Texas Regulatory Program

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 943

[SPATS No. TX-035-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.

-----------------------------------------------------------------------

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 Texas' regulations

pertaining to definitions, prime farmland, small operator assistance,

release of performance bond, and backfilling and grading. The amendment

is intended to revise the Texas program to be consistent with the

corresponding Federal regulations.

This document sets forth the times and locations that the Texas

program and proposed amendment to that program are available for public

inspection, the comment period during which interested persons may

submit written comments on the proposed amendment, and the procedures

that will be followed regarding the public regarding the public

hearing, if one is requested.

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

28, 1998. If requested, a public hearing on the proposed amendment will

be held on January 23, 1998. Requests to speak at the hearing must be

received by 4:00 p.m., c.s.t. on January 13, 1998.

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

be mailed or hand delivered to Michael C. Wolfrom, 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.

Michael C. Wolfrom, 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:

Michael C. Wolfrom, 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 1, 1997 (Administrative Record No. TX-

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

SMCRA. Texas submitted the proposed amendment in response to a June 17,

1997, letter (Administrative Record No. 640) that OSM sent to Texas in

accordance with 30 CFR 732.17(c). Texas proposes to amend Chapter 12 of

the Texas Administrative Code (TAC).

1. TAC Sec. 12.3 Definitions.

Texas added or revised the following definitions at Sec. 12.3:

Previously mined area--Land affected by surface coal mining

operations prior to August 3, 1977, that has not been reclaimed to

the standards of this Chapter (relating to Coal Mining Regulations).

Qualified laboratory--A designated public agency, private firm,

institution, or analytical laboratory that can provide the required

determination of probable hydrologic consequences or statement of

results of test borings or core samplings or other services as

specified at Secs. 12.236 and 12.240 of this title (relating to

Program Services, and to Data Requirements), and that meet the

standards of Sec. 12.241 of this title (relating to Qualified

Laboratories).

Thick overburden--more than sufficient spoil and other waste

materials available from the entire permit area to restore the

disturbed area to its approximate original contour. More than

sufficient spoil and other waste materials occur where the

overburden thickness times the swell factor exceeds the combined

thickness of the overburden and coal bed prior to removing the coal,

so that

[[Page 67599]]

after backfilling and grading the surface configuration of the

reclaimed area would not: (1) Closely resemble the surface

configuration of the land prior to mining; or (2) Blend into and

complement the drainage pattern of the surrounding terrain.

Thin overburden--Insufficient spoil and other waste materials

available from the entire permit area to restore the disturbed area

to its approximate original contour. Insufficient spoil and other

waste materials occur where the overburden thickness times the swell

factor, plus the thickness of other available waste materials, is

less than the combined thickness of the overburden and coal bed

prior to removing the coal, so that after backfilling and grading

the surface configuration of the reclaimed area would not: (1)

Closely resemble the surface configuration of the land prior to

mining; or (2) Blend into and complement the drainage pattern of the

surrounding terrain.

2. TAC Sec. 12.201 Prime Farmland

Texas proposed to add the following requirement at

Sec. 12.201(d)(5):

The aggregate total prime farmland acreage shall not be

decreased from that which existed prior to mining. Water bodies, if

any, to be constructed during mining and reclamation operations,

must be located within the post-reclamation non-prime farmland

portions of the permit area. The creation of any such water bodies

must be approved by the Commission and the consent of all affected

property owners within the permit area must be obtained.

3. TAC Sec. 12.237 Eligibility for Assistance

At Sec. 12.237(2), Texas proposed to amend the eligibility

requirements for participation in its small operator assistance program

(SOAP) by increasing the amount of the probable total actual and

attributed production allowed for SOAP applicants from 100,000 to

300,000 tons. At Sec. 12.237(2)(B) and (C), Texas increased the

baseline percentage above which ownership will play a role in

determining attributed coal production from 5 to 10 percent.

4. TAC Sec. 12.243 Applicant Liability

Texas revised Sec. 12.243(a) to require that a coal operator who

has received assistance pursuant to Secs. 12.236 and 12.240 reimburse

the Commission for the cost of the services rendered. Texas revised

Sec. 12.243(a)(4) to specify that reimbursement will be required if the

Commission finds that the operators actual and attributed annual

production of coal for all locations exceeds 300,000 tons during the 12

months immediately following the date on which the operator is issued

the surface coal mining and reclamation permit. Texas revised

Sec. 12.243(a)(5) to specify that reimbursement will be required if the

permit is sold, transferred, or assigned to another person and the

transferee's total actual and attributed production exceeds the

300,000-ton production limit during the 12 months immediately following

the date on which the permit was originally issued.

5. TAC Sec. 12.312 Procedure for Seeking Release of Performance Bond

Texas entitled Sec. 12.312(a) as ``Bond release application'' and

revised it by adding the existing first sentence to Sec. 12.312(a)(1)

and adding the following new requirement:

Applications may be filed only at times or during seasons

authorized by the Commission in order to properly evaluate the

completed reclamation operations. The times or seasons appropriate

for the evaluation of certain types of reclamation shall be

established in the regulatory program or identified in the mining

and reclamation plan required in Subchapter G of this Chapter and

approved by the Commission.

Texas added the balance of the existing language to

Sec. 12.312(a)(2) and added a requirement that the advertisement for

bond release also contain the name and address of the Commission office

to which written comments, objections, or requests for public hearings

and informal conference may be submitted.

Texas added the following new requirement at Sec. 12.312(a)(3):

The permittee shall include in the application for bond release

a notarized statement which certifies that all applicable

reclamation activities have been accomplished in accordance with the

requirements of the act, the regulatory program, and the approved

reclamation plan. Such certification shall be submitted for each

application or phase of bond release.

Texas entitled Sec. 12.312(b) as ``Inspection by Commission,''

added the existing language to Sec. 12.312(b)(1), and changed the

language ``notification and request'' to ``bond release application.''

Texas removed Sec. 12.312(c) and added its substantive requirements to

Sec. 12.312(b)(2) with the following revised language:

Within 60 days from the filing of the bond release application,

if no public hearing is held pursuant to Sec. 12.313(c) of the title

(relating to Criteria and Schedule for Release of Performance Bond,

or, within 30 days after a public hearing has been held pursuant to

Sec. 12.313(c), the Commission shall notify in writing the

permittee, the surety, or other persons with an interest in bond

collateral who have requested notification under Sec. 12.309(1) of

this title (relating to Terms and Conditions of the Bond), and the

persons who either filed objections in writing or objectors who were

a party to the hearing proceedings, if any, of its decision to

release or not to release all or part of the performance bond.

6. TAC Sec. 12.313 Criteria and Schedule for Release of Performance

Bond

Texas proposed the following revision to the existing language at

Sec. 12.313(a):

The Commission may release all or part of the bond for the

entire permit area or incremental area if the Commission is

satisfied that the reclamation or a phase of the reclamation covered

by the bond or deposit or portion thereof has been accomplished in

accordance with the following schedules for reclamation of Phases I,

II, and III:

At Sec. 12.313(a)(1), Texas added the phrase ``[a]t the completion

of Phase I, after'' to the beginning of the provision and deleted the

word ``[w]hen''; added the proviso that backfilling and regarding may

include the replacement of topsoil; and made other nonsubstantive

language changes.

At Sec. 12.313(a)(2), Texas added the phrase ``[a]t the completion

of Phase II'' to the beginning of the provision; removed the provision

that the Commission may release up to 25 percent of the original bond

amount and added the provision that the Commission may release an

additional amount of bond; changed its reference to Secs. 12.330

through 12.403 of this title to Sec. 134.092(a)(10) of the Act and

Subchapter K of this Chapter relating to its requirements for suspended

solids; added a reference to Secs. 12.620-12.625 relating to the prime

farmland survey; added a reference to Subchapter K of this Chapter

relating to its requirements for retention of a permanent impoundment.

At Sec. 12.31(a)(3), Texas added the phrase ``[a]t the completion

of Phase III, after'' to the beginning of the provision and deleted the

word ``[w]hen'' and changed its reference to Secs. 134.091 through

134.109 of the Act of Sec. 12.395 or Sec. 12.560 of this title.

Texas revised Sec. 12.313(b) by requiring that the Commission

notify the permittee, the surety, and any person with an interest in

collateral if the Commission disapproves the application for release of

the bond.

At Sec. 12.313(d), Texas added the option that a public hearing may

be held at the State capital at its first reference to a public hearing

regarding release of the bond and removed duplicative language at the

end of the provision regarding holding of a public hearing.

7. TAC Sec. 12.387 Backfilling and Grading--Thin Overburden

At Sec. 12.387, Texas removed the existing requirements and added

the following requirements:

Where thin overburden occurs within the permit area, the

permittee, at a minimum,

[[Page 67600]]

shall: (1) Use all spoil and other waste materials available form

the entire permit area to attain the lowest practicable grade, but

not more than the angle of repose; and (2) Meet the requirements of

Sec. 12.385 of this title (relating to Backfilling and Grading:

General Requirements).

8. TAC Sec. 12.388 Backfilling and Grading--Thick Overburden

At Sec. 12.388, Texas removed the existing requirements and added

the following requirements:

Where thick overburden occurs within the permit area, the

permittee at a minimum shall: (1) Restore the approximate original

contour and then use the remaining spoil and other waste materials

to attain the lowest practicable grade, but not more than the angle

of repose; (2) Meet the requirements of Sec. 12.385 of the title

(relating to Backfilling and Grading: General Requirement); and (3)

Dispose of any excess spoil in accordance with Secs. 12.363-12.366

of this title (relating to Disposal of Excess Spoil: General

Requirements, to Disposal of Excess Spoil: Valley Fills, to Disposal

of Excess Spoil: Head-of-Hollow Fills, and to Disposal of Excess

Spoil: Durable Rock Fills).

9. TAC Sec. 12.620 Prime Farmland--Applicalbility and Special

Requirements

At Sec. 12.620(a)(1), Texas removed the existing language and added

the following language:

Disposal areas containing coal mine waste resulting from

underground mines that is not technologically and economically

feasible to store in underground mines or on non-prime farmland. The

operator shall minimize the area of prime farmland used for such

purposes; or

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 January 13, 1998. 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 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 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

OSM has determined and certifies pursuant to the Unfunded Mandates

Reform Act (2 U.S.C. 1502 et seq.) that this rule will not impose a

cost of $100 million or more in any given year on local, state, or

tribal governments or private entities.

List of Subjects in 30 CFR Part 943

Intergovernmental relations, Surface mining, Underground mining.

[[Page 67601]]

Dated: December 17, 1997.

Brent Wahlquist,

Regional Director, Mid-Continent Regional Coordinating Center.

[FR Doc. 97-33660 Filed 12-24-97; 8:45 am]

BILLING CODE 4310-05-M