[Federal Register Volume 62, Number 58 (Wednesday, March 26, 1997)]
[Rules and Regulations]
[Pages 14311-14326]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-7533]
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
30 CFR Part 943
[SPATS No. TX-017-FOR]
Texas Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),
Interior.
ACTION: Final rule; approval of amendment.
-----------------------------------------------------------------------
SUMMARY: OSM is approving a proposed amendment to the Texas regulatory
program (hereinafter referred to as the ``Texas program'') under the
Surface Mining Control and Reclamation Act of 1977 (SMCRA). Texas
proposed revisions to and additions of rules pertaining to authority,
responsibility and applicability; definitions; restrictions of
financial interests of State employees; exemption for coal extraction
incident to government-financed construction; exemption for coal
extraction incidental to the extraction of other minerals; lands
unsuitable for mining; coal exploration; geologic and hydrologic permit
information; blasting plans; maps and plans; protection of the
hydrologic balance; ponds, impoundments, banks, dams, and embankments;
prime farmland; alluvial valley floors; public availability of permit
information; approval and conditions of permits; transfer, assignment
or sale of permit rights; bonding requirements; liability insurance;
bond release; signs and markers; water quality standards; diversions;
siltation structures; permanent and temporary impoundments; surface and
ground water monitoring; stream buffer zones; use of explosives; coal
mine waste; protection of fish and wildlife and related environmental
values; backfilling and grading; revegetation; water discharge into
underground mines; enforcement; suspension and revocation of permits;
assessment of civil penalties; individual civil penalties; and blaster
certification and training. Texas also proposed minor changes in
wording, numbering, and punctuation of its rules. The amendment is
intended to revise the Texas program to be consistent with the
corresponding Federal regulations and SMCRA and to incorporate the
additional flexibility afforded by the revised Federal regulations.
EFFECTIVE DATE: March 26, 1997.
FOR FURTHER INFORMATION CONTACT: Ervin J. Barchenger, Acting Director,
Tulsa Field Office, Office of Surface Mining Reclamation and
Enforcement, 5100 East Skelly Drive, Suite 470, Tulsa, Oklahoma 74135-
6548, Telephone: (918) 581-6430.
SUPPLEMENTARY INFORMATION:
I. Background on the Texas Program
II. Submission of the Proposed Amendment
III. Director's Findings
IV. Summary and Disposition of Comments
V. Director's Decision
VI. Procedural Determinations
I. Background on the Texas Program
On February 16, 1980, the Secretary of the Interior conditionally
approved the Texas program. Background information on the Texas
program, including the Secretary's findings, the disposition of
comments, and the conditions of approval can be found in the February
27, 1980, Federal Register (45 FR 12998). Subsequent actions concerning
the conditions of approval and program amendments can be found at 30
CFR 943.10, 943.15, and 943.16.
II. Submission of the Proposed Amendment
By letter dated May 13, 1993 (Administrative Record No. TX-551),
Texas submitted a proposed amendment to its program pursuant to SMCRA.
Texas submitted the proposed amendment in response to May 20, 1985,
June 9, 1987, October 20, 1988, February 7, 1990, and February 21,
1990, letters (Administrative Record Nos. TX-358, TX-388, TX-417, TX-
472, and TX-476) that OSM sent to Texas in accordance with 30 CFR
732.17(c), in response to the required program amendments at 30 CFR
943.16 (k) through (q), and at its own initiative.
OSM announced receipt of the proposed amendment in the June 21,
1993, Federal Register (58 FR 33785), and in the same document opened
the public comment period and provided an opportunity for a public
hearing on the adequacy of the proposed amendment. The public comment
period would have closed on July 21, 1993. However, by letter dated
July 16, 1993, the Texas Mining and Reclamation Association requested a
30-day extension of time in which to review and provide comments on the
proposed amendment. OSM announced receipt of the extension request and
reopened the comment period in the August 16, 1993, Federal Register
(58 FR 43308). The extended comment period ended August 20, 1993.
During its review of the amendment, OSM identified several concerns
relating to the proposed amendment. OSM notified Texas of these
concerns by letter dated July 25, 1994 (Administrative Record No. TX-
578). OSM provided Texas with further clarification of its concerns by
letters dated November 4, 1994, November 21, 1994, and January 18, 1995
(Administrative Record Nos. TX-581, TX-589, and TX-585).
By letter dated September 18, 1995 (Administrative Record No. TX-
598), Texas responded to OSM's concerns by submitting a revised program
amendment package. OSM reopened the public comment period in the
October 25, 1995, Federal Register (60 FR 54620) and provided an
opportunity for a public hearing on the adequacy of the revised
amendment. The public comment period closed on November 9, 1995. By
letter dated December 15, 1995 (Administrative Record No. TX-634),
Texas submitted documents to clarify and supplement its September 18,
1995, revised amendment. By letter dated March 1, 1996 (Administrative
Record No. TX-612), Texas provided information to supplement the
revegetation success portion of its September 18, 1995, revised
amendment.
By letter dated January 29, 1996 (Administrative Record No. TX-
610), Texas withdrew portions of its September 18, 1995, revised
amendment. Texas withdrew the roads and transportation system portion
of the amendment because it had submitted a formal amendment on
December 20, 1995, titled ``Transportation System, Utilities, and
Support System,'' which superceded the changes in this amendment.
During its review of the September 18, 1995, revised amendment and
supplemental information, OSM
[[Page 14312]]
identified several concerns relating to the proposed amendment. OSM
notified Texas of these concerns by letter dated June 18, 1996
(Administrative Record No. TX-614).
By letter dated July 31, 1996 (Administrative Record No. TX-621),
Texas responded to OSM's concerns by submitting a revised program
amendment package. Texas proposed to revise the Texas Coal Mining
Regulations (TCMR) at: Subchapter A--General, parts 700, 701, 705, and
707; subchapter F--Lands Unsuitable for Mining, parts 760, 761, 762,
and 764; subchapter G--Surface Coal Mining and Reclamation Operations
Permits and Coal Exploration Procedures Systems, parts 770, 776, 779,
780, 783, 784, 785, 786, 787, and 788; subchapter J--Bond and Insurance
Requirements for Surface Coal Mining and Reclamation Operations, parts
800, 806, and 807; subchapter K--Permanent Program Performance
Standards, parts 805, 816, 817, and 823; subchapter L--Permanent
Program Inspection and Enforcement Procedures, parts 843, 845, and 846;
and subchapter M--Training, Examination, and Certification of Blasters,
part 850. In addition, Texas withdrew the revegetation success
guidelines from this amendment and indicated they would be submitted as
a separate amendment at a later time. By letter dated September 12,
1996, (Administrative Record No. TX-635), Texas provided its
Administrative Procedures Act to supplement its July 31, 1996 revised
amendment.
OSM reopened the public comment period in the August 28, 1996,
Federal Register (61 FR 44260). The public comment period closed on
September 27, 1996.
During its review of the July 31, 1996, revised amendment, OSM
identified concerns relating to a proposed change to the effective date
of TCMR 762.076 regarding designating lands unsuitable for mining, a
cross-reference in TCMR 780.148(c)(3) and 784.190(c)(3), proposed self-
insurance provisions at TCMR 806.311(d), and revised administrative
procedures at TCMR 787.222 and 787.223. OSM notified Texas of these
concerns by letter dated December 2, 1996 (Administrative Record No.
TX-630).
By letter dated December 31, 1996, (Administrative Record No. TX-
631), Texas responded to OSM's concerns by submitting information to
supplement and correct cross-reference errors in its July 31, 1996,
revised amendment. In addition, Texas withdrew the proposed changes to
TCMR 787.222 and 787.223 regarding administrative procedures, and
indicated it would submit changes to these procedures in a separate
amendment. By letter dated February 4, 1997 (Administrative Record No.
TX-636), Texas submitted information to correct a cross-reference error
in its December 31, 1996, submittal.
III. Director's Findings
After a thorough review, pursuant to SMCRA and the Federal
regulations at 30 CFR 732.15 and 732.17, the Director finds that the
proposed amendment, as submitted by Texas on May 13, 1993, and as
revised and/or supplemented with explanatory information on September
18, 1995, December 15, 1995, March 1, 1996, July 31, 1996, September
12, 1996, December 31, 1996, and February 4, 1997, is no less stringent
than SMCRA and no less effective than the corresponding Federal
regulations.
A. Nonsubstantive Revisions to Texas' Regulations
Texas proposed nonsubstantive changes to make editorial corrections
and recodify previously approved regulations because of new
regulations. Revisions that are not discussed concern substantive
wording changes that are not inconsistent with SMCRA or the Federal
regulations. The Director approves these changes.
B. Substantive Revisions to Texas' Regulations That Are Substantially
Identical to the Corresponding Federal Regulations
1. New and Revised Texas Regulations
Texas proposed the following new regulations and revisions to
existing regulations that are substantive in nature and contain
language that is substantially identical to the corresponding Federal
regulations (listed in brackets):
TCMR 700.002 (b)(4), (b)(5), and (f), authority, responsibility,
and applicability [30 CFR 700.11 (a)(4), (a)(5) and (d)];
TCMR 701.008 (5), (18), (19), (21), (26), (55), (67), (82), (84),
(95), (102), and (107), definitions for affected area, coal mine waste,
coal preparation, coal processing waste, cumulative impact area, other
treatment facility, prime farmland, siltation structure, soil survey,
topsoil, unwarranted failure to comply, and willful violation [30 CFR
701.5, 843.5];
TCMR 705.010 (a)(3) and (c), 705.011 (2), (3), (5), and (9),
705.013(a), 705.014, 705.015(a), and 705.016(a), restrictions of
financial interests of state employees [30 CFR 705.4 (a)(3) and (d),
705.5, 705.11(a), 705.13, 705.15, and 705.17(a)];
TCMR 709.025, 709.026 (a)(1) and (b)-(e), 709.027(c)-(e), 709.028,
709.029(b)-(c), 709.030, 709.031(a), (b), and (d)-(f), 709.032, 709.033
(a), (b), (c)(1), and (d), 709.034, exemption for coal extraction
incidental to the extraction of other minerals [30 CFR 702.1,
702.5(a)(1), 702.11(c)-(e), 702.12, 702.13(b)-(c), 702.14, 702.15(a),
(b), and (d)-(f), 702.16, 702.17 (a), (b), (c)(1), and (d), and
702.18];
TCMR 760.069, areas designated unsuitable for mining by Congress
[30 CFR 761.1];
TCMR 760.070 (6), (7), (9), and (11), definitions of public
building, public park, publicly-owned park, and significant
recreational, timber, economic, or other values incompatible with
surface coal mining operations [30 CFR 761.5];
TCMR 761.071 (b), (c), and (e), and 761.072 (b)(1), (b)(2), (c),
(d), (d) (1)-(4), (e) (1)-(2), (e)(3) (A)-(B), (f)(2), (g), and (h),
areas where mining is prohibited or limited [30 CFR 761.11 and 761.12];
TCMR 762.074 (4) and (5), definitions of renewable resource lands
and substantial legal and financial commitments in a surface coal
mining operation [30 CFR 762.5];
TCMR 762.075(a), 762.075(b), and 762.077, designating lands
unsuitable for surface coal mining operations [30 CFR 762.11(a),
762.11(b), and 762.14];
TCMR 764.079 (a), (b), (b)(1), (b)(1) (A)-(B), (b)(1) (D)-(F),
(b)(2), (c), (c)(1), (c)(1) (A)-(B), (c)(1) (D)-(E), and (c)(2),
764.080 (a) (4)-(7), (b)(1), (b)(3), (c), and (d), 764.081 (a) and
(b)(2), 764.082 (b) and (c), 764.084(a), and 764.085(b), process for
designating lands unsuitable for surface coal mining operations [30 CFR
764.13, 764.15, 764.17, 764.19 (b) and (c), 764.23(a), and 764.25(b)];
TCMR 776.111(a)(3)(E), application requirements for coal
exploration of more than 250 tons [30 CFR 772.12(b)(10)];
TCMR 779.126(d) and 783.172(d), surface and underground mine permit
requirements--description of hydrology and geology [30 CFR 780.21(a)
and 784.14(a)];
TCMR 779.128 (a), (a) (3)-(4), and (b), and 783.174 (a), (a) (3)-
(4), and (b), surface and underground mine permit requirements--ground
water information [30 CFR 780.21(b)(1) and 784.14(b)(1)];
TCMR 779.129, .129 (a), (b), (b)(1), and (b)(3), and 783.175, .175
(a), (b), (b)(1), and (b)(3), surface and underground mine permit
requirements--surface water information [30 CFR 780.21(b)(2) and
784.14(b)(2)];
TCMR 780.141 (g) and (h), surface mine permit requirements--
blasting plans [30 CFR 780.13(a)];
[[Page 14313]]
TCMR 780.142(b)(11), surface mine permit requirements--maps and
plans [30 CFR 780.14(b)(11)];
TCMR 780.142(d) and 784.197(d), surface and underground permit
requirements--support facilities [30 CFR 780.38 and 784.30];
TCMR 780.146(b), 780.146(c), 780.146(d)(1)-(4), 780.146(e),
784.188(b), 784.188(c), and 784.188(e), protection of the hydrologic
balance [30 CFR 780.21(i), 780.21(j), 780.21(f), 780.21(g), 784.14(h),
784.14(i), and 784.14(f)];
TCMR 785.201(b)(1), (b)(1)(B), (b) (2)-(4), (c) (1)-(2), and
(d)(2), prime farmland permit application requirements [30 CFR 785.17
(c)-(e)];
TCMR 785.202(b) (1)(i), (2), and (3) (i)-(iv), application
requirements--alluvial valley floors [30 CFR 785.19(d)(2)(i)];
TCMR 786.210, public availability of applications [30 CFR
773.13(d)];
TCMR 786.216 (c) and (e), criteria for permit approval or denial
[30 CFR 773.15(c) (5) and (11)];
TCMR 786.220(d), conditions of permits [30 CFR 773.17(g)];
TCMR 800.301(b)(2), requirements to file a bond [30 CFR
800.11(b)(4)];
TCMR 807.312 (a)-(c), bond release procedures [30 CFR 800.40 (a)
and (b)];
TCMR 807.313(a)(2), criteria and schedule for bond release [30 CFR
800.40(c)(2)];
TCMR 815.327(a), performance standards for coal exploration [30 CFR
815.15(a)];
TCMR 815.328, performance standards for coal exploration [30 CFR
772.14];
TCMR 816.340 and 817.510, water quality standards and effluent
limitations [30 CFR 816.42 and 817.42];
TCMR 816.341 (a) (1)-(3), (b), and (c), and 817.511 (a) (1)-(3),
(b), and (c), hydrologic balance: diversions [30 CFR 816.43 (a) (1)-
(3), (b), and (c), and 817.43 (a) (1)-(3), (b), and (c)];
TCMR 816.344(a), (b), (d), and (e), and 817.514(a), (b), (d), and
(e), hydrologic balance: siltation structures [30 CFR 816.46(a), (b),
(d), and (e), and 817.46(a), (b), (d), and (e)];
TCMR 816.347(a)(1)-(2), (a)(4)-(10), (a)(12)-(13), (b), and (c)(1),
and 817.517(a)(1)-(2), (a)(4)-(10), (a)(12)-(13), (b), and (c)(1),
performance standards--permanent and temporary impoundments [30 CFR
816.49(a)(1)-(2), (a)(4)-(10), (a)(12)-(13), (b), and (c)(1), and
817.49(a)(1)-(2), (a)(4)-(10), (a)(12)-(13), (b), and (c)(1)];
TCMR 816.348, hydrologic balance: ground water protection [30 CFR
816.41(b)];
TCMR 816.349, hydrologic balance: surface water protection [30 CFR
816.41(d)];
TCMR 816.350(a) and (b), and 817.519(a)(1), (a)(2), (a)(4), (b)(1),
(b)(2), and (b)(4), hydrologic balance: surface and ground water
monitoring [30 CFR 816.41(c) and (e), and 817.41(c)(1), (c)(2), (c)(4),
(e)(1), (e)(2), and (e)(4)];
TCMR 816.355 and 817.524, hydrologic balance: stream buffer zones
[30 CFR 816.57 and 817.57];
TCMR 816.357(a) and (c), and 817.526(b) and (c), use of explosives
[30 CFR 816.61(a) and (c), and 817.61(b) and (c)];
TCMR 816.358(a)-(d) and 817.527(a)-(d), use of explosives-
preblasting surveys [30 CFR 816.62(a)-(e) and 817.62(a)-(e)];
TCMR 816.362(d), 817.530, and.530(c), (d), (e), (g), (j), (s)(1)-
(5), and (t), use of explosives--records of blasting operations [30 CFR
816.68(d), 817.68, and 817.68(d), (e), (j), (o)(1)-(5), and (p)];
TCMR 816.376(a), (b), and (c), and 817.543(a), (b), and (c),
general requirements for coal mine waste dams and embankments [30 CFR
816.84, 816.84(a) and (b)(1), 817.84, and 817.84(a) and (b)(1)];
TCMR 816.377 and 817.544, coal mine waste dams and embankments site
preparation [30 CFR 816.84 and 817.84];
TCMR 816.378(a) and (c), and 817.545(a) and (c), design and
construction of coal mine waste dams and embankments [30 CFR
816.84(b)(1) and (f), and 817.84(b)(1) and (f)];
TCMR 816.380(e)(10) and 817.547(e)(10), protection of fish,
wildlife and related environmental values [30 CFR 816.97(h) and
817.97(h)];
TCMR 816.385(b)(3) and 817.552(b)(3), backfilling and grading
requirements [30 CFR 816.83(c)(2) and 817.83(c)(2)];
TCMR 816.390 and 817.555, revegetation: general requirements [30
CFR 816.111 and 817.111];
TCMR 817.509(a), hydrologic balance requirements [30 CFR
817.41(a)];
TCMR 817.535(c), general requirements for coal mine waste banks [30
CFR 816.81(c)(1)];
TCMR 823.620(a), prime farmland applicability [30 CFR 823.11(a) and
(c)];
TCMR 823.621(a)-(b) and 823.622(a)-(c), prime farmland soil removal
and stockpiling [30 CFR 823.12];
TCMR 823.624(a)-(b) and (d)-(f), prime farmland soil replacement
[30 CFR 823.14];
TCMR 823.625, prime farmland revegetation and restoration of soil
productivity [30 CFR 823.15];
TCMR 843.681(c) and (f)-(j), notice of violation abatement period
extensions [30 CFR 843.12];
TCMR 843.682(a)(1), suspension or revocation of permits [30 CFR
843.13(a)(1)];
TCMR 845.695(b)(1), procedures for assessment of civil penalties
[30 CFR 845.17(b)(1)];
TCMR 846.002 and 846.003, individual civil penalties assessed and
amount [30 CFR 846.12 and 14].
Because the above proposed revisions are identical in meaning to
the corresponding Federal regulations, shown in brackets, the Director
finds that Texas' proposed regulations are no less effective than the
Federal regulations.
2. Deletion of Existing Texas Regulations
Texas proposed to delete the following regulations because of OSM's
repeal of the Federal counterpart regulations (shown in brackets) or
because of the reasons stated:
TCMR 770.101, definitions [definitions are moved, revised and
adopted at TCMR 701.008];
TCMR 740.146(b) and (c), and 784.188(b) and (c), protection of the
hydrologic balance [30 CFR 780.21(b) and (c), 48 FR 43985, September
26, 1983];
TCMR 785.201(b)(3), (5), (6), and (8), prime farmland application
requirements [30 CFR 785.17(b)(3), (5), (6), and (8), 48 FR 47722,
September 29, 1983];
TCMR 816.340 and 817.510, water quality standards and effluent
limitations [30 CFR 816.42 and 817.42, 48 FR 44051, September 26,
1983];
TCMR 816.341, 816.342, 817.511, and 817.512, diversions [30 CFR
816.43, 816.44, 817.43, and 817.44, 48 FR 43991, September 26, 1983];
TCMR 816.344 and 817.515, sedimentation ponds [30 CFR 816.46 and
817.46, 48 FR 44051, September 26, 1983];
TCMR 816.347 and 817.517, permanent and temporary impoundments [30
CFR 816.49 and 817.49, 48 FR 44004, September 26, 1983];
TCMR 816.348 and 816.349, ground water protection and protection of
ground water recharge capacity [30 CFR 816.50 and 816.51, 48 FR 43992,
September 26, 1983];
TCMR 816.350 and 817.519, surface and ground water monitoring [30
CFR 816.52 and 817.52, 48 FR 43992, September 26, 1983];
TCMR 816.355 and 817.524, stream buffer zones [30 CFR 816.57 and
817.57, 48 FR 30327, June 30, 1983];
TCMR 816.390, 816.395, 816.396, 817.555, 817.560, and 817.561,
revegetation: general requirements,
[[Page 14314]]
standards for success, and tree and shrub stocking for forest land [30
CFR 816,111, 816.116, 816.117, 817.111, 817.116, and 817.117, 48 FR
40160, September 2, 1983];
TCMR 817.528 (a), (c), and (d)-(1), surface blasting requirements
[30 CFR 817.65, 48 FR 9810, March 8, 1983];
TCMR 817.529, seismograph measurements [30 CFR 817.67, 48 FR 9810,
March 8, 1983];
TCMR 817.538(c)(3), coal processing waste banks construction
requirements [30 CFR 817.85, 48 FR 44030, September 26, 1983];
TCMR 823.620(c), prime farmland special requirements [30 CFR
823.11(c), 48 FR 21463, May 12, 1983];
TCMR 823.623, prime farmland alternative to separate soil horizon
removal and stockpiling [No Federal counterpart, its removal does not
effect the State program].
Because the above proposed deletions are consistent with OSM's
repeal of the Federal counterpart regulations or are proposed to be
removed for other appropriate reasons, the Director finds that the
proposed deletions will not render the Texas regulations less effective
than the Federal regulations.
C. New Regulations and Revisions to Existing Texas' Regulations That
Are Substantive in Nature
1. TCMR 700.003 (1) and (3), Definitions of Act and APA
At TCMR 700.003(1), Texas defines ``Act'' to mean the Texas Surface
Coal Mining Control and Reclamation Act. The State proposed to revise
its definition by deleting the word ``control'' to reflect the actual
title of the State surface coal mining and reclamation act as it is
stated in the Texas statute. Texas also proposed to add a reference to
the code citation. The proposed definition states: ``Act'' means the
``Texas Surface Coal Mining and Reclamation Act'' (TEX. NAT. RES. CODE
Ch. 134).
Texas proposed to revise the definition of ``APTRA'' at TCMR
700.003(3) to ``APA'' and to add a reference to the code citation of
the APA. The APA is the successor code to the APTRA for the State's
administrative procedures act. The proposed definition states: ``APA''
means the ``Administrative Procedure Act'' (Chapter 2001, TEX. GOV'T
CODE). The Federal regulations do not contain a counterpart definition.
The Director finds the proposed changes do not make the State's
definitions of ``Act'' or ``APA'' inconsistent with any requirement of
SMCRA or with the Federal regulations. The Director approves the
proposed changes to the Texas regulations.
2. TCMR 701.008(25), Definition of Cropland
Texas proposed to revise its definition of cropland by adding the
phrase ``but does not include quick growing cover crops grown primarily
for erosion control'' to the end of the existing definition. The
corresponding Federal definition does not include the proposed State
language. Texas proposed the change to make it clear that the
definition of cropland is to identify lands used for the production of
crops. It should not include lands that are not used for the production
of crops, but where a cover crop is planted for erosion control
practices. The Director finds that the proposed revision to the
definition of cropland is not inconsistent with any requirement of
SMCRA or the Federal regulations. The Director is approving the
proposed definition.
3. TCMR 701.008, Definitions of Administratively Complete Application,
Applicant, Application, Complete and Accurate Application, Principal
Shareholder, and Property To be Mined
OSM required Texas, at 30 CFR 943.16(k) to submit an amendment that
includes definitions for complete application, applicant, application,
principal shareholder, and property to be mined. Instead of submitting
a definition of complete application, Texas submitted proposed
definitions of administratively complete application and complete and
accurate application. Because the Federal regulations do not contain a
definition for complete application, Texas is not required to include
this specific definition in its program. Texas also submitted proposed
definitions of applicant, application, principal shareholder, and
property to be mined. The proposed State definitions are the same as
the counterpart Federal definitions at 30 CFR 701.5. The Director finds
the proposed definitions at TCMR 701.008(4) administratively complete
application, (9) applicant, (10) application, (24) complete and
accurate application, (68) principal shareholder, and (70) property to
be mined are no less effective than the corresponding Federal
regulations at 30 CFR 701.5 and approves them. In addition, the
Director is removing the required amendment at 30 CFR 943.16(k).
4. TCMR 701.008(34), Definition of Experimental Practice
Texas proposed to add at TCMR 701.008(34) a definition for
``experimental practices.'' The proposed definition is that
experimental practice means the use of alternative surface coal mining
and reclamation operation practices for experimental or research
purposes. The Federal regulations do not contain a counterpart
definition. However, the original Federal permanent program regulations
published on March 13, 1979 (44 FR 15371) contained a definition for
experimental practices. In 1983, OSM determined this definition was not
needed and revised its regulations at 30 CFR 785.13(c) to delete the
definition (48 FR 9478, March 4, 1983). Texas' proposed definition of
experimental practice is the same as the previous Federal definition.
The proposed Texas definition of experimental practice at TCMR
701.008(34) is not inconsistent with any requirement of SMCRA or the
Federal regulations. The Director is approving the proposed definition.
5. TCMR 701.008 (69) and (76), Definitions of Professional Specialist
and Registered Professional Engineer
Texas proposed to add a definition for professional specialist at
TCMR 701.008(69) and a definition of registered professional engineer
at TCMR 701.008(76). The proposed definition of professional specialist
means a person whose training, experience, and professional
certification or licensing are acceptable to the Commission for the
limited purpose of performing certain specified duties under this
Chapter. Texas proposed to use the term at TCMR 816.347(a)(11) and
817.517(a)(11) in the following context ``* * * a qualified registered
professional engineer or other qualified professional specialist under
the direction of a professional engineer * * *''.
The proposed definition of registered professional engineer means a
person who is duly licensed by the Texas State Board of Registration of
Professional Engineers to engage in the practice of engineering in this
state. Texas proposed to use the term throughout its regulations
regarding review and certification of engineering designs.
The Federal regulations do not contain corresponding definitions.
However, the Federal regulations use the terms in the same manner as
proposed by Texas. The Director finds the proposed Texas definitions of
professional specialist at TCMR 701.008(69) and registered professional
engineer at TCMR 701.008(76) are not inconsistent with any requirement
of SMCRA or the Federal regulations. Therefore, the Director is
approving the proposed definitions.
[[Page 14315]]
6. TCMR 707.022, Exemption for Coal Extraction Incident to Government-
Financed Highway or Other Construction--Information to be Maintained on
Site
The Federal regulation at 30 CFR 707.12 requires that if coal
extraction incidental to government financed construction extracts more
than 250 tons or affects more than two acres, certain requirements must
be met for maintaining information on site. At TCMR 707.022, Texas
proposed to delete the reference to ``or effects more than two acres''
from its regulations. Texas made this change to its regulations in
1988; however, OSM has not approved it as an amendment to the Texas
program. Texas indicated that it made this change as part of its
removal of the two-acre exemption requirements from its program. OSM
did not revise this regulation when it removed the two acre exemption
provisions from its regulations.
The effect of the regulation in question is limited. It addresses
when documents must be maintained on site; it does not address or have
any effect on whether coal extraction incidental to government-financed
construction is allowable. Although the Federal regulation contains two
limits, tonnage and acreage, the tonnage limit as it applies in Texas
is so restrictive that it renders the acreage limit superfluous. The
only coal mined in Texas is lignite, which averages 1,750 tons per
acre-foot in weight according to DOE Coal Data. This means that removal
of just two inches of coal from one acre would result in 290 tons
removed, exceeding the 250 ton limit. The possibility of coal removal
incidental to government financed construction affecting more than two
acres without the removal of more than 250 tons is extremely remote.
Additionally, Texas has not used this provision of its program since
its approval in 1980. It deleted the two acre provision from its
regulations over eight years ago and it has not presented a problem in
the field. Therefore, the Director finds that the proposed Texas
regulation revision at TCMR 707.022 is no less effective than the
corresponding Federal regulation at 30 CFR 707.12 and is no less
stringent than SMCRA, and approves the regulation.
7. TCMR 709.026(a)(2), Definition of Cumulative Measurement Period
Texas Proposed to define the cumulative measurement period as it
applies to an exemption for coal extraction incidental to the
extraction of other minerals. The proposed definition of cumulative
measurement period at TCMR 709.026(a)(2) is substantively identical to
the counterpart Federal definition at 30 CFR 702.5(a)(2), except that
Texas proposed to insert the effective date of TCMR Part 709 of its
regulations for the end date of the cumulative measurement period, and
an anniversary date that is one day prior to the effective date. The
Federal definition contains an end date of April 1, 1990, which is the
effective date of the Federal regulation, and an anniversary date of
March 31. OSM intended for primacy States to base the end date of the
cumulative measurement period on the effective date of the counterpart
provisions of the State's regulatory program (54 FR 52094, December 20,
1989). OSM stated that its regulations ``were not intended [to]
retroactively bring under this Act [SMCRA] activities that occurred
prior to the effective date of this rule or the effective date of the
counter part provisions of the State regulatory programs.'' The
Director finds the proposed Texas definition of cumulative measurement
period at TCMR 709.026(a)(2) is no less effective than the
corresponding Federal definition at 30 CFR 702.5(a)(2), and approves
it.
8. TCMR 709.027 (a) and (b), Application Requirements and Procedures
for an Exemption for Coal Extraction Incidental to the Extraction of
Other Minerals
Texas proposed to use the effective date of TCMR Part 709 at TCMR
709.027(a) to establish who must file an application for an exemption
for incidental coal extraction and at TCMR 709.027(b) to establish a
date for when existing operations must file an application. The Federal
requirements at 30 CFR 702.11 (a) and (b) use the effective date of the
Federal regulations. For the same reasons as discussed in Finding
III.C.7. for the definition of ``cumulative measurement period,'' the
use of the State's effective date is also appropriate for these
subsections.
In addition, at TCMR 709.027(b), Texas proposed to specify what
constitutes an administratively complete application for an incidental
mining exemption application. The Federal requirements do not contain a
determination of when an application for an incidental mining exemption
is administratively complete. The Federal definition of
administratively complete application at 30 CFR 701.5 is specific to
permit applications and coal exploration applications; it does not
include incidental mining exemption applications. However, the addition
of this requirement in the Texas program is not inconsistent with any
requirement of SMCRA or the Federal regulations. The Director finds
that Texas' proposed regulations at TCMR 709.027 (a) and (b) are no
less effective than the corresponding Federal requirements, and
approves them.
9. TCMR 709.027(F) and 709.033(c) (2) and (3), Administrative Review of
Determinations for an Exemption and Revocation of an Exemption for Coal
Extraction Incidental to the Extraction of Other Minerals
The Federal regulations at 30 CFR 702.11(f) and 702.17(c) (2) and
(3) state that any adversely affected person may request administrative
review in accordance with 30 CFR 4.1280 or the corresponding State
procedures when a State is the regulatory authority, and that a
petition for administrative review shall not suspend the determination
for an exemption or the effect of a decision on the revocation of an
exemption Texas proposed at 709.027(f) and 709.033(c)(2), that an
adversely affected person may request administrative review of
determinations and decisions in accordance with Section 787.222. TCMR
787.222 contains the corresponding State procedures in the Texas
program. The Director finds that Texas' proposed regulations at TCMR
709.027(f) and 709.033(c)(2) are no less effective than the
corresponding Federal requirements and approves them.
Texas did not propose corresponding regulations to the Federal
regulations at 30 CFR 702.11(f)(2) and 702.17(c)(3), which state that a
petition for administrative review filed under 43 CFR 4.1280 or under
corresponding State procedures shall not suspend the effect of either a
determination under 702.11(e) or a decision whether to revoke an
exemption. As stated in the preamble to the final Federal rule (54 FR
52114, December 20, 1989), this provision was added to the Federal rule
in order to clarify the effect of the decision on revocation.
Therefore, because the intent of the Federal regulations was only to
clarify other regulations, the Director finds that Texas' omission of
corresponding requirements to 30 CFR 702.11(f)(2) and 702.17(c)(3) does
not render its program less stringent with SMCRA or less effective than
the Federal regulations.
10. TCMR 709.029(a), Public Availability of Information for an
Exemption for Coal Extraction Incidental to the Extraction of Other
Minerals
The Federal regulation at 30 CFR 702.13(a) states that all
information submitted under 30 CFR Part 702 shall be available for
public inspection and
[[Page 14316]]
copying at the local offices of the regulatory authority. Texas
proposed at TCMR 709.029(a) that all information submitted to the
Commission under Part 709 shall be available for public inspection and
copying at the Division's central and local offices closest to the
mining operation. The Director finds that Texas' inclusion of the
central office, in addition to the local offices, does not render its
proposed regulation at TCMR 709.029(a) less effective than the
counterpart Federal requirement at 30 CFR 702.13(a) and approves it.
11. TCMR 760.070(5), Definition of Owner of Record or Ownership
Interest of Record
Texas proposed to add a definition of owner of record or ownership
interest of record at TCMR 760.070(5). The proposed definition states
that owner of record or ownership interest of record means the owner
and address as shown in the tax records of the Texas Assessor-Collector
of Taxes for the county where the property is located. Texas uses these
terms throughout TCMR Subchapter F--Lands Unsuitable for Mining. The
Federal regulations do not contain a corresponding definition. However,
the Federal regulations use the term in the same manner as Texas. The
Director finds the proposed Texas definition of owner of record or
ownership interest of record at TCMR 760.070(5) is not inconsistent
with any requirement of SMCRA or the Federal regulations. Therefore,
the Director is approving the proposed definition.
12. TCMR 761.072(f)(1), Agency Notice of Adverse Affects on Protected
Parks and Places
Texas proposed to revise TCMR 761.072(f)(1) to be substantially
identical to the corresponding Federal requirements at 30 CFR
761.12(f)(1), with one exception. The Federal regulations includes a
provision which states that ``[t]he regulatory authority, upon request
by the appropriate agency, may grant an extension to the 30-day period
of an additional 30 days.'' The Federal regulation provides that
granting a 30-day extension for agencies to comment is discretionary to
the regulatory authority. The proposed Texas regulation does not
include provisions to grant a 30 day extension. By omitting this
option, Texas has determined on a programmatic basis that it will not
grant extensions. The Director finds this determination is not
inconsistent with SMCRA or the Federal regulations and the proposed
Texas regulation at TCMR 761.072(f)(1) is no less effective than the
corresponding Federal requirement at 30 CFR 761.12(f)(1). The Director
approves the regulation revisions.
13. TCMR 762.076(a), Lands Exempt From Designation as Unsuitable for
Surface Coal Mining Operations
The Federal regulations at 30 CFR 762.13 identify lands exempt from
designation as unsuitable for surface coal mining operations by stating
``The requirements of this part do not apply to--(a) Lands upon which
surface coal mining operations were being conducted on the date of
enactment of the Act''. In a previous State rulemaking, Texas revised
its requirements at TCMR 7652.076(a) by adding ``on the date of
enactment of the Act'' and deleting ``August 3, 1977''. The Federal
regulations at 30 CFR 700.5 define ``Act'' as SMCRA, which has an
effective date of August 3, 1977. The Texas regulations at TCMR
700.003(1) defines ``Act'' to mean the Texas Surface Coal Mining and
Reclamation Act, which has an effective date of May 9, 1979. The result
of the Texas rule revision was to extend the time frame from August 3,
1977, to May 9, 1979, for which lands being affected by mining are
programmatically exempt from designation as unsuitable. In response to
an issue letter, Texas proposed to revise its regulations to reinsert
the August 3, 1977, date. This proposed change restores the Texas
regulations at TCMR 762.076(a) back to that which OSM had previously
approved. Therefore, the proposed change is the same as previously
approved in the Texas program and no action is needed by the Director.
14. TCMR 764.079 (b)(1)(C) and (c)(1)(C), 764.080 (a)(1) and (b)(2),
and 764.081(b)(1)(C), Process for Designating Lands as Unsuitable for
Surface Coal Mining Operations
(a) TCMR 764.079 (b)(1)(C) and (c)(1)(C), Requirements for Complete
Petition. Texas proposed to add new requirements at TCMR
764.079(b)(1)(C) to what is required for complete petitions for
designation of lands unsuitable, and at TCMR 764.079(c)(1)(C) for
complete petitions to terminate a designation. The proposed
requirements state that complete petitions shall include the names and
mailing addresses of persons with an ownership interest of record in
the petitioned area. The Federal regulations do not have requirements
that correspond to the proposed State regulations. The Federal
regulations at 30 CFR 764.13 (b)(2) and (c)(2) allow that the
regulatory authority may request that the petitioner provide other
supplementary information that is readily available. The name and
mailing address of each person with an ownership interest of record in
the petition area is information that is available to the petitioners.
The Director finds the proposed State requirements at TCMR
764.079(b)(1)(C) and 764.079(c)(1)(C) are not inconsistent with any
requirements of SMCRA or the Federal regulations and approves them.
(b) Notification Requirements of Completeness Decision. At TCMR
764.080(a)(1), Texas proposed revisions to its regulations that, with
one exception, are substantially the same as the corresponding Federal
requirements at 30 CFR 764.15(a)(1). The Federal regulations provide
that within 30 days of receipt of a petition, the regulatory authority
shall notify the petitioner by certified mail whether or not the
petition is complete. Texas proposed to provide this notification
within 60 days. As discussed in Finding III.C.14(c), Texas proposed an
option, not contained in the Federal regulations, to provide an
opportunity for a hearing and period of written comments on the
completeness decision. To accommodate the additional time needed for a
hearing and period of written comments on completeness, Texas added 30
days to the schedule for a completeness determination. The Director
finds the proposed regulation at TCMR 764.080(a)(1) is no less
effective than the corresponding Federal regulation at 30 CFR
764.15(a)(1) and approves it.
(c) Hearing and Period of Written Comment for Completeness
Determination. Texas proposed to add a new requirement at TCMR
764.080(b)(2) that allows the Commission to provide a hearing or a
period of written comments on completeness of petitions. The proposed
requirements identifies who the Commission shall inform of the
opportunity of a hearing or period of written comments, how the
different entities will be notified, and where a notice will published.
The Federal regulations do not have a requirement that corresponds to
the proposed State regulation. The proposed State provision will
provide greater opportunity for interested agencies, interveners,
persons with ownership interest in the petition area, and the public to
participate in the petition process and to make their views known to
the Commission. The Director finds the proposed Texas regulation at
TCMR 764.080(b)(2) is not inconsistent with any requirement of SMCRA or
the Federal regulations and approves it.
(d) Notice of a Hearing for a Complete Petition. The Federal
regulations at 30 CFR 764.17(b)(1)(iii) require that proper
[[Page 14317]]
notice of a hearing for a complete petition to designate lands
unsuitable for mining to persons with an ownership interest of record
shall comply with applicable State law. AT TCMR 764.081(b)(1)(C), Texas
proposed that proper notice shall be accomplished by placing a postage
paid notice, addressed as shown in the public record, in the U.S. Mail.
The use of the U.S. Mail is a reasonable method for providing notice of
a hearing. The Director finds the proposed regulation at TCMR
764.081(b)(1)(C) is no less effective than the corresponding Federal
regulation at 30 CFR 764.17(b)(1)(iii) and approves it.
15. TCMR 779.127 and 783.173, Geology Description
Texas proposed to revise TCMR 779.127 and 783.173 to specify in
greater detail the geologic information that must be submitted in a
permit application. In addition, OSM placed a required amendment on the
Texas program at 57 FR 37447 (August 19, 1992) which states that:
``Texas shall submit to OSM a proposed amendment for the geologic
description requirements at TCMR 779.127 (a) and (b) to require that
the geologic description must be based, in part, on analysis of samples
of geologic materials collected from the proposed permit area.'' Texas
proposed at TCMR 779.127(b) to specifically require that ``[t]he
geologic description shall include analysis of samples * * * from the
permit area.'' With one exception, proposed TCMR 779.127 and 783.173
are substantially identical to corresponding Federal regulations at 30
CFR 780.22 (b) and (c), and 784.22 (b) and (c).
The exception is that Texas' proposed TCMR 779.127(a) does not
include the information sources listed by the Federal regulations at 30
CFR 780.22(b)(1) (i) through (iii). However, lack of these information
sources does not relieve applicants from providing, or prevent Texas
from requiring, a complete and adequate description of the geology of
the permit and adjacent areas as specified at proposed TCMR 779.127(a).
Therefore, the Director finds that the omission of these information
sources does not render the proposed regulations at TCMR 779.127 and
783.173 less effective than the Federal regulations at 30 CFR 780.22
(b) and (c), and 784.22 (b) and (c). The Director approves the proposed
regulations. In addition, the Director is removing the required
amendment at 30 CFR 943.16(l).
16. TCMR 780.142(c) and 784.197(c), Surface and Underground Mine Permit
Requirements--Operation Plan: Maps and Plans
OSM placed a required amendment on the Texas program at 57 FR 37447
(August 19, 1992) which states that: ``Texas shall submit to OSM a
proposed amendment for the permit operation maps and plans requirements
at TCMR 779.14[2](c) to require that qualified registered professional
engineers (not professional geologist) prepare and certify cross
sections, maps, and plans for sedimentation ponds, water impoundments;
coal processing waste banks, dams, and embankments; excess spoil fills;
durable rock fills; and coal mine waste disposal facilities.'' Texas
proposed to revise TCMR 780.142(c) to address this required amendment.
Texas proposed similar changes to the underground mining requirements
at 784.197(c). The proposed revisions to the Texas regulations are
substantially the same as the counterpart Federal requirements. Also,
Texas does not propose a cross-reference counterpart to 30 CFR
816.74(c)--disposal of excess spoil on existing benches, because Texas
does not have a State counterpart to this Federal requirement. This
omission was previously approved as part of the Texas program. The
Director finds that proposed Texas regulations at TCMR 780.142(c) and
784.197(c) are no less effective than the corresponding Federal
requirements at 30 CFR 780.14(c) and 784.23(c) and approves them. In
addition, the Director is removing the required amendment at 30 CFR
943.16(m).
17. TCMR 780.142(c) and 784.197(c), TCMR 780.148(a)(3)(i) and
784.190(a)(3)(i), TCMR 816.344(b)(3) and 817.514(b)(3), and TCMR
816.347 (a)(3), (a)(11), and (c)(2), and 817.517 (a)(3), (a)(11), and
(c)(2), Land Surveyor Maps and Plans Preparation, Inspections and
Certifications
The Federal regulations at 30 CFR 780.14(c) and 784.23(c) allow
qualified, registered, professional land surveyors to prepare and
certify maps and plans; however, Texas does not propose to adopt
provisions at TCMR 780.142(c) and 784.197(c) to allow land surveyors to
prepare and certify maps and plans. Texas, at TCMR 780.148(a)(3)(i) and
784.190(a)(3)(i), proposed to delete provisions that allow land
surveyors to prepare and certify plans prepared under TCMR
780.148(a)(3) and 784.190(a)(3). The Federal regulations at 30 CFR
816.46(b)(3) and 817.46(b)(3) allow qualified land surveyors to certify
siltation structures; however, Texas does not propose to adopt
provisions that allow land surveyors to certify siltation structures at
TCMR 816.344(b)(3) and 817.514(b)(3). The Federal regulations at 30 CFR
816.49 (a)(3), (a)(11), and (c)(2), and 817.49 (a)(3), (a)(11), and
(c)(2) allow a qualified registered professional land surveyor to
inspect and certify certain permanent and temporary impoundments. Texas
does not propose to adopt provisions that allow land surveyors to
certify designs at TCMR 816.347(a)(3) and 817.517(a)(3), to conduct
inspections of impoundments under TCMR 816.347(a)(11) and
817.517(a)(11), or to certify designs at TCMR 816.347(c)(2) and
817.517(c)(2). At 57 FR 37450 (August 19, 1992), OSM previously
approved Texas' omission of land surveyors from other sections of the
Texas program. The Director finds that Texas' proposed changes to
remove previously adopted provisions and to omit other provisions that
allow land surveyors to prepare and certify certain plans does not
render the Texas regulations less effective than the corresponding
Federal regulations. Therefore, the Director approves these
regulations.
18. TCMR 780.146 (a) and (d), and 784.188 (a) and (d), Hydrologic
Information
(a) TCMR 780.146(a) and 784.188(a), Hydrologic Reclamation Plan.
Texas proposed to revise its hydrologic reclamation plan requirements
at TCMR 780.146(a) and TCMR 784.188(a). Except for the requirements at
TCMR 780.146(a) (1) and (3), and 784.188(a) (1), (3), and (9), the
proposed regulations contain language that is substantially the same as
the corresponding Federal requirements for hydrologic reclamation plan
at 30 CFR 780.21(h) and 30 CFR 784.14(g). Texas proposed to add
language to TCMR 780.146(a)(1) and 784.188(a)(1) to ensure that the
hydrologic reclamation plan include alternative sources of water where
the protection of the quality cannot be ensured. These proposed
requirements and the existing requirements at TCMR 780.146(a)(3) and
784.188(a)(3), which require that the hydrologic reclamation plan
include alternative sources of water where the protection of the
quantity cannot be ensured, supplement Texas' permit application
requirements for alternative water supply information at TCMR 779.130
and 783.176. At TCMR 780.146(a)(3) and 784.188(a) (3) and (9), Texas
proposed nonsubstantive wording changes that are not inconsistent with
SMCRA or the Federal regulations. The Director finds the proposed
regulations
[[Page 14318]]
at TCMR 780.146(a) and 784.188(a) are no less effective than the
corresponding Federal requirements and approves them.
(b) TCMR 784.188(d) (1)-(4), Determination of Probable Hydrologic
Consequences--Underground Mining. Texas proposed to delete its existing
requirements for the determination of probable hydrologic consequences
(PHC) from TCMR 784.188(c) and replace them with more detailed PHC
requirements at proposed TCMR 784.188(d). With one exception, the
proposed PHC determination requirements at proposed 784.188(d) (1)-(4)
are substantially the same as the corresponding Federal requirements at
30 CFR 784.14(e). The Federal regulations at 30 CFR 784.14(e)(3)(iv)
require that PHC determinations include findings on whether underground
mining activities conducted after October 24, 1992, may result in
contamination, diminution or interruption of a well or spring in
existence at the time the permit application is submitted and used for
domestic, drinking, or residential purposes within the permit or
adjacent areas. At proposed TCMR 784.188(d)(3)(C), Texas is adding a
requirement that the PHC must include a finding on whether the proposed
operation may proximately result in contamination, diminution, or
interruption of an underground or surface source of water within the
proposed permit or adjacent areas which is used for domestic,
agricultural, or other legitimate use. Proposed TCMR 784.188(d)(3)(c)
requires a PHC determination if any legitimate use of water may be
affected, whereas the Federal requirement for underground mining is
limited to requiring the PHC to address impacts to domestic, drinking
or residential uses. In addition, the Federal regulation effective date
of October 22, 1992, for this requirement does not have any actual
impact in Texas. On May 30, 1995, OSM confirmed with Texas that no
underground mines have operated in Texas after October 24, 1992, and
there is no underground mining activity proposed in the State (60 FR
38490, July 27, 1995). Therefore, the Director finds that Texas'
proposed regulations at TCMR 784.188(d) (1)-(4) are no less effective
than the corresponding Federal requirements at 30 CFR 784.14(e) and
approves them.
(c) TCMR 780.146(d)(5) and 784.188(d)(5), Supplemental Hydrologic
Information. The Federal requirements at 30 CFR 780.21(b)(3) and
784.14(b)(3) contain requirements for supplemental information that
must be submitted if the PHC projects or other conditions indicate that
adverse hydrologic impacts may occur. The proposed Texas regulations at
TCMR 780.146(d)(5) and 784.188(d)(5) contain language that is
substantially identical to the Federal regulations. In addition, the
proposed State regulations also include a requirement for information
to be provided on alternative water supplies if such impacts are
anticipated. This additional requirement supplements the existing State
requirements for alternative water supply information at TCMR 779.130
and 783.176 and is not inconsistent with SMCRA or the Federal
regulations. The Director finds that Texas' proposed regulations at
TCMR 780.146(d)(5) and 784.188(d)(5) are no less effective that the
corresponding Federal regulations and approves them.
(d) Alternative Water Supply Information. The Federal regulation at
30 CFR 780.21(e) contains requirements for alternative water supply
information to be submitted in the permit application if the PHC
indicates that the proposed mining operation may impact a surface or
underground source of water within the permit or adjacent areas that is
used for a legitimate purpose. The Texas counterpart to the Federal
requirement is at TCMR 779.130. OSM informed Texas, in a letter sent
under 30 CFR 732.17(c), that it should change its alternative water
supply requirements to be no less effective that the Federal regulation
at 30 CFR 780.21(e). As discussed in Findings III.C.18(a) and
III.C.18(c), Texas proposed revised and new regulations at TCMR
780.146(a) and (d)(5), respectively, that supplement its existing
requirements for alternative water supply information. The Director
finds that Texas' requirements for alternative water supply information
at TCMR 779.130 as supplemented with its requirements at TCMR
780.146(a) and (d)(5) are no less effective than the Federal
requirements at 30 CFR 780.21(e).
19. TCMR 780.148(c)(3) and 784.190(c)(3), Surface and Underground
Requirements--Reclamation Plan: Permanent and Temporary Impoundments
The Federal regulations at 30 CFR 780.25(c)(3) and 784.16(c)(3)
provide that for ponds not meeting the requirements of subsections
(c)(2), the regulatory authority may establish engineering design
standards that ensure stability comparable to the 1.3 minimum static
safety factor in lieu of engineering tests to establish compliance with
the performance standards. Texas chose to not propose engineering
design standards. However, at TCMR 780.148(c)(3) and 784.190(c)(3),
Texas proposed to establish a minimum static safety factor of 1.3 for
ponds that do not meet the requirements of 816.347(a)(4)(i) and
817.517(a)(4)(i). Although Texas cross-references its performance
standards instead of the permitting requirements as in the Federal
regulations, the effect of the cross-reference is the same. The
Director finds that the proposed Texas regulations at TCMR
780.148(c)(3) and 784.190(c)(3) are no less effective than the
corresponding Federal requirements at 30 CFR 780.25(c)(3) and
784.16(c)(3), and approves them.
20. TCMR 806.311(d), Terms and Conditions for Liability Insurance
The Federal regulations at 30 CFR 800.60(d) contain provisions for
self-insurance in lieu of a certificate for a public liability
insurance policy. The regulations require that to be self-insured, an
applicant must satisfy the applicable State self-insurance requirements
approved as part of the regulatory program and the requirements of this
Section. Texas proposed to add a provision to its regulations at TCMR
806.311(d) regarding self-insurance that states ``[t]he Commission may,
upon request of an applicant that is self-bonded or determined to be
eligible for self-bonding under Section 309(j)(2), consider such
applicant to meet the self-insurance requirements of this Paragraph.''
Texas regulation TCMR 806.309(j)(2) contains the self-bonding
requirements for business and governmental entities. These requirements
are substantially similar to the Federal requirements at 30 CFR
800.23(b), except for the alternative financial eligibility criteria of
the Texas program found at TCMR 806.309(j)(2)(C)(iv) differ from the
Federal requirements, and were approved as part of the Texas program on
December 13, 1995 (60 FR 63922). Texas provided information to
demonstrate it has authority to implement a self-insurance program for
surface coal mining and reclamation operations. It submitted a letter
from the Texas Department of Insurance that states: `` * * * there are
no provisions in the Texas Insurance Code pertaining to self-insurance
for general liability coverage * * * [t]his does not mean that other
state agencies could not have their own rules or regulations concerning
self-insurance in lieu of purchasing an insurance policy.'' Texas
stated that it derives its authority to set self-insurance requirements
for coal mine operators from its Surface Coal
[[Page 14319]]
Mining and Reclamation Act, TEX. NAT. RES. CODE Secs. 134.052, which
provides: ``(a) [a] permit application must be submitted in a manner
satisfactory to the Commission and must contain: * * * (19) * * *
evidence satisfactory to the commission that the applicant should be
allowed to be self-insured * * *.'' The Texas requirements for self-
bonding will ensure that an applicant which seeks to self-insure will
possess sufficient financial capacity and solvency to adequately
compensate a person who has personal injury or property damage as a
result of the surface coal mining and reclamation operations to the
minimum limits for certificated liability coverage under TCMR
806.311(a). The Director finds that the existing requirements of Texas'
Surface Coal Mining and Reclamation Act, TEX. NAT. RES. CODE
Sec. 134.052(a)(19), together with existing TCMR 806.309(j)(2) and
proposed TCMR 806.311(d) are no less effective than the Federal
regulations at 30 CFR 800.60(d). Therefore, the Director approves TCMR
806.311(d).
21. TCMR 816.34(a)(4), Diversion Design Specifications
At TCMR 816.341(a)(4) (i)-(v) and 817.511(a)(4) (i)-(v), Texas
proposed specific design criteria for diversions. The Federal
regulations at 30 CFR 816.43(a) (4) and 817.43(a) (e) provide
discretion for regulatory authorities to specify design criteria for
diversions to meet the requirements of these sections. The proposed
State design specifications address stabilization of diversion banks
and channels, erosion protection for transition and critical areas,
energy dissipators, handling of excess excavated material, and handling
of topsoil. The Director finds the proposed State regulations are not
inconsistent with any requirement of SMCR or the Federal regulations
and is approving them.
22. TCMR 816.344(c) and 817.514(c), Siltation Structures
At TCMR 816.344(c) (1)-(2) and 817.514(c) (1)-(2), Texas proposed
to add regulations that, with two exceptions, are substantially the
same as the Federal regulations at 30 CFR 816.46 (c) and 817.46 (c).
The proposed regulations at TCMR 816.344(c)(1)(iii)(A) and
817.514(c)(1)(iii)(A) state that sedimentation ponds shall be designed
to provide adequate sediment storage volume, which is identical tot he
corresponding Federal requirements. The State regulations contain an
additional provision in that they establish a minimum sediment storage
volume and describe how the sediment volume shall be determined. The
proposed regulations at TCMR 816.344(c)(1)(c)(iii)(B) and
816.514(c)(1)(iii)(B) state that sedimentation ponds shall be designed
to provide adequate detention time, which also is identical to the
corresponding Federal requirements. The State regulations contain an
additional provision in that they establish a minimum detention time of
10 hours unless chemical treatment is used. The Director finds these
additional requirements are not inconsistent with any requirement of
SMCRA or the Federal regulations. In addition, the Director finds that
the proposed regulations at TCMR 816.344(c) (1)-(2) and 817.514(c) (1)-
(2) are no less effective that the corresponding Federal requirements
and is approving these regulations.
23. TCMR 817.519 (a)(3) and (b)(3), Hydrologic Balance: Ground Water
Monitoring
At its underground mining performance standards at TCMR 817.519
(a)(3) and (b)(3), Texas proposed new regulations that, with one
exception, are substantially the same as the Federal regulations at 30
CFR 817.41 (c)(3) and (e)(3). At TCMR 817.519 (a)(3)(1) and (b)(3)(i),
Texas proposed to add the phrase ``and the water rights of other users
have been protected or replaces.'' The corresponding Federal
regulations do not contain this requirement. Texas proposed to place
the same requirements on underground mining as it does for surface
mining operations for ground water and surface monitoring. This
includes ensuring that the water rights of users have been protected or
replaced before allowing any modifications to the monitoring plans. The
Director finds that the proposed regulations at TCMR 817.519 (a)(3) and
(b)(3) are not inconsistent with any requirement of SMCRA or the
Federal regulations, and approves them.
24. TCMR 816.357(d) and 817.526(d), Use of Explosives: General
Requirements
At TCMR 816.357(d) and 817.526(d), Texas proposed new regulations
that are substantially the same as the corresponding Federal
regulations at 30 CFR 816.61(d) and 817.61(d), with two exceptions.
Subsections (d)(1)(A) and (d)(1)(B) of the proposed regulations require
that blast designs be submitted if blasting operations are within 1,000
feet of specific buildings or 500 feet of specific structures. At TCMR
816.357(d)(1)(A) and 817.526(d)(1)(A), Texas proposed to add
``hospital'' and ``nursing facilities'' to the list of buildings
identified in the Federal regulations. In addition, at TCMR
816.357(d)(1)(B) and 817.526(d)(1)(B), Texas proposed to add ``disposal
wells, petroleum or gas storage facilities'' and ``fluid-transmission
pipelines, gas or oil-collection lines, or water and sewage lines'' to
the list of structures identified in the Federal regulations. Texas
proposed to add the buildings and structures identified in these
regulations to be consistent with its existing requirements at TCMR
816.360(a)(2) and 817.528(a)(2). The Director finds that the proposed
Texas regulations at TCMR 816.357(d) and 817.526(d) are not
inconsistent with any requirement of SMCRA and are no less effective
than the Federal regulations at 30 CFR 816.61(d) and 817.61(d).
Therefore, the Director approves them.
25. TCMR 816.330(f), 816.360, 817.500(f), and 817.528, Use of
Explosives
(a) TCMR 816.330(f) and 817.500(f), Blasting Signs. Texas proposed
to revise its blasting sign regulations for surface and underground
mining to reference sections 816.360 and 817.528, respectively, to
determine when blasting signs are required. These proposed regulations
are similar to 30 CFR 816.666(a) and 817.66(a), which state, in part,
that blasting signs shall meet the specifications of 30 CFR 816.11. The
Director finds the proposed State regulations at TCMR 816.330(f) and
817.500(f) are no less effective than the comparable Federal
regulations at 30 CFR 816.66(a) and 817.66(a) and approves them.
(b) TCMR 816.360, Control of Adverse Effects. OSM placed required
amendments 30 CFR 943.16(n) (1)-(5) on the Texas program at 57 FR 37447
(August 19, 1992) which require that Texas require operators to submit
blast designs for all blasting operations within 1000 feet of buildings
listed in TCMR 816.360(a)(2)(A) and within 500 feet of the facilities
listed in TCMR 816.360(a)(2)(B), add ``public buildings'' and
``community or institutional buildings'' to the list of protected
buildings at TCMR 816.360(a)(2)(A), add ``active and abandoned
underground mines'' to the list of facilities in TCMR 816.360(a)(2)(B),
correct citation errors in TCMR 816.360(h), and correct a codification
error and citation errors at proposed TCMR 816.360(i). Texas proposed
to make changes to TCMR 816.360 (a)(2), (a)(2)(A), (a)(2)(B), (h)(1),
(h)(2), (h)(3), and (i) that satisfy the required amendments. Texas
also proposed to make changes to TCMR
[[Page 14320]]
816.360 to correct a citation error at Section .360(f)(1)(A) that is
the result of recodifying Section .360(i), and to correct other
citation errors at (g)(2), (h)(2)(A) and (h)(3)(A) and (B). The
Director finds that proposed TCMR 816.360 is not less effective than
the corresponding Federal regulations at 30 CFR 816.61 and 816.67 and
approves it. In addition, the Director, is removing the required
amendments at 30 CFR 943.16(n)(1)-(5).
(c) TCMR 817.528, Control of Adverse Effects. Texas proposed to
substantially revise its underground mining regulations for use of
explosives--control of adverse effects at TCMR 817.528. The Director
finds that proposed TCMR 817.528 includes all the requirements of, and
is no less effective than the corresponding Federal regulations at 30
CFR 817.61, 817.66, and 817.67. The Director approves these
regulations.
26. TCMR 816.376(d) and 817.543(d), Coal Mine Waste Dams and
Embankments
Texas proposed to add new regulations at TCMR 816.376(d) and
817.543(d) that, with one exception, are substantially the same as the
corresponding Federal regulations at 30 CFR 816.84(b)(2) and
817.84(b)(2). The Federal regulations require that each impounding
structure constructed of coal mine waste or intended to impound coal
mine waste that meets the criteria of 30 CFR 77.216(a) shall have
adequate spillway capacity to safely pass, adequate storage capacity to
safely contain, or a combination of storage capacity and spillway
capacity to safely control, the probable maximum precipitation of a 6-
hour precipitation event, or greater event as specified by the
regulatory authority. Texas' proposed regulations at TCMR 816.376(d)
and 817.543(d) require that all impoundments meeting the specified
criteria to have a combination of principal and emergency spillways
able to safely pass the probable maximum precipitation of a 6-hour or
greater precipitation event. The Director finds that the proposed
provisions which require that each impounding structure constructed of
coal mine waste or intended to impound coal mine waste that meet the
criteria of 30 CFR 77.216(a) to have a combination of principal and
emergency spillways able to safely pass the probable maximum
precipitation of a 6-hour or greater precipitation event do not render
proposed TCMR 816.376(d) and 817.543(d) less effective than the
corresponding Federal requirements at 30 CFR 816.84(b)(2) and
817.84(b)(2). Therefore, the Director approves the regulations.
27. TCMR 816.395 and 817.560, Revegetation Standards for Success
Texas proposed new requirements at TCMR 816.395 (a)-(c) and 817.560
(a)-(c). Except at TCMR 816.395(b)(1), 816.395(c)(4) and 817.560(c)(4),
Texas' proposed requirements at TCMR 816.395 and 817.560 are
substantially identical to the Federal requirements for revegetation
success at 30 CFR 816.116 and 817.116. At proposed TCMR 816.395(b)(1),
Texas proposed to add the postmining land use of ``undeveloped land''
to the list of land uses where ground cover and production of living
plants shall be at least equal to that of a reference area or such
other success standard approved by Texas. There is no Federal
counterpart to the Texas proposal for a success standard for
undeveloped land. However, since undeveloped land is a recognized land
use category by both the Federal and Texas regulations, its use in
proposed TCMR 816.395(b)(1) is not inconsistent with any requirement of
SMCRA or the Federal regulations.
At TCMR 816.395(c)(4) and 817.560(c)(4) Texas proposed new
regulations regarding normal husbandry practices. The corresponding
Federal requirements at 30 CFR 816.116(c)(4) and 817.116(c)(4) include
the requirement that discontinuance of the practices after the
liability period expires will not reduce the probability of
revegetation success. Texas has not included the part of the
requirement regarding ``after the liability period expires''. As
proposed, Texas may only approve normal husbandry practices where
discontinuance at any time, not only after the liability period
expires, will not reduce the probability of revegetation success. The
omission of the phrase ``after the liability period expires'' in the
Texas regulations does not render them less effective than the Federal
requirements. The Director finds the proposed Texas regulations at TCMR
816.395 and 817.560 are no less effective than the corresponding
Federal requirements at 30 CFR 816.116 and 817.116 and approves them.
28. TCMR 817.522(f), Discharge of Water Into an Underground Mine
OSM placed a required amendment on the Texas program at 57 FR 37447
(August 19, 1992) which requires that Texas submit an amendment to the
requirements at TCMR 817.522(f) to replace the term ``surface mining
activities'' with ``underground mining activities.'' Texas proposed to
revise TCMR 817.522(f) to address this requirement. The proposed Texas
regulation at TCMR 817.522(f) is essentially identical to the
corresponding Federal requirement at 30 CFR 817.41(h)(i). The Director
finds that Texas' proposed regulation at TCMR 817.522(f) is no less
effective than the corresponding Federal requirement at 30 CFR
817.41(h)(1)(i) and approves it. In addition, the Director is removing
the required amendment at 30 CFR 943.16(o).
29. TCMR Part 846, Individual Civil Penalties
(a) TCMR 846.001, Definitions. Texas proposed to adopt definitions
of ``knowingly'' at subsection .001(1), ``violation, failure, or
refusal'' at subsection .001(2), and ``willfully'' at subsection
.001(3). The proposed Texas definitions of ``knowingly'' and
``willfully'' are substantially the same as the definitions in the
Federal regulations at 30 CFR 846.5. The proposed definition of
``violation, failure, or refusal'' uses different language than the
corresponding Federal definition at 30 CFR 846.5, but the meaning is
substantially the same. The Federal definition includes ``any order
issued under section 521 of the Act, or any order incorporated in a
final decision issued by the Secretary under the Act * * *''. The
proposed Texas definition includes ``any order issued by the
Commission, including, but not limited to, * * *'' The Texas definition
then contains a list of orders that is substantially identical to those
included under section 521 of SMCRA. The list includes notice of
violation, failure-to-abate cessation order, imminent harm cessation
order, order to show cause why a permit should not be suspended or
revoked, and order in connection with a civil action for relief.
Additionally, the Federal definition goes on to include an exception
for ``an order incorporated in a decision issued under section 518(b)
or section 703 of [SMCRA].'' Texas proposed to except ``an order
incorporated in a decision issued under Section 134.175 of the Act,''
which is the Texas counterpart to SMCRA section 518(b). Texas did not
propose a counterpart to the Federal exception for orders issued under
SMCRA section 703 because the Texas program does not include a
corresponding requirement to that SMCRA section. The Director finds
that Texas' proposed definitions at TCMR 846.001 are no less effective
than the corresponding Federal regulations at 30 CFR 846.5 and approves
them.
(b) TCMR 846.004, Procedure for Assessment of Individual Civil
Penalty. Texas proposed to add regulations for
[[Page 14321]]
procedures for assessment of individual civil penalty. With one
exception, the proposed State regulations are substantially the same as
the corresponding Federal requirements at 30 CFR 846.17. Texas'
proposed section 846.004(c) provides, in part, that for the purposes of
section 846.004: ``service shall be performed on the individual to be
assessed an individual civil penalty by certified mail, or by any
alternative means consistent with the rules governing service of a
summons and complaint under Tex. R. Civ. P. 21a.'' The Federal
regulation dealing with service on an individual to be assessed an
individual civil penalty is at 30 CFR 846.17(c). It is essentially
identical to the State requirement, except it refers to Rule 4 of the
Federal Rules of Civil Procedure rather than Tex. R. Civ. P. 21a.
Although Rule 4 differs somewhat from Tex. R. Civ. P. 21a, the
differences do not present a problem since Rule 4 allows service on an
individual, with certain exceptions not relevant to this requirement,
to be effected pursuant to State law. The Director finds that Texas'
proposed regulations at TCMR 846.004 are no less effective than the
corresponding Federal regulations at 30 CFR 846.17 and approves them.
(c) TCMR 846.005, Payment of Penalty. Texas proposed to add
requirements for payment of an individual civil penalty. With one
exception, the proposed State regulations at TCMR 846.005 are
substantially the same as the corresponding Federal requirements at 30
CFR 846.18. The Federal regulation at 846.18(b) states that a penalty
shall be due under the circumstances outlined ``upon issuance of a
final administrative order affirming, increasing, or decreasing the
proposed penalty.'' Proposed TCMR 846.005(b) states ``the penalty shall
be due upon issuance of the final order * * * '', it does not specify a
``final administrative order.'' Under the proposed Texas provision,
payment is not due until a final order, which may be a judicial order,
is issued. However, the Texas regulation at TCMR 845.697, under which
the hearing is requested, requires that an amount equal to the proposed
penalty be paid into escrow as part of the request. The Federal
provisions do not require an escrow payment as part of the request for
a hearing, a penalty is not paid until a final administrative order is
issued. The fact that the penalty amount is in an escrow account
instead of in the State's treasury if a judicial appeal is filed does
not render this requirement less effective than the Federal
requirements. The Director finds that Texas' proposed regulations at
TCMR 846.005 are no less effective than the corresponding Federal
regulations at 30 CFR 846.18 and approves them.
30. TCMR Part 850, Training, Examination, and Certification of Blasters
(a) TCMR 850.703 and 850.706, Training, Examination. In response to
a required program amendment at 30 CFR 943.16(p), Texas proposed at
TCMR 850.703(b)(1)(A) and 850.706(a) to add the terms ``storage'' and
``transportation'' to the list of topics related to explosives that the
blaster certification course and examination must cover. The Director
finds that revised TCMR 850.703(b)(1)(A) and 850.706(a) are no less
effective than the corresponding Federal regulations at 30 CFR
850.13(a)(1) and 850.14(a)(1). Therefore, the revised regulations are
approved, and the required amendment at 30 CFR 943.16(p) is removed.
(b) TCMR 850.704, Training Courses. In response to a required
program amendment at 30 CFR 943.16(a), Texas proposed at TCMR
850.704(b) to add a sentence that would require that blaster
certification training courses ``* * * must provide and require
completion of the subjects listed in paragraph (a) of this section.''
The Director finds that revised TCMR 850.704(b) is no less effective
than the corresponding Federal regulation at 30 CFR 850.13(b).
Therefore, the revised regulation is approved, and the required
amendment at 30 CFR 943.16(a) is removed.
IV. Summary and Disposition of Comments
Public Comments
The Director solicited public comments and provided an opportunity
for a public hearing on the proposed amendment. The Texas Parks and
Wildlife Department (Administrative Record No. TX-559), Texas Water
Commission (Administrative Record No. TX-560), Texas Mining and
Reclamation Association (Administrative Record No. TX-568), Walnut
Creek Mining Company (Administrative Record No. TX-570), TU Services
(Administrative Record Nos. TX-569 and TX-607), and Texas Department of
Health (Administrative Record No. TX-604) commented on the proposed
amendment. No one requested an opportunity to speak at a public
hearing, therefore, no hearing was held.
Following is a summary of the substantive comments received on the
proposed amendment. Comments identifying errors of a purely
typographical or editorial nature, and comments voicing general support
to the proposed amendment but devoid of any specific statements are not
discussed.
One commenter suggested that Texas revise TCMR 761.071 (c) and (f),
and 786.216(e) to add ``publicly owned wildlife management areas or
scientific areas'' after ``publicly owned park.'' The commenter
justified the recommended change by stating the regulations, which
address where mining is prohibited or limited, should include other
major types of publicly owned areas. Texas' proposed regulations at
TCMR 761.071(c) and (f), and 786.216(e) are substantially identical to
the Federal regulations at 30 CFR 761.11 (c) and (f), and 30 CFR
773.15(c)(11), and, therefore, are not inconsistent with the Federal
requirements. The appropriateness of the Federal rule is not at issue
in this rulemaking.
One commenter responded that proposed TCMR 780.142(d), in following
the Federal regulations, requires that ``* * * plans and drawings for
each support structure to be constructed, used, or maintained in the
proposed permit area * * * be sufficient to demonstrate compliance with
Section 816.422 for each facility.'' The commenter stated that it
wished to underscore that Section .422 limits the evaluation of such
facilities to certain specific and limited determinations, and that
such evaluations should be possible with project layout plans together
with baseline information, and should not require detailed
architectural drawings such as those used in construction. As
acknowledged by the commenter, proposed TCMR 780.142(d) is
substantially identical to the Federal regulations at 30 CFR 780.38,
and, therefore, is not inconsistent with the Federal requirements. In
addition, TCMR 816.422 is not proposed to be revised by Texas in this
amendment. In acting on State program amendments, the Director only
addresses those sections of a State's law and regulations where
revisions are proposed by a State.
A commenter expressed a concern with proposed TCMR 780.146(c)(2)
that, based on the wording ``seasonal quality and quantity, and usage''
in Texas' May 20, 1993 submittal of the amendment, the regulation could
be applied to existing wells which includes landowner wells that are
often outside the permit area and outside the applicant's area of
control.
This section of the Texas regulations address the requirements for
the probable hydrologic consequences (PHC). Texas proposed in its July
31, 1996, revised submittal of the amendment to completely modify its
[[Page 14322]]
regulations at 780.146. The wording the commenter expressed concerns
with is removed. Texas' proposed regulations at TCMR 780.146(d) (1)-
(4), which address the PHC requirements in the revised regulations, are
substantially identical to the Federal regulations at 30 CFR 780.21(f),
and, therefore, are not inconsistent with the Federal requirements.
One commenter expressed the belief that, although proposed
786.210(a)(3) [redesignated as .210(c)(3) in the July 31, 1996, revised
amendment] parallels the Federal regulation in that archaeological
information made confidential includes only public and Indian land, it
would be appropriate to keep confidential the specific locations of all
such sites, whether on public, Indian or private lands. As acknowledged
by the commenter, proposed TCMR 786.210(a)(3) [redesignated .210(c)(3)]
is substantially identical to the Federal regulations at 30 CFR
773.13(d)(3)(iii), and, therefore, is not inconsistent with the Federal
requirements.
One commenter questioned the intent of the proposed change at TCMR
786.220(d) from ``permittee'' to ``operator,'' regarding who is
responsible for paying AML fees. The commenter recommended that the
Texas proposed rule be amended to read ``permittee or operator'' to
provide flexibility needed by permittees and operators in the State. As
acknowledged by the commenter, proposed TCMR 786.220(d) is
substantially identical to the Federal regulations at 30 CFR 773.17(g),
and, therefore, is not inconsistent with the Federal requirements.
Another commenter, in responding to Texas' May 20, 1993, submittal,
suggested that Texas revise TCMR 816.342 Hydrologic Balance: Steam
Channel Diversion to be similar to OSM rules, by adding a new part (c)
that requires permanent diversions or reclaimed stream channels to be
designed and constructed to restore or approximate the pre-mining
characteristics of the original stream channel including the natural
riparian vegetation to promote the recovery and the enhancement of the
aquatic and stream corridor habitat. In its July 31, 1996, submittal of
a revised amendment, Texas proposed to remove all of its requirements
at TCMR 816.341 and .342, and to replace them with a new regulations at
TCMR 816.341 Hydrologic Balance: Diversions, that are similar to, and
no less effective than the Federal regulations at 30 CFR 816.43. The
language recommended by the commenter is contained in revised TCMR
816.341(a)(3).
A commenter requested that the proposed language at TCMR 816.344(a)
be revised by taking the language from the Federal regulations at 30
CFR 816.46 (a)(1)-(a)(2)(ii) and replacing the proposed Texas language
to better define areas that are not considered disturbed areas. In its
July 31, 1996, revised amendment, Texas proposed to remove all of its
requirements at TCMR 816.344 and to replace them with new regulations
that are similar to and no less effective than the Federal regulations
at 30 CFR 816.46. The language recommended by the commenter is
contained in revised TCMR 816.344(a).
One commenter responded to proposed revisions to TCMR 816.355(c) by
stating the expansion of the required notification (for pre-blast
surveys) to include the area \1/2\ mile from the permit boundary rather
than the current Texas requirement of \1/2\ mile from the blasting area
unnecessarily penalizes Texas mining which is characterized by large
permit areas compared to mines in other parts of the United States. The
commenter went on to state that the reason for the regulation is
safety, and safety is based on distance from the event--not from the
permit boundary. Texas' proposed regulation at TCMR 816.355(c) is
substantially identical to the Federal regulations at 30 CFR 816.62(a),
and, therefore, is not inconsistent with the Federal requirements. The
appropriations of the Federal rule is not at issue in this rulemaking.
Another commenter suggested that the language of TCMR 816.395(a)
does not allow for demonstrations or the development of technical
procedures that may be more representative of the revegetated areas and
existing physical conditions of the areas. The comment contained
specific recommended changes. This section contains general
revegetation success requirements; it does not prohibit development of
technical procedures that may be more representative of the revegetated
area as suggested by the commenter. Proposed TCMR 816.395 is
substantially identical to the Federal regulations at 30 CFR
816.116(a), and, therefore, is not inconsistent with the Federal
requirements.
Two commenters expressed concerns with proposed TCMR
816.395(b)(3)(i). One commenter believes the requirement for approval
by other agencies will create overlapping jurisdiction and will make
the regulatory process less efficient and certain, and that dual agency
authority may cloud the technical issues and result in the removal of
flexibility to use sound agronomic practices based on site specific
conditions. The commenter requested that the ``approval by'' the State
agencies responsible for the administration of forestry and wildlife
programs be removed from the language. The second commenter stated that
consultation with these agencies is adequate to provide the regulatory
authority with the information required to make an informed decision on
adequacy of the proposed revegetation (stocking) plans; and this is
further supported by the high level of expertise maintained by the
regulatory authority's technical staff. This commenter added that
providing authority to approval to part of the application effectively
places certain aspects of a revegetation into a group which has little
knowledge of SMCRA and the surface mining and reclamation industry, and
that it is entirely possible that revegetation plans would become
research tools for these outside agencies and eventually interfere with
postmine land uses in agriculture regions. Texas' proposed regulation
at TCMR 816.395(b)(3)(i) is substantially identical to the Federal
regulation at 30 CFR 816.116(b)(3)(i), and, therefore, is not
inconsistent with the Federal requirements. Additionally, the
appropriateness of the Federal rule is not at issue in this rulemaking.
One commenter expressed a concern that proposed 816.395(b)(3)(ii)
is subject to improper interpretation. The commenter indicated that if
the interpretation results in trees having to be in place for two years
prior to initiating the 5-year period of extended responsibility,
significant delays will occur in placing land into the 5-year period;
and this will delay the return of land to landowners, increase the
operator's cost of revegetation and maintenance of reclaimed lands, and
extend the financial commitments for the operator's bonds. The
commenter added that the two year requirement serves no practical
purpose since the regulations require that 80% of the trees have to
have been in place for 60% of the minimum responsibility period; and
then recommended a change to eliminate the problems with
interpretation. Texas' proposed regulation at TCMR 816.395(b)(3)(ii) is
substantially identical to the Federal regulation at 30 CFR
816.116(b)(3)(ii), and, therefore, is not inconsistent with the Federal
requirements. In addition, the commenter's concern is misplaced in that
TCMR 816.395(b) addresses standards for success, which is the success
of the vegetation for bond
[[Page 14323]]
release; it does not address the establishment of vegetation standard
that must be met to initiate the extended responsibility period.
Comments were submitted regarding several proposed regulation
changes that were subsequently withdrawn from the amendment by Texas.
Specifically, two commenters responded to the May 20, 1993, submittal
of the amendment with comments regarding TCMR 701.008(71), definition
of road; TCMR 780.154 (a), (a)(5), and (a)(6), transportation
facilities application requirements; TCMR 816.395--Appendix A,
Revegetation Success Standards and Statistically Valid Sampling
Techniques; and TCMR 816.401, .412(b), and .419(a), roads performance
standards. On January 29, 1996, Texas withdrew the proposed regulation
changes regarding roads and transportation from this amendment
(Administrative Record No. TX-610). Texas submitted a separate
amendment that dealt specifically with roads and transportation
requirements (Administrative Record No. TX-610), which the Director
approved in the April 8, 1996, Federal Register (61 FR 15380). On July
31, 1996, Texas withdrew its proposed guidance document on revegetation
success standards and sampling techniques, and committed to resubmit a
separate amendment dealing with this specific topic (Administrative
Record No. TX-621).
Several commenters responded with comments regarding regulations
that were not proposed to be revised in this amendment. Comments were
submitted regarding TCMR 701.008(44) (b), (c), and (h), definitions of
pastureland, grazingland, and fish and wildlife habitat; TCMR
779.136(i) and 784.182(i), surface and underground mine-general map
requirements; TCMR 790.151(a) and 784.191(a) surface and underground
mine-protection of public parks and historic places; TCMR 780.144(a)
and 784.195(a), surface and underground mine-fish and wildlife plan;
TCMR 780.148(a), surface mine-ponds, impoundments, banks, dams, and
embankments; TCMR 800.301 (b) and (b)(1)(B), incremental bonding; TCMR
816.334(f) and 817.505(f), surface and underground mine-general topsoil
performance standards; TCMR 816.363(g) and 817.531(g), surface and
underground mine-general excess spoil performance standards; TCMR
816.380 (a), (b), (d), (e)(4), (e)(5), (e)(8), and 817.547 (a), (b),
(d), (e)(4), (e)(5), (e)(8), surface and underground mine-fish and
wildlife performance standards; and TCMR 816.384(a) (3) and (4),
surface mine-general backfilling and grading performance standards. In
acting on State program amendments, the Director only addresses those
sections of a State's law and regulations where revisions are proposed
by a State. All comments received by OSM on this amendment, regardless
of whether they addressed regulations proposed to be revised, have been
sent to Texas.
Federal Agency Comments
Pursuant to 30 CFR 732.17(h)(11)(i), the Director solicited
comments on the proposed amendment from various Federal agencies with
an actual or potential interest in the Texas program. Comments were
requested regarding Texas' original May 13, 1993 submittal, and its
September 18, 1995, and July 31, 1996, revised submittals of the
proposed amendment.
The National Park Service (NPS) responded on June 14, 1993, that it
is pleased to note the TCMR 761.072(b)(2) will require that the NPS be
notified of requests for determinations of valid existing rights within
NPS boundaries. The NPS also recommended that the regulation be further
amended to include notifying the NPS when determinations of valid
existing rights would occur in the vicinity of NPS units (i.e., when
NPS units are in the proposed mine's area of environmental impact).
(Administrative Record No. TX-554). Texas' proposed regulation at TCMR
761.072(b)(2) is substantially identical to the Federal regulations at
30 CFR 761.12(b)(2), and, therefore is not inconsistent with the
Federal requirements. The appropriateness of the Federal rule is not at
issue in this rulemaking.
The Bureau of Mines responded on June 21, 1993, that it had no
comments (Administrative Record No. TX-557).
The Soil Conservation Service (Natural Resources Conservation
Service) responded on June 22, 1993, and October 17, 1995, that it did
not have any negative comments or suggestions for improvement regarding
the proposed rule changes (Administrative Record Nos. TX-555 and TX-
602).
The Fish and Wildlife Service (FWS) responded on June 28, 1993,
with three specific comments and two concerns, in addition to providing
support to the Texas Parks and Wildlife Department's comments
(Administrative Record No. TX-558). The FWS commented that additional
wording should be added to the proposed amendment at TCMR 816.342
regarding reclamation of permanent diversions and restored stream
channels in order to be compatible with 30 CFR 816.43(a)(3) of the
Federal regulations. Texas revised its proposed amendment at TCMR
816.341 and 816.342 to be essentially identical to the Federal
requirements at 30 CFR 816.43(a)(3).
The FWS commented that subparts (e)(4) and (e)(5) of TCMR 816.380
should be modified to comply with the sequential mitigation requirement
identified in its counterpart federal rule at 30 CFR 816.97(e)(4)(f).
The FWS' third comment was a recommendation that Texas revise its
underground permit requirements at TCMR 817.547 to be similar to its
surface mining requirements at 816.380 for consistency. One concern
noted by the FWS addressed what it contends are restrictive
requirements in TCMR 816.334 and 816.363 dealing with topsoil removal
and spoil disposal. The FWS' second concern is its stated frustration
with the apparent disregard of the fish and wildlife values inherent in
land use categories such as grazingland, forest land, and undeveloped
land, and the lack of mitigation of these resource values during the
reclamation phase of a mine project. It also states that a clear and
significant long-term impact to wildlife habitat has occurred, but
technically there has been no land use change. The FWS recommends that
what it considers a loophole in the land use regulations needs to be
addressed in future amendments. Texas does not propose any changes in
this amendment to the previously approved requirements at TCMR 816.380
(e)(4), (e)(5), 817.547, or the land use definitions. In acting on
State program amendments, the Director only addresses those sections of
a State's law and regulations where revisions are proposed by a State.
All comments received by OSM on this amendment, regardless of whether
they addressed regulations proposed to be revised, have been sent to
Texas.
The U.S. Army Corps of Engineers, Engineering Division (COE)
responded on July 12, 1993, October 10, 1995, and August 28, 1996
(Administrative Record Nos. TX-561, TX-599, and TX-627). In its July
12, 1993, and August 28, 1996, responses the COE indicated that it had
no comments, and that it found the changes to be satisfactory,
respectively. The COE recommended in its October 10, 1995, response
that dams and water control structures be added to the list of
facilities in TCMR 816.360(a)(2)(A) and 817.528(a)(2)(A) [the COE
comments incorrectly cited 81.526] where blasting will not be conducted
within 1,000 feet. The COE stated that while these facilities are
designed with factors of safety, the designs generally do not consider
blasting in close proximity to the structure. As discussed at Finding
[[Page 14324]]
III.C.25(b), Texas' proposed regulations at TCMR 816.360(a)(2)(A) and
817.526(a)(2)(A) contain the same requirements as and are no less
effective than the Federal regulations at 30 CFR 761.12(b)(2).
Additionally, the appropriateness of the Federal rule is not at issue
in this rulemaking.
The Bureau of Land Management (BLM) responded on October 13, 1995,
with seven comments (Administrative Record No. TX-601). The BLM
expressed a concern that by deleting the text in TCMR 700.002(b)(4)
regarding coal exploration, the recovery of royalty for coal removed by
exploration may be forgone. Although Texas proposed to remove the
reference to coal exploration from 700.002(b)(4), it is adding a
specific and more detailed reference to coal exploration activities on
Federal lands at 700.002(b)(5). The net effect is no change in the
requirements of 700.002(b) regarding coal exploration activities.
The BLM suggests that TCMR 709.030(a)(2) needs to state that coal
recovered as specified is still subject to royalty, and such removal
should be subject to administrative approval or denial. Section 709.030
addresses exemptions for coal extraction incidental to the extraction
of other minerals. SMCRA and the Texas program do not contain any
authority to address royalty issues. Proposed TCMR 709.27 (e) and (f),
and 709.033(c) contain requirements for approval or denial of requested
exemptions, and for administrative review of those decisions.
At TCMR 705.010(a)(3), the BLM suggests that ``* * * which may
include legal measures * * *'' be added to replace ``* * * by
initiating appropriate legal action * * *'', which is language proposed
to be deleted. At TCMR 761.072(b)(2), the BLM recommends that any
Government agencies with jurisdiction over said lands and any
Government agencies with adjacent land that may be impacted by such
determinations should be notified of requests for valid existing
rights. At TCMR 779.126(d), the BLM recommends that, after citing ``* *
* the 15th edition of Standard Methods for the Examination of Water and
Wastewater' * * *'' Texas may wish to add ``* * * or its successor
editions * * *'' Lastly, at TCMR 816.348(b), the BLM recommends that
this requirement should cross reference to 817.510 where groundwater
degradation limits should be discussed. The regulations at TCMR
705.010(a)(3), 761.072(b)(2), 779.126(d), and 816.348(b), as proposed
by Texas, are substantially identical to the counterpart Federal
requirements at 30 CFR 705.4(a)(3), 761.12(b)(2), 780.21(a), and
816.41(b), and, therefore, are not inconsistent with the Federal
requirements.
Environmental Protection Agency (EPA)
None of the revisions that Texas proposed to make in this amendment
pertain to revising its air or water quality standards. Therefore, OSM
did not request EPA's concurrence.
Pursuant to 732.17(h)(11)(i), OSM solicited comments on the
proposed amendment from EPA (Administrative Record Nos. TX-551.03, TX-
598.01, and TX-623). EPA responded on October 19, 1995, with two
comments (Administrative Record No. TX-603). It recommended that the
surface water information requirements at TCMR 779.129(a) and
783.175(a) include ``Basin names, Segment Nos. and uses in accordance
with Texas Surface Water Quality Standards, 30 TAC Sections 307.2-
307.10., (latest edition).'' In its July 31, 1996, revised amendment,
Texas changed its proposed regulations at 779.129(a) and 783.175(a) to
be substantially identical to the corresponding Federal regulations at
30 CFR 780.21(b)(2) and 784.14(b)(2). The proposed Texas regulations
require that the surface water information include ``* * * the name,
location ownership and description of all surface water bodies such as
streams, lakes, ponds, impoundments, and springs * * * and information
on surface water quantity and quality sufficient to demonstrate
seasonal variation and water usage.'' EPA's second comment consisted of
a suggestion that ``[TCMR] 817.510 should be more correctly retitled
only as Effluent Limitations and Conditions.''
Texas' title for this section of Hydrologic Balance: Water Quality
Standards and Effluent Limitations is the same title used in the
corresponding Federal regulation at 30 CFR 817.42. Also, the proposed
Texas regulation at TCMR 817.510 supports the section title in
requiring that water discharges ``* * * shall be made in compliance
with all applicable State and Federal water quality laws and
regulations and with the effluent limitations for coal mining * * *''
State Historical Preservation Officer (SHPO) and the Advisory Council
on Historic Preservation (ACHP)
Pursuant to 30 CFR 732.17(h)(4), OSM is required to solicit
comments on proposed amendments which may have an effect on historic
properties from the SHPO and ACHP. OSM solicited comments on the
proposed amendment from the SHPO and ACHP (Administrative Record Nos.
TX-551.02, TX-598.01, and TX-624). The SHPO responded on June 9, 1993,
October 9, 1995, and August 16, 1996 (Administrative Record Nos. TX-
553, TX-600, and TX-626). In its letters dated June 9, 1993, and August
16, 1996, it concurred with the proposal and stated that the project
would have no effect on National Register-eligible or listed properties
or State Archaeological Landmarks. In its October 9, 1995, letter, it
requested clarification of whether mining activities exempted under the
provisions of TCMR 709.030-709.034, the exemption for coal extraction
incidental to the extraction of other minerals, would be considered by
OSM to be undertakings under Section 106 of the National Historic
Preservation Act (NHPA). Because there is no SMCRA jurisdiction on
sites which the activities are exempted, neither OSM or the ACHP
consider these exempted activities to be Federal undertakings pursuant
to the NHPA.
V. Director's Decision
Based on the above findings, the Director approves the proposed
amendment as submitted by Texas on May 13, 1993, and as revised and/or
supplemented with explanatory information on September 18, 1995,
December 15, 1995, March 1, 1996, July 31, 1996, September 12, 1996,
December 31, 1996, and February 4, 1997.
The Federal regulations at 30 CFR Part 943, codifying decisions
concerning the Texas program, are being amended to implement this
decision. This final rule is being made effective immediately to
expedite the State program amendment process and to encourage States to
bring their programs into conformity with the Federal standards without
undue delay. Consistency of State and Federal standards is required by
SMCRA.
Effect of Director's Decision
Section 503 of SMCRA provides that a State may not exercise
jurisdiction under SMCRA unless the State program is approved by the
Secretary. Similarly, 30 CFR 732.17(a) requires that any alteration of
an approved State program be submitted to OSM for review as a program
amendment. The Federal regulations at 30 CFR 732.17(g) prohibit any
unilateral changes to approved State programs. In the oversight of the
Texas program, the Director will recognize only the statutes,
regulations and other materials approved by OSM, together with any
consistent implementing policies, directives and other materials, and
will require the enforcement by Texas of only such provisions.
[[Page 14325]]
VI. Procedural Determinations
Executive Order 12866
This rule is exempted from review by the Office of Management and
Budget (OMB) under Executive Order 12866 (Regulatory Planning and
Review).
Executive Order 12988
The Department of the Interior has conducted the reviews required
by section 3 of Executive Order 12988 (Civil Justice Reform) and has
determined that, to the extent allowed by law, this rule meets the
applicable standards of subsections (a) and (b) of that section.
However, these standards are not applicable to the actual language of
State regulatory programs and 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 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.
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
corresponding Federal regulations for which an economic analysis was
prepared and certification made that such regulations would not have a
significant economic effect upon a substantial number of small
entities. Accordingly, this rule will ensure that existing requirements
previously promulgated by OSM will be implemented by the State. In
making the determination as to whether this rule would have a
significant economic impact, the Department relied upon the data and
assumptions for the corresponding Federal regulations.
Unfunded Mandates
This rule will not impose a cost of $100 million or more in any
given year on any governmental entity or the private sector.
List of Subjects in 30 CFR Part 943
Intergovernmental relations, Surface mining, Underground mining.
Dated: February 27, 1997.
Brent Wahlquist,
Regional Director, Mid-Continent Regional Coordinating Center.
For the reasons set out in the preamble, Title 30, Chapter VII,
Subchapter T of the Code of Federal Regulations is amended as set forth
below:
PART 943--TEXAS
1. The authority citation for Part 943 continues to read as
follows:
Authority: 30 U.S.C. 1201 et seq.
2. Section 943.15 is amended in the table by adding a new entry in
chronological order by ``Date of Final Publication'' to read as
follows:
Sec. 943.15 Approval of regulatory program amendments.
* * * * *
----------------------------------------------------------------------------------------------------------------
Original amendment submission date Date of final publication Citation/description
----------------------------------------------------------------------------------------------------------------
* * * * * *
*
May 13, 1993........................... March 16, 1997......................... TCMR 700.002(b)(4), (5), (f);
.003(1), (3); 701.008(4),
(5), (9), (10, (18), (19),
21), (24), (25), (26), (34),
(41), (55), (67), (68), (69),
(70), (76), (82), (84), (95),
(102), (107); 705.010(a)(3),
(c); .011(2), (3), (5), (9);
.013(a); .014; .015(a);
.016(a); 707.022; 709.025;
.026; .027; .028; .029; .030;
.031; .032; .033, .034;
760.069; .070(5), (6), (7),
(9), (11); 761.071 (a)
through (e); .072 (a) through
(h); .073; 762.074(3), (4),
(5); .075(a), (b); .076(a);
.077; 764.078; .079(a), (b),
(c); .080(a)(1), (2), (4)
through (7), (b), (c), (d);
.081(a), (b); .082(a)(3),
(b), (c), (d); .083(a), (b);
.084(a), (b); .085(b);
770.101; 776.111(a)(e)(E);
779.126(d); .127(a), (b),
(c); .128(a), (3), (4), (b);
.129, (a), (b), (1), (3);
780.141(g), (h); .142(b)(11),
(c), (d), .146 (a) through
(e); .148(a)(3)(i), (c)(1),
(2), (3); 783.172(d); .173
(a) through (e); .174(a),
(3), (4), (b); .175, (a),
(b), (1), (3); 784.188 (a)
through (f); .190 (a)(3)(i),
(c)(1), (2), (3); .197(c),
(d); 785.201(b), (c), (d)(2);
.202(b)(1)(i), (2), (3);
786.210 (a) through (e);
.216(c), (e); .220(d);
800.301(b)(2); .311(d);
807.312(a), (b), (c);
.313(a)(2); 815.327(a);
.328(a), (b); 816.330(f);
.340; .341; .342; .344; .347;
.348; .349; .350; .355;
.357(a), (c), (d); .358 (a)
through (d); .360(a)(2), (A),
(B), (f)(1)(A), (g)(2),
(h)(1), (2), (3), (i);
.362(d); .376 (a) through
(d), .377, .378(a), (c);
.380(e)(10); .385(b)(3);
.390; .395; .396; 817.500(f);
.509(a); .510; .511; .512;
.514; .517; .519; .522(f);
.524; .526(b), (c), (d); .527
(a) through (d); .528 (a)
through (i); .529; .530, (c),
(d), (e), (g), (j), (s), (t);
.535(c); .538(c)(3); .543 (a)
through (d); .544; .545(a),
(c); .547(e)(10); .552(b)(3);
.555; .560; .561; 823.620(a),
(b), (c); .621(a)(1), (2),
(3), (b); .622(a), (b), (c);
.623; .624 (a) through (g);
.625(a), (b); 843.681(c), (f)
through (j); .682(a)(1);
.695(b)(1); 846.001; .002;
.003; .004; .005;
850.703(b)(1)(A); .704(b);
.706(a).
----------------------------------------------------------------------------------------------------------------
[[Page 14326]]
Sec. 943.16 [Amended]
3. Section 943.16 is amended by removing paragraphs (k), (l), (m),
(n), (o), (p), and (q).
[FR Doc. 97-7533 Filed 3-25-97; 8:45 am]
BILLING CODE 4310-05-M
