Texas Regulatory Program and Abandoned Mine Land Reclamation Plan

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 943

[SPATS No. TX-040-FOR]

Texas Regulatory Program and Abandoned Mine Land Reclamation Plan

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 and abandoned mine land reclamation (hereinafter referred to as

the ``Texas program'') under the Surface Mining Control and Reclamation

Act of 1977 (SMCRA). The amendment consists of recodification of the

Texas Coal Mining Regulations into the Texas Administrative Code at

Title 16, Chapter 12. The amendment is intended to conform the Texas

Coal Mining Regulations to Texas Administrative Code formatting syntax,

to correct typographical errors, and to allow for the publication of

the rules in the Texas Administrative Code in full text rather than by

reference.

EFFECTIVE DATE: April 22, 1998.

FOR FURTHER INFORMATION CONTACT: Michael C. Wolfrom, 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.

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

plan. Background information on the Texas plan, including the

Secretary's findings, the disposition of comments, and the approval of

the plan can be found in the June 23, 1980, Federal Register (45 FR

41937). Subsequent actions concerning the Texas plan and amendments to

the plan can be found at 30 CFR 943.25.

II. Submission of the Proposed Amendment

By letter dated January 23, 1998 (Administrative Record No. TX-

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

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

Texas proposed to repeal Sec. 11.221 at Title 16 of the Texas

Administrative Code (TAC), which adopts by reference the Texas Coal

Mining Regulations (TCMR), and to recodify these regulations into the

Texas Administrative Code at Title 16, Chapter 12 in full text.

OSM announced receipt of the proposed amendment in the February 13,

1998, Federal Register (63 FR 7356), and in the same document opened

the public comment period and provided an opportunity for a public

hearing or meeting on the adequacy of the proposed amendment. The

public comment period closed on March 16, 1998. Because no one

requested a public hearing or meeting, none was held.

During its review of the amendment, OSM identified concerns

relating to minor wording errors, typographical errors, and citation

reference errors. OSM notified Texas of these concerns by fax dated

March 5, 1998, and by letter dated March 10, 1998 (Administrative

Record Nos. TX-645.05 and TX-645.07, respectively). By letter dated

March 25, 1998 (Administrative Record No. TX-645.10), Texas responded

to OSM's concerns by submitting revisions to its proposed program

amendment that correct all of the errors identified. Because the

revisions pertained to the correction of nonsubstantive editorial-type

errors, OSM did not reopen the public comment period.

III. Director's Findings

Set forth below, pursuant to SMCRA and the Federal regulations at

30 CFR 732.15 and 732.17, are the Director's findings concerning the

proposed amendment.

Recodification of Texas' Regulations. Texas proposed to codify TCMR

Parts 700 through 850, pertaining to surface coal mining and

reclamation operations, at 16 TAC Secs. 12.1 through 12.710. Texas also

proposed to codify TCMR Secs. 051.800 through 051.817, pertaining to

the Texas abandoned mine land reclamation program, at 16 TAC

Secs. 12.800 through 12.817. Texas proposed the simultaneous repeal of

16 TAC Sec. 11.221 and adoption of the new sections at 16 TAC Chapter

12 for the purpose of renumbering the existing regulations and

incorporating the text into the Texas Administrative Code. No

requirements were proposed to be added to or deleted from the existing

regulations. Minor changes to the existing regulations were proposed to

conform them to the Texas Administrative Code formatting syntax; to

update information on addresses; to correct grammar, punctuation, and

capitalization errors; and to update internal references.

The Director finds that the proposed recodification is

nonsubstantive in nature and Texas' proposed regulations at 16 TAC

Chapter 12 are no less effective than the Federal regulations.

Therefore, the Director is approving the recodification of Texas'

regulations.

IV. Summary and Disposition of Comments

Public Comments

OSM solicited public comments on the proposed amendment, but none

were received.

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 (Administrative

Record No. TX-645.03). On February 23, 1998 (Administrative Record No.

TX-645.08), the U.S. Army Corps of Engineers' commented that the

proposed amendment was satisfactory.

Environmental Protection Agency (EPA)

Pursuant to 30 CFR 732.17(h)(11)(ii), OSM is required to obtain the

written concurrence of the EPA with respect to those provisions of the

proposed program amendment that relate to air or water quality

standards promulgated

[[Page 19822]]

under the authority of the Clean Water Act (33 U.S.C. 1251 et seq.) or

the Clean Air Act (42 U.S.C. 7401 et seq.). None of the revisions that

Texas proposed to make in this amendment pertain to air or water

quality standards. Therefore, OSM did not request the EPA's

concurrence.

Pursuant to 732.17(h)(11)(i), OSM solicited comments on the

proposed amendment from the EPA (Administrative Record No. TX-645.01).

The EPA responded on March 6, 1998 (Administrative Record No. TX-

645.09), with the following comments relating to impacts to streams and

wetlands.

Sec. 12.134 Soil Resources Information. EPA commented that when the

soils are delineated and identified, it would be helpful if they were

listed as hydric or non-hydric.

Texas' regulations at Sec. 12.134 are substantively identical to

the Federal regulations at 30 CFR 779.21. Therefore, no changes to

Texas' regulations may be required by OSM.

Sec. 12.144 Fish and Wildlife Plan. EPA commented that this section

mentions wetlands in the requirements for protection and enhancement of

wildlife habitat and recommended that a separate section be included

specifically dealing with wetlands and streams. EPA commented that the

separate section should include a description of how the operator will

avoid and minimize impacts to wetlands and streams and steps that will

be taken to compensate for unavoidable impacts to wetlands and streams,

with at least one-to-one compensation for all lost wetland functions.

Texas' regulations at Sec. 12.144 are substantively identical to

the Federal regulations at 30 CFR 780.16(b). Therefore, no changes to

Texas' regulations may be required by OSM.

General. EPA commented that discharge of dredged or fill material

into waters of the U.S. (including most streams and wetlands) require

authorization from the U.S. Army Corps of Engineers under Sec. 404 of

the Clean Water Act. The operators should be required to contact the

nearest Corps office before beginning operations to obtain the

necessary authorization.

The Texas program includes substantively identical counterparts to

the Federal regulations relating to protection of the hydrologic

balance and sediment control measures. This includes counterparts to

the Federal regulations at 30 CFR 816.42 and 817.42 that require

discharges of water from areas disturbed by surface mining activities

shall be made in compliance with all applicable State and Federal water

quality laws and regulations. Therefore, no changes to Texas'

regulations may be required by OSM.

Texas proposed only to renumber and add its regulations to the

Texas Administrative Code in this amendment. No substantive changes to

the previously approved regulations were proposed. However, EPA's

comments were forwarded to Texas for consideration in a future

rulemaking.

State Historical Preservation Officer (SHPO) and the Advisory Council

on Historic Preservation (ACHP)

Pursuant to 30 CFR 732.17(h)(4), OSM is required to solicit

comments on proposed amendments which may have an effect on historic

properties from the SHPO and ACHP. OSM solicited comments on the

proposed amendment from the SHPO and ACHP (Administrative Record No.

TX-645.02). Neither the SHPO nor ACHP responded to OSM's request.

V. Director's Decision

Based on the above findings, the Director approves the proposed

amendment as submitted by Texas on January 23, 1998, and as revised on

March 25, 1998.

The Director approves the regulations as proposed by Texas with the

provision that they be fully promulgated in identical form to the

regulations submitted to and reviewed by OSM and the public.

The Federal regulations at 30 CFR Part 943, codifying decisions

concerning the Texas program, are being amended to implement this

decision. This final rule is being made effective immediately to

expedite the State program amendment process and to encourage States to

bring their programs into conformity with the Federal standards without

undue delay. Consistency of State and Federal standards is required by

SMCRA.

VI. Procedural Determinations

Executive Order 12866

This rule is exempted from review by the Office of Management and

Budget (OMB) under Executive Order 12866 (Regulatory Planning and

Review).

Executive Order 12988

The Department of the Interior has conducted the reviews required

by section 3 of Executive Order 12988 (Civil Justice Reform) and has

determined that, to the extent allowed by law, this rule meets the

applicable standards of subsections (a) and (b) of that section.

However, these standards are not applicable to the actual language of

State regulatory programs and program amendments since each such

program is drafted and promulgated by a specific State, not by OSM.

Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and 30

CFR 730.11, 732.15, and 732.17(h)(10), decisions on proposed State

regulatory programs and program amendments submitted by the States must

be based solely on a determination of whether the submittal is

consistent with SMCRA and its implementing Federal regulations and

whether the other requirements of 30 CFR Parts 730, 731, and 732 have

been met.

National Environmental Policy Act

No environmental impact statement is required for this rule since

section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency

decisions on proposed State regulatory program provisions do not

constitute major Federal actions within the meaning of section

102(2)(C) of the National Environmental Policy Act (42 U.S.C.

4332(2)(C)).

Paperwork Reduction Act

This rule does not contain information collection requirements that

require approval by OMB under the Paperwork Reduction Act (44 U.S.C.

3507 et seq.).

Regulatory Flexibility Act

The Department of the Interior has determined that this rule will

not have a significant economic impact on a substantial number of small

entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).

The State submittal which is the subject of this rule is based upon

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

OSM has determined and certifies pursuant to the Unfunded Mandates

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

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

tribal governments or private entities.

[[Page 19823]]

List of Subjects in 30 CFR Part 943

Intergovernmental relations, Surface mining, Underground mining.

Dated: April 10, 1998.

Brent Wahlquist,

Regional Director, Mid-Continent Regional Coordinating Center.

For the reasons set out in the preamble, 30 CFR Part 943 is amended

as set forth below:

PART 943--TEXAS

1. The authority citation for Part 943 continues to read as

follows:

Authority: 30 U.S.C. 1201 et seq.

2. Section 943.15 is amended in the table by adding a new entry in

chronological order by ``Date of final publication'' to read as

follows:

Sec. 943.15 Approval of Texas regulatory program amendments.

* * * * *

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Original amendment submission Date of final Citation/

date publication description

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* * * * *

January 23, 1998................ April 22, 1998.... Recodification; 16

TAC 12.1 through

12.710.

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3. Section 943.25 is amended in the table by adding a new entry in

chronological order by ``Date of final publication'' to read as

follows:

Sec. 943.25 Approval of Texas abandoned mine land reclamation plan

amendments.

* * * * *

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Original amendment submission Date of final Citation/

date publication description

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* * * * *

January 23, 1998................ April 22, 1998.... Recodification; 16

TAC 12.800

through 12.817.

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[FR Doc. 98-10633 Filed 4-21-98; 8:45 am]

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