Texas Regulatory Program

DEPARTMENT OF THE INTERIOR

30 CFR Part 943

[SPATS No. TX-031-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 its regulations pertaining to backfilling and

grading performance standards for area strip mining operations. The

amendment is intended to revise the Texas program to clarify time and

distance standards for rough backfilling and grading.

EFFECTIVE DATE: December 20, 1996.

FOR FURTHER INFORMATION CONTACT:

Jack R. Carson, 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 July 11, 1996 (Administrative Record No. TX-617),

Texas submitted a proposed amendment to its program pursuant to SMCRA.

Texas submitted the proposed amendment at its own initiative. Texas

proposed to revise Texas Coal Mining Regulations (TCMR) 816.384,

general requirements for backfilling and grading, by providing rough

backfilling and grading time and/or distance standards for two types of

area strip mining operations, cyclic excavation and continuous

excavation.

OSM announced receipt of the proposed amendment in the July 24,

1996, Federal Register (61 FR 38420), 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 closed on August 23, 1996.

On September 12, 1996, OSM called Texas and requested a

clarification of the terms ``cyclic excavation'' and ``continuous

excavation.'' On September 13, 1996 (Administrative Record No. TX-

617.09), Texas responded that its interpretations of these terms are

described and discussed in the 1973 and 1992 editions of the ``SME

Mining Engineering Handbook,'' Society of Mining Engineers of the

American Institute of Mining, Metallurgical, and Petroleum Engineers,

Inc.

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.

TCMR 816.384 (a)(3) and (a)(4) Backfilling and Grading Time and/or

Distance Standards for Cyclic Excavation and Continuous Excavation Area

Strip Mining Operations

TCMR 816.384(a)(3) Texas revised TCMR 816.384(a)(3) by limiting its

provisions to the ``cyclic excavation'' method of area strip mining and

by adding a distance variance provision. According to the ``SME Mining

Engineering Handbook,'' swing-type excavating units such as power

shovels, draglines, clamshells, and backhoes are considered to be

cyclical excavators. The cycle functions of these excavators include

loading, raising, swinging, dumping, lowering, and positioning. In

Texas, draglines are used for most cyclic excavation coal mining

operations.

Texas' proposed revision allows it to grant additional distance for

completion of rough backfilling and grading for cyclic excavation area

strip mining operations if the permittee can demonstrate that such

additional distance is necessary. The existing provision allows the

State to grant additional time for completion of rough backfilling and

grading, but it must be completed within a specified distance

limitation off our spoil ridges with no exceptions. The proposed

revision will allow Texas to extend the distance limit of four spoil

ridges, as well as the time limit of 180 days, upon approval of a

detailed analysis submitted by the permittee in the permit application

reclamation plan under TCMR 780.145(b)(3).

In the August 6, 1996, Texas Register (21 TexReg 7309), Texas

explained that ``[d]ue to the nature of surface coal mining operations

active in Texas, the commission believes that more flexibility in

meeting backfilling and grading distance requirements should be

available to surface mine operators. Factors that may bear on the need

for a distance extension, in addition to or in the absence of a time

extension, include: The amount of overburden, the length of the pit,

the number of coal seams, the weather, the type of equipment used, and

the need for lignite.''

TCMR 816.384(a)(4) Texas also proposed a new provision concerning

rough backfilling and grading standards for ``continuous excavation''

area strip mining operations at TCMR 816.384(a)(4). According to the

``SME Mining Engineering Handbook,'' a continuous excavator digs and

discharges material simultaneously. The two most common continuous

excavators used in coal mining are the bucket chain excavator and the

bucket wheel excavator. In Texas, bucket wheel excavators are used for

most continuous excavation coal mining operations.

Rough backfilling and grading for continuous excavation operations

must be completed in accordance with the time schedule approved in the

permit application reclamation plan under TCMR 780.145(b)(3). The time

schedule is based on a detailed written analysis by the permittee and

any additional information required by Texas.

Federal requirements and decision The Federal time and distance

standards for specific types of mining, including area mining, at 30

CFR 816.101 were suspended effective August 31, 1992 (57 FR 33875, July

31, 1992). Therefore, OSM must evaluate State time and distance

requirements against the general contemporaneous reclamation

requirements of section 515(b)(16) of SMCRA and 30 CFR 816.100. Section

515(b)(16) of SMCRA requires that surface coal mining and reclamation

operations be conducted so as to insure that all reclamation efforts

proceed as contemporaneously as practicable with the surface coal

mining operations. The Federal regulation at 30 CFR 816.100 similarly

provides that backfilling and grading on all land that is disturbed by

surface mining activities occur as contemporaneously as practicable

with mining operations.

The effect of the suspension of 30 CFR 816.101 is that regulatory

authorities may adopt backfilling and grading time and distance

standards for various types

[[Page 67217]]

of mining operations that are specific to the coal mining conditions in

their states, as long as the standards result in contemporaneously

mining and reclamation as required by section 515(b)(16) of SMCRA and

30 CFR 816.100. It is noted that Texas' regulation at TCMR 816.383

requires that backfilling and grading of all land disturbed by surface

mining activities occur as contemporaneously as practicable with mining

operations.

Since permittees are required to submit a detailed analysis in

support of the time and/or distance standards included in their permit

application reclamation plans, Texas' proposed distance variance

provision at TCMR 816.384(a)(3) for cyclic excavation area strip mining

operations and its proposed time schedule provision at TCMR

816.384(a)(4) for continuous excavation area strip mining operations

appear to be reasonable and provide additional specificity to Texas'

general contemporaneous reclamation requirements at TCMR 816.383.

Therefore, based upon the above discussions, the Director finds the

proposed revisions at TCMR 816.384 (a)(3) and (a)(4) are not

inconsistent with the Federal requirements for contemporaneous

reclamation for surface mining activities at section 515(b)(16) of

SMCRA and 30 CFR 816.100.

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. Because no one

requested an opportunity to speak at a public hearing, no hearing was

held.

Comments supporting the proposed amendment were received from the

Aluminum Company of America and Texas Utilities Services, Inc.

(Administrative Record Nos. TX-617.08 and TX-617.06, respectively).

Both commenters supported the Railroad Commission of Texas in its

effort to clarify that both time and distance variances may be approved

when the permittee demonstrates that additional time and/or distance is

necessary for reclamation.

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. On August 9, 1996

(Administrative Record No. TX-617.07), the U.S. Army Corps of Engineers

responded that its review 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 EPA (Administrative Record No. TX-617.02). 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.

TX-617.03). Neither 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 July 11, 1996.

The Director approves TCMR 816.384(a)(3), concerning rough

backfilling and grading time and distance standards for cyclic

excavation area strip mining operations, and TCMR 816.384(a)(4)

concerning rough backfilling and grading time standards for continuous

excavation area strip mining operations.

The Director approves the regulations as proposed by Texas with the

provision that they be fully promulgated in identical form to the rules

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 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

[[Page 67218]]

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: December 2, 1996.

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:

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 by adding paragraph (o) to read as

follows:

Sec. 943.15 Approval of regulatory program amendments.

* * * * *

(o) Revisions to and/or the addition of Texas' regulations at TCMR

816.384(a)(3) and TCMR 816.384(a)(4), as submitted to OSM on July 11,

1996, are approved effective December 20, 1996.

[FR Doc. 96-32320 Filed 12-19-96; 8:45 am]

BILLING CODE 4310-05-M