Texas Regulatory Program

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 943

[SPATS No. TX-041-FOR]

Texas Regulatory Program

AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.

ACTION: Proposed rule; public comment period and opportunity for public

hearing.

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SUMMARY: The Office of Surface Mining Reclamation and Enforcement (OSM)

is announcing receipt of an amendment to the Texas regulatory program

(Texas program) under the Surface Mining Control and Reclamation Act of

1977 (SMCRA). Texas proposes to add revegetation success and normal

husbandry practice guidelines to its program. Texas intends to revise

its program to ensure that adequate data collection methods are used

for determining revegetation success for purposes of releasing

reclamation performance bonds and to ensure that the husbandry

practices used by the permittee during the period of responsibility for

revegetation success and bond liability are normal husbandry practices

within the region for unmined lands.

This document gives the times and locations that the Texas program

and the amendment to that program are available for your inspection,

the comment period during which you may submit written comments on the

amendment, and the procedures that we follow for the public hearing, if

one is requested.

DATES: We will accept written comments until 4 p.m., c.d.t., July 1,

1999. If requested, we will hold a public hearing on the amendment on

June 28, 1999. We will accept requests to speak at the hearing until

4:00 p.m., c.d.t. on July 16, 1999.

ADDRESSES: You should mail or hand deliver written comments and

requests to speak at the hearing to Michael C. Wolfrom, Director, Tulsa

Field Office, at the address listed below.

You may review copies of the Texas program, the amendment, a

listing of any scheduled public hearings, and all written comments

received in response to this document at the addresses listed below

during normal business hours, Monday through Friday, excluding

holidays. You may receive one free copy of the amendment by contacting

OSM's Tulsa Field Office.

Michael C. Wolfrom, Director, Tulsa Field Office, Office of Surface

Mining, 5100 East Skelly Drive, Suite 470, Tulsa, Oklahoma 74135-6547,

Telephone: (918) 581-6430.

Surface Mining and Reclamation Division, Railroad Commission of Texas,

1701 North Congress Avenue, Capitol Station, P. O. Box 12967, Austin,

Texas 78711-2967, Telephone: (512) 463-6900.

FOR FURTHER INFORMATION CONTACT: Michael C. Wolfrom, Director, Tulsa

Field Office. Telephone: (918) 581-6430.

Internet:[email protected].

SUPPLEMENTARY INFORMATION:

I. Background on the Texas Program

On February 16, 1980, the Secretary of the Interior conditionally

approved the Texas program. You can find background information on the

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

comments, and the conditions of approval in the February 27, 1980,

Federal Register (45 FR 12998). You can find later actions concerning

the Texas program at 30 CFR 943.10, 943.15, and 943.16.

II. Description of the Proposed Amendment

By letter dated May 13, 1999 (Administrative Record No. TX-649),

Texas sent us an amendment to its program under SMCRA. Texas sent the

amendment at its own initiative. The amendment includes a guidance

document on the procedures and standards for determining revegetation

success on surface-mined lands in Texas and a guidance document on the

normal husbandry practices that permittees are to use during the period

of responsibility for revegetation success and bond liability (extended

responsibility period). Below is a summary of the two documents. The

full text of the program amendment is available for your inspection at

the locations listed above under ADDRESSES.

1. Revegetation Success Guidelines: Procedures and Standards for

Determining Revegetation Success on Surface-Mined Lands in Texas

Texas is proposing a guideline document that describes the

procedures and standards for determining revegetation success on

reclaimed surface mined lands in Texas.

a. Section I contains introductory information. Revegetation

success must be demonstrated by using the revegetation standards and

statistically valid sampling techniques for measuring success contained

in the proposed guideline document. The use of the methods contained in

this guidance document by mining companies operating in Texas will

provide assurance that adequate data collection methods have been used

for determining revegetation success for purposes of releasing

reclamation performance bond funds. Mining companies may propose

alternative procedures for sampling and analysis of vegetation data.

However, the use of alternative methods must be approved by Texas, and

the alternative methods must be included in the approved regulatory

program.

b. Section II describes the regulatory requirements for meeting

revegetation

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success under the Texas Surface Coal Mining and Reclamation Act at

sections 134.041, .092(a)(19) and (20), and .104 and the implementing

performance standards for revegetation success in the Texas Coal Mining

Regulations at Title 16, Texas Administrative Code (TAC) 12.390 through

12.395, and 12.399.

c. Section III identifies specific concepts and requirements to be

followed in developing revegetation evaluation plans.

d. Section IV provides the approved methods for implementing the

various evaluation methods for ground cover, productivity, and woody-

plant stocking, including the proper selection of observation points.

Measurement methods are presented for all vegetation parameters.

Measurement results must be compared to either approved reference areas

or technical success standards. Subsection A provides information on

the selection of observation points for collecting vegetation data.

Subsection B provides guidance on adjusting for field conditions when

conducting vegetation surveys. Subsection C provides guidelines for

ground cover measurements. Subsection D contains guidance for

measurement of productivity. Subsection E provides guidelines for woody

plant stocking. Subsection F contains guidance on selecting and

management of reference areas.

e. Section V lists the revegetation success standards for each land

use type and provides information on determining productivity of the

reclaimed areas. Nine general types of land use are included:

grazingland, pastureland, cropland, forestry, fish and wildlife

habitat, undeveloped land, industrial/commercial, residential, and

recreation. Subsection A provides guidelines relating to ground cover

and productivity standards for grazingland and pastureland. Subsection

B contains guidance on the ground cover and productivity standards for

cropland. Subsection C provides guidelines on the ground cover

standards and woody-plant stocking rates for the forestry land use

category. Subsection D contains guidance on ground cover standards and

woody-plant rates for fish and wildlife habitat. Subsection E provides

guidelines on ground cover standards and woody-plant stocking rates for

undeveloped land. Subsection F includes guidelines relating to ground

cover standards and woody-plant stocking rates for industrial/

commercial land uses. Subsection G provides guidance on ground cover

standards and woody-plant stocking rates for residential land uses.

Subsection H contains guidelines on ground cover standards and woody-

plant stocking rates for recreation land uses. Subsections A through H

include the steps to be followed for measurement and statistical

comparison when either reference areas or technical standards are used

as a measure for revegetation success. These subsections also contain

information on evaluating ground cover measurements in conjunction with

the species composition, when applicable.

f. Section VI provides a listing of the literature used in

developing the proposed guideline document. Appendix A contains the

statistical information, including equations and tables, to be used in

the determination of revegetation success for ground cover,

productivity, and woody-plant stocking. Appendix B provides a table

summarizing the revegetation success standards for all land uses. The

table in Appendix B includes the revegetation parameters, performance

standards, and conditions for bond release relating to each land use.

Appendix C contains examples of revegetation success determinations for

ground cover, productivity involving herbaceous biomass, and woody

plant stem counts. Attachment 1 is a document entitled ``The

Development of the Forage Production Standards for Post Mine Soils'' by

the United States Department of Agriculture--Natural Resources

Conservation Service (USDA-NRCS). Attachment 2 is a document entitled

``Texas Parks and Wildlife Department Recommendations for the

Development of Success Standards for Woody-Plant Stocking Rates.''

Attachment 3 is a document entitled ``Texas Forest Service

Recommendations for Reforestation of Pine and Hardwoods in Texas.''

2. Guidelines for Normal Husbandry Practices for Surface-Mined Lands in

Texas

Texas is proposing a guideline document that describes the

husbandry practices to be used by the permittee during the period of

responsibility for revegetation success and bond liability. These

practices are normal husbandry practices within the region for unmined

lands.

a. Section I contains introductory information. The guideline

document includes the normal husbandry practices that permittees must

use for disease and pest control, application of fertilizers,

application and incorporation of other soil amendments, and any other

necessary soil vegetation management activities on surface-mined lands

in Texas during the extended responsibility period. Husbandry practices

not included in this document may be considered augmentative in nature

and, if performed on land that is currently in the extended

responsibility period, may restart that period. The decision whether a

particular activity can be classified as a normal husbandry practice

will depend both on the regulatory requirements of the Texas Coal

Mining Regulations and the postmining land use. Texas discusses its

regulatory requirements in section II of the document.

b. Section III describes the conventions for normal husbandry

practices. Texas lists the following three conventions regarding normal

husbandry practices for surface-mined lands in Texas:

1. Normal husbandry practices are region-specific and include

activities performed by landowners managing lands not disturbed by

mining activities.

2. Normal husbandry practices are those activities that can

expected to continue as part of the postmining land use.

3. Discontinuance of the husbandry practices will not reduce the

probability of revegetation success.

Texas also provides examples of the applicability of the conventions

listed in items 1 and 3.

c. In section IV, Texas proposes normal husbandry practices for six

vegetative community postmining land uses defined in the Texas program:

grazingland, pastureland; cropland; forestry; fish and wildlife

habitat; and undeveloped land. The normal husbandry practices listed

for grazingland, pastureland, cropland, forestry, and fish and wildlife

habitat are divided into three general categories: general management

of soil and vegetation; addition of plant nutrients and other soil

amendments; and pest management. Reference documents defining the

normal husbandry practices for each category are listed. Texas

submitted copies of these reference documents to support its proposed

practices for disease and pest control, application of fertilizers,

application and incorporation of other soil amendments, and other

necessary soil vegetation management activities on surface-mined lands.

Because the definition of undeveloped land excludes any type of

management inputs during the extended responsibility period, Texas is

only allowing limited erosion repair for this land use.

d. In section V, Texas provides guidelines for erosion repair,

other damage repair, reseeding areas, overseeding, and restocking of

woody species. Texas also included a provision for regrading and

revegetation of areas

[[Page 29251]]

where temporary structures have been removed.

Texas may consider repair of erosion or other types of damage as a

normal husbandry practice, provided that the damage is not caused by a

lack of planning, design, or implementation of the mining and

reclamation plan. The total acreage of repaired areas cannot exceed

three contiguous acres or ten percent of the total land of the extended

responsibility area. In cases of erosion, repairs may be considered

non-augmentative if rill and gully damage was caused by precipitation

exceeding a 10-year/24-hour event or damage occurred before the first

two years of a 5-year extended responsibility period (areas with annual

precipitation >26 inches) or four years of a 10-year extended

responsibility period (areas with annual precipitation 26

inches). After the first two or four years, whichever is applicable,

total acreage for erosion repair cannot exceed one contiguous acre or

two percent of the total land of that extended responsibility area.

Texas will determine whether or not regrading and revegetation of

areas where temporary structures such as sediment ponds, roads, and

small diversions have been removed are non-augmentative on a case-by-

case basis. Areas that may pose significant potential for reclamation

problems will require a separate extended responsibility period.

Overseeding of winter cover crops and/or summer annuals, into

existing vegetation, is considered a normal husbandry practice.

Restocking of woody species is allowed, as long as the time and

quantity of restocking is in compliance with Texas' regulations at 16

TAC 12.395(b)(3)(B).

Reference documents defining the normal husbandry practices

relating to general management, addition of plant nutrients and other

soil amendments, and pest management for erosion repair and reseeded

areas are listed in this section. Texas submitted copies of these

reference documents to support these practices.

e. In section VI, Texas lists those activities that are considered

unacceptable husbandry practices. The activities include: reseeding of

areas devoid of vegetation due to acid mine soils; irrigation;

supplemental watering of herbaceous vegetation and supplemental

watering of large woody stock later than two years after planting; all

application and incorporation of alkaline amendments, except for non-

excessive application; and excessive application of plant nutrients.

If any of the listed practices are performed, the extended

responsibility period for the affected areas will restart. Texas does

not consider practices required to address problems that arise from

mining-related activities as normal husbandry practices. Texas will use

information from field inspection reports and mine-soil chemical

analysis data to evaluate unacceptable husbandry practices or

augmentation.

III. Public Comment Procedures

Under the provisions of 30 CFR 732.17(h), we are requesting

comments on whether the proposed amendment satisfies the applicable

program approval criteria of 30 CFR 732.15. If we approve the

amendment, it will become part of the Texas program.

Written Comments

Your written comments should be specific and pertain only to the

issues proposed in this rulemaking. You should explain the reason for

any recommended change. In the final rulemaking, we will not

necessarily consider or include in the Administrative Record any

comments received after the time indicated under DATES or at locations

other than the Tulsa Field Office.

Public Hearing

If you wish to speak at the public hearing, contact the person

listed under FOR FURTHER INFORMATION CONTACT by 4 p.m., c.d.t. on July

16, 1999. We will arrange the location and time of the hearing with

those persons requesting the hearing. If you are disabled and need

special accommodations to attend a public hearing, contact the

individual listed under FOR FURTHER INFORMATION CONTACT. We will not

hold the hearing if no one requests an opportunity to speak at the

public hearing.

You should file a written statement at the time you request the

hearing. This will allow us to prepare adequate responses and

appropriate questions. The public hearing will continue on the

specified date until all persons scheduled to speak have been heard. If

you are in the audience and have not been scheduled to speak and wish

to do so, you will be allowed to speak after those who have been

scheduled. We will end the hearing after all persons scheduled to speak

and persons present in the audience who wish to speak have been heard.

Public Meeting

If only one person requests an opportunity to speak at a hearing,

we may hold a public meeting, rather than a public hearing. If you wish

to meet with us to discuss the amendment, request a meeting by

contacting the person listed under FOR FURTHER INFORMATION CONTACT. All

such meetings are open to the public and, if possible, we will post

notices of meetings at the locations listed under ADDRESSES. We will

also make a written summary of each meeting part of the Administrative

Record.

IV. Procedural Determinations

Executive Order 12866

The Office of Management and Budget (OMB) exempts this rule from

review 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 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 State regulatory programs and

program amendments 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

This rule does not require an environmental impact statement since

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

decisions on 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

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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. Therefore,

this rule will ensure that existing requirements previously published

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 under the Unfunded Mandates Reform

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

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

governments or private entities.

List of Subjects in 30 CFR Part 943

Intergovernmental relations, Surface mining, Underground mining.

Dated: May 24, 1999.

Brent Wahlquist,

Regional Director, Mid-Continent Regional Coordinating Center.

[FR Doc. 99-13809 Filed 5-28-99; 8:45 am]

BILLING CODE 4310-05-P