Texas Regulatory Program

DEPARTMENT OF THE INTERIOR

30 CFR Part 943

[SPATS No. TX-017-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 and additions of rules pertaining to authority,

responsibility and applicability; definitions; restrictions of

financial interests of State employees; exemption for coal extraction

incident to government-financed construction; exemption for coal

extraction incidental to the extraction of other minerals; lands

unsuitable for mining; coal exploration; geologic and hydrologic permit

information; blasting plans; maps and plans; protection of the

hydrologic balance; ponds, impoundments, banks, dams, and embankments;

prime farmland; alluvial valley floors; public availability of permit

information; approval and conditions of permits; transfer, assignment

or sale of permit rights; bonding requirements; liability insurance;

bond release; signs and markers; water quality standards; diversions;

siltation structures; permanent and temporary impoundments; surface and

ground water monitoring; stream buffer zones; use of explosives; coal

mine waste; protection of fish and wildlife and related environmental

values; backfilling and grading; revegetation; water discharge into

underground mines; enforcement; suspension and revocation of permits;

assessment of civil penalties; individual civil penalties; and blaster

certification and training. Texas also proposed minor changes in

wording, numbering, and punctuation of its rules. The amendment is

intended to revise the Texas program to be consistent with the

corresponding Federal regulations and SMCRA and to incorporate the

additional flexibility afforded by the revised Federal regulations.

EFFECTIVE DATE: March 26, 1997.

FOR FURTHER INFORMATION CONTACT: Ervin J. Barchenger, 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 May 13, 1993 (Administrative Record No. TX-551),

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

Texas submitted the proposed amendment in response to May 20, 1985,

June 9, 1987, October 20, 1988, February 7, 1990, and February 21,

1990, letters (Administrative Record Nos. TX-358, TX-388, TX-417, TX-

472, and TX-476) that OSM sent to Texas in accordance with 30 CFR

732.17(c), in response to the required program amendments at 30 CFR

943.16 (k) through (q), and at its own initiative.

OSM announced receipt of the proposed amendment in the June 21,

1993, Federal Register (58 FR 33785), 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 would have closed on July 21, 1993. However, by letter dated

July 16, 1993, the Texas Mining and Reclamation Association requested a

30-day extension of time in which to review and provide comments on the

proposed amendment. OSM announced receipt of the extension request and

reopened the comment period in the August 16, 1993, Federal Register

(58 FR 43308). The extended comment period ended August 20, 1993.

During its review of the amendment, OSM identified several concerns

relating to the proposed amendment. OSM notified Texas of these

concerns by letter dated July 25, 1994 (Administrative Record No. TX-

578). OSM provided Texas with further clarification of its concerns by

letters dated November 4, 1994, November 21, 1994, and January 18, 1995

(Administrative Record Nos. TX-581, TX-589, and TX-585).

By letter dated September 18, 1995 (Administrative Record No. TX-

598), Texas responded to OSM's concerns by submitting a revised program

amendment package. OSM reopened the public comment period in the

October 25, 1995, Federal Register (60 FR 54620) and provided an

opportunity for a public hearing on the adequacy of the revised

amendment. The public comment period closed on November 9, 1995. By

letter dated December 15, 1995 (Administrative Record No. TX-634),

Texas submitted documents to clarify and supplement its September 18,

1995, revised amendment. By letter dated March 1, 1996 (Administrative

Record No. TX-612), Texas provided information to supplement the

revegetation success portion of its September 18, 1995, revised

amendment.

By letter dated January 29, 1996 (Administrative Record No. TX-

610), Texas withdrew portions of its September 18, 1995, revised

amendment. Texas withdrew the roads and transportation system portion

of the amendment because it had submitted a formal amendment on

December 20, 1995, titled ``Transportation System, Utilities, and

Support System,'' which superceded the changes in this amendment.

During its review of the September 18, 1995, revised amendment and

supplemental information, OSM

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identified several concerns relating to the proposed amendment. OSM

notified Texas of these concerns by letter dated June 18, 1996

(Administrative Record No. TX-614).

By letter dated July 31, 1996 (Administrative Record No. TX-621),

Texas responded to OSM's concerns by submitting a revised program

amendment package. Texas proposed to revise the Texas Coal Mining

Regulations (TCMR) at: Subchapter A--General, parts 700, 701, 705, and

707; subchapter F--Lands Unsuitable for Mining, parts 760, 761, 762,

and 764; subchapter G--Surface Coal Mining and Reclamation Operations

Permits and Coal Exploration Procedures Systems, parts 770, 776, 779,

780, 783, 784, 785, 786, 787, and 788; subchapter J--Bond and Insurance

Requirements for Surface Coal Mining and Reclamation Operations, parts

800, 806, and 807; subchapter K--Permanent Program Performance

Standards, parts 805, 816, 817, and 823; subchapter L--Permanent

Program Inspection and Enforcement Procedures, parts 843, 845, and 846;

and subchapter M--Training, Examination, and Certification of Blasters,

part 850. In addition, Texas withdrew the revegetation success

guidelines from this amendment and indicated they would be submitted as

a separate amendment at a later time. By letter dated September 12,

1996, (Administrative Record No. TX-635), Texas provided its

Administrative Procedures Act to supplement its July 31, 1996 revised

amendment.

OSM reopened the public comment period in the August 28, 1996,

Federal Register (61 FR 44260). The public comment period closed on

September 27, 1996.

During its review of the July 31, 1996, revised amendment, OSM

identified concerns relating to a proposed change to the effective date

of TCMR 762.076 regarding designating lands unsuitable for mining, a

cross-reference in TCMR 780.148(c)(3) and 784.190(c)(3), proposed self-

insurance provisions at TCMR 806.311(d), and revised administrative

procedures at TCMR 787.222 and 787.223. OSM notified Texas of these

concerns by letter dated December 2, 1996 (Administrative Record No.

TX-630).

By letter dated December 31, 1996, (Administrative Record No. TX-

631), Texas responded to OSM's concerns by submitting information to

supplement and correct cross-reference errors in its July 31, 1996,

revised amendment. In addition, Texas withdrew the proposed changes to

TCMR 787.222 and 787.223 regarding administrative procedures, and

indicated it would submit changes to these procedures in a separate

amendment. By letter dated February 4, 1997 (Administrative Record No.

TX-636), Texas submitted information to correct a cross-reference error

in its December 31, 1996, submittal.

III. Director's Findings

After a thorough review, pursuant to SMCRA and the Federal

regulations at 30 CFR 732.15 and 732.17, the Director finds that the

proposed amendment, as submitted by Texas on May 13, 1993, and as

revised and/or supplemented with explanatory information on September

18, 1995, December 15, 1995, March 1, 1996, July 31, 1996, September

12, 1996, December 31, 1996, and February 4, 1997, is no less stringent

than SMCRA and no less effective than the corresponding Federal

regulations.

A. Nonsubstantive Revisions to Texas' Regulations

Texas proposed nonsubstantive changes to make editorial corrections

and recodify previously approved regulations because of new

regulations. Revisions that are not discussed concern substantive

wording changes that are not inconsistent with SMCRA or the Federal

regulations. The Director approves these changes.

B. Substantive Revisions to Texas' Regulations That Are Substantially

Identical to the Corresponding Federal Regulations

1. New and Revised Texas Regulations

Texas proposed the following new regulations and revisions to

existing regulations that are substantive in nature and contain

language that is substantially identical to the corresponding Federal

regulations (listed in brackets):

TCMR 700.002 (b)(4), (b)(5), and (f), authority, responsibility,

and applicability [30 CFR 700.11 (a)(4), (a)(5) and (d)];

TCMR 701.008 (5), (18), (19), (21), (26), (55), (67), (82), (84),

(95), (102), and (107), definitions for affected area, coal mine waste,

coal preparation, coal processing waste, cumulative impact area, other

treatment facility, prime farmland, siltation structure, soil survey,

topsoil, unwarranted failure to comply, and willful violation [30 CFR

701.5, 843.5];

TCMR 705.010 (a)(3) and (c), 705.011 (2), (3), (5), and (9),

705.013(a), 705.014, 705.015(a), and 705.016(a), restrictions of

financial interests of state employees [30 CFR 705.4 (a)(3) and (d),

705.5, 705.11(a), 705.13, 705.15, and 705.17(a)];

TCMR 709.025, 709.026 (a)(1) and (b)-(e), 709.027(c)-(e), 709.028,

709.029(b)-(c), 709.030, 709.031(a), (b), and (d)-(f), 709.032, 709.033

(a), (b), (c)(1), and (d), 709.034, exemption for coal extraction

incidental to the extraction of other minerals [30 CFR 702.1,

702.5(a)(1), 702.11(c)-(e), 702.12, 702.13(b)-(c), 702.14, 702.15(a),

(b), and (d)-(f), 702.16, 702.17 (a), (b), (c)(1), and (d), and

702.18];

TCMR 760.069, areas designated unsuitable for mining by Congress

[30 CFR 761.1];

TCMR 760.070 (6), (7), (9), and (11), definitions of public

building, public park, publicly-owned park, and significant

recreational, timber, economic, or other values incompatible with

surface coal mining operations [30 CFR 761.5];

TCMR 761.071 (b), (c), and (e), and 761.072 (b)(1), (b)(2), (c),

(d), (d) (1)-(4), (e) (1)-(2), (e)(3) (A)-(B), (f)(2), (g), and (h),

areas where mining is prohibited or limited [30 CFR 761.11 and 761.12];

TCMR 762.074 (4) and (5), definitions of renewable resource lands

and substantial legal and financial commitments in a surface coal

mining operation [30 CFR 762.5];

TCMR 762.075(a), 762.075(b), and 762.077, designating lands

unsuitable for surface coal mining operations [30 CFR 762.11(a),

762.11(b), and 762.14];

TCMR 764.079 (a), (b), (b)(1), (b)(1) (A)-(B), (b)(1) (D)-(F),

(b)(2), (c), (c)(1), (c)(1) (A)-(B), (c)(1) (D)-(E), and (c)(2),

764.080 (a) (4)-(7), (b)(1), (b)(3), (c), and (d), 764.081 (a) and

(b)(2), 764.082 (b) and (c), 764.084(a), and 764.085(b), process for

designating lands unsuitable for surface coal mining operations [30 CFR

764.13, 764.15, 764.17, 764.19 (b) and (c), 764.23(a), and 764.25(b)];

TCMR 776.111(a)(3)(E), application requirements for coal

exploration of more than 250 tons [30 CFR 772.12(b)(10)];

TCMR 779.126(d) and 783.172(d), surface and underground mine permit

requirements--description of hydrology and geology [30 CFR 780.21(a)

and 784.14(a)];

TCMR 779.128 (a), (a) (3)-(4), and (b), and 783.174 (a), (a) (3)-

(4), and (b), surface and underground mine permit requirements--ground

water information [30 CFR 780.21(b)(1) and 784.14(b)(1)];

TCMR 779.129, .129 (a), (b), (b)(1), and (b)(3), and 783.175, .175

(a), (b), (b)(1), and (b)(3), surface and underground mine permit

requirements--surface water information [30 CFR 780.21(b)(2) and

784.14(b)(2)];

TCMR 780.141 (g) and (h), surface mine permit requirements--

blasting plans [30 CFR 780.13(a)];

[[Page 14313]]

TCMR 780.142(b)(11), surface mine permit requirements--maps and

plans [30 CFR 780.14(b)(11)];

TCMR 780.142(d) and 784.197(d), surface and underground permit

requirements--support facilities [30 CFR 780.38 and 784.30];

TCMR 780.146(b), 780.146(c), 780.146(d)(1)-(4), 780.146(e),

784.188(b), 784.188(c), and 784.188(e), protection of the hydrologic

balance [30 CFR 780.21(i), 780.21(j), 780.21(f), 780.21(g), 784.14(h),

784.14(i), and 784.14(f)];

TCMR 785.201(b)(1), (b)(1)(B), (b) (2)-(4), (c) (1)-(2), and

(d)(2), prime farmland permit application requirements [30 CFR 785.17

(c)-(e)];

TCMR 785.202(b) (1)(i), (2), and (3) (i)-(iv), application

requirements--alluvial valley floors [30 CFR 785.19(d)(2)(i)];

TCMR 786.210, public availability of applications [30 CFR

773.13(d)];

TCMR 786.216 (c) and (e), criteria for permit approval or denial

[30 CFR 773.15(c) (5) and (11)];

TCMR 786.220(d), conditions of permits [30 CFR 773.17(g)];

TCMR 800.301(b)(2), requirements to file a bond [30 CFR

800.11(b)(4)];

TCMR 807.312 (a)-(c), bond release procedures [30 CFR 800.40 (a)

and (b)];

TCMR 807.313(a)(2), criteria and schedule for bond release [30 CFR

800.40(c)(2)];

TCMR 815.327(a), performance standards for coal exploration [30 CFR

815.15(a)];

TCMR 815.328, performance standards for coal exploration [30 CFR

772.14];

TCMR 816.340 and 817.510, water quality standards and effluent

limitations [30 CFR 816.42 and 817.42];

TCMR 816.341 (a) (1)-(3), (b), and (c), and 817.511 (a) (1)-(3),

(b), and (c), hydrologic balance: diversions [30 CFR 816.43 (a) (1)-

(3), (b), and (c), and 817.43 (a) (1)-(3), (b), and (c)];

TCMR 816.344(a), (b), (d), and (e), and 817.514(a), (b), (d), and

(e), hydrologic balance: siltation structures [30 CFR 816.46(a), (b),

(d), and (e), and 817.46(a), (b), (d), and (e)];

TCMR 816.347(a)(1)-(2), (a)(4)-(10), (a)(12)-(13), (b), and (c)(1),

and 817.517(a)(1)-(2), (a)(4)-(10), (a)(12)-(13), (b), and (c)(1),

performance standards--permanent and temporary impoundments [30 CFR

816.49(a)(1)-(2), (a)(4)-(10), (a)(12)-(13), (b), and (c)(1), and

817.49(a)(1)-(2), (a)(4)-(10), (a)(12)-(13), (b), and (c)(1)];

TCMR 816.348, hydrologic balance: ground water protection [30 CFR

816.41(b)];

TCMR 816.349, hydrologic balance: surface water protection [30 CFR

816.41(d)];

TCMR 816.350(a) and (b), and 817.519(a)(1), (a)(2), (a)(4), (b)(1),

(b)(2), and (b)(4), hydrologic balance: surface and ground water

monitoring [30 CFR 816.41(c) and (e), and 817.41(c)(1), (c)(2), (c)(4),

(e)(1), (e)(2), and (e)(4)];

TCMR 816.355 and 817.524, hydrologic balance: stream buffer zones

[30 CFR 816.57 and 817.57];

TCMR 816.357(a) and (c), and 817.526(b) and (c), use of explosives

[30 CFR 816.61(a) and (c), and 817.61(b) and (c)];

TCMR 816.358(a)-(d) and 817.527(a)-(d), use of explosives-

preblasting surveys [30 CFR 816.62(a)-(e) and 817.62(a)-(e)];

TCMR 816.362(d), 817.530, and.530(c), (d), (e), (g), (j), (s)(1)-

(5), and (t), use of explosives--records of blasting operations [30 CFR

816.68(d), 817.68, and 817.68(d), (e), (j), (o)(1)-(5), and (p)];

TCMR 816.376(a), (b), and (c), and 817.543(a), (b), and (c),

general requirements for coal mine waste dams and embankments [30 CFR

816.84, 816.84(a) and (b)(1), 817.84, and 817.84(a) and (b)(1)];

TCMR 816.377 and 817.544, coal mine waste dams and embankments site

preparation [30 CFR 816.84 and 817.84];

TCMR 816.378(a) and (c), and 817.545(a) and (c), design and

construction of coal mine waste dams and embankments [30 CFR

816.84(b)(1) and (f), and 817.84(b)(1) and (f)];

TCMR 816.380(e)(10) and 817.547(e)(10), protection of fish,

wildlife and related environmental values [30 CFR 816.97(h) and

817.97(h)];

TCMR 816.385(b)(3) and 817.552(b)(3), backfilling and grading

requirements [30 CFR 816.83(c)(2) and 817.83(c)(2)];

TCMR 816.390 and 817.555, revegetation: general requirements [30

CFR 816.111 and 817.111];

TCMR 817.509(a), hydrologic balance requirements [30 CFR

817.41(a)];

TCMR 817.535(c), general requirements for coal mine waste banks [30

CFR 816.81(c)(1)];

TCMR 823.620(a), prime farmland applicability [30 CFR 823.11(a) and

(c)];

TCMR 823.621(a)-(b) and 823.622(a)-(c), prime farmland soil removal

and stockpiling [30 CFR 823.12];

TCMR 823.624(a)-(b) and (d)-(f), prime farmland soil replacement

[30 CFR 823.14];

TCMR 823.625, prime farmland revegetation and restoration of soil

productivity [30 CFR 823.15];

TCMR 843.681(c) and (f)-(j), notice of violation abatement period

extensions [30 CFR 843.12];

TCMR 843.682(a)(1), suspension or revocation of permits [30 CFR

843.13(a)(1)];

TCMR 845.695(b)(1), procedures for assessment of civil penalties

[30 CFR 845.17(b)(1)];

TCMR 846.002 and 846.003, individual civil penalties assessed and

amount [30 CFR 846.12 and 14].

Because the above proposed revisions are identical in meaning to

the corresponding Federal regulations, shown in brackets, the Director

finds that Texas' proposed regulations are no less effective than the

Federal regulations.

2. Deletion of Existing Texas Regulations

Texas proposed to delete the following regulations because of OSM's

repeal of the Federal counterpart regulations (shown in brackets) or

because of the reasons stated:

TCMR 770.101, definitions [definitions are moved, revised and

adopted at TCMR 701.008];

TCMR 740.146(b) and (c), and 784.188(b) and (c), protection of the

hydrologic balance [30 CFR 780.21(b) and (c), 48 FR 43985, September

26, 1983];

TCMR 785.201(b)(3), (5), (6), and (8), prime farmland application

requirements [30 CFR 785.17(b)(3), (5), (6), and (8), 48 FR 47722,

September 29, 1983];

TCMR 816.340 and 817.510, water quality standards and effluent

limitations [30 CFR 816.42 and 817.42, 48 FR 44051, September 26,

1983];

TCMR 816.341, 816.342, 817.511, and 817.512, diversions [30 CFR

816.43, 816.44, 817.43, and 817.44, 48 FR 43991, September 26, 1983];

TCMR 816.344 and 817.515, sedimentation ponds [30 CFR 816.46 and

817.46, 48 FR 44051, September 26, 1983];

TCMR 816.347 and 817.517, permanent and temporary impoundments [30

CFR 816.49 and 817.49, 48 FR 44004, September 26, 1983];

TCMR 816.348 and 816.349, ground water protection and protection of

ground water recharge capacity [30 CFR 816.50 and 816.51, 48 FR 43992,

September 26, 1983];

TCMR 816.350 and 817.519, surface and ground water monitoring [30

CFR 816.52 and 817.52, 48 FR 43992, September 26, 1983];

TCMR 816.355 and 817.524, stream buffer zones [30 CFR 816.57 and

817.57, 48 FR 30327, June 30, 1983];

TCMR 816.390, 816.395, 816.396, 817.555, 817.560, and 817.561,

revegetation: general requirements,

[[Page 14314]]

standards for success, and tree and shrub stocking for forest land [30

CFR 816,111, 816.116, 816.117, 817.111, 817.116, and 817.117, 48 FR

40160, September 2, 1983];

TCMR 817.528 (a), (c), and (d)-(1), surface blasting requirements

[30 CFR 817.65, 48 FR 9810, March 8, 1983];

TCMR 817.529, seismograph measurements [30 CFR 817.67, 48 FR 9810,

March 8, 1983];

TCMR 817.538(c)(3), coal processing waste banks construction

requirements [30 CFR 817.85, 48 FR 44030, September 26, 1983];

TCMR 823.620(c), prime farmland special requirements [30 CFR

823.11(c), 48 FR 21463, May 12, 1983];

TCMR 823.623, prime farmland alternative to separate soil horizon

removal and stockpiling [No Federal counterpart, its removal does not

effect the State program].

Because the above proposed deletions are consistent with OSM's

repeal of the Federal counterpart regulations or are proposed to be

removed for other appropriate reasons, the Director finds that the

proposed deletions will not render the Texas regulations less effective

than the Federal regulations.

C. New Regulations and Revisions to Existing Texas' Regulations That

Are Substantive in Nature

1. TCMR 700.003 (1) and (3), Definitions of Act and APA

At TCMR 700.003(1), Texas defines ``Act'' to mean the Texas Surface

Coal Mining Control and Reclamation Act. The State proposed to revise

its definition by deleting the word ``control'' to reflect the actual

title of the State surface coal mining and reclamation act as it is

stated in the Texas statute. Texas also proposed to add a reference to

the code citation. The proposed definition states: ``Act'' means the

``Texas Surface Coal Mining and Reclamation Act'' (TEX. NAT. RES. CODE

Ch. 134).

Texas proposed to revise the definition of ``APTRA'' at TCMR

700.003(3) to ``APA'' and to add a reference to the code citation of

the APA. The APA is the successor code to the APTRA for the State's

administrative procedures act. The proposed definition states: ``APA''

means the ``Administrative Procedure Act'' (Chapter 2001, TEX. GOV'T

CODE). The Federal regulations do not contain a counterpart definition.

The Director finds the proposed changes do not make the State's

definitions of ``Act'' or ``APA'' inconsistent with any requirement of

SMCRA or with the Federal regulations. The Director approves the

proposed changes to the Texas regulations.

2. TCMR 701.008(25), Definition of Cropland

Texas proposed to revise its definition of cropland by adding the

phrase ``but does not include quick growing cover crops grown primarily

for erosion control'' to the end of the existing definition. The

corresponding Federal definition does not include the proposed State

language. Texas proposed the change to make it clear that the

definition of cropland is to identify lands used for the production of

crops. It should not include lands that are not used for the production

of crops, but where a cover crop is planted for erosion control

practices. The Director finds that the proposed revision to the

definition of cropland is not inconsistent with any requirement of

SMCRA or the Federal regulations. The Director is approving the

proposed definition.

3. TCMR 701.008, Definitions of Administratively Complete Application,

Applicant, Application, Complete and Accurate Application, Principal

Shareholder, and Property To be Mined

OSM required Texas, at 30 CFR 943.16(k) to submit an amendment that

includes definitions for complete application, applicant, application,

principal shareholder, and property to be mined. Instead of submitting

a definition of complete application, Texas submitted proposed

definitions of administratively complete application and complete and

accurate application. Because the Federal regulations do not contain a

definition for complete application, Texas is not required to include

this specific definition in its program. Texas also submitted proposed

definitions of applicant, application, principal shareholder, and

property to be mined. The proposed State definitions are the same as

the counterpart Federal definitions at 30 CFR 701.5. The Director finds

the proposed definitions at TCMR 701.008(4) administratively complete

application, (9) applicant, (10) application, (24) complete and

accurate application, (68) principal shareholder, and (70) property to

be mined are no less effective than the corresponding Federal

regulations at 30 CFR 701.5 and approves them. In addition, the

Director is removing the required amendment at 30 CFR 943.16(k).

4. TCMR 701.008(34), Definition of Experimental Practice

Texas proposed to add at TCMR 701.008(34) a definition for

``experimental practices.'' The proposed definition is that

experimental practice means the use of alternative surface coal mining

and reclamation operation practices for experimental or research

purposes. The Federal regulations do not contain a counterpart

definition. However, the original Federal permanent program regulations

published on March 13, 1979 (44 FR 15371) contained a definition for

experimental practices. In 1983, OSM determined this definition was not

needed and revised its regulations at 30 CFR 785.13(c) to delete the

definition (48 FR 9478, March 4, 1983). Texas' proposed definition of

experimental practice is the same as the previous Federal definition.

The proposed Texas definition of experimental practice at TCMR

701.008(34) is not inconsistent with any requirement of SMCRA or the

Federal regulations. The Director is approving the proposed definition.

5. TCMR 701.008 (69) and (76), Definitions of Professional Specialist

and Registered Professional Engineer

Texas proposed to add a definition for professional specialist at

TCMR 701.008(69) and a definition of registered professional engineer

at TCMR 701.008(76). The proposed definition of professional specialist

means a person whose training, experience, and professional

certification or licensing are acceptable to the Commission for the

limited purpose of performing certain specified duties under this

Chapter. Texas proposed to use the term at TCMR 816.347(a)(11) and

817.517(a)(11) in the following context ``* * * a qualified registered

professional engineer or other qualified professional specialist under

the direction of a professional engineer * * *''.

The proposed definition of registered professional engineer means a

person who is duly licensed by the Texas State Board of Registration of

Professional Engineers to engage in the practice of engineering in this

state. Texas proposed to use the term throughout its regulations

regarding review and certification of engineering designs.

The Federal regulations do not contain corresponding definitions.

However, the Federal regulations use the terms in the same manner as

proposed by Texas. The Director finds the proposed Texas definitions of

professional specialist at TCMR 701.008(69) and registered professional

engineer at TCMR 701.008(76) are not inconsistent with any requirement

of SMCRA or the Federal regulations. Therefore, the Director is

approving the proposed definitions.

[[Page 14315]]

6. TCMR 707.022, Exemption for Coal Extraction Incident to Government-

Financed Highway or Other Construction--Information to be Maintained on

Site

The Federal regulation at 30 CFR 707.12 requires that if coal

extraction incidental to government financed construction extracts more

than 250 tons or affects more than two acres, certain requirements must

be met for maintaining information on site. At TCMR 707.022, Texas

proposed to delete the reference to ``or effects more than two acres''

from its regulations. Texas made this change to its regulations in

1988; however, OSM has not approved it as an amendment to the Texas

program. Texas indicated that it made this change as part of its

removal of the two-acre exemption requirements from its program. OSM

did not revise this regulation when it removed the two acre exemption

provisions from its regulations.

The effect of the regulation in question is limited. It addresses

when documents must be maintained on site; it does not address or have

any effect on whether coal extraction incidental to government-financed

construction is allowable. Although the Federal regulation contains two

limits, tonnage and acreage, the tonnage limit as it applies in Texas

is so restrictive that it renders the acreage limit superfluous. The

only coal mined in Texas is lignite, which averages 1,750 tons per

acre-foot in weight according to DOE Coal Data. This means that removal

of just two inches of coal from one acre would result in 290 tons

removed, exceeding the 250 ton limit. The possibility of coal removal

incidental to government financed construction affecting more than two

acres without the removal of more than 250 tons is extremely remote.

Additionally, Texas has not used this provision of its program since

its approval in 1980. It deleted the two acre provision from its

regulations over eight years ago and it has not presented a problem in

the field. Therefore, the Director finds that the proposed Texas

regulation revision at TCMR 707.022 is no less effective than the

corresponding Federal regulation at 30 CFR 707.12 and is no less

stringent than SMCRA, and approves the regulation.

7. TCMR 709.026(a)(2), Definition of Cumulative Measurement Period

Texas Proposed to define the cumulative measurement period as it

applies to an exemption for coal extraction incidental to the

extraction of other minerals. The proposed definition of cumulative

measurement period at TCMR 709.026(a)(2) is substantively identical to

the counterpart Federal definition at 30 CFR 702.5(a)(2), except that

Texas proposed to insert the effective date of TCMR Part 709 of its

regulations for the end date of the cumulative measurement period, and

an anniversary date that is one day prior to the effective date. The

Federal definition contains an end date of April 1, 1990, which is the

effective date of the Federal regulation, and an anniversary date of

March 31. OSM intended for primacy States to base the end date of the

cumulative measurement period on the effective date of the counterpart

provisions of the State's regulatory program (54 FR 52094, December 20,

1989). OSM stated that its regulations ``were not intended [to]

retroactively bring under this Act [SMCRA] activities that occurred

prior to the effective date of this rule or the effective date of the

counter part provisions of the State regulatory programs.'' The

Director finds the proposed Texas definition of cumulative measurement

period at TCMR 709.026(a)(2) is no less effective than the

corresponding Federal definition at 30 CFR 702.5(a)(2), and approves

it.

8. TCMR 709.027 (a) and (b), Application Requirements and Procedures

for an Exemption for Coal Extraction Incidental to the Extraction of

Other Minerals

Texas proposed to use the effective date of TCMR Part 709 at TCMR

709.027(a) to establish who must file an application for an exemption

for incidental coal extraction and at TCMR 709.027(b) to establish a

date for when existing operations must file an application. The Federal

requirements at 30 CFR 702.11 (a) and (b) use the effective date of the

Federal regulations. For the same reasons as discussed in Finding

III.C.7. for the definition of ``cumulative measurement period,'' the

use of the State's effective date is also appropriate for these

subsections.

In addition, at TCMR 709.027(b), Texas proposed to specify what

constitutes an administratively complete application for an incidental

mining exemption application. The Federal requirements do not contain a

determination of when an application for an incidental mining exemption

is administratively complete. The Federal definition of

administratively complete application at 30 CFR 701.5 is specific to

permit applications and coal exploration applications; it does not

include incidental mining exemption applications. However, the addition

of this requirement in the Texas program is not inconsistent with any

requirement of SMCRA or the Federal regulations. The Director finds

that Texas' proposed regulations at TCMR 709.027 (a) and (b) are no

less effective than the corresponding Federal requirements, and

approves them.

9. TCMR 709.027(F) and 709.033(c) (2) and (3), Administrative Review of

Determinations for an Exemption and Revocation of an Exemption for Coal

Extraction Incidental to the Extraction of Other Minerals

The Federal regulations at 30 CFR 702.11(f) and 702.17(c) (2) and

(3) state that any adversely affected person may request administrative

review in accordance with 30 CFR 4.1280 or the corresponding State

procedures when a State is the regulatory authority, and that a

petition for administrative review shall not suspend the determination

for an exemption or the effect of a decision on the revocation of an

exemption Texas proposed at 709.027(f) and 709.033(c)(2), that an

adversely affected person may request administrative review of

determinations and decisions in accordance with Section 787.222. TCMR

787.222 contains the corresponding State procedures in the Texas

program. The Director finds that Texas' proposed regulations at TCMR

709.027(f) and 709.033(c)(2) are no less effective than the

corresponding Federal requirements and approves them.

Texas did not propose corresponding regulations to the Federal

regulations at 30 CFR 702.11(f)(2) and 702.17(c)(3), which state that a

petition for administrative review filed under 43 CFR 4.1280 or under

corresponding State procedures shall not suspend the effect of either a

determination under 702.11(e) or a decision whether to revoke an

exemption. As stated in the preamble to the final Federal rule (54 FR

52114, December 20, 1989), this provision was added to the Federal rule

in order to clarify the effect of the decision on revocation.

Therefore, because the intent of the Federal regulations was only to

clarify other regulations, the Director finds that Texas' omission of

corresponding requirements to 30 CFR 702.11(f)(2) and 702.17(c)(3) does

not render its program less stringent with SMCRA or less effective than

the Federal regulations.

10. TCMR 709.029(a), Public Availability of Information for an

Exemption for Coal Extraction Incidental to the Extraction of Other

Minerals

The Federal regulation at 30 CFR 702.13(a) states that all

information submitted under 30 CFR Part 702 shall be available for

public inspection and

[[Page 14316]]

copying at the local offices of the regulatory authority. Texas

proposed at TCMR 709.029(a) that all information submitted to the

Commission under Part 709 shall be available for public inspection and

copying at the Division's central and local offices closest to the

mining operation. The Director finds that Texas' inclusion of the

central office, in addition to the local offices, does not render its

proposed regulation at TCMR 709.029(a) less effective than the

counterpart Federal requirement at 30 CFR 702.13(a) and approves it.

11. TCMR 760.070(5), Definition of Owner of Record or Ownership

Interest of Record

Texas proposed to add a definition of owner of record or ownership

interest of record at TCMR 760.070(5). The proposed definition states

that owner of record or ownership interest of record means the owner

and address as shown in the tax records of the Texas Assessor-Collector

of Taxes for the county where the property is located. Texas uses these

terms throughout TCMR Subchapter F--Lands Unsuitable for Mining. The

Federal regulations do not contain a corresponding definition. However,

the Federal regulations use the term in the same manner as Texas. The

Director finds the proposed Texas definition of owner of record or

ownership interest of record at TCMR 760.070(5) is not inconsistent

with any requirement of SMCRA or the Federal regulations. Therefore,

the Director is approving the proposed definition.

12. TCMR 761.072(f)(1), Agency Notice of Adverse Affects on Protected

Parks and Places

Texas proposed to revise TCMR 761.072(f)(1) to be substantially

identical to the corresponding Federal requirements at 30 CFR

761.12(f)(1), with one exception. The Federal regulations includes a

provision which states that ``[t]he regulatory authority, upon request

by the appropriate agency, may grant an extension to the 30-day period

of an additional 30 days.'' The Federal regulation provides that

granting a 30-day extension for agencies to comment is discretionary to

the regulatory authority. The proposed Texas regulation does not

include provisions to grant a 30 day extension. By omitting this

option, Texas has determined on a programmatic basis that it will not

grant extensions. The Director finds this determination is not

inconsistent with SMCRA or the Federal regulations and the proposed

Texas regulation at TCMR 761.072(f)(1) is no less effective than the

corresponding Federal requirement at 30 CFR 761.12(f)(1). The Director

approves the regulation revisions.

13. TCMR 762.076(a), Lands Exempt From Designation as Unsuitable for

Surface Coal Mining Operations

The Federal regulations at 30 CFR 762.13 identify lands exempt from

designation as unsuitable for surface coal mining operations by stating

``The requirements of this part do not apply to--(a) Lands upon which

surface coal mining operations were being conducted on the date of

enactment of the Act''. In a previous State rulemaking, Texas revised

its requirements at TCMR 7652.076(a) by adding ``on the date of

enactment of the Act'' and deleting ``August 3, 1977''. The Federal

regulations at 30 CFR 700.5 define ``Act'' as SMCRA, which has an

effective date of August 3, 1977. The Texas regulations at TCMR

700.003(1) defines ``Act'' to mean the Texas Surface Coal Mining and

Reclamation Act, which has an effective date of May 9, 1979. The result

of the Texas rule revision was to extend the time frame from August 3,

1977, to May 9, 1979, for which lands being affected by mining are

programmatically exempt from designation as unsuitable. In response to

an issue letter, Texas proposed to revise its regulations to reinsert

the August 3, 1977, date. This proposed change restores the Texas

regulations at TCMR 762.076(a) back to that which OSM had previously

approved. Therefore, the proposed change is the same as previously

approved in the Texas program and no action is needed by the Director.

14. TCMR 764.079 (b)(1)(C) and (c)(1)(C), 764.080 (a)(1) and (b)(2),

and 764.081(b)(1)(C), Process for Designating Lands as Unsuitable for

Surface Coal Mining Operations

(a) TCMR 764.079 (b)(1)(C) and (c)(1)(C), Requirements for Complete

Petition. Texas proposed to add new requirements at TCMR

764.079(b)(1)(C) to what is required for complete petitions for

designation of lands unsuitable, and at TCMR 764.079(c)(1)(C) for

complete petitions to terminate a designation. The proposed

requirements state that complete petitions shall include the names and

mailing addresses of persons with an ownership interest of record in

the petitioned area. The Federal regulations do not have requirements

that correspond to the proposed State regulations. The Federal

regulations at 30 CFR 764.13 (b)(2) and (c)(2) allow that the

regulatory authority may request that the petitioner provide other

supplementary information that is readily available. The name and

mailing address of each person with an ownership interest of record in

the petition area is information that is available to the petitioners.

The Director finds the proposed State requirements at TCMR

764.079(b)(1)(C) and 764.079(c)(1)(C) are not inconsistent with any

requirements of SMCRA or the Federal regulations and approves them.

(b) Notification Requirements of Completeness Decision. At TCMR

764.080(a)(1), Texas proposed revisions to its regulations that, with

one exception, are substantially the same as the corresponding Federal

requirements at 30 CFR 764.15(a)(1). The Federal regulations provide

that within 30 days of receipt of a petition, the regulatory authority

shall notify the petitioner by certified mail whether or not the

petition is complete. Texas proposed to provide this notification

within 60 days. As discussed in Finding III.C.14(c), Texas proposed an

option, not contained in the Federal regulations, to provide an

opportunity for a hearing and period of written comments on the

completeness decision. To accommodate the additional time needed for a

hearing and period of written comments on completeness, Texas added 30

days to the schedule for a completeness determination. The Director

finds the proposed regulation at TCMR 764.080(a)(1) is no less

effective than the corresponding Federal regulation at 30 CFR

764.15(a)(1) and approves it.

(c) Hearing and Period of Written Comment for Completeness

Determination. Texas proposed to add a new requirement at TCMR

764.080(b)(2) that allows the Commission to provide a hearing or a

period of written comments on completeness of petitions. The proposed

requirements identifies who the Commission shall inform of the

opportunity of a hearing or period of written comments, how the

different entities will be notified, and where a notice will published.

The Federal regulations do not have a requirement that corresponds to

the proposed State regulation. The proposed State provision will

provide greater opportunity for interested agencies, interveners,

persons with ownership interest in the petition area, and the public to

participate in the petition process and to make their views known to

the Commission. The Director finds the proposed Texas regulation at

TCMR 764.080(b)(2) is not inconsistent with any requirement of SMCRA or

the Federal regulations and approves it.

(d) Notice of a Hearing for a Complete Petition. The Federal

regulations at 30 CFR 764.17(b)(1)(iii) require that proper

[[Page 14317]]

notice of a hearing for a complete petition to designate lands

unsuitable for mining to persons with an ownership interest of record

shall comply with applicable State law. AT TCMR 764.081(b)(1)(C), Texas

proposed that proper notice shall be accomplished by placing a postage

paid notice, addressed as shown in the public record, in the U.S. Mail.

The use of the U.S. Mail is a reasonable method for providing notice of

a hearing. The Director finds the proposed regulation at TCMR

764.081(b)(1)(C) is no less effective than the corresponding Federal

regulation at 30 CFR 764.17(b)(1)(iii) and approves it.

15. TCMR 779.127 and 783.173, Geology Description

Texas proposed to revise TCMR 779.127 and 783.173 to specify in

greater detail the geologic information that must be submitted in a

permit application. In addition, OSM placed a required amendment on the

Texas program at 57 FR 37447 (August 19, 1992) which states that:

``Texas shall submit to OSM a proposed amendment for the geologic

description requirements at TCMR 779.127 (a) and (b) to require that

the geologic description must be based, in part, on analysis of samples

of geologic materials collected from the proposed permit area.'' Texas

proposed at TCMR 779.127(b) to specifically require that ``[t]he

geologic description shall include analysis of samples * * * from the

permit area.'' With one exception, proposed TCMR 779.127 and 783.173

are substantially identical to corresponding Federal regulations at 30

CFR 780.22 (b) and (c), and 784.22 (b) and (c).

The exception is that Texas' proposed TCMR 779.127(a) does not

include the information sources listed by the Federal regulations at 30

CFR 780.22(b)(1) (i) through (iii). However, lack of these information

sources does not relieve applicants from providing, or prevent Texas

from requiring, a complete and adequate description of the geology of

the permit and adjacent areas as specified at proposed TCMR 779.127(a).

Therefore, the Director finds that the omission of these information

sources does not render the proposed regulations at TCMR 779.127 and

783.173 less effective than the Federal regulations at 30 CFR 780.22

(b) and (c), and 784.22 (b) and (c). The Director approves the proposed

regulations. In addition, the Director is removing the required

amendment at 30 CFR 943.16(l).

16. TCMR 780.142(c) and 784.197(c), Surface and Underground Mine Permit

Requirements--Operation Plan: Maps and Plans

OSM placed a required amendment on the Texas program at 57 FR 37447

(August 19, 1992) which states that: ``Texas shall submit to OSM a

proposed amendment for the permit operation maps and plans requirements

at TCMR 779.14[2](c) to require that qualified registered professional

engineers (not professional geologist) prepare and certify cross

sections, maps, and plans for sedimentation ponds, water impoundments;

coal processing waste banks, dams, and embankments; excess spoil fills;

durable rock fills; and coal mine waste disposal facilities.'' Texas

proposed to revise TCMR 780.142(c) to address this required amendment.

Texas proposed similar changes to the underground mining requirements

at 784.197(c). The proposed revisions to the Texas regulations are

substantially the same as the counterpart Federal requirements. Also,

Texas does not propose a cross-reference counterpart to 30 CFR

816.74(c)--disposal of excess spoil on existing benches, because Texas

does not have a State counterpart to this Federal requirement. This

omission was previously approved as part of the Texas program. The

Director finds that proposed Texas regulations at TCMR 780.142(c) and

784.197(c) are no less effective than the corresponding Federal

requirements at 30 CFR 780.14(c) and 784.23(c) and approves them. In

addition, the Director is removing the required amendment at 30 CFR

943.16(m).

17. TCMR 780.142(c) and 784.197(c), TCMR 780.148(a)(3)(i) and

784.190(a)(3)(i), TCMR 816.344(b)(3) and 817.514(b)(3), and TCMR

816.347 (a)(3), (a)(11), and (c)(2), and 817.517 (a)(3), (a)(11), and

(c)(2), Land Surveyor Maps and Plans Preparation, Inspections and

Certifications

The Federal regulations at 30 CFR 780.14(c) and 784.23(c) allow

qualified, registered, professional land surveyors to prepare and

certify maps and plans; however, Texas does not propose to adopt

provisions at TCMR 780.142(c) and 784.197(c) to allow land surveyors to

prepare and certify maps and plans. Texas, at TCMR 780.148(a)(3)(i) and

784.190(a)(3)(i), proposed to delete provisions that allow land

surveyors to prepare and certify plans prepared under TCMR

780.148(a)(3) and 784.190(a)(3). The Federal regulations at 30 CFR

816.46(b)(3) and 817.46(b)(3) allow qualified land surveyors to certify

siltation structures; however, Texas does not propose to adopt

provisions that allow land surveyors to certify siltation structures at

TCMR 816.344(b)(3) and 817.514(b)(3). The Federal regulations at 30 CFR

816.49 (a)(3), (a)(11), and (c)(2), and 817.49 (a)(3), (a)(11), and

(c)(2) allow a qualified registered professional land surveyor to

inspect and certify certain permanent and temporary impoundments. Texas

does not propose to adopt provisions that allow land surveyors to

certify designs at TCMR 816.347(a)(3) and 817.517(a)(3), to conduct

inspections of impoundments under TCMR 816.347(a)(11) and

817.517(a)(11), or to certify designs at TCMR 816.347(c)(2) and

817.517(c)(2). At 57 FR 37450 (August 19, 1992), OSM previously

approved Texas' omission of land surveyors from other sections of the

Texas program. The Director finds that Texas' proposed changes to

remove previously adopted provisions and to omit other provisions that

allow land surveyors to prepare and certify certain plans does not

render the Texas regulations less effective than the corresponding

Federal regulations. Therefore, the Director approves these

regulations.

18. TCMR 780.146 (a) and (d), and 784.188 (a) and (d), Hydrologic

Information

(a) TCMR 780.146(a) and 784.188(a), Hydrologic Reclamation Plan.

Texas proposed to revise its hydrologic reclamation plan requirements

at TCMR 780.146(a) and TCMR 784.188(a). Except for the requirements at

TCMR 780.146(a) (1) and (3), and 784.188(a) (1), (3), and (9), the

proposed regulations contain language that is substantially the same as

the corresponding Federal requirements for hydrologic reclamation plan

at 30 CFR 780.21(h) and 30 CFR 784.14(g). Texas proposed to add

language to TCMR 780.146(a)(1) and 784.188(a)(1) to ensure that the

hydrologic reclamation plan include alternative sources of water where

the protection of the quality cannot be ensured. These proposed

requirements and the existing requirements at TCMR 780.146(a)(3) and

784.188(a)(3), which require that the hydrologic reclamation plan

include alternative sources of water where the protection of the

quantity cannot be ensured, supplement Texas' permit application

requirements for alternative water supply information at TCMR 779.130

and 783.176. At TCMR 780.146(a)(3) and 784.188(a) (3) and (9), Texas

proposed nonsubstantive wording changes that are not inconsistent with

SMCRA or the Federal regulations. The Director finds the proposed

regulations

[[Page 14318]]

at TCMR 780.146(a) and 784.188(a) are no less effective than the

corresponding Federal requirements and approves them.

(b) TCMR 784.188(d) (1)-(4), Determination of Probable Hydrologic

Consequences--Underground Mining. Texas proposed to delete its existing

requirements for the determination of probable hydrologic consequences

(PHC) from TCMR 784.188(c) and replace them with more detailed PHC

requirements at proposed TCMR 784.188(d). With one exception, the

proposed PHC determination requirements at proposed 784.188(d) (1)-(4)

are substantially the same as the corresponding Federal requirements at

30 CFR 784.14(e). The Federal regulations at 30 CFR 784.14(e)(3)(iv)

require that PHC determinations include findings on whether underground

mining activities conducted after October 24, 1992, may result in

contamination, diminution or interruption of a well or spring in

existence at the time the permit application is submitted and used for

domestic, drinking, or residential purposes within the permit or

adjacent areas. At proposed TCMR 784.188(d)(3)(C), Texas is adding a

requirement that the PHC must include a finding on whether the proposed

operation 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, or other legitimate use. Proposed TCMR 784.188(d)(3)(c)

requires a PHC determination if any legitimate use of water may be

affected, whereas the Federal requirement for underground mining is

limited to requiring the PHC to address impacts to domestic, drinking

or residential uses. In addition, the Federal regulation effective date

of October 22, 1992, for this requirement does not have any actual

impact in Texas. On May 30, 1995, OSM confirmed with Texas that no

underground mines have operated in Texas after October 24, 1992, and

there is no underground mining activity proposed in the State (60 FR

38490, July 27, 1995). Therefore, the Director finds that Texas'

proposed regulations at TCMR 784.188(d) (1)-(4) are no less effective

than the corresponding Federal requirements at 30 CFR 784.14(e) and

approves them.

(c) TCMR 780.146(d)(5) and 784.188(d)(5), Supplemental Hydrologic

Information. The Federal requirements at 30 CFR 780.21(b)(3) and

784.14(b)(3) contain requirements for supplemental information that

must be submitted if the PHC projects or other conditions indicate that

adverse hydrologic impacts may occur. The proposed Texas regulations at

TCMR 780.146(d)(5) and 784.188(d)(5) contain language that is

substantially identical to the Federal regulations. In addition, the

proposed State regulations also include a requirement for information

to be provided on alternative water supplies if such impacts are

anticipated. This additional requirement supplements the existing State

requirements for alternative water supply information at TCMR 779.130

and 783.176 and is not inconsistent with SMCRA or the Federal

regulations. The Director finds that Texas' proposed regulations at

TCMR 780.146(d)(5) and 784.188(d)(5) are no less effective that the

corresponding Federal regulations and approves them.

(d) Alternative Water Supply Information. The Federal regulation at

30 CFR 780.21(e) contains requirements for alternative water supply

information to be submitted in the permit application if the PHC

indicates that the proposed mining operation may impact a surface or

underground source of water within the permit or adjacent areas that is

used for a legitimate purpose. The Texas counterpart to the Federal

requirement is at TCMR 779.130. OSM informed Texas, in a letter sent

under 30 CFR 732.17(c), that it should change its alternative water

supply requirements to be no less effective that the Federal regulation

at 30 CFR 780.21(e). As discussed in Findings III.C.18(a) and

III.C.18(c), Texas proposed revised and new regulations at TCMR

780.146(a) and (d)(5), respectively, that supplement its existing

requirements for alternative water supply information. The Director

finds that Texas' requirements for alternative water supply information

at TCMR 779.130 as supplemented with its requirements at TCMR

780.146(a) and (d)(5) are no less effective than the Federal

requirements at 30 CFR 780.21(e).

19. TCMR 780.148(c)(3) and 784.190(c)(3), Surface and Underground

Requirements--Reclamation Plan: Permanent and Temporary Impoundments

The Federal regulations at 30 CFR 780.25(c)(3) and 784.16(c)(3)

provide that for ponds not meeting the requirements of subsections

(c)(2), the regulatory authority may establish engineering design

standards that ensure stability comparable to the 1.3 minimum static

safety factor in lieu of engineering tests to establish compliance with

the performance standards. Texas chose to not propose engineering

design standards. However, at TCMR 780.148(c)(3) and 784.190(c)(3),

Texas proposed to establish a minimum static safety factor of 1.3 for

ponds that do not meet the requirements of 816.347(a)(4)(i) and

817.517(a)(4)(i). Although Texas cross-references its performance

standards instead of the permitting requirements as in the Federal

regulations, the effect of the cross-reference is the same. The

Director finds that the proposed Texas regulations at TCMR

780.148(c)(3) and 784.190(c)(3) are no less effective than the

corresponding Federal requirements at 30 CFR 780.25(c)(3) and

784.16(c)(3), and approves them.

20. TCMR 806.311(d), Terms and Conditions for Liability Insurance

The Federal regulations at 30 CFR 800.60(d) contain provisions for

self-insurance in lieu of a certificate for a public liability

insurance policy. The regulations require that to be self-insured, an

applicant must satisfy the applicable State self-insurance requirements

approved as part of the regulatory program and the requirements of this

Section. Texas proposed to add a provision to its regulations at TCMR

806.311(d) regarding self-insurance that states ``[t]he Commission may,

upon request of an applicant that is self-bonded or determined to be

eligible for self-bonding under Section 309(j)(2), consider such

applicant to meet the self-insurance requirements of this Paragraph.''

Texas regulation TCMR 806.309(j)(2) contains the self-bonding

requirements for business and governmental entities. These requirements

are substantially similar to the Federal requirements at 30 CFR

800.23(b), except for the alternative financial eligibility criteria of

the Texas program found at TCMR 806.309(j)(2)(C)(iv) differ from the

Federal requirements, and were approved as part of the Texas program on

December 13, 1995 (60 FR 63922). Texas provided information to

demonstrate it has authority to implement a self-insurance program for

surface coal mining and reclamation operations. It submitted a letter

from the Texas Department of Insurance that states: `` * * * there are

no provisions in the Texas Insurance Code pertaining to self-insurance

for general liability coverage * * * [t]his does not mean that other

state agencies could not have their own rules or regulations concerning

self-insurance in lieu of purchasing an insurance policy.'' Texas

stated that it derives its authority to set self-insurance requirements

for coal mine operators from its Surface Coal

[[Page 14319]]

Mining and Reclamation Act, TEX. NAT. RES. CODE Secs. 134.052, which

provides: ``(a) [a] permit application must be submitted in a manner

satisfactory to the Commission and must contain: * * * (19) * * *

evidence satisfactory to the commission that the applicant should be

allowed to be self-insured * * *.'' The Texas requirements for self-

bonding will ensure that an applicant which seeks to self-insure will

possess sufficient financial capacity and solvency to adequately

compensate a person who has personal injury or property damage as a

result of the surface coal mining and reclamation operations to the

minimum limits for certificated liability coverage under TCMR

806.311(a). The Director finds that the existing requirements of Texas'

Surface Coal Mining and Reclamation Act, TEX. NAT. RES. CODE

Sec. 134.052(a)(19), together with existing TCMR 806.309(j)(2) and

proposed TCMR 806.311(d) are no less effective than the Federal

regulations at 30 CFR 800.60(d). Therefore, the Director approves TCMR

806.311(d).

21. TCMR 816.34(a)(4), Diversion Design Specifications

At TCMR 816.341(a)(4) (i)-(v) and 817.511(a)(4) (i)-(v), Texas

proposed specific design criteria for diversions. The Federal

regulations at 30 CFR 816.43(a) (4) and 817.43(a) (e) provide

discretion for regulatory authorities to specify design criteria for

diversions to meet the requirements of these sections. The proposed

State design specifications address stabilization of diversion banks

and channels, erosion protection for transition and critical areas,

energy dissipators, handling of excess excavated material, and handling

of topsoil. The Director finds the proposed State regulations are not

inconsistent with any requirement of SMCR or the Federal regulations

and is approving them.

22. TCMR 816.344(c) and 817.514(c), Siltation Structures

At TCMR 816.344(c) (1)-(2) and 817.514(c) (1)-(2), Texas proposed

to add regulations that, with two exceptions, are substantially the

same as the Federal regulations at 30 CFR 816.46 (c) and 817.46 (c).

The proposed regulations at TCMR 816.344(c)(1)(iii)(A) and

817.514(c)(1)(iii)(A) state that sedimentation ponds shall be designed

to provide adequate sediment storage volume, which is identical tot he

corresponding Federal requirements. The State regulations contain an

additional provision in that they establish a minimum sediment storage

volume and describe how the sediment volume shall be determined. The

proposed regulations at TCMR 816.344(c)(1)(c)(iii)(B) and

816.514(c)(1)(iii)(B) state that sedimentation ponds shall be designed

to provide adequate detention time, which also is identical to the

corresponding Federal requirements. The State regulations contain an

additional provision in that they establish a minimum detention time of

10 hours unless chemical treatment is used. The Director finds these

additional requirements are not inconsistent with any requirement of

SMCRA or the Federal regulations. In addition, the Director finds that

the proposed regulations at TCMR 816.344(c) (1)-(2) and 817.514(c) (1)-

(2) are no less effective that the corresponding Federal requirements

and is approving these regulations.

23. TCMR 817.519 (a)(3) and (b)(3), Hydrologic Balance: Ground Water

Monitoring

At its underground mining performance standards at TCMR 817.519

(a)(3) and (b)(3), Texas proposed new regulations that, with one

exception, are substantially the same as the Federal regulations at 30

CFR 817.41 (c)(3) and (e)(3). At TCMR 817.519 (a)(3)(1) and (b)(3)(i),

Texas proposed to add the phrase ``and the water rights of other users

have been protected or replaces.'' The corresponding Federal

regulations do not contain this requirement. Texas proposed to place

the same requirements on underground mining as it does for surface

mining operations for ground water and surface monitoring. This

includes ensuring that the water rights of users have been protected or

replaced before allowing any modifications to the monitoring plans. The

Director finds that the proposed regulations at TCMR 817.519 (a)(3) and

(b)(3) are not inconsistent with any requirement of SMCRA or the

Federal regulations, and approves them.

24. TCMR 816.357(d) and 817.526(d), Use of Explosives: General

Requirements

At TCMR 816.357(d) and 817.526(d), Texas proposed new regulations

that are substantially the same as the corresponding Federal

regulations at 30 CFR 816.61(d) and 817.61(d), with two exceptions.

Subsections (d)(1)(A) and (d)(1)(B) of the proposed regulations require

that blast designs be submitted if blasting operations are within 1,000

feet of specific buildings or 500 feet of specific structures. At TCMR

816.357(d)(1)(A) and 817.526(d)(1)(A), Texas proposed to add

``hospital'' and ``nursing facilities'' to the list of buildings

identified in the Federal regulations. In addition, at TCMR

816.357(d)(1)(B) and 817.526(d)(1)(B), Texas proposed to add ``disposal

wells, petroleum or gas storage facilities'' and ``fluid-transmission

pipelines, gas or oil-collection lines, or water and sewage lines'' to

the list of structures identified in the Federal regulations. Texas

proposed to add the buildings and structures identified in these

regulations to be consistent with its existing requirements at TCMR

816.360(a)(2) and 817.528(a)(2). The Director finds that the proposed

Texas regulations at TCMR 816.357(d) and 817.526(d) are not

inconsistent with any requirement of SMCRA and are no less effective

than the Federal regulations at 30 CFR 816.61(d) and 817.61(d).

Therefore, the Director approves them.

25. TCMR 816.330(f), 816.360, 817.500(f), and 817.528, Use of

Explosives

(a) TCMR 816.330(f) and 817.500(f), Blasting Signs. Texas proposed

to revise its blasting sign regulations for surface and underground

mining to reference sections 816.360 and 817.528, respectively, to

determine when blasting signs are required. These proposed regulations

are similar to 30 CFR 816.666(a) and 817.66(a), which state, in part,

that blasting signs shall meet the specifications of 30 CFR 816.11. The

Director finds the proposed State regulations at TCMR 816.330(f) and

817.500(f) are no less effective than the comparable Federal

regulations at 30 CFR 816.66(a) and 817.66(a) and approves them.

(b) TCMR 816.360, Control of Adverse Effects. OSM placed required

amendments 30 CFR 943.16(n) (1)-(5) on the Texas program at 57 FR 37447

(August 19, 1992) which require that Texas require operators to submit

blast designs for all blasting operations within 1000 feet of buildings

listed in TCMR 816.360(a)(2)(A) and within 500 feet of the facilities

listed in TCMR 816.360(a)(2)(B), add ``public buildings'' and

``community or institutional buildings'' to the list of protected

buildings at TCMR 816.360(a)(2)(A), add ``active and abandoned

underground mines'' to the list of facilities in TCMR 816.360(a)(2)(B),

correct citation errors in TCMR 816.360(h), and correct a codification

error and citation errors at proposed TCMR 816.360(i). Texas proposed

to make changes to TCMR 816.360 (a)(2), (a)(2)(A), (a)(2)(B), (h)(1),

(h)(2), (h)(3), and (i) that satisfy the required amendments. Texas

also proposed to make changes to TCMR

[[Page 14320]]

816.360 to correct a citation error at Section .360(f)(1)(A) that is

the result of recodifying Section .360(i), and to correct other

citation errors at (g)(2), (h)(2)(A) and (h)(3)(A) and (B). The

Director finds that proposed TCMR 816.360 is not less effective than

the corresponding Federal regulations at 30 CFR 816.61 and 816.67 and

approves it. In addition, the Director, is removing the required

amendments at 30 CFR 943.16(n)(1)-(5).

(c) TCMR 817.528, Control of Adverse Effects. Texas proposed to

substantially revise its underground mining regulations for use of

explosives--control of adverse effects at TCMR 817.528. The Director

finds that proposed TCMR 817.528 includes all the requirements of, and

is no less effective than the corresponding Federal regulations at 30

CFR 817.61, 817.66, and 817.67. The Director approves these

regulations.

26. TCMR 816.376(d) and 817.543(d), Coal Mine Waste Dams and

Embankments

Texas proposed to add new regulations at TCMR 816.376(d) and

817.543(d) that, with one exception, are substantially the same as the

corresponding Federal regulations at 30 CFR 816.84(b)(2) and

817.84(b)(2). The Federal regulations require that each impounding

structure constructed of coal mine waste or intended to impound coal

mine waste that meets the criteria of 30 CFR 77.216(a) shall have

adequate spillway capacity to safely pass, adequate storage capacity to

safely contain, or a combination of storage capacity and spillway

capacity to safely control, the probable maximum precipitation of a 6-

hour precipitation event, or greater event as specified by the

regulatory authority. Texas' proposed regulations at TCMR 816.376(d)

and 817.543(d) require that all impoundments meeting the specified

criteria to have a combination of principal and emergency spillways

able to safely pass the probable maximum precipitation of a 6-hour or

greater precipitation event. The Director finds that the proposed

provisions which require that each impounding structure constructed of

coal mine waste or intended to impound coal mine waste that meet the

criteria of 30 CFR 77.216(a) to have a combination of principal and

emergency spillways able to safely pass the probable maximum

precipitation of a 6-hour or greater precipitation event do not render

proposed TCMR 816.376(d) and 817.543(d) less effective than the

corresponding Federal requirements at 30 CFR 816.84(b)(2) and

817.84(b)(2). Therefore, the Director approves the regulations.

27. TCMR 816.395 and 817.560, Revegetation Standards for Success

Texas proposed new requirements at TCMR 816.395 (a)-(c) and 817.560

(a)-(c). Except at TCMR 816.395(b)(1), 816.395(c)(4) and 817.560(c)(4),

Texas' proposed requirements at TCMR 816.395 and 817.560 are

substantially identical to the Federal requirements for revegetation

success at 30 CFR 816.116 and 817.116. At proposed TCMR 816.395(b)(1),

Texas proposed to add the postmining land use of ``undeveloped land''

to the list of land uses where ground cover and production of living

plants shall be at least equal to that of a reference area or such

other success standard approved by Texas. There is no Federal

counterpart to the Texas proposal for a success standard for

undeveloped land. However, since undeveloped land is a recognized land

use category by both the Federal and Texas regulations, its use in

proposed TCMR 816.395(b)(1) is not inconsistent with any requirement of

SMCRA or the Federal regulations.

At TCMR 816.395(c)(4) and 817.560(c)(4) Texas proposed new

regulations regarding normal husbandry practices. The corresponding

Federal requirements at 30 CFR 816.116(c)(4) and 817.116(c)(4) include

the requirement that discontinuance of the practices after the

liability period expires will not reduce the probability of

revegetation success. Texas has not included the part of the

requirement regarding ``after the liability period expires''. As

proposed, Texas may only approve normal husbandry practices where

discontinuance at any time, not only after the liability period

expires, will not reduce the probability of revegetation success. The

omission of the phrase ``after the liability period expires'' in the

Texas regulations does not render them less effective than the Federal

requirements. The Director finds the proposed Texas regulations at TCMR

816.395 and 817.560 are no less effective than the corresponding

Federal requirements at 30 CFR 816.116 and 817.116 and approves them.

28. TCMR 817.522(f), Discharge of Water Into an Underground Mine

OSM placed a required amendment on the Texas program at 57 FR 37447

(August 19, 1992) which requires that Texas submit an amendment to the

requirements at TCMR 817.522(f) to replace the term ``surface mining

activities'' with ``underground mining activities.'' Texas proposed to

revise TCMR 817.522(f) to address this requirement. The proposed Texas

regulation at TCMR 817.522(f) is essentially identical to the

corresponding Federal requirement at 30 CFR 817.41(h)(i). The Director

finds that Texas' proposed regulation at TCMR 817.522(f) is no less

effective than the corresponding Federal requirement at 30 CFR

817.41(h)(1)(i) and approves it. In addition, the Director is removing

the required amendment at 30 CFR 943.16(o).

29. TCMR Part 846, Individual Civil Penalties

(a) TCMR 846.001, Definitions. Texas proposed to adopt definitions

of ``knowingly'' at subsection .001(1), ``violation, failure, or

refusal'' at subsection .001(2), and ``willfully'' at subsection

.001(3). The proposed Texas definitions of ``knowingly'' and

``willfully'' are substantially the same as the definitions in the

Federal regulations at 30 CFR 846.5. The proposed definition of

``violation, failure, or refusal'' uses different language than the

corresponding Federal definition at 30 CFR 846.5, but the meaning is

substantially the same. The Federal definition includes ``any order

issued under section 521 of the Act, or any order incorporated in a

final decision issued by the Secretary under the Act * * *''. The

proposed Texas definition includes ``any order issued by the

Commission, including, but not limited to, * * *'' The Texas definition

then contains a list of orders that is substantially identical to those

included under section 521 of SMCRA. The list includes notice of

violation, failure-to-abate cessation order, imminent harm cessation

order, order to show cause why a permit should not be suspended or

revoked, and order in connection with a civil action for relief.

Additionally, the Federal definition goes on to include an exception

for ``an order incorporated in a decision issued under section 518(b)

or section 703 of [SMCRA].'' Texas proposed to except ``an order

incorporated in a decision issued under Section 134.175 of the Act,''

which is the Texas counterpart to SMCRA section 518(b). Texas did not

propose a counterpart to the Federal exception for orders issued under

SMCRA section 703 because the Texas program does not include a

corresponding requirement to that SMCRA section. The Director finds

that Texas' proposed definitions at TCMR 846.001 are no less effective

than the corresponding Federal regulations at 30 CFR 846.5 and approves

them.

(b) TCMR 846.004, Procedure for Assessment of Individual Civil

Penalty. Texas proposed to add regulations for

[[Page 14321]]

procedures for assessment of individual civil penalty. With one

exception, the proposed State regulations are substantially the same as

the corresponding Federal requirements at 30 CFR 846.17. Texas'

proposed section 846.004(c) provides, in part, that for the purposes of

section 846.004: ``service shall be performed on the individual to be

assessed an individual civil penalty by certified mail, or by any

alternative means consistent with the rules governing service of a

summons and complaint under Tex. R. Civ. P. 21a.'' The Federal

regulation dealing with service on an individual to be assessed an

individual civil penalty is at 30 CFR 846.17(c). It is essentially

identical to the State requirement, except it refers to Rule 4 of the

Federal Rules of Civil Procedure rather than Tex. R. Civ. P. 21a.

Although Rule 4 differs somewhat from Tex. R. Civ. P. 21a, the

differences do not present a problem since Rule 4 allows service on an

individual, with certain exceptions not relevant to this requirement,

to be effected pursuant to State law. The Director finds that Texas'

proposed regulations at TCMR 846.004 are no less effective than the

corresponding Federal regulations at 30 CFR 846.17 and approves them.

(c) TCMR 846.005, Payment of Penalty. Texas proposed to add

requirements for payment of an individual civil penalty. With one

exception, the proposed State regulations at TCMR 846.005 are

substantially the same as the corresponding Federal requirements at 30

CFR 846.18. The Federal regulation at 846.18(b) states that a penalty

shall be due under the circumstances outlined ``upon issuance of a

final administrative order affirming, increasing, or decreasing the

proposed penalty.'' Proposed TCMR 846.005(b) states ``the penalty shall

be due upon issuance of the final order * * * '', it does not specify a

``final administrative order.'' Under the proposed Texas provision,

payment is not due until a final order, which may be a judicial order,

is issued. However, the Texas regulation at TCMR 845.697, under which

the hearing is requested, requires that an amount equal to the proposed

penalty be paid into escrow as part of the request. The Federal

provisions do not require an escrow payment as part of the request for

a hearing, a penalty is not paid until a final administrative order is

issued. The fact that the penalty amount is in an escrow account

instead of in the State's treasury if a judicial appeal is filed does

not render this requirement less effective than the Federal

requirements. The Director finds that Texas' proposed regulations at

TCMR 846.005 are no less effective than the corresponding Federal

regulations at 30 CFR 846.18 and approves them.

30. TCMR Part 850, Training, Examination, and Certification of Blasters

(a) TCMR 850.703 and 850.706, Training, Examination. In response to

a required program amendment at 30 CFR 943.16(p), Texas proposed at

TCMR 850.703(b)(1)(A) and 850.706(a) to add the terms ``storage'' and

``transportation'' to the list of topics related to explosives that the

blaster certification course and examination must cover. The Director

finds that revised TCMR 850.703(b)(1)(A) and 850.706(a) are no less

effective than the corresponding Federal regulations at 30 CFR

850.13(a)(1) and 850.14(a)(1). Therefore, the revised regulations are

approved, and the required amendment at 30 CFR 943.16(p) is removed.

(b) TCMR 850.704, Training Courses. In response to a required

program amendment at 30 CFR 943.16(a), Texas proposed at TCMR

850.704(b) to add a sentence that would require that blaster

certification training courses ``* * * must provide and require

completion of the subjects listed in paragraph (a) of this section.''

The Director finds that revised TCMR 850.704(b) is no less effective

than the corresponding Federal regulation at 30 CFR 850.13(b).

Therefore, the revised regulation is approved, and the required

amendment at 30 CFR 943.16(a) is removed.

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. The Texas Parks and

Wildlife Department (Administrative Record No. TX-559), Texas Water

Commission (Administrative Record No. TX-560), Texas Mining and

Reclamation Association (Administrative Record No. TX-568), Walnut

Creek Mining Company (Administrative Record No. TX-570), TU Services

(Administrative Record Nos. TX-569 and TX-607), and Texas Department of

Health (Administrative Record No. TX-604) commented on the proposed

amendment. No one requested an opportunity to speak at a public

hearing, therefore, no hearing was held.

Following is a summary of the substantive comments received on the

proposed amendment. Comments identifying errors of a purely

typographical or editorial nature, and comments voicing general support

to the proposed amendment but devoid of any specific statements are not

discussed.

One commenter suggested that Texas revise TCMR 761.071 (c) and (f),

and 786.216(e) to add ``publicly owned wildlife management areas or

scientific areas'' after ``publicly owned park.'' The commenter

justified the recommended change by stating the regulations, which

address where mining is prohibited or limited, should include other

major types of publicly owned areas. Texas' proposed regulations at

TCMR 761.071(c) and (f), and 786.216(e) are substantially identical to

the Federal regulations at 30 CFR 761.11 (c) and (f), and 30 CFR

773.15(c)(11), and, therefore, are not inconsistent with the Federal

requirements. The appropriateness of the Federal rule is not at issue

in this rulemaking.

One commenter responded that proposed TCMR 780.142(d), in following

the Federal regulations, requires that ``* * * plans and drawings for

each support structure to be constructed, used, or maintained in the

proposed permit area * * * be sufficient to demonstrate compliance with

Section 816.422 for each facility.'' The commenter stated that it

wished to underscore that Section .422 limits the evaluation of such

facilities to certain specific and limited determinations, and that

such evaluations should be possible with project layout plans together

with baseline information, and should not require detailed

architectural drawings such as those used in construction. As

acknowledged by the commenter, proposed TCMR 780.142(d) is

substantially identical to the Federal regulations at 30 CFR 780.38,

and, therefore, is not inconsistent with the Federal requirements. In

addition, TCMR 816.422 is not proposed to be revised by Texas in this

amendment. In acting on State program amendments, the Director only

addresses those sections of a State's law and regulations where

revisions are proposed by a State.

A commenter expressed a concern with proposed TCMR 780.146(c)(2)

that, based on the wording ``seasonal quality and quantity, and usage''

in Texas' May 20, 1993 submittal of the amendment, the regulation could

be applied to existing wells which includes landowner wells that are

often outside the permit area and outside the applicant's area of

control.

This section of the Texas regulations address the requirements for

the probable hydrologic consequences (PHC). Texas proposed in its July

31, 1996, revised submittal of the amendment to completely modify its

[[Page 14322]]

regulations at 780.146. The wording the commenter expressed concerns

with is removed. Texas' proposed regulations at TCMR 780.146(d) (1)-

(4), which address the PHC requirements in the revised regulations, are

substantially identical to the Federal regulations at 30 CFR 780.21(f),

and, therefore, are not inconsistent with the Federal requirements.

One commenter expressed the belief that, although proposed

786.210(a)(3) [redesignated as .210(c)(3) in the July 31, 1996, revised

amendment] parallels the Federal regulation in that archaeological

information made confidential includes only public and Indian land, it

would be appropriate to keep confidential the specific locations of all

such sites, whether on public, Indian or private lands. As acknowledged

by the commenter, proposed TCMR 786.210(a)(3) [redesignated .210(c)(3)]

is substantially identical to the Federal regulations at 30 CFR

773.13(d)(3)(iii), and, therefore, is not inconsistent with the Federal

requirements.

One commenter questioned the intent of the proposed change at TCMR

786.220(d) from ``permittee'' to ``operator,'' regarding who is

responsible for paying AML fees. The commenter recommended that the

Texas proposed rule be amended to read ``permittee or operator'' to

provide flexibility needed by permittees and operators in the State. As

acknowledged by the commenter, proposed TCMR 786.220(d) is

substantially identical to the Federal regulations at 30 CFR 773.17(g),

and, therefore, is not inconsistent with the Federal requirements.

Another commenter, in responding to Texas' May 20, 1993, submittal,

suggested that Texas revise TCMR 816.342 Hydrologic Balance: Steam

Channel Diversion to be similar to OSM rules, by adding a new part (c)

that requires permanent diversions or reclaimed stream channels to be

designed and constructed to restore or approximate the pre-mining

characteristics of the original stream channel including the natural

riparian vegetation to promote the recovery and the enhancement of the

aquatic and stream corridor habitat. In its July 31, 1996, submittal of

a revised amendment, Texas proposed to remove all of its requirements

at TCMR 816.341 and .342, and to replace them with a new regulations at

TCMR 816.341 Hydrologic Balance: Diversions, that are similar to, and

no less effective than the Federal regulations at 30 CFR 816.43. The

language recommended by the commenter is contained in revised TCMR

816.341(a)(3).

A commenter requested that the proposed language at TCMR 816.344(a)

be revised by taking the language from the Federal regulations at 30

CFR 816.46 (a)(1)-(a)(2)(ii) and replacing the proposed Texas language

to better define areas that are not considered disturbed areas. In its

July 31, 1996, revised amendment, Texas proposed to remove all of its

requirements at TCMR 816.344 and to replace them with new regulations

that are similar to and no less effective than the Federal regulations

at 30 CFR 816.46. The language recommended by the commenter is

contained in revised TCMR 816.344(a).

One commenter responded to proposed revisions to TCMR 816.355(c) by

stating the expansion of the required notification (for pre-blast

surveys) to include the area \1/2\ mile from the permit boundary rather

than the current Texas requirement of \1/2\ mile from the blasting area

unnecessarily penalizes Texas mining which is characterized by large

permit areas compared to mines in other parts of the United States. The

commenter went on to state that the reason for the regulation is

safety, and safety is based on distance from the event--not from the

permit boundary. Texas' proposed regulation at TCMR 816.355(c) is

substantially identical to the Federal regulations at 30 CFR 816.62(a),

and, therefore, is not inconsistent with the Federal requirements. The

appropriations of the Federal rule is not at issue in this rulemaking.

Another commenter suggested that the language of TCMR 816.395(a)

does not allow for demonstrations or the development of technical

procedures that may be more representative of the revegetated areas and

existing physical conditions of the areas. The comment contained

specific recommended changes. This section contains general

revegetation success requirements; it does not prohibit development of

technical procedures that may be more representative of the revegetated

area as suggested by the commenter. Proposed TCMR 816.395 is

substantially identical to the Federal regulations at 30 CFR

816.116(a), and, therefore, is not inconsistent with the Federal

requirements.

Two commenters expressed concerns with proposed TCMR

816.395(b)(3)(i). One commenter believes the requirement for approval

by other agencies will create overlapping jurisdiction and will make

the regulatory process less efficient and certain, and that dual agency

authority may cloud the technical issues and result in the removal of

flexibility to use sound agronomic practices based on site specific

conditions. The commenter requested that the ``approval by'' the State

agencies responsible for the administration of forestry and wildlife

programs be removed from the language. The second commenter stated that

consultation with these agencies is adequate to provide the regulatory

authority with the information required to make an informed decision on

adequacy of the proposed revegetation (stocking) plans; and this is

further supported by the high level of expertise maintained by the

regulatory authority's technical staff. This commenter added that

providing authority to approval to part of the application effectively

places certain aspects of a revegetation into a group which has little

knowledge of SMCRA and the surface mining and reclamation industry, and

that it is entirely possible that revegetation plans would become

research tools for these outside agencies and eventually interfere with

postmine land uses in agriculture regions. Texas' proposed regulation

at TCMR 816.395(b)(3)(i) is substantially identical to the Federal

regulation at 30 CFR 816.116(b)(3)(i), and, therefore, is not

inconsistent with the Federal requirements. Additionally, the

appropriateness of the Federal rule is not at issue in this rulemaking.

One commenter expressed a concern that proposed 816.395(b)(3)(ii)

is subject to improper interpretation. The commenter indicated that if

the interpretation results in trees having to be in place for two years

prior to initiating the 5-year period of extended responsibility,

significant delays will occur in placing land into the 5-year period;

and this will delay the return of land to landowners, increase the

operator's cost of revegetation and maintenance of reclaimed lands, and

extend the financial commitments for the operator's bonds. The

commenter added that the two year requirement serves no practical

purpose since the regulations require that 80% of the trees have to

have been in place for 60% of the minimum responsibility period; and

then recommended a change to eliminate the problems with

interpretation. Texas' proposed regulation at TCMR 816.395(b)(3)(ii) is

substantially identical to the Federal regulation at 30 CFR

816.116(b)(3)(ii), and, therefore, is not inconsistent with the Federal

requirements. In addition, the commenter's concern is misplaced in that

TCMR 816.395(b) addresses standards for success, which is the success

of the vegetation for bond

[[Page 14323]]

release; it does not address the establishment of vegetation standard

that must be met to initiate the extended responsibility period.

Comments were submitted regarding several proposed regulation

changes that were subsequently withdrawn from the amendment by Texas.

Specifically, two commenters responded to the May 20, 1993, submittal

of the amendment with comments regarding TCMR 701.008(71), definition

of road; TCMR 780.154 (a), (a)(5), and (a)(6), transportation

facilities application requirements; TCMR 816.395--Appendix A,

Revegetation Success Standards and Statistically Valid Sampling

Techniques; and TCMR 816.401, .412(b), and .419(a), roads performance

standards. On January 29, 1996, Texas withdrew the proposed regulation

changes regarding roads and transportation from this amendment

(Administrative Record No. TX-610). Texas submitted a separate

amendment that dealt specifically with roads and transportation

requirements (Administrative Record No. TX-610), which the Director

approved in the April 8, 1996, Federal Register (61 FR 15380). On July

31, 1996, Texas withdrew its proposed guidance document on revegetation

success standards and sampling techniques, and committed to resubmit a

separate amendment dealing with this specific topic (Administrative

Record No. TX-621).

Several commenters responded with comments regarding regulations

that were not proposed to be revised in this amendment. Comments were

submitted regarding TCMR 701.008(44) (b), (c), and (h), definitions of

pastureland, grazingland, and fish and wildlife habitat; TCMR

779.136(i) and 784.182(i), surface and underground mine-general map

requirements; TCMR 790.151(a) and 784.191(a) surface and underground

mine-protection of public parks and historic places; TCMR 780.144(a)

and 784.195(a), surface and underground mine-fish and wildlife plan;

TCMR 780.148(a), surface mine-ponds, impoundments, banks, dams, and

embankments; TCMR 800.301 (b) and (b)(1)(B), incremental bonding; TCMR

816.334(f) and 817.505(f), surface and underground mine-general topsoil

performance standards; TCMR 816.363(g) and 817.531(g), surface and

underground mine-general excess spoil performance standards; TCMR

816.380 (a), (b), (d), (e)(4), (e)(5), (e)(8), and 817.547 (a), (b),

(d), (e)(4), (e)(5), (e)(8), surface and underground mine-fish and

wildlife performance standards; and TCMR 816.384(a) (3) and (4),

surface mine-general backfilling and grading performance standards. In

acting on State program amendments, the Director only addresses those

sections of a State's law and regulations where revisions are proposed

by a State. All comments received by OSM on this amendment, regardless

of whether they addressed regulations proposed to be revised, have been

sent to Texas.

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. Comments were

requested regarding Texas' original May 13, 1993 submittal, and its

September 18, 1995, and July 31, 1996, revised submittals of the

proposed amendment.

The National Park Service (NPS) responded on June 14, 1993, that it

is pleased to note the TCMR 761.072(b)(2) will require that the NPS be

notified of requests for determinations of valid existing rights within

NPS boundaries. The NPS also recommended that the regulation be further

amended to include notifying the NPS when determinations of valid

existing rights would occur in the vicinity of NPS units (i.e., when

NPS units are in the proposed mine's area of environmental impact).

(Administrative Record No. TX-554). Texas' proposed regulation at TCMR

761.072(b)(2) is substantially identical to the Federal regulations at

30 CFR 761.12(b)(2), and, therefore is not inconsistent with the

Federal requirements. The appropriateness of the Federal rule is not at

issue in this rulemaking.

The Bureau of Mines responded on June 21, 1993, that it had no

comments (Administrative Record No. TX-557).

The Soil Conservation Service (Natural Resources Conservation

Service) responded on June 22, 1993, and October 17, 1995, that it did

not have any negative comments or suggestions for improvement regarding

the proposed rule changes (Administrative Record Nos. TX-555 and TX-

602).

The Fish and Wildlife Service (FWS) responded on June 28, 1993,

with three specific comments and two concerns, in addition to providing

support to the Texas Parks and Wildlife Department's comments

(Administrative Record No. TX-558). The FWS commented that additional

wording should be added to the proposed amendment at TCMR 816.342

regarding reclamation of permanent diversions and restored stream

channels in order to be compatible with 30 CFR 816.43(a)(3) of the

Federal regulations. Texas revised its proposed amendment at TCMR

816.341 and 816.342 to be essentially identical to the Federal

requirements at 30 CFR 816.43(a)(3).

The FWS commented that subparts (e)(4) and (e)(5) of TCMR 816.380

should be modified to comply with the sequential mitigation requirement

identified in its counterpart federal rule at 30 CFR 816.97(e)(4)(f).

The FWS' third comment was a recommendation that Texas revise its

underground permit requirements at TCMR 817.547 to be similar to its

surface mining requirements at 816.380 for consistency. One concern

noted by the FWS addressed what it contends are restrictive

requirements in TCMR 816.334 and 816.363 dealing with topsoil removal

and spoil disposal. The FWS' second concern is its stated frustration

with the apparent disregard of the fish and wildlife values inherent in

land use categories such as grazingland, forest land, and undeveloped

land, and the lack of mitigation of these resource values during the

reclamation phase of a mine project. It also states that a clear and

significant long-term impact to wildlife habitat has occurred, but

technically there has been no land use change. The FWS recommends that

what it considers a loophole in the land use regulations needs to be

addressed in future amendments. Texas does not propose any changes in

this amendment to the previously approved requirements at TCMR 816.380

(e)(4), (e)(5), 817.547, or the land use definitions. In acting on

State program amendments, the Director only addresses those sections of

a State's law and regulations where revisions are proposed by a State.

All comments received by OSM on this amendment, regardless of whether

they addressed regulations proposed to be revised, have been sent to

Texas.

The U.S. Army Corps of Engineers, Engineering Division (COE)

responded on July 12, 1993, October 10, 1995, and August 28, 1996

(Administrative Record Nos. TX-561, TX-599, and TX-627). In its July

12, 1993, and August 28, 1996, responses the COE indicated that it had

no comments, and that it found the changes to be satisfactory,

respectively. The COE recommended in its October 10, 1995, response

that dams and water control structures be added to the list of

facilities in TCMR 816.360(a)(2)(A) and 817.528(a)(2)(A) [the COE

comments incorrectly cited 81.526] where blasting will not be conducted

within 1,000 feet. The COE stated that while these facilities are

designed with factors of safety, the designs generally do not consider

blasting in close proximity to the structure. As discussed at Finding

[[Page 14324]]

III.C.25(b), Texas' proposed regulations at TCMR 816.360(a)(2)(A) and

817.526(a)(2)(A) contain the same requirements as and are no less

effective than the Federal regulations at 30 CFR 761.12(b)(2).

Additionally, the appropriateness of the Federal rule is not at issue

in this rulemaking.

The Bureau of Land Management (BLM) responded on October 13, 1995,

with seven comments (Administrative Record No. TX-601). The BLM

expressed a concern that by deleting the text in TCMR 700.002(b)(4)

regarding coal exploration, the recovery of royalty for coal removed by

exploration may be forgone. Although Texas proposed to remove the

reference to coal exploration from 700.002(b)(4), it is adding a

specific and more detailed reference to coal exploration activities on

Federal lands at 700.002(b)(5). The net effect is no change in the

requirements of 700.002(b) regarding coal exploration activities.

The BLM suggests that TCMR 709.030(a)(2) needs to state that coal

recovered as specified is still subject to royalty, and such removal

should be subject to administrative approval or denial. Section 709.030

addresses exemptions for coal extraction incidental to the extraction

of other minerals. SMCRA and the Texas program do not contain any

authority to address royalty issues. Proposed TCMR 709.27 (e) and (f),

and 709.033(c) contain requirements for approval or denial of requested

exemptions, and for administrative review of those decisions.

At TCMR 705.010(a)(3), the BLM suggests that ``* * * which may

include legal measures * * *'' be added to replace ``* * * by

initiating appropriate legal action * * *'', which is language proposed

to be deleted. At TCMR 761.072(b)(2), the BLM recommends that any

Government agencies with jurisdiction over said lands and any

Government agencies with adjacent land that may be impacted by such

determinations should be notified of requests for valid existing

rights. At TCMR 779.126(d), the BLM recommends that, after citing ``* *

* the 15th edition of Standard Methods for the Examination of Water and

Wastewater' * * *'' Texas may wish to add ``* * * or its successor

editions * * *'' Lastly, at TCMR 816.348(b), the BLM recommends that

this requirement should cross reference to 817.510 where groundwater

degradation limits should be discussed. The regulations at TCMR

705.010(a)(3), 761.072(b)(2), 779.126(d), and 816.348(b), as proposed

by Texas, are substantially identical to the counterpart Federal

requirements at 30 CFR 705.4(a)(3), 761.12(b)(2), 780.21(a), and

816.41(b), and, therefore, are not inconsistent with the Federal

requirements.

Environmental Protection Agency (EPA)

None of the revisions that Texas proposed to make in this amendment

pertain to revising its 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 Nos. TX-551.03, TX-

598.01, and TX-623). EPA responded on October 19, 1995, with two

comments (Administrative Record No. TX-603). It recommended that the

surface water information requirements at TCMR 779.129(a) and

783.175(a) include ``Basin names, Segment Nos. and uses in accordance

with Texas Surface Water Quality Standards, 30 TAC Sections 307.2-

307.10., (latest edition).'' In its July 31, 1996, revised amendment,

Texas changed its proposed regulations at 779.129(a) and 783.175(a) to

be substantially identical to the corresponding Federal regulations at

30 CFR 780.21(b)(2) and 784.14(b)(2). The proposed Texas regulations

require that the surface water information include ``* * * the name,

location ownership and description of all surface water bodies such as

streams, lakes, ponds, impoundments, and springs * * * and information

on surface water quantity and quality sufficient to demonstrate

seasonal variation and water usage.'' EPA's second comment consisted of

a suggestion that ``[TCMR] 817.510 should be more correctly retitled

only as Effluent Limitations and Conditions.''

Texas' title for this section of Hydrologic Balance: Water Quality

Standards and Effluent Limitations is the same title used in the

corresponding Federal regulation at 30 CFR 817.42. Also, the proposed

Texas regulation at TCMR 817.510 supports the section title in

requiring that water discharges ``* * * shall be made in compliance

with all applicable State and Federal water quality laws and

regulations and with the effluent limitations for coal mining * * *''

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 Nos.

TX-551.02, TX-598.01, and TX-624). The SHPO responded on June 9, 1993,

October 9, 1995, and August 16, 1996 (Administrative Record Nos. TX-

553, TX-600, and TX-626). In its letters dated June 9, 1993, and August

16, 1996, it concurred with the proposal and stated that the project

would have no effect on National Register-eligible or listed properties

or State Archaeological Landmarks. In its October 9, 1995, letter, it

requested clarification of whether mining activities exempted under the

provisions of TCMR 709.030-709.034, the exemption for coal extraction

incidental to the extraction of other minerals, would be considered by

OSM to be undertakings under Section 106 of the National Historic

Preservation Act (NHPA). Because there is no SMCRA jurisdiction on

sites which the activities are exempted, neither OSM or the ACHP

consider these exempted activities to be Federal undertakings pursuant

to the NHPA.

V. Director's Decision

Based on the above findings, the Director approves the proposed

amendment as submitted by Texas on May 13, 1993, and as revised and/or

supplemented with explanatory information on September 18, 1995,

December 15, 1995, March 1, 1996, July 31, 1996, September 12, 1996,

December 31, 1996, and February 4, 1997.

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.

Effect of Director's Decision

Section 503 of SMCRA provides that a State may not exercise

jurisdiction under SMCRA unless the State program is approved by the

Secretary. Similarly, 30 CFR 732.17(a) requires that any alteration of

an approved State program be submitted to OSM for review as a program

amendment. The Federal regulations at 30 CFR 732.17(g) prohibit any

unilateral changes to approved State programs. In the oversight of the

Texas program, the Director will recognize only the statutes,

regulations and other materials approved by OSM, together with any

consistent implementing policies, directives and other materials, and

will require the enforcement by Texas of only such provisions.

[[Page 14325]]

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

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: February 27, 1997.

Brent Wahlquist,

Regional Director, Mid-Continent Regional Coordinating Center.

For the reasons set out in the preamble, Title 30, Chapter VII,

Subchapter T of the Code of Federal Regulations 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 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 regulatory program amendments.

* * * * *

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

Original amendment submission date Date of final publication Citation/description

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

* * * * * *

*

May 13, 1993........................... March 16, 1997......................... TCMR 700.002(b)(4), (5), (f);

.003(1), (3); 701.008(4),

(5), (9), (10, (18), (19),

21), (24), (25), (26), (34),

(41), (55), (67), (68), (69),

(70), (76), (82), (84), (95),

(102), (107); 705.010(a)(3),

(c); .011(2), (3), (5), (9);

.013(a); .014; .015(a);

.016(a); 707.022; 709.025;

.026; .027; .028; .029; .030;

.031; .032; .033, .034;

760.069; .070(5), (6), (7),

(9), (11); 761.071 (a)

through (e); .072 (a) through

(h); .073; 762.074(3), (4),

(5); .075(a), (b); .076(a);

.077; 764.078; .079(a), (b),

(c); .080(a)(1), (2), (4)

through (7), (b), (c), (d);

.081(a), (b); .082(a)(3),

(b), (c), (d); .083(a), (b);

.084(a), (b); .085(b);

770.101; 776.111(a)(e)(E);

779.126(d); .127(a), (b),

(c); .128(a), (3), (4), (b);

.129, (a), (b), (1), (3);

780.141(g), (h); .142(b)(11),

(c), (d), .146 (a) through

(e); .148(a)(3)(i), (c)(1),

(2), (3); 783.172(d); .173

(a) through (e); .174(a),

(3), (4), (b); .175, (a),

(b), (1), (3); 784.188 (a)

through (f); .190 (a)(3)(i),

(c)(1), (2), (3); .197(c),

(d); 785.201(b), (c), (d)(2);

.202(b)(1)(i), (2), (3);

786.210 (a) through (e);

.216(c), (e); .220(d);

800.301(b)(2); .311(d);

807.312(a), (b), (c);

.313(a)(2); 815.327(a);

.328(a), (b); 816.330(f);

.340; .341; .342; .344; .347;

.348; .349; .350; .355;

.357(a), (c), (d); .358 (a)

through (d); .360(a)(2), (A),

(B), (f)(1)(A), (g)(2),

(h)(1), (2), (3), (i);

.362(d); .376 (a) through

(d), .377, .378(a), (c);

.380(e)(10); .385(b)(3);

.390; .395; .396; 817.500(f);

.509(a); .510; .511; .512;

.514; .517; .519; .522(f);

.524; .526(b), (c), (d); .527

(a) through (d); .528 (a)

through (i); .529; .530, (c),

(d), (e), (g), (j), (s), (t);

.535(c); .538(c)(3); .543 (a)

through (d); .544; .545(a),

(c); .547(e)(10); .552(b)(3);

.555; .560; .561; 823.620(a),

(b), (c); .621(a)(1), (2),

(3), (b); .622(a), (b), (c);

.623; .624 (a) through (g);

.625(a), (b); 843.681(c), (f)

through (j); .682(a)(1);

.695(b)(1); 846.001; .002;

.003; .004; .005;

850.703(b)(1)(A); .704(b);

.706(a).

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

[[Page 14326]]

Sec. 943.16 [Amended]

3. Section 943.16 is amended by removing paragraphs (k), (l), (m),

(n), (o), (p), and (q).

[FR Doc. 97-7533 Filed 3-25-97; 8:45 am]

BILLING CODE 4310-05-M