 CSR 40-6.010 through 40-6.120.
This includes pending permit actions for which the MLRP has not made a
final decision.
b. Permit fees are required in accordance with section 444.820.1 of
MSCML and 10 CSR 40-6.010(6). The fees for all new permitting actions
must be submitted to and made payable to OSM.
c. Administrative and judicial review of our permit decisions will
be in accordance with sections 525 and 526 of SMCRA (30 U.S.C. 1275 and
1276), 30 CFR part 775, and 43 CFR part 4.
3. Bonding
a. We will determine the amount of the performance bonds for new
permitting actions in accordance with section 509 of SMCRA and 30 CFR
part 800.
b. We will maintain the amount of the performance bonds for
existing permits in accordance with the Missouri program at section
444.830 of MSCML and 10 CSR 40-7.011.
c. We will review and make decisions on performance bond release
requests for new and existing permits in accordance with the Missouri
program at section 444.875 of MSCML and 10 CSR 40-7.021. For existing
bonds, we will make the required determinations for the amount of the
bond to be released and submit the determinations to the MLRP for
release.
d. New performance bonds must be made payable to the ``United
States of America and State of Missouri,'' and they must be submitted
to OSM.
e. Administrative and judicial review of our performance bond
determinations will be in accordance with 43 CFR part 4.
B. State Remedial Actions
To demonstrate its intent and capability to fully implement the
Missouri program as approved by the Secretary, we will require the MLRP
to complete the following remedial actions. Failure of the MLRP to
accomplish these remedial measures could lead to our recommending to
the Secretary that approval of the State program be withdrawn.
1. By August 22, 2003, the MLRP must submit to us a list of all
outstanding enforcement actions specifying the abatement date set for
each cited violation.
2. In accordance with the requirements of the approved Missouri
program, the MLRP must complete administrative disposition of all
enforcement actions that were initiated before the effective date of
this decision.
3. Not later than 30 days from the effective date of this decision,
the MLRP must submit to us a plan to reassume full authority for the
Missouri program. At a minimum, the proposal must
[[Page 50947]]
provide specific and adequate provisions that address the following
problems:
a. Funding: The proposal must demonstrate to our satisfaction a
commitment to fully fund the Missouri program.
b. Staffing: The proposal must demonstrate to our satisfaction a
commitment to hire a sufficient number of qualified personnel to comply
with all inspection and enforcement, permitting, and bonding
requirements of the Missouri program.
c. Adherence to Approved Program: The proposal must include
provisions, policy statements, and other affirmative evidence
sufficient to assure us that the MLRP will be in full compliance at all
times with the provisions of the Missouri program.
4. Starting three months after the effective date of this decision,
the MLRP must submit to us a report once every three months on its
progress in obtaining full funding for the Missouri program.
5. Effective September 8, 2003, the MLRP must take all steps
necessary to ensure that all records, documents, correspondence,
inspector logs, etc. are made secure and to supply copies of all
documents to us upon request.
C. Resumption of State Authority
In order to resume regulatory authority over any portion of the
inspection and enforcement, permitting, and bonding aspects of the
Missouri program, the MLRP must formally petition us. We will entertain
such a petition upon completion of the actions listed above under
``State Remedial Actions.''
Before making a decision to allow the MLRP to resume regulatory
authority over any portion of the inspection and enforcement,
permitting, or bonding operations, we will schedule a public comment
period and hold a public hearing as outlined under 30 CFR 925.19. On
the basis of the information available to us, we will determine if the
MLRP will be allowed to resume regulatory authority over the Missouri
program.
D. 30 CFR 733 Action
We will publish any additional findings and decisions on this
action in the Federal Register and will amend 30 CFR part 925
accordingly. A notice announcing a public comment period and
opportunity for a hearing on Missouri's implementation of its program
and our substitution of Federal enforcement may be found else where in
this edition of the Federal Register.
E. Funding
We have decided that we will not provide additional grant funds to
the MLRP for initiating new projects under the approved Missouri AMLR
program under Title IV of SMCRA. We will review the status of any
uninitiated projects that are currently funded under one or more AMLR
construction grants as well as any high-priority proposed projects and
take action as appropriate. Also, Missouri currently administers for us
the AML emergency program in the State. We will continue to fund this
program, as needed.
Because the MLRP's regulatory authority and responsibilities are
being modified, funding under future administration and enforcement
grants for implementation of the Missouri program must reflect actual
regulatory authority responsibilities. The MLRP may submit an
application for a new administration and enforcement grant based on its
modified responsibilities.
V. Procedural Determinations
Executive Order 12630--Takings
This rule does not have takings implications. This determination is
based on the analysis performed for the counterpart Federal regulation.
Executive Order 12866--Regulatory Planning and Review
This rule is exempted from review by the Office of Management and
Budget (OMB) under Executive Order 12866.
Executive Order 12988--Civil Justice Reform
The Department of the Interior has conducted the reviews required
by section 3 of Executive Order 12988 and has determined that this rule
meets the applicable standards of subsections (a) and (b) of that
section. However, these standards are not applicable to the actual
language of State regulatory programs and program amendments because
each program is drafted and promulgated by a specific State, not by
OSM. Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and
the Federal regulations at 30 CFR 730.11, 732.15, and 732.17(h)(10),
decisions on proposed State regulatory programs and program amendments
submitted by the States must be based solely on a determination of
whether the submittal is consistent with SMCRA and its implementing
Federal regulations and whether the other requirements of 30 CFR parts
730, 731, and 732 have been met.
Executive Order 13132--Federalism
This rule does not have Federalism implications. SMCRA delineates
the roles of the Federal and State governments with regard to the
regulation of surface coal mining and reclamation operations. One of
the purposes of SMCRA is to ``establish a nationwide program to protect
society and the environment from the adverse effects of surface coal
mining operations.'' Section 503(a)(1) of SMCRA requires that State
laws regulating surface coal mining and reclamation operations be ``in
accordance with'' the requirements of SMCRA, and section 503(a)(7)
requires that State programs contain rules and regulations ``consistent
with'' regulations issued by the Secretary pursuant to SMCRA.
Executive Order 13175--Consultation and Coordination With Indian Tribal
Governments
In accordance with Executive Order 13175, we have evaluated the
potential effects of this rule on Federally-recognized Indian tribes
and have determined that the rule does not have substantial direct
effects on one or more Indian tribes, on the relationship between the
Federal Government and Indian tribes, or on the distribution of power
and responsibilities between the Federal Government and Indian tribes.
This determination is based on the fact that the Missouri program does
not regulate coal exploration and surface coal mining and reclamation
operations on Indian lands. Therefore, the Missouri program has no
effect on Federally-recognized Indian tribes.
Executive Order 13211--Regulations That Significantly Affect the
Supply, Distribution, or Use of Energy
On May 18, 2001, the President issued Executive Order 13211 which
requires agencies to prepare a Statement of Energy Effects for a rule
that is (1) considered significant under Executive Order 12866, 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 expected to have a significant
adverse effect on the supply, distribution, or use of energy, a
Statement of Energy Effects is not required.
National Environmental Policy Act
This rule does not require an environmental impact statement
because section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that
agency decisions on proposed State regulatory program provisions do not
constitute
[[Page 50948]]
major Federal actions within the meaning of section 102(2)(C) of the
National Environmental Policy Act (42 U.S.C. 4332(2)(C)).
Paperwork Reduction Act
This rule does not contain information collection requirements that
require approval by OMB under the Paperwork Reduction Act (44 U.S.C.
3507 et seq.).
Regulatory Flexibility Act
The Department of the Interior certifies that the substitution of
Federal enforcement for portions of Missouri's permanent regulatory
program 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 rule is not expected to result in additional costs to
the regulated industry.
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 upon the fact that the rule is
not expected to result in additional costs to the regulated industry.
Unfunded Mandates
The substitution of Federal enforcement for portions of Missouri's
permanent regulatory program will not impose an unfunded mandate on
State, local, or tribal governments or the private sector of $100
million or more in any given year. This determination is based upon the
nature of the action being taken.
List of Subjects in 30 CFR Part 925
Intergovernmental relations, Surface mining, Underground mining.
Dated: August 15, 2003.
Rebecca W. Watson,
Assistant Secretary, Land and Minerals Management.
0
For the reasons set out in the preamble, 30 CFR part 925 is amended as
set forth below:
PART 925--MISSOURI
0
1. The authority citation for part 925 continues to read as follows:
Authority: 30 U.S.C. 1201 et seq.
0
2. Add section 925.17 to read as follows:
Sec. 925.17 Direct Federal enforcement of the Missouri program.
Starting on August 22, 2003, OSM will directly implement,
administer and enforce the Missouri program requirements to the extent
outlined below in accordance with the enforcement provisions of SMCRA
and the Federal regulations. The authority of the Missouri Department
of Natural Resources, Air and Land Protection Division, Land
Reclamation Program (MLRP) to implement the Missouri regulatory program
is suspended with regard to those provisions listed below, with the
following exceptions. With respect to State enforcement actions
initiated before August 22, 2003, the MLRP will have authority to take
administrative actions to process outstanding violations to a final
disposition (including issuing proposed assessments, assessing
penalties, holding informal conferences and hearings, and collecting
penalties). However, any actions by the MLRP to terminate or vacate
enforcement actions will not take effect until we approve them. With
respect to bond forfeiture actions initiated before August 22, 2003,
the MLRP will have authority to perform bond forfeiture reclamation
activities.
(a) OSM will conduct inspections of all coal exploration and
surface coal mining and reclamation operations, including bond release
inspections, in accordance with sections 517, 518, 521, 525, and 526 of
SMCRA (30 U.S.C. 1267, 1268, 1271, 1275, and 1276), 30 CFR parts 842
through 845, and 43 CFR part 4. With respect to enforcement actions
initiated by the MLRP before August 22, 2003, we will conduct follow-up
inspections at all sites with outstanding violations on or after the
abatement dates specified in the State-issued notices of violation.
(b) OSM will issue, modify, enforce, and terminate notices of
violation, cessation orders, and show cause orders for violations of
the approved Missouri program, in accordance with sections 517, 518,
521, 525, and 526 of SMCRA (30 U.S.C. 1257, 1268, 1271, 1275, and
1276), 30 CFR parts 842 through 845, and 43 CFR part 4. With respect to
enforcement actions initiated by the MLRP before August 22, 2003, we
will reinspect the site and if the operator has not abated the
violation by the abatement date set in the State-issued notice of
violation, we will take appropriate enforcement action. We will issue a
notice of violation for any violation observed by us that has not been
previously cited by the MLRP. We will issue a cessation order for any
condition or practice that 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.
(c) OSM will impose civil and criminal sanctions, as appropriate,
for violations of the Missouri program in accordance with sections 517,
518, 521, 525, and 526 of SMCRA (30 U.S.C. 1267, 1268, 1271, 1275, and
1276), 30 CFR parts 843 through 845, and 43 CFR part 4.
(d) OSM will promptly inform the MLRP of the results of all follow-
up inspections conducted and of enforcement actions taken that pertain
to enforcement actions initiated by the MLRP before August 22, 2003.
(e) OSM will review all new applications and issue all new permits,
permit revisions, permit renewals, transfer and assignment or sale of
permit rights for all surface coal mining and reclamation operations in
accordance with the approved Missouri program at sections 444.815
through 444.825, 444.835 through 444.845, and 444.850 of the Missouri
Surface Coal Mining Law (MSCML) and 10 CSR 40-6.010 through 40-6.120.
This includes pending permit actions for which the MLRP has not made a
final decision. Administrative and judicial review will be in
accordance with sections 525 and 526 of SMCRA (30 U.S.C. 1275 and
1276), 30 CFR part 775, and 43 CFR part 4.
(f) Permit fees are required in accordance with section 444.820.1
of MSCML and 10 CSR 40-6.010(6). The fees for all new permitting
actions must be submitted to and made payable to OSM.
(g) OSM will determine the amount of the performance bonds for new
permitting actions in accordance with section 509 of SMCRA and 30 CFR
part 800.
(h) OSM will maintain the amount of the performance bonds for
existing permits in accordance with the Missouri program at section
444.830 of MSCML and 10 CSR 40-7.011.
(i) OSM will review and make decisions on performance bond release
requests for new and existing permits in accordance with the Missouri
program at section 444.875 of MSCML and 10 CSR 40-7.021. For existing
bonds, we will make the required determinations
[[Page 50949]]
for the amount of the bond to be released and submit the determinations
to the MLRP for release.
(j) Performance bonds must be made payable to the ``United States
of America and State of Missouri,'' and they must be submitted to OSM.
(k) Administrative and judicial review of OSM's enforcement
actions, permitting decisions, and performance bond determinations will
be in accordance with 43 CFR part 4.
0
3. Add section 925.18 to read as follows:
Sec. 925.18 State remedial actions.
As a prerequisite to the Missouri Department of Natural Resources,
Air and Land Protection Division, Land Reclamation Program (MLRP)
reassuming authority to implement the provisions of the Missouri
program that are being directly enforced by OSM, as specified under 30
CFR 936.17, the MLRP must complete the remedial measures specified
below to demonstrate its intent and capability to fully implement the
Missouri program.
(a) By August 22, 2003, the MLRP must submit to OSM a list of all
outstanding enforcement actions specifying the abatement date set for
each cited violation.
(b) In accordance with the requirements of the approved Missouri
program, the MLRP must complete administrative disposition of all
enforcement actions that were initiated before the effective date of
this decision.
(c) Not later than September 22, 2003, the MLRP must submit to OSM
a plan to reassume full authority for the Missouri program. At a
minimum, the proposal must provide specific and adequate provisions
that address the following problems:
(1) Funding: The proposal must demonstrate to the satisfaction of
OSM a commitment to fully fund the Missouri program.
(2) Staffing: The proposal must demonstrate to the satisfaction of
OSM a commitment to hire a sufficient number of qualified personnel to
comply with all inspection and enforcement, permitting, and bonding
requirements of the approved Missouri program.
(3) Adherence to Approved Program: The proposal must include
provisions, policy statements, and other affirmative evidence
sufficient to assure OSM that the MLRP will be in full compliance at
all times with the provisions of the Missouri program.
(d) Starting November 20, 2003, the MLRP must submit to OSM a
report once every three months on its progress in obtaining full
funding for the Missouri program.
(e) Effective September 8, 2003, the MLRP must take all steps
necessary to ensure that all records, documents, correspondence,
inspector logs, etc. are made secure and to supply copies of all
documents to OSM upon request.
0
4. Add Sec. 925.19 to read as follows:
Sec. 925.19 Termination of Federal enforcement of the Missouri
program.
(a) OSM will consider returning to the MLRP the authority suspended
under 30 CFR 925.17 provided the following requirements have been met:
(1) The MLRP accomplished to the satisfaction of OSM all remedial
actions specified under 30 CFR 925.18.
(2) The MLRP petitioned OSM in writing to consider returning
authority to the State.
(b) Upon satisfaction of the requirements specified in paragraph
(a) of this section, OSM will schedule a public comment period and
hearing on the MLRP's request.
(c) Following the close of the hearing and the comment period, OSM
will announce in the Federal Register its decision to grant in whole or
in part, or to deny the MLRP's request.
(d) Following OSM's decision to grant, in part, or to deny the
MLRP's request, we will publish in the Federal Register further actions
the MLRP will be required to take and the timeframes for taking such
actions before OSM will consider a second request from the MLRP to
return authority to the State.
[FR Doc. 03-21475 Filed 8-21-03; 8:45 am]
BILLING CODE 4310-05-P