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: 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