Texas Regulatory Program and Abandoned Mine Land Reclamation Plan

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 943

[SPATS No. TX-036-FOR]

Texas Regulatory Program and Abandoned Mine Land Reclamation Plan

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 and abandoned mine land reclamation plan

(hereinafter the ``Texas program'') under the Surface Mining Control

and Reclamation Act of 1977 (SMCRA). The proposed amendment consists of

revisions to Texas' statutes pertaining to small operator assistance,

definitions, exemptions, applicability to governmental units, coal

exploration operations, prohibition on surface and coal mining, notices

of violation, improvidently issued permits, performance standards,

eligibility of land and water, and cessation orders. The amendment is

intended to revise the Texas program to be consistent with SMCRA.

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 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 28, 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 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

address 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 regulatory 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

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.

On June 23, 1980, the Secretary of the Interior approved the Texas

abandoned mine land reclamation plan. Background information on the

Texas plan, including the Secretary's findings, the disposition of

comments, and the approval of the plan can be found in the June 23,

1980, Federal Register (45 FR 41937). Subsequent actions concerning the

Texas plan and amendments to the plan can be found at 30 CFR 943.25.

II. Description of the Proposed Amendment

By letter dated December 1, 1997 (Administrative Record No. TX-

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

SMCRA. Texas submitted the proposed amendment at its own initiative.

Texas proposes to amend the Texas Surface Coal Mining and Reclamation

Act (TSCMRA) to reflect changes resulting from the passage of Senate

Bills (SB) 636 and 898 by the 75th Texas Legislature. The full text of

the proposed program amendment submitted by Texas is available for

public inspection at the locations listed above under ADDRESSES. A

discussion of the proposed amendment is presented below.

1. TSCMR Sec. 134.004 Definitions (SB 898)

Texas added the following definition for the term ``applicant'' at

section 134.004(3) and renumbered the existing definitions to reflect

this addition:

Applicant means a person or other legal entity seeking a permit

from the commission to conduct surface coal mining activities or

underground mining activities under this chapter.

2. TSCMRA Sec. 134.005 Exemptions (SB 898)

Section 134.005(a) was amended by removing the exemption for

extraction of coal for commercial purposes if the surface mining

operation affects two acres or less at paragraph (2). Paragraph (3) was

renumbered (2) to reflect this deletion.

3. TSCMRA Sec. 134.008 Applicability to Governmental Units (SB 898)

The following provision was added at section 134.008 to authorize

regulation of governmental units who engage in surface coal mining

operations:

An agency, unit, or instrumentality of federal, state, or local

government, including a publicly owned utility or publicly owned

corporation of federal, state, or local government, that proposes to

engage in surface coal mining operations that are subject to this

chapter shall comply with this chapter.

4. TSCMRA Sec. 134.014 Coal Exploration Operations (SB 898)

Section 134.014 was amended by adding the following new provision

at subsection (b) and changing existing subsection (b) to (c).

A person who conducts coal exploration operations that

substantially disturb the natural land surface in violation of this

section or rule adopted under this section is subject to Sections

134.174 through 134.181.

5. TSCMRA Sec. 134.022 Prohibitions on Surface Coal Mining in Certain

Areas (SB 898)

Section 134.022(c) was amended by changing the date relating to

valid existing rights from May 9, 1979, to August 3, 1977.

6. TSCMRA Sec. 134.056 Small Mine Exemption (SB 636)

At section 134.056(2), Texas increased the amount of probable total

annual production allowed for surface coal mining operators under its

small

[[Page 67597]]

operator assistance program from 100,000 to 300,000 tons.

7. TSCMRA Sec. 134.068 Schedule of Notices of Violations (SB 898)

Texas revised section 134.068(a) by requiring the applicant to file

with the application a schedule listing any notices of violations of

this chapter, the Federal Act, a Federal regulation or Federal or State

program adopted under the Federal Act, or another law, rule, or

regulation of the United States, this State, or a department or agency

in the United States pertaining to air or water environmental

protection. Texas also deleted the language ``in this state'' from the

phrase ``in connection with a surface coal mining operation in this

state.'' At section 134.068(b), the language ``applicant shall include

in the schedule'' was removed and the language ``schedule must

indicate'' was added.

8. TSCMRA Sec. 134.069 Effect or Past or Present Violation (SB 898)

Texas amended section 134.069(a) by removing paragraph (2), which

allowed the commission to issue a permit to an applicant who had an

unabated violation if the applicant was contesting the notice of

violation. Texas amended section 134.069(b) by adding language that

referenced this chapter and other laws in Section 134.068 in relation

to a demonstrated pattern of willful violations.

9. TSCMRA Sec. 134.084 Suspension or Rescission of Improvidently

Issued Permit (SB 898)

Texas added the following new provision at section 134.084:

(a) The commission may suspend or rescind an improvidently

issued permit under rules adopted by the commission.

(b) A rule adopted by the commission under this section must be

consistent with and not less effective than a regulation adopted

under the federal Act.

(c) Except as provided by Subsection (d), Chapter 2001,

Government Code, does not apply to an action by the commission under

this section to suspend or rescind an improvidently issued permit.

A permit holder who is given notice of suspension or rescission

of an improvidently issued permit under this section may file an

appeal for administrative review of the notice as provided by

commission rules. The review is governed by Chapter 2001, Government

Code.

10. TSCMRA Sec. 134.092 Performance Standards (SB 898)

Texas amended section 134.092(a)(3) by adding the language ``all

highwalls, spoil piles, and'' after the word ``with'' in the phrase

``to restore the approximate original contour of the land with

depressions eliminated.''

11. TSCMRA Sec. 134.142 Eligibility of Land and Water (SB 636)

Texas amended section 134.142 by removing its existing criteria at

paragraphs (1) through (3) for determining if land and water are

eligible for reclamation or abatement under its abandoned mine land

reclamation program and adding the following new criteria:

Land and water are eligible for reclamation or abatement

expenditures under this subchapter if the land and water are

eligible for reclamation or abatement expenditures under the federal

Act.

12. TSCMRA Sec. 134.163 Terms of Cessation Order (SB 898)

At section 134.163(1), Texas added the language ``condition,

practice, or'' after the word ``the'' in the phrase ``determines the

violation has been abated.''

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

[[Page 67598]]

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.

Dated: December 17, 1997.

Brent Wahlquist,

Regional Director, Mid-Continent Regional Coordinating Center.

[FR Doc. 97-33661 Filed 12-24-97; 8:45 am]

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