[Federal Register Volume 62, Number 248 (Monday, December 29, 1997)]
[Proposed Rules]
[Pages 67598-67601]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-33660]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 943
[SPATS No. TX-035-FOR]
Texas Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),
Interior.
ACTION: Proposed rule; public comment period and opportunity for public
hearing.
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SUMMARY: OSM is announcing receipt of a proposed amendment to the Texas
regulatory program (hereinafter the ``Texas program'') under the
Surface Mining Control and Reclamation Act of 1977 (SMCRA). The
proposed amendment consists of revisions to Texas' regulations
pertaining to definitions, prime farmland, small operator assistance,
release of performance bond, and backfilling and grading. The amendment
is intended to revise the Texas program to be consistent with the
corresponding Federal regulations.
This document sets forth the times and locations that the Texas
program and proposed amendment to that program are available for public
inspection, the comment period during which interested persons may
submit written comments on the proposed amendment, and the procedures
that will be followed regarding the public regarding the public
hearing, if one is requested.
DATES: Written comments must be received by 4:00 p.m. c.s.t., January
28, 1998. If requested, a public hearing on the proposed amendment will
be held on January 23, 1998. Requests to speak at the hearing must be
received by 4:00 p.m., c.s.t. on January 13, 1998.
ADDRESSES: Written comments and requests to speak at the hearing should
be mailed or hand delivered to Michael C. Wolfrom, Director, Tulsa
Field Office, at the address listed below.
Copies of the Texas program, the proposed amendment, a listing of
any scheduled public hearings, and all written comments received in
response to this document will be available for public review at the
addresses listed below during normal business hours, Monday through
Friday, excluding holidays. Each requester may receive one free copy of
the proposed amendment by contacting OSM's Tulsa Field Office.
Michael C. Wolfrom, Director, Tulsa Field Office, Office of Surface
Mining Reclamation and Enforcement, 5100 East Skelly Drive, Suite 470,
Tulsa Oklahoma 74135-6547, Telephone: (918) 581-6430.
Surface Mining and Reclamation Division, Railroad Commission of
Texas, 1701 North Congress Avenue, P.O. Box 12967, Austin, Texas 78711-
2967, Telephone: (512) 463-6900.
FOR FURTHER INFORMATION CONTACT:
Michael C. Wolfrom, Director, Tulsa Field Office, Telephone: (918) 581-
6430.
SUPPLEMENTARY INFORMATION:
I. Background on the Texas Program
On February 16, 1980, the Secretary of the Interior conditionally
approved the Texas program. General background information on the Texas
program, including the Secretary's findings, the disposition of
comments, and the conditions of approval can be found in the February
27, 1980, Federal Register (45 FR 12998). Subsequent actions concerning
the Texas program can be found at 30 CFR 943.10, 943.15, and 943.16.
II. Description of the Proposed Amendment
By letter dated December 1, 1997 (Administrative Record No. TX-
644), Texas submitted a proposed amendment to its program pursuant to
SMCRA. Texas submitted the proposed amendment in response to a June 17,
1997, letter (Administrative Record No. 640) that OSM sent to Texas in
accordance with 30 CFR 732.17(c). Texas proposes to amend Chapter 12 of
the Texas Administrative Code (TAC).
1. TAC Sec. 12.3 Definitions.
Texas added or revised the following definitions at Sec. 12.3:
Previously mined area--Land affected by surface coal mining
operations prior to August 3, 1977, that has not been reclaimed to
the standards of this Chapter (relating to Coal Mining Regulations).
Qualified laboratory--A designated public agency, private firm,
institution, or analytical laboratory that can provide the required
determination of probable hydrologic consequences or statement of
results of test borings or core samplings or other services as
specified at Secs. 12.236 and 12.240 of this title (relating to
Program Services, and to Data Requirements), and that meet the
standards of Sec. 12.241 of this title (relating to Qualified
Laboratories).
Thick overburden--more than sufficient spoil and other waste
materials available from the entire permit area to restore the
disturbed area to its approximate original contour. More than
sufficient spoil and other waste materials occur where the
overburden thickness times the swell factor exceeds the combined
thickness of the overburden and coal bed prior to removing the coal,
so that
[[Page 67599]]
after backfilling and grading the surface configuration of the
reclaimed area would not: (1) Closely resemble the surface
configuration of the land prior to mining; or (2) Blend into and
complement the drainage pattern of the surrounding terrain.
Thin overburden--Insufficient spoil and other waste materials
available from the entire permit area to restore the disturbed area
to its approximate original contour. Insufficient spoil and other
waste materials occur where the overburden thickness times the swell
factor, plus the thickness of other available waste materials, is
less than the combined thickness of the overburden and coal bed
prior to removing the coal, so that after backfilling and grading
the surface configuration of the reclaimed area would not: (1)
Closely resemble the surface configuration of the land prior to
mining; or (2) Blend into and complement the drainage pattern of the
surrounding terrain.
2. TAC Sec. 12.201 Prime Farmland
Texas proposed to add the following requirement at
Sec. 12.201(d)(5):
The aggregate total prime farmland acreage shall not be
decreased from that which existed prior to mining. Water bodies, if
any, to be constructed during mining and reclamation operations,
must be located within the post-reclamation non-prime farmland
portions of the permit area. The creation of any such water bodies
must be approved by the Commission and the consent of all affected
property owners within the permit area must be obtained.
3. TAC Sec. 12.237 Eligibility for Assistance
At Sec. 12.237(2), Texas proposed to amend the eligibility
requirements for participation in its small operator assistance program
(SOAP) by increasing the amount of the probable total actual and
attributed production allowed for SOAP applicants from 100,000 to
300,000 tons. At Sec. 12.237(2)(B) and (C), Texas increased the
baseline percentage above which ownership will play a role in
determining attributed coal production from 5 to 10 percent.
4. TAC Sec. 12.243 Applicant Liability
Texas revised Sec. 12.243(a) to require that a coal operator who
has received assistance pursuant to Secs. 12.236 and 12.240 reimburse
the Commission for the cost of the services rendered. Texas revised
Sec. 12.243(a)(4) to specify that reimbursement will be required if the
Commission finds that the operators actual and attributed annual
production of coal for all locations exceeds 300,000 tons during the 12
months immediately following the date on which the operator is issued
the surface coal mining and reclamation permit. Texas revised
Sec. 12.243(a)(5) to specify that reimbursement will be required if the
permit is sold, transferred, or assigned to another person and the
transferee's total actual and attributed production exceeds the
300,000-ton production limit during the 12 months immediately following
the date on which the permit was originally issued.
5. TAC Sec. 12.312 Procedure for Seeking Release of Performance Bond
Texas entitled Sec. 12.312(a) as ``Bond release application'' and
revised it by adding the existing first sentence to Sec. 12.312(a)(1)
and adding the following new requirement:
Applications may be filed only at times or during seasons
authorized by the Commission in order to properly evaluate the
completed reclamation operations. The times or seasons appropriate
for the evaluation of certain types of reclamation shall be
established in the regulatory program or identified in the mining
and reclamation plan required in Subchapter G of this Chapter and
approved by the Commission.
Texas added the balance of the existing language to
Sec. 12.312(a)(2) and added a requirement that the advertisement for
bond release also contain the name and address of the Commission office
to which written comments, objections, or requests for public hearings
and informal conference may be submitted.
Texas added the following new requirement at Sec. 12.312(a)(3):
The permittee shall include in the application for bond release
a notarized statement which certifies that all applicable
reclamation activities have been accomplished in accordance with the
requirements of the act, the regulatory program, and the approved
reclamation plan. Such certification shall be submitted for each
application or phase of bond release.
Texas entitled Sec. 12.312(b) as ``Inspection by Commission,''
added the existing language to Sec. 12.312(b)(1), and changed the
language ``notification and request'' to ``bond release application.''
Texas removed Sec. 12.312(c) and added its substantive requirements to
Sec. 12.312(b)(2) with the following revised language:
Within 60 days from the filing of the bond release application,
if no public hearing is held pursuant to Sec. 12.313(c) of the title
(relating to Criteria and Schedule for Release of Performance Bond,
or, within 30 days after a public hearing has been held pursuant to
Sec. 12.313(c), the Commission shall notify in writing the
permittee, the surety, or other persons with an interest in bond
collateral who have requested notification under Sec. 12.309(1) of
this title (relating to Terms and Conditions of the Bond), and the
persons who either filed objections in writing or objectors who were
a party to the hearing proceedings, if any, of its decision to
release or not to release all or part of the performance bond.
6. TAC Sec. 12.313 Criteria and Schedule for Release of Performance
Bond
Texas proposed the following revision to the existing language at
Sec. 12.313(a):
The Commission may release all or part of the bond for the
entire permit area or incremental area if the Commission is
satisfied that the reclamation or a phase of the reclamation covered
by the bond or deposit or portion thereof has been accomplished in
accordance with the following schedules for reclamation of Phases I,
II, and III:
At Sec. 12.313(a)(1), Texas added the phrase ``[a]t the completion
of Phase I, after'' to the beginning of the provision and deleted the
word ``[w]hen''; added the proviso that backfilling and regarding may
include the replacement of topsoil; and made other nonsubstantive
language changes.
At Sec. 12.313(a)(2), Texas added the phrase ``[a]t the completion
of Phase II'' to the beginning of the provision; removed the provision
that the Commission may release up to 25 percent of the original bond
amount and added the provision that the Commission may release an
additional amount of bond; changed its reference to Secs. 12.330
through 12.403 of this title to Sec. 134.092(a)(10) of the Act and
Subchapter K of this Chapter relating to its requirements for suspended
solids; added a reference to Secs. 12.620-12.625 relating to the prime
farmland survey; added a reference to Subchapter K of this Chapter
relating to its requirements for retention of a permanent impoundment.
At Sec. 12.31(a)(3), Texas added the phrase ``[a]t the completion
of Phase III, after'' to the beginning of the provision and deleted the
word ``[w]hen'' and changed its reference to Secs. 134.091 through
134.109 of the Act of Sec. 12.395 or Sec. 12.560 of this title.
Texas revised Sec. 12.313(b) by requiring that the Commission
notify the permittee, the surety, and any person with an interest in
collateral if the Commission disapproves the application for release of
the bond.
At Sec. 12.313(d), Texas added the option that a public hearing may
be held at the State capital at its first reference to a public hearing
regarding release of the bond and removed duplicative language at the
end of the provision regarding holding of a public hearing.
7. TAC Sec. 12.387 Backfilling and Grading--Thin Overburden
At Sec. 12.387, Texas removed the existing requirements and added
the following requirements:
Where thin overburden occurs within the permit area, the
permittee, at a minimum,
[[Page 67600]]
shall: (1) Use all spoil and other waste materials available form
the entire permit area to attain the lowest practicable grade, but
not more than the angle of repose; and (2) Meet the requirements of
Sec. 12.385 of this title (relating to Backfilling and Grading:
General Requirements).
8. TAC Sec. 12.388 Backfilling and Grading--Thick Overburden
At Sec. 12.388, Texas removed the existing requirements and added
the following requirements:
Where thick overburden occurs within the permit area, the
permittee at a minimum shall: (1) Restore the approximate original
contour and then use the remaining spoil and other waste materials
to attain the lowest practicable grade, but not more than the angle
of repose; (2) Meet the requirements of Sec. 12.385 of the title
(relating to Backfilling and Grading: General Requirement); and (3)
Dispose of any excess spoil in accordance with Secs. 12.363-12.366
of this title (relating to Disposal of Excess Spoil: General
Requirements, to Disposal of Excess Spoil: Valley Fills, to Disposal
of Excess Spoil: Head-of-Hollow Fills, and to Disposal of Excess
Spoil: Durable Rock Fills).
9. TAC Sec. 12.620 Prime Farmland--Applicalbility and Special
Requirements
At Sec. 12.620(a)(1), Texas removed the existing language and added
the following language:
Disposal areas containing coal mine waste resulting from
underground mines that is not technologically and economically
feasible to store in underground mines or on non-prime farmland. The
operator shall minimize the area of prime farmland used for such
purposes; or
III. Public Comment Procedures
In accordance with the provisions of 30 CFR 732.17(h), OSM is
seeking comments on whether the proposed amendment satisfies the
applicable program approval criteria of 30 CFR 732.15. If the amendment
is deemed adequate, it will become part of the Texas program.
Written Comments
Written comments should be specific, pertain only to the issues
proposed in this rulemaking, and include explanations in support of the
commenter's recommendations. Comments received after the time indicated
under DATES or at locations other than the Tulsa Field Office will not
necessarily be considered in the final rulemaking or included in the
Administrative Record.
Public Hearing
Persons wishing to speak at the public hearing should contact the
person listed under FOR FURTHER INFORMATION CONTACT by 4:00 p.m.,
c.s.t. on January 13, 1998. The location and time of the hearing will
be arranged with those persons requesting the hearing. Any disabled
individual who has need for a special accommodation to attend a public
hearing should contact the individual listed under FOR FURTHER
INFORMATION CONTACT. If no one requests an opportunity to speak at the
public hearing, the hearing will not be held.
Filing of a written statement at the time of the hearing is
requested as it will greatly assist the transcriber. Submission of
written statements in advance of the hearing will allow OSM officials
to prepare adequate responses and appropriate questions.
The public hearing will continue on the specified date until all
persons scheduled to speak have been heard. Persons in the audience who
have not been scheduled to speak, and who wish to do so, will be heard
following those who have been scheduled. The hearing will end after all
persons scheduled to speak and persons present in the audience who wish
to speak have been heard.
Public Meeting
If only one person requests an opportunity to speak at a hearing, a
public meeting, rather than a public hearing, may be held. Persons
wishing to meet with OSM representatives to discuss the proposed
amendment may request a meeting by contacting the person listed under
FOR FURTHER INFORMATION CONTACT. All such meetings will be open to the
public and, if possible, notices of meetings will be posted at the
locations listed under ADDRESSES. A written summary of each meeting
will be made a part of the Administrative Record.
IV. Procedural Determinations
Executive Order 12866
This rule is exempted from review by the Office of Management and
Budget (OMB) under Executive Order 12866 (Regulatory Planning and
Review).
Executive Order 12988
The Department of the Interior has conducted the reviews required
by section 3 of Executive Order 12988 (Civil Justice Reform) and has
determined that, to the extent allowed by law, this rule meets the
applicable standards of subsections (a) and (b) of that section.
However, these standards are not applicable to the actual language of
State regulatory programs and program amendments since each such
program is drafted and promulgated by a specific State, not by OSM.
Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and 30
CFR 730.11, 732.15, and 732.17(h)(10), decisions on proposed State
regulatory programs and program amendments submitted by the States must
be based solely on a determination of whether the submittal is
consistent with SMCRA and its implementing Federal regulations and
whether the other requirements of 30 CFR parts 730, 731, and 732 have
been met.
National Environmental Policy Act
No environmental impact statement is required for this rule since
section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency
decisions on proposed State regulatory program provisions do not
constitute major Federal actions within the meaning of section
102(2)(C) of the National Environmental Policy Act (42 U.S.C.
4332(2)(C)).
Paperwork Reduction Act
This rule does not contain information collection requirements that
require approval by OMB under the Paperwork Reduction Act (44 U.S.C.
3507 et seq.).
Regulatory Flexibility Act
The Department of the Interior has determined that this rule will
not have a significant economic impact on a substantial number of small
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
The State submittal which is the subject of this rule is based upon
counterpart Federal regulations for which an economic analysis was
prepared and certification made that such regulations would not have a
significant economic effect upon a substantial number of small
entities. Accordingly, this rule will ensure that existing requirements
previously promulgated by OSM will be implemented by the State. In
making the determination as to whether this rule would have a
significant economic impact, the Department relied upon the data and
assumptions for the counterpart Federal regulations.
Unfunded Mandates
OSM has determined and certifies pursuant to the Unfunded Mandates
Reform Act (2 U.S.C. 1502 et seq.) that this rule will not impose a
cost of $100 million or more in any given year on local, state, or
tribal governments or private entities.
List of Subjects in 30 CFR Part 943
Intergovernmental relations, Surface mining, Underground mining.
[[Page 67601]]
Dated: December 17, 1997.
Brent Wahlquist,
Regional Director, Mid-Continent Regional Coordinating Center.
[FR Doc. 97-33660 Filed 12-24-97; 8:45 am]
BILLING CODE 4310-05-M
