2011-20548. Texas Regulatory Program

AGENCY:

Office of Surface Mining Reclamation and Enforcement, Interior.

ACTION:

Proposed rule; public comment period and opportunity for public hearing.

SUMMARY:

We, the Office of Surface Mining Reclamation and Enforcement (OSM), are announcing receipt of three proposed amendments to the Texas regulatory program under the Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act).

Texas at its own initiative submitted three separate amendments to its program: SATS Nos. TX-061-FOR, TX-062-FOR, and TX-063-FOR. Texas proposes revisions in TX-061-FOR by adding language that no longer requires an operation with only reclamation activities ongoing to renew their mining permit, to clarify the requirement to maintain public liability insurance for sites where the permit is not renewed because the only activities ongoing are reclamation, and to clarify midterm review times for sites where the permit is not renewed because the only ongoing activities are reclamation. Texas proposes revisions in TX-062-FOR by adding a new definition for “Previously mined land,” adding new language on the effects of previous mining violations from operations on previously mined lands in relation to permit application denials, and adding new language explaining performance standards for revegetation liability timeframes for coal mining and reclamation operations. Texas proposes revisions in TX-063-FOR by adding a new definition for “Director;” deleting old language, and adding new language clarifying the review periods for new permits, renewals, and significant revisions. Texas intends to revise its program to improve operational efficiency.

This document provides the times and locations that the Texas program and proposed amendments to that program are available for public inspection, the comment period during which you may submit written comments on these amendments, and the procedures that we will follow for the public hearing, if one is requested.

DATES:

We will accept written comments on these amendments until 4 p.m., c.d.t., September 15, 2011. If requested, we will hold a public hearing on the amendments on September 12, 2011. We will accept requests to speak at a hearing until 4 p.m., c.d.t. on August 31, 2011.

ADDRESSES:

You may submit comments, identified by SATS Nos. TX-061-FOR, TX-062-FOR, or TX-063-FOR by any of the following methods:

• E-mail: [e-mail]. Include SATS Nos. TX-061-FOR, TX-062-FOR, or TX-063-FOR in the subject line of the message.
• Mail/Hand Delivery: Alfred L. Clayborne, Director, Tulsa Field Office, Office of Surface Mining Reclamation and Enforcement, 1645 South 101st East Avenue, Suite 145, Tulsa, Oklahoma 74128-4629.
• Fax: [phone].
• Federal eRulemaking Portal: The amendment has been assigned Docket ID OSM-2011-0007. If you would like to submit comments, go to http://www.regulations.gov and follow the instructions.

Instructions: All submissions received must include the agency name and docket number for this rulemaking. For detailed instructions on submitting comments and additional information on the rulemaking process, see the Public Comment Procedures heading of the SUPPLEMENTARY INFORMATION section of this document.

Docket: For access to the docket to review copies of the Texas regulations, these amendments, a listing of any scheduled public hearings, and all written comments received in response to this document, you must go to the address listed below during normal business hours, Monday through Friday, excluding holidays. You may receive one free copy of the amendments by contacting OSM's Tulsa Field Office; or you can view the full text of the program amendments available for you to read at http://www.regulations.gov.

Alfred L. Clayborne, Director, Tulsa Field Office, Office of Surface Mining Reclamation and Enforcement, 1645 South 101st East Avenue, Suite 145, Tulsa, Oklahoma 74128-4629, Telephone: [phone], E-mail: [e-mail].

In addition, you may review a copy of the amendments during regular business hours at the following location:

Railroad Commission of Texas, 1701 North Congress Ave., Austin, Texas 78711-2967, Telephone: [phone].

FOR FURTHER INFORMATION CONTACT:

Alfred L. Clayborne, Director, Tulsa Field Office. Telephone: [phone]. E-mail: [e-mail].

SUPPLEMENTARY INFORMATION:

I. Background on the Texas Program

II. Description of the Proposed Amendments

III. Public Comment Procedures

IV. Procedural Determinations

I. Background on the Texas Program

Section 503(a) of the Act permits a State to assume primacy for the regulation of surface coal mining and reclamation operations on non-Federal and non-Indian lands within its borders by demonstrating that its program includes, among other things, “a State law which provides for the regulation of surface coal mining and reclamation operations in accordance with the requirements of this Act * * *; and rules and regulations consistent with regulations issued by the Secretary pursuant to this Act.” See 30 U.S.C. 1253(a)(1) and (7). On the basis of these criteria, the Secretary of the Interior conditionally approved the Texas program effective February 16, 1980. You can find background information on the Texas program, including the Secretary's findings, the disposition of comments, and the conditions of approval of the Texas program in the February 27, 1980, Federal Register (45 FR 12998). You can also find later actions concerning the Texas program and program amendments at 30 CFR 943.10, 943.15, and 943.16.

II. Description of the Proposed Amendments

1. By letter dated May 18, 2011, (Administrative Record No. TX-667) Texas sent us an amendment to its Program under SMCRA (30 U.S.C. 1201 et seq.) at its own initiative. Below is a summary of the changes proposed by Texas. The full text of the program amendment is available for you to read at the locations listed above under ADDRESSES or at http://www.regulations.gov.

A. 16 Texas Administrative Code (TAC) § 12.100—Responsibilities

Texas proposes to add new language allowing a permittee to not renew their mining permit if the activities on the site are solely for reclamation purposes.

B. 16 TAC § 12.225—Commission Review of Outstanding Permits

Texas proposes to add new language clarifying the requirement for midterm permit reviews on permits that are not renewed because the only activities are solely for reclamation.

C. 16 TAC § 12.311—Terms and Conditions for Liability Insurance

Texas proposes to add new language clarifying the need to maintain liability insurance on a site if the permit is not renewed because the only activities are solely for reclamation.

2. By letter dated May 26, 2011, (Administrative Record No. TX-668) Texas sent us an amendment to its Program under SMCRA (30 U.S.C. 1201 et seq.) at its own initiative. Below is a summary of the changes proposed by Texas. The full text of the program amendment is available for you to read at the locations listed above under ADDRESSES or at http://www.regulations.gov.

A. Texas Natural Resource Code (NRC) § 134.004—Definitions

Texas proposes to add a new definition for “Previously mined land.”

B. Texas NRC § 134.069—Effect of Past or Present Violation

Texas proposes to add a new paragraph in this section, explaining that the Commission may not deny a permit application based on previous violations by the applicant that occurred in connection with a surface coal mining operation conducted on previously mined land if the violation resulted from an event or condition that was not contemplated in the permit for the surface coal mining operation.

C. Texas NRC § 134.092—PERFORMANCE STANDARDS

Texas proposes to add new language in this section establishing timeframes regarding the assumption of responsibility for successful revegetation as required by Subdivision (19). These are established five years after the last year of augmented seeding, fertilizing, irrigation, or other work in order to assure compliance with that subdivision, if the land is not previously mined land; or two years after the last year of augmented seeding, fertilizing, irrigation, or other work in order to assure compliance with that subdivision, if the land is previously mined land.

D. Texas NRC § 134.104—Responsibility for Revegetation: Area of Low Precipitation.

Texas proposes to add new language in this section clarifying that where the annual average precipitation is 26 inches or less, an operator's assumption of responsibility and liability extends for 10 years after the last year of augmented seeding, fertilizing, irrigation, or other work, if the land is not previously mined land; or five years after the last year of augmented seeding, fertilizing, irrigation, or other work, if the land is previously mined land.

E. Texas NRC § 134.105—Responsibility for Revegetation: Long-Term Intensive Agricultural Postmining Use

Texas proposes to delete language in this section pertaining to the applicable period of responsibility for revegetation beginning on the date of initial planting.

3. By letter dated June 3, 2011, (Administrative Record No. TX-669) Texas sent us an amendment to its Program under SMCRA (30 U.S.C. 1201 et seq.) at its own initiative. Below is a summary of the changes proposed by Texas.

A. Texas Natural Resource Code (NRC) § 134.004—Definitions

Texas proposes to add a new definition for “Director.”

B. Texas NRC § 134.080—Approval or Disapproval of Permit Revision

Texas proposes to delete the word “DISAPPROVAL” from this section heading and delete the paragraph that gives the timeframes for the Commission to approve or disapprove a permit revision application.

C. Texas NRC § 134.085—Review Periods for New Permits, Renewals, and Revisions

Texas proposes to add this section clarifying review timeframes upon receipt of an application for a new permit, permit renewal, or significant permit revision.

III. Public Comment Procedures

Under the provisions of 30 CFR 732.17(h), we are seeking your comments on whether Texas' proposed amendments satisfy the applicable program approval criteria of 30 CFR 732.15. If we approve the amendments, they will become part of Texas' State Program.

Electronic or Written Comments

If you submit written comments, they should be specific, confined to issues pertinent to the proposed regulations, and explain the reason for any recommended change(s). We appreciate any and all comments, but those most useful and likely to influence decisions on the final regulations will be those that either involve personal experience or include citations to and analyses of SMCRA, its legislative history, its implementing regulations, case law, other pertinent State or Federal laws or regulations, technical literature, or other relevant publications.

We cannot ensure that comments received after the close of the comment period (see DATES) or sent to an address other than those listed (see ADDRESSES) will be included in the docket for this rulemaking and considered.

Public Availability of Comments

Before including your address, phone number, e-mail address, or other personal identifying information in your comment, you should be aware that your entire comment including your personal identifying information may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.

Public Hearing

If you wish to speak at the public hearing, contact the person listed under FOR FURTHER INFORMATION CONTACT by 4 p.m., c.d.t. on August 31, 2011. If you are disabled and need reasonable accommodations to attend a public hearing, contact the person listed under FOR FURTHER INFORMATION CONTACT. We will arrange the location and time of the hearing with those persons requesting the hearing. If no one requests an opportunity to speak, we will not hold a hearing.

To assist the transcriber and ensure an accurate record, we request, if possible, that each person who speaks at the public hearing provide us with a written copy of his or her comments. The public hearing will continue on the specified date until everyone scheduled to speak has been given an opportunity to be heard. If you are in the audience and have not been scheduled to speak and wish to do so, you will be allowed to speak after those who have been scheduled. We will end the hearing after everyone scheduled to speak and others present in the audience who wish to speak, have been heard.

Public Meeting

If only one person requests an opportunity to speak, we may hold a public meeting rather than a public hearing. If you wish to meet with us to discuss the amendments, please request a meeting by contacting the person listed under FOR FURTHER INFORMATION CONTACT. All such meetings are open to the public; if possible, we will post notices of meetings at the locations listed under ADDRESSES. We will make a written summary of each meeting a part of the administrative record.

IV. Procedural Determinations

Executive Order 12866—Regulatory Planning and Review

This rule is exempted from review by the Office of Management and Budget (OMB) under Executive Order 12866.

Other Laws and Executive Orders Affecting Rulemaking

When a State submits a program amendment to OSM for review, our regulations at 30 CFR 732.17(h) require us to publish a notice in the Federal Register indicating receipt of the proposed amendment, its text or a summary of its terms, and an opportunity for public comment. We conclude our review of the proposed amendment after the close of the public comment period and determine whether the amendment should be approved, approved in part, or not approved. At that time, we will also make the determinations and certifications required by the various laws and executive orders governing the rulemaking process and include them in the final rule.

List of Subjects in 30 CFR Part 943

• Intergovernmental relations
• Surface mining
• Underground mining

Dated: June 23, 2011.

Len Meier,

Acting Regional Director, Mid-Continent Region.