Texas Regulatory Program

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: 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 and an addition of

regulations 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.

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

4, 1996. If requested, a public hearing on the proposed amendment will

be held on November 29, 1996. Requests to speak at the hearing must be

received by 4:00 p.m., c.s.t. on November 19, 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.

Railroad Commission of Texas, Surface Mining and Reclamation Division,

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 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). The provisions of the Texas Coal

Mining Regulations (TCMR) that Texas proposes to revise are: TCMR

701.008, Definitions: TCMR 779.130, Alternative water supply

information; and TCMR 816.352, Hydrologic balance--water rights and

replacement. Specifically, Texas proposes the following revisions to

these regulations.

1. Texas proposes to add the following new definition at TCMR

701.005(77) for replacement of water supply.

Replacement of water supply means, with respect to protected

water supplies contaminated, diminished, or interrupted by coal

mining operations, provision of water supply on both a temporary and

permanent basis equivalent to premining quantity and quality.

Replacement includes provision of an equivalent water delivery

system and payment of operation and maintenance costs in excess of

customary and reasonable delivery costs for premining water

supplies.

(a) Upon agreement by the permittee and the water-supply owner,

at any time prior to commencement of mining operations, the

obligation to pay such operation and maintenance costs may be

satisfied by a one-time payment in an amount which covers the

present worth of the increased annual operation and maintenance

costs for a period agreed to by the permittee and the water supply

owner.

(b) If the affected water supply was not needed for the land use

in existence at the time of loss, contamination, or diminution, and

if the supply is not needed to achieve the postmining land use,

replacement requirements may be satisfied by demonstrating that a

suitable alternative water source is available and could feasibly be

developed. If the latter approach is selected, written concurrence

must be obtained from the water supply owner.

2. Texas proposes to clarify its alternative water supply

requirements at TCMR 779.130 by replacing the words ``mine plan'' with

the word ``permit'' in the first sentence; adding the words ``which is

used'' after the words ``adjacent areas'' in the first sentence;

replacing the word ``description'' with the word ``application'' in the

second sentence; adding the word ``water'' after the word ``existing''

in the second sentence; and by adding the phrase ``including the

suitability of alternative water sources for existing premine uses and

approved postmine land uses'' at the end of the second sentence. The

revised provisions read as follows:

The application shall identify the extent to which the proposed

surface mining activities 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, industrial, or other legitimate use. If

contamination, diminution, or interruption may result, then the

application shall identify the alternative sources of water supply

that could be developed to replace the existing water sources

including the suitability of alternative water sources for existing

premine uses and approved postmine land uses.

3. Texas proposes to clarify its regulation for water rights and

replacement at TCMR 816.352 by

[[Page 56649]]

replacing the word ``affected'' with the words ``adversely impacted''

and by adding the following new provision:

Baseline hydrologic information required in Sections 779.126,

779.130, and 780.146, of the Regulations shall be used to determine

the extent of the impact of mining upon ground water and surface

water.

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 November 19, 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 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 Determination

Executive Order 12866

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

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

Review).

Executive Order 12988

The Department of the Interior has conducted the reviews required

by section 3 of Executive Order 12988 (Civil Justice Reform) and has

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

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

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

State regulatory programs and program amendments since each such

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

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

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

regulatory programs and program amendments submitted by the States must

be based solely on a determination of whether the submittal is

consistent with SMCRA and its implementing Federal regulations and

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

been met.

National Environmental Policy Act

No environmental impact statement is required for this rule since

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

decisions on proposed State regulatory program provisions do not

constitute major Federal actions within the meaning of section

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

4332(2)(C)).

Paperwork Reduction Act

This rule does not contain information collection requirements that

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

3507 et seq.).

Regulatory Flexibility Act

The Department of the Interior has determined that this rule will

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

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

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

counterpart Federal regulations for which an economic analysis was

prepared and certification made that such regulations would not have a

significant economic effect upon a substantial number of small

entities. Accordingly, this rule will ensure that existing requirements

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

making the determination as to whether this rule would have a

significant economic impact, the Department relied upon the data and

assumptions for the counterpart Federal regulations.

Unfunded Mandates

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: October 25, 1996.

Brent Wahlquist,

Regional Director, Mid-Continent Regional Coordinating Center.

[FR Doc. 96-28255 Filed 11-1-96; 8:45 am]

BILLING CODE 4310-05-M