Texas Regulatory Program

DEPARTMENT OF THE INTERIOR

30 CFR Part 943

[SPATS No. TX-029-FOR]

Texas Regulatory Program

AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),

Interior.

ACTION: Proposed rule; public comment period and opportunity for public

hearing.

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SUMMARY: OSM is announcing receipt of a proposed amendment to the Texas

regulatory program (hereinafter the ``Texas program'') under the

Surface Mining Control and Reclamation Act of 1977 (SMCRA). The

proposed amendment consists of revisions to the Texas Coal Mining

Regulations pertaining to road systems, support facilities, and utility

installations. The amendment is intended to revise the Texas program to

be consistent with the corresponding Federal regulations and

incorporate the additional flexibility afforded by the revised Federal

regulations.

DATES: Written comments must be received by 4:00 p.m., c.s.t., March 4,

1996. If requested, a public hearing on the proposed amendment will be

held on February 26, 1996. Requests to speak at the hearing must be

received by 4:00 p.m., c.s.t., on February 16, 1996.

ADDRESSES: Written comments and requests to speak at the hearing should

be mailed or hand delivered to Jack R. Carson, Acting Director, Tulsa

Field Office, at the address listed below.

Copies of the Texas program, the proposed amendment, a listing of

any scheduled public hearings, and all written comments received in

response to this document will be available for public review at the

addresses listed below during normal business hours, Monday through

Friday, excluding holidays. Each requester may receive one free copy of

the proposed amendment by contacting OSM's Tulsa Field Office.

Jack R. Carson, Acting Director, Tulsa Field Office, Office of Surface

Mining Reclamation and Enforcement, 5100 East Skelly Drive, Suite 470,

Tulsa, Oklahoma, 74135-6547, Telephone: (918) 581-6430.

Surface Mining and Reclamation Division, Railroad Commission of Texas,

1701 North Congress Avenue, P.O. Box 12967, Austin, Texas, 78711-2967,

Telephone: (512) 463-6900.

FOR FURTHER INFORMATION CONTACT: Jack R. Carson, Acting Director, Tulsa

Field Office, Telephone: (918) 581-6430.

SUPPLEMENTARY INFORMATION:

I. Background on the Texas Program

On February 16, 1980, the Secretary of the Interior conditionally

approved the Texas program. General background information on the Texas

program, including the Secretary's findings, the disposition of

comments, and the conditions of approval can be found in the February

27, 1980, Federal Register (45 FR 12998). Subsequent actions concerning

the Texas program can be found at 30 CFR 943.10, 943.15, and 943.16.

II. Description of the Proposed Amendment

By letter dated December 20, 1995 (Administrative Record No. TX-

608), Texas submitted a proposed amendment to its program pursuant to

SMCRA. Texas submitted the proposed amendment in response to a February

21, 1990, letter (Administrative Record No. TX-476) that OSM sent to

Texas in accordance with 30 CFR 732.17(c) and at its own initiative.

The provisions of the Texas Coal Mining Regulations (TCMR) that Texas

proposes to amend are TCMR 708.008(71), definition of road; 780.154,

road systems and support facilities; 816.400-403, roads, primary roads,

utility installations, and support facilities (surface); 784.198, road

systems and support facilities (underground); 817-569-572, roads,

primary roads, utility installation, and support facilities

(underground); 815.327, coal exploration performance standards; and

827.651, coal processing plants performance standards.

1. TCMR 701.008(71), Definition of Road.

Texas proposes to revise its definition of road to read as follows.

``Road'' means a surface right-of-way for purposes of travel by

land vehicles used in surface coal mining and reclamation operations

or coal exploration. A road consists of the entire area within the

right-of-way, including the roadbed, shoulders, parking and side

areas, approaches, structures, ditches, and surface. The term

includes access and haulroads constructed, used, reconstructed,

improved, or maintained for use in surface coal mining and

reclamation operations or coal exploration, including use by coal-

hauling vehicles to and from transfer, processing, or storage areas.

The term does not include ramps and routes of travel within the

immediate mining area or within spoil or coal mine waste disposal

areas.

2. TCMR 780.154 (Surface Mining) and 784.198 (Underground Mining),

Road Systems and Support Facilities.

Texas proposes to remove its currents provisions at TCMR 780.154

for surface mining operations and TCMR 784.198 for underground mining

operations, entitled Transportation Facilities, and replace them with

the following provisions, entitled Road Systems and Support Facilities.

Significant differences between the surface and underground regulations

are shown with the underground language in brackets.

(a) Plans and drawings. Each applicant for a surface [an

underground] coal mining and reclamation permit shall submit plans and

drawings for each road, as defined in Section 701.008 of this chapter,

to be constructed, used, or maintained within the proposed permit area.

The plans and drawings shall:

(1) Include a map, appropriate cross sections design drawings and

specifications for road widths, gradients, surfacing materials, cuts,

fill embankments, culverts, bridges, drainage ditches, low-water

crossings, and drainage structures;

(2) Contain the drawings and specifications of each proposed road

that is located in the channel of an intermittent or perennial stream,

as necessary for approval of the road by the Commission in accordance

with Section 816.400(d)(1) [817.569(d)(1)] of this chapter;

(3) Contain the drawings and specifications for each proposed ford

of perennial or intermittent streams that is

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used as a temporary route, as necessary for approval of the ford by the

Commission in accordance with Section 816.401(c)(2) [817.570(c)(2)] of

this chapter;

(4) Contain a description of measures to be taken to obtain

approval of the Commission for alteration or relocation of a natural

stream channel under Section 816.401(d)(5) [817.570(d)(5)] of this

chapter;

(5) Contain the drawings and specifications for each low-water

crossing of perennial or intermittent stream channels so that the

Commission can maximize the protection of the stream in accordance with

Section 816.401(d)(6) [817.570(d)(6)] of this chapter; and

(6) Describe the plans to remove and reclaim each road that would

not be retained under an approved postmining land use, and the schedule

for this removal and reclamation.

(b) Primary road certification. The plans and drawings for each

primary road shall be prepared by, or under the direction of, and

certified by a qualified registered professional engineer with

experience in the design and construction of roads as meeting the

requirements of this chapter; current, prudent engineering practices;

and any design criteria established by the Commission.

(c) Support Facilities. Each applicant for a surface [underground]

coal mining and reclamation permit shall submit a description, plans,

and drawings for each support facility to be constructed, used, or

maintained within the proposed permit area. The plans and drawings

shall include a map, appropriate cross sections, design drawings, and

specifications sufficient to demonstrate compliance with Section

816.403 [817.572] of this chapter for each facility.

3. Texas proposes to repeal its current regulations pertaining to

roads, other transportation facilities, support facilities, and utility

installations at TCMR 816.400 through 422 for surface mining operations

and at TCMR 817.569 through 591 for underground mining operations.

4. TCMR 816.400 (Surface Mining) and TCMR 817.569 (Underground

Mining), Roads: General.

At TCMR 816.400 for surface mining operations and TCMR 817.569 for

underground mining operations, Texas proposes the following new

provisions pertaining to general requirements for roads. Differences

between the surface and underground regulations are shown with the

underground language in brackets.

(a) Road classification system.

(1) Each road, as defined in Section 701.008 of this chapter, shall

be classified as either a primary road or an ancillary road.

(2) A primary road is any road which is:

(i) Used for transporting coal or spoil;

(ii) Frequently used for access or other purposes for a period in

excess of six months; or

(iii) To be retained for an approved postmining land use.

(3) An ancillary road is any road not classified as a primary road.

(b) Performance standards. Each road shall be located, designed,

constructed, reconstructed, used, maintained, and reclaimed so as to :

(1) Control or prevent erosion, siltation, and the air pollution

attendant to erosion, including road dust as well as dust occurring on

other exposed surfaces, by measures such as vegetating, watering, using

chemical or other dust suppressants, or otherwise stabilizing all

exposed surfaces in accordance with current, prudent engineering

practices;

(2) Control or prevent damage to fish, wildlife, or their habitat

and related environmental values;

(3) Control or prevent additional contributions of suspended solids

to stream flow or runoff outside the permit area;

(4) Neither cause nor contribute to, directly or indirectly, the

violation of State or Federal water quality standards applicable to

receiving waters;

(5) Refrain from seriously altering the normal flow of water in

streambeds or drainage channels;

(6) Prevent or control damage to public or private property,

including the prevention or mitigation of adverse effects on lands

within the boundaries of units of the National Park System, the

National Wildlife Refuge System, the National System of Trails, the

National Wilderness Preservation System, the Wild and Scenic Rivers

System, including designated study rivers, and National Recreation

Areas designated by Act of Congress; and

(7) Use nonacid- and nontoxic-forming substances in road surfacing.

(c) Design and construction limits and establishment of design

criteria. To ensure environmental protection appropriate for their

planned duration and use, including consideration of the type and size

of equipment used, the design and construction or reconstruction of

roads shall incorporate appropriate limits for grade, width, surface

materials, surface drainage control, culvert placement, and culvert

size, in accordance with current, prudent engineering practices, and

any necessary design criteria established by the Commission.

(d) Location.

(1) No part of any road shall be located in the channel of an

intermittent or perennial stream unless specifically approved by the

Commission in accordance with the applicable portions of Sections

816.339 through 816.355 [817.509 through 817.524] of this chapter.

(2) Roads shall be located to minimize downstream sedimentation and

flooding.

(e) Maintenance.

(1) A road shall be maintained to meet the performance standards of

this part and any additional criteria specified by the Commission.

(2) A road damaged by a catastrophic event, such as a flood or

earthquake, shall be repaired as soon as is practicable after the

damage has occurred.

(f) Reclamation. A road not to be retained under an approved

postmining land use shall be reclaimed in accordance with the approved

reclamation plan as soon as practicable after it is no longer needed

for mining and reclamation operations. This reclamation shall include:

(1) Closing the road to traffic;

(2) Removing all bridges and culverts unless approved as part of

the postmining land use;

(3) Removing or otherwise disposing of road-surfacing materials

that are incompatible with the postmining land use and revegetation

requirements;

(4) Reshaping cut and fill slopes as necessary to be compatible

with the postmining land use and to complement the natural drainage

pattern of the surrounding terrain;

(5) Protecting the natural drainage patterns by installing dikes or

cross drains as necessary to control surface runoff and erosion; and

(6) Scarifying or ripping the roadbed; replacing topsoil or

substitute material, and revegetating disturbed surfaces in accordance

with Sections 816.334 through 816.338 and 816.390 through 816.396

[817.504 through 817.508 and 817.555 through 817.561] of this chapter.

5. TCMR 816.401 (Surface Mining) and TCMR 817.570 (Underground

Mining), Primary Roads.

At TCMR 816.401 for surface mining operations and 817.570 for

underground mining operations, Texas proposes the following new

provisions pertaining to primary roads. Differences between the surface

and underground regulations are shown with the underground language in

brackets.

Primary roads shall meet the requirements of Section 816.400

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[817.569] and the additional requirements of this section.

(a) Certification. The construction or reconstruction of primary

roads shall be certified in a report to the Commission by a qualified

registered professional engineer [with experience in the design and

construction or roads]. The report shall indicate that the primary road

has been constructed or reconstructed as designed and in accordance

with the approved plan.

(b) Safety Factor. Each primary road embankment shall have a

minimum static factor of 1.3 or meet the requirements established under

Section 780.154 [784.198] of this chapter.

(c) Location.

(1) To minimize erosion, a primary road shall be located, insofar

as is practicable, on the most stable available surface.

(2) Fords of perennial or intermittent streams by primary roads are

prohibited unless they are specifically approved by the Commission as

temporary routes during periods of road construction.

(d) Drainage control. In accordance with the approved plan:

(1) Each primary road shall be constructed or reconstructed, and

maintained to have adequate drainage control, using structures such as,

but not limited to bridges, ditches, cross drains, and ditch relief

drains. The drainage control system shall be designed to safely pass

the peak runoff from a 10-year, 6-hour precipitation event, or greater

event as specified by the Commission;

(2) Drainage pipes and culverts shall be installed as designed, and

maintained in a free and operating condition and to prevent or control

erosion at inlets and outlets;

(3) Drainage ditches shall be constructed and maintained to prevent

uncontrolled drainage over the road surface and embankment;

(4) Culverts shall be installed and maintained to sustain the

vertical soil pressure, the passive resistance of the foundation, and

the weight of vehicles using the road;

(5) Natural stream channels shall not be altered or relocated

without the prior approval of the Commission in accordance with

applicable Sections 816.339 through 816.355 [817.509 through 817.524]

of this chapter; and

(6) Except as provided in paragraph (c)(2) of this Section,

structures for perennial or intermittent stream channel crossings shall

be made using bridges, culverts, low-water crossings, or other

structures designed, constructed, and maintained using current, prudent

engineering practices. The Commission shall ensure that low-water

crossings are designed, constructed, and maintained to prevent erosion

of the structure or streambed and additional contributions of suspended

solids to steamflow.

(e) Surfacing. Primary roads shall be surfaced with material

approved by the Commission as being sufficiently durable for the

anticipated volume of traffic and the weight and speed of vehicles

using the road.

6. TCMR 816.402 (Surface Mining) and TCMR 817.571 (Underground

Mining), Utility Installations.

At TCMR 816.402 for surface mining operations and TCMR 817.571 for

underground mining operations, Texas proposes the following new

provision pertaining to utility installations. There is no difference

in the language of the surface and underground regulations.

All surface coal mining operations [underground mining activities]

shall be conducted in a manner which minimizes damage, destruction, or

disruption of services provided by oil, gas, and water wells; oil, gas,

and coal-slurry pipelines; railroads; electric and telephone lines; and

water and sewage lines which pass over, under, or through the permit

area, unless otherwise approved by the owner of those facilities and

the Commission.

7. TCMR 816.403 (Surface Mining) and TCMR 817.572 (Underground

Mining), Support Facilities.

At TCMR 816.403 for surface mining operations and TCMR 817.572 for

underground mining operations, Missouri proposes the following new

provisions pertaining to support facilities. There is no difference in

the language of the surface and underground regulations.

(a) Support facilities shall be operated in accordance with a

permit issued for the mine or coal preparation operation to which it is

incident or from which its operation results.

(b) In addition to the other provisions of this part, support

facilities shall be located, maintained, and used in a manner that:

(1) Prevents or controls erosion and siltation, water pollution,

and damage to public or private property; and

(2) to the extent possible using the best technology currently

available--

(i) Minimizes damage to fish, wildlife, and related environmental

values; and

(ii) Minimizes additional contributions of suspended solids to

streamflow or runoff outside the permit area. Any such contributions

shall not be in excess of limitations of State or Federal law.

8. TCMR 815.327, Performance Standards For Coal Exploration.

Texas proposes to remove the existing language in subsections

(c)(1) through (c)(4) and replace it with the following language.

(c) All roads or other transportation facilities used for coal

exploration shall comply with the applicable provisions of Sections

816.400 (b) through (f), 816.402, and 816.403 of this chapter.

9. TCMR 827.651, Coal Processing Plants: Performance Standards.

1. At TCMR 827.651(b), Texas proposes to change the sections

referenced from ``400-.422'' to ``816.400 and 816.401 of this

chapter.''

III. Public Comment Procedures

In accordance with the provisions of 30 CFR 732.17(h), OSM is

seeking comments on whether the proposed amendment satisfies the

applicable program approval criteria of 30 CFR 732.15. If the amendment

is deemed adequate, it will become part of the Texas program.

Written Comments

Written comments should be specific, pertain only to the issues

proposed in this rulemaking, and include explanations in support of the

commenter's recommendations. Comments received after the time indicated

under DATES or at locations other than the Tulsa Field Office will not

necessarily be considered in the final rulemaking or included in the

Administrative Record.

Public Hearing

Persons wishing to speak at the public hearing should contact the

person listed under FOR FURTHER INFORMATION CONTACT by 4:00 p.m.,

c.s.t. on February 16, 1996. The location and time of the hearing will

be arranged with those persons requesting the hearing. Any disabled

individual who has need for a special accommodation to attend a public

hearing should contact the individual listed under FOR FURTHER

INFORMATION CONTACT. If no one requests an opportunity to speak at the

public hearing, the hearing will not be held.

Filing of a written statement at the time of the hearing is

requested as it will greatly assist the transcriber. Submission of

written statements in advance of the hearing will allow OSM officials

to prepare adequate responses and appropriate questions.

The public hearing will continue on the specified date until all

persons scheduled to speak have been heard. Persons in the audience who

have not been scheduled to speak, and who wish to do so, will be heard

following those who have been scheduled. The hearing will end after all

persons scheduled to speak and persons present in the

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audience who wish to speak have been heard.

Public Meeting

If only one person requests an opportunity to speak at a hearing, a

public meeting, rather than a public hearing, may be held. Persons

wishing to meet with OSM representatives to discuss the proposed

amendment may request a meeting by contacting the person listed under

FOR FURTHER INFORMATION CONTACT. All such meetings will be open to the

public and, if possible, notices of meetings will be posted at the

locations listed under ADDRESSES. A written summary of each meeting

will be made a part of the Administrative Record.

IV. Procedural Determinations

Executive Order 12866

This rule is exempted from review by the Office of Management and

Budget (OMB) under Executive Order 12866 (Regulatory Planning and

Review).

Executive Order 12778

The Department of the Interior has conducted the reviews required

by section 2 of Executive Order 12778 (Civil Justice Reform) and has

determined that, to the extent allowed by law, this rule meets the

applicable standards of subsections (a) and (b) of that section.

However, these standards are not applicable to the actual language of

State regulatory programs and program amendments since each such

program is drafted and promulgated by a specific State, not by OSM.

Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and 30

CFR 730.11, 732.15, and 732.17(h)(10), decisions on proposed State

regulatory programs and program amendments submitted by the States must

be based solely on a determination of whether the submittal is

consistent with SMCRA and its implementing Federal regulations and

whether the other requirements of 30 CFR Parts 730, 731, and 732 have

been met.

National Environmental Policy Act

No environmental impact statement is required for this rule since

section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency

decisions on proposed State regulatory program provisions do not

constitute major Federal actions within the meaning of section

102(2)(C) of the National Environmental Policy Act (42 U.S.C.

4332(2)(C)).

Paperwork Reduction Act

This rule does not contain information collection requirements that

require approval by OMB under the Paperwork Reduction Act (44 U.S.C.

3507 et seq.).

Regulatory Flexibility Act

The Department of the Interior has determined that this rule will

not have a significant economic impact on a substantial number of small

entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).

The State submittal which is the subject of this rule is based upon

counterpart Federal regulations for which an economic analysis was

prepared and certification made that such regulations would not have a

significant economic effect upon a substantial number of small

entities. Accordingly, this rule will ensure that existing requirements

previously promulgated by OSM will be implemented by the State. In

making the determination as to whether this rule would have a

significant economic impact, the Department relied upon the data and

assumptions for the counterpart Federal regulations.

List of Subjects in 30 CFR Part 943

Intergovernmental relations, Surface mining, Underground mining.

Dated: January 25, 1996.

Brent Wahlquist,

Regional Director, Mid-Continent Regional Coordinating Center.

[FR Doc. 96-1990 Filed 1-31-96; 8:45 am]

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