[Federal Register Volume 62, Number 82 (Tuesday, April 29, 1997)]
[Rules and Regulations]
[Pages 23136-23138]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-10993]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 943
[SPATS No. TX-030-FOR]
Texas Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),
Interior.
ACTION: Final rule; approval of amendment.
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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 the Texas Coal Mining Regulations (TCMR)
pertaining to the replacement of water supply where it has been
adversely impacted by contamination, diminution, or interruption
resulting from surface mining activities. The amendment is intended to
revise the Texas program to be consistent with the corresponding
Federal regulations.
EFFECTIVE DATE: April 29, 1997.
FOR FURTHER INFORMATION CONTACT: A. Dwight Thomas, 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 October 21, 1996 (Administrative Record No. TX-
629), Texas submitted a proposed amendment to its program pursuant to
SMCRA. Texas submitted the proposed amendment in response to a July 8,
1996, letter (Administrative Record No. TX-618) that OSM sent to Texas
in accordance with 30 CFR 732.17(c).
OSM announced receipt of the proposed amendment in the November 4,
1996, Federal Register (61 FR 56648), and in the same document opened
the public comment period and provided an opportunity for a public
hearing or meeting on the adequacy of the proposed amendment. The
public comment period closed on December 4, 1996. Because no one
requested a public hearing or meeting, none was held.
During its review of the amendment, OSM identified a concern
relating to the proposed definition of the term ``replacement of water
supply'' at TCMR 701.008(77). Texas had proposed language at TCMR
701.088(77)(a) that appeared to place a restriction on the option for a
one-time payment of any operation and maintenance costs of a
replacement water delivery system that were in excess of customary and
reasonable delivery costs for the premining water supply. The proposed
language would have required the permittee and the water supply owner
to enter into an agreement prior to commencement of mining operations.
The counterpart Federal definition at 30 CFR 701.5 contains no
restriction as to when the permittee and the water supply owner may
enter into an agreement for the one-time payment option. OSM notified
Texas of this concern by letter dated January 8, 1997 (Administrative
Record No. TX-629.08).
By letter dated March 5, 1997 (Administrative Record No. TX-
619.11), Texas responded to OSM's concern by requesting that its
amendment be revised at TCMR 701.008(77)(a) to exclude the proposed
phrase ``at any time prior to commencement of mining operations.''
III. Director's Findings
Set forth below, pursuant to SMCRA and the Federal regulations at
30 CFR 732.15 and 732.17, are the Director's findings concerning the
proposed amendment.
Revisions not specifically discussed below concern nonsubstantive
wording changes, or revised cross-references and paragraph notations to
reflect organizational changes resulting from this amendment.
1. TCMR 701.008(77) Definition of Replacement of Water Supply
Texas' proposed definition of the term ``replacement of water
supply'' requires that protected water supplies contaminated,
diminished, or interrupted by coal mining operations be replaced. It
provides for replacement of water supplies which are equivalent to the
premining quantity and quality on both a temporary and permanent basis.
Replacement includes provision of an equivalent water delivery system
and compensation for operation and maintenance costs in excess of
customary and reasonable delivery costs for the premining water supply.
If agreed to by the water supply owner, a one-time payment based on the
present worth of the increased annual operating and maintenance costs
for a period of time agreed upon by the water supply owner and the
permittee would fulfill the obligation to compensate the owner. The
definition allows the water supply owner to waive replacement in
circumstances where the water supply is not needed for the current or
postmining land uses. If water replacement is waived, the permittee
must demonstrate that a suitable alternative water source is available
and could be developed if needed.
The Director finds that Texas' proposed definition at TCMR
701.008(77) is substantively identical to the corresponding Federal
definition at 30 CFR 701.5. Therefore, Texas' proposed regulation is no
less effective than the Federal regulation.
2. TCMR 779.130 Alternative Water Supply Information
Texas proposed to revise its alternative water supply regulation by
clarifying the existing requirements and adding the requirement that
the application identify the suitability of the alternative water
sources for existing premine uses and approved postmine land uses.
The Director finds that the revised regulation at TCMR 779.130 has
substantively identical regulatory requirements as the counterpart
Federal regulation at 30 CFR 780.21(e). Therefore, it is no less
effective than the Federal regulation.
3. TCMR 816.352 Water Rights and Replacement
Texas proposed to replace the word ``affected'' with the words
``adversely impacted'' to clarify that the specified water supply to be
replaced must have been adversely impacted by contamination,
diminution, or interruption proximately resulting from
[[Page 23137]]
the surface mining activities. Texas also added a new provision
requiring the baseline hydrologic information required in
Secs. 779.126, 779.130, and 780.146 of its regulations be used to
determine the extent of the impact of mining upon ground water and
surface water.
The Director finds that the revised regulation at TCMR 816.352 is
substantively identical to the counterpart Federal regulation at 30 CFR
816.41(h). Therefore, it is no less effective than the Federal
regulation.
IV. Summary and Disposition of Comments
Following are summaries of all substantive written comments on the
proposed amendment that were received by OSM, and OSM's responses to
them.
Public Comments
By letter dated November 22, 1996 (Administrative Record No. TX-
629.04), Texas Utilities Services, Inc. submitted comments in support
of Texas' proposed amendment.
Federal Agency Comments
Pursuant to 30 CFR 732.17(h)(11)(i), OSM solicited comments on the
proposed amendment from various Federal agencies with an actual or
potential interest in the Texas program (Administrative Record No. TX-
629.03).
By letter dated November 22, 1996 (Administrative Record No. TX-
629.06), the U.S. Army Corps of Engineers commented that it found the
changes to be satisfactory.
Environmental Protection Agency (EPA)
Pursuant to 30 CFR 732.17(h)(11)(ii), OSM is required to obtain the
written concurrence of the EPA with respect to those provisions of the
proposed program amendment that relate to air or water quality
standards promulgated under the authority of the Clean Water Act (33
U.S.C. 1251 et seq.) or the Clean Air Act (42 U.S.C. 7401 et seq.).
None of the revisions that Texas proposed to make in this amendment
pertain to 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 the EPA (Administrative Record No. TX-629.01).
The EPA did not respond to OSM's request.
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 No.
629.02). Neither the SHPO nor ACHP responded to OSM's request.
V. Director's Decision
Based on the above findings, the Director approves the proposed
amendment as submitted by Texas on October 21, 1996, and as revised on
March 5, 1997.
The Director approves the regulations as proposed by Texas with the
provision that they be fully promulgated in identical form to the
regulations submitted to and reviewed by OSM and the public.
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.
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 USC 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 USC 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 USC 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 USC 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 USC 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: April 8, 1997.
Brent Wahlquist,
Regional Director, Mid-Continent Regional Coordinating Center.
For the reasons set out in the preamble, 30 CFR Part 943 is amended
as set forth below:
[[Page 23138]]
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 Texas regulatory program amendments.
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Date of final
Original amendment submission date publication Citation/description
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October 21, 1996........................... April 29, 1997 TCMR 701.008(77); 779.130; 816.352.
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[FR Doc. 97-10993 Filed 4-28-97; 8:45 am]
BILLING CODE 4310-05-M
