[Federal Register Volume 62, Number 248 (Monday, December 29, 1997)]
[Proposed Rules]
[Pages 67598-67601]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-33660]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 943

[SPATS No. TX-035-FOR]


Texas Regulatory Program

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

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

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SUMMARY: OSM is announcing receipt of a proposed amendment to the Texas 
regulatory program (hereinafter the ``Texas program'') under the 
Surface Mining Control and Reclamation Act of 1977 (SMCRA). The 
proposed amendment consists of revisions to Texas' regulations 
pertaining to definitions, prime farmland, small operator assistance, 
release of performance bond, and backfilling and grading. The amendment 
is intended to revise the Texas program to be consistent with the 
corresponding Federal regulations.
    This document sets forth the times and locations that the Texas 
program and proposed amendment to that program are available for public 
inspection, the comment period during which interested persons may 
submit written comments on the proposed amendment, and the procedures 
that will be followed regarding the public regarding the public 
hearing, if one is requested.

DATES: Written comments must be received by 4:00 p.m. c.s.t., January 
28, 1998. If requested, a public hearing on the proposed amendment will 
be held on January 23, 1998. Requests to speak at the hearing must be 
received by 4:00 p.m., c.s.t. on January 13, 1998.

ADDRESSES: Written comments and requests to speak at the hearing should 
be mailed or hand delivered to Michael C. Wolfrom, Director, Tulsa 
Field Office, at the address listed below.
    Copies of the Texas program, the proposed amendment, a listing of 
any scheduled public hearings, and all written comments received in 
response to this document will be available for public review at the 
addresses listed below during normal business hours, Monday through 
Friday, excluding holidays. Each requester may receive one free copy of 
the proposed amendment by contacting OSM's Tulsa Field Office.
    Michael C. Wolfrom, Director, Tulsa Field Office, Office of Surface 
Mining Reclamation and Enforcement, 5100 East Skelly Drive, Suite 470, 
Tulsa Oklahoma 74135-6547, Telephone: (918) 581-6430.
    Surface Mining and Reclamation Division, Railroad Commission of 
Texas, 1701 North Congress Avenue, P.O. Box 12967, Austin, Texas 78711-
2967, Telephone: (512) 463-6900.

FOR FURTHER INFORMATION CONTACT:
Michael C. Wolfrom, Director, Tulsa Field Office, Telephone: (918) 581-
6430.

SUPPLEMENTARY INFORMATION: 

I. Background on the Texas Program

    On February 16, 1980, the Secretary of the Interior conditionally 
approved the Texas program. General background information on the Texas 
program, including the Secretary's findings, the disposition of 
comments, and the conditions of approval can be found in the February 
27, 1980, Federal Register (45 FR 12998). Subsequent actions concerning 
the Texas program can be found at 30 CFR 943.10, 943.15, and 943.16.

II. Description of the Proposed Amendment

    By letter dated December 1, 1997 (Administrative Record No. TX-
644), Texas submitted a proposed amendment to its program pursuant to 
SMCRA. Texas submitted the proposed amendment in response to a June 17, 
1997, letter (Administrative Record No. 640) that OSM sent to Texas in 
accordance with 30 CFR 732.17(c). Texas proposes to amend Chapter 12 of 
the Texas Administrative Code (TAC).

1. TAC Sec. 12.3  Definitions.

    Texas added or revised the following definitions at Sec. 12.3:
    Previously mined area--Land affected by surface coal mining 
operations prior to August 3, 1977, that has not been reclaimed to 
the standards of this Chapter (relating to Coal Mining Regulations).
    Qualified laboratory--A designated public agency, private firm, 
institution, or analytical laboratory that can provide the required 
determination of probable hydrologic consequences or statement of 
results of test borings or core samplings or other services as 
specified at Secs. 12.236 and 12.240 of this title (relating to 
Program Services, and to Data Requirements), and that meet the 
standards of Sec. 12.241 of this title (relating to Qualified 
Laboratories).
    Thick overburden--more than sufficient spoil and other waste 
materials available from the entire permit area to restore the 
disturbed area to its approximate original contour. More than 
sufficient spoil and other waste materials occur where the 
overburden thickness times the swell factor exceeds the combined 
thickness of the overburden and coal bed prior to removing the coal, 
so that

[[Page 67599]]

after backfilling and grading the surface configuration of the 
reclaimed area would not: (1) Closely resemble the surface 
configuration of the land prior to mining; or (2) Blend into and 
complement the drainage pattern of the surrounding terrain.
    Thin overburden--Insufficient spoil and other waste materials 
available from the entire permit area to restore the disturbed area 
to its approximate original contour. Insufficient spoil and other 
waste materials occur where the overburden thickness times the swell 
factor, plus the thickness of other available waste materials, is 
less than the combined thickness of the overburden and coal bed 
prior to removing the coal, so that after backfilling and grading 
the surface configuration of the reclaimed area would not: (1) 
Closely resemble the surface configuration of the land prior to 
mining; or (2) Blend into and complement the drainage pattern of the 
surrounding terrain.

2. TAC Sec. 12.201  Prime Farmland

    Texas proposed to add the following requirement at 
Sec. 12.201(d)(5):

    The aggregate total prime farmland acreage shall not be 
decreased from that which existed prior to mining. Water bodies, if 
any, to be constructed during mining and reclamation operations, 
must be located within the post-reclamation non-prime farmland 
portions of the permit area. The creation of any such water bodies 
must be approved by the Commission and the consent of all affected 
property owners within the permit area must be obtained.

3. TAC Sec. 12.237  Eligibility for Assistance

    At Sec. 12.237(2), Texas proposed to amend the eligibility 
requirements for participation in its small operator assistance program 
(SOAP) by increasing the amount of the probable total actual and 
attributed production allowed for SOAP applicants from 100,000 to 
300,000 tons. At Sec. 12.237(2)(B) and (C), Texas increased the 
baseline percentage above which ownership will play a role in 
determining attributed coal production from 5 to 10 percent.

4. TAC Sec. 12.243  Applicant Liability

    Texas revised Sec. 12.243(a) to require that a coal operator who 
has received assistance pursuant to Secs. 12.236 and 12.240 reimburse 
the Commission for the cost of the services rendered. Texas revised 
Sec. 12.243(a)(4) to specify that reimbursement will be required if the 
Commission finds that the operators actual and attributed annual 
production of coal for all locations exceeds 300,000 tons during the 12 
months immediately following the date on which the operator is issued 
the surface coal mining and reclamation permit. Texas revised 
Sec. 12.243(a)(5) to specify that reimbursement will be required if the 
permit is sold, transferred, or assigned to another person and the 
transferee's total actual and attributed production exceeds the 
300,000-ton production limit during the 12 months immediately following 
the date on which the permit was originally issued.

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

    Texas entitled Sec. 12.312(a) as ``Bond release application'' and 
revised it by adding the existing first sentence to Sec. 12.312(a)(1) 
and adding the following new requirement:

    Applications may be filed only at times or during seasons 
authorized by the Commission in order to properly evaluate the 
completed reclamation operations. The times or seasons appropriate 
for the evaluation of certain types of reclamation shall be 
established in the regulatory program or identified in the mining 
and reclamation plan required in Subchapter G of this Chapter and 
approved by the Commission.

    Texas added the balance of the existing language to 
Sec. 12.312(a)(2) and added a requirement that the advertisement for 
bond release also contain the name and address of the Commission office 
to which written comments, objections, or requests for public hearings 
and informal conference may be submitted.
    Texas added the following new requirement at Sec. 12.312(a)(3):

    The permittee shall include in the application for bond release 
a notarized statement which certifies that all applicable 
reclamation activities have been accomplished in accordance with the 
requirements of the act, the regulatory program, and the approved 
reclamation plan. Such certification shall be submitted for each 
application or phase of bond release.

    Texas entitled Sec. 12.312(b) as ``Inspection by Commission,'' 
added the existing language to Sec. 12.312(b)(1), and changed the 
language ``notification and request'' to ``bond release application.'' 
Texas removed Sec. 12.312(c) and added its substantive requirements to 
Sec. 12.312(b)(2) with the following revised language:

    Within 60 days from the filing of the bond release application, 
if no public hearing is held pursuant to Sec. 12.313(c) of the title 
(relating to Criteria and Schedule for Release of Performance Bond, 
or, within 30 days after a public hearing has been held pursuant to 
Sec. 12.313(c), the Commission shall notify in writing the 
permittee, the surety, or other persons with an interest in bond 
collateral who have requested notification under Sec. 12.309(1) of 
this title (relating to Terms and Conditions of the Bond), and the 
persons who either filed objections in writing or objectors who were 
a party to the hearing proceedings, if any, of its decision to 
release or not to release all or part of the performance bond.

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

    Texas proposed the following revision to the existing language at 
Sec. 12.313(a):

    The Commission may release all or part of the bond for the 
entire permit area or incremental area if the Commission is 
satisfied that the reclamation or a phase of the reclamation covered 
by the bond or deposit or portion thereof has been accomplished in 
accordance with the following schedules for reclamation of Phases I, 
II, and III:

    At Sec. 12.313(a)(1), Texas added the phrase ``[a]t the completion 
of Phase I, after'' to the beginning of the provision and deleted the 
word ``[w]hen''; added the proviso that backfilling and regarding may 
include the replacement of topsoil; and made other nonsubstantive 
language changes.
    At Sec. 12.313(a)(2), Texas added the phrase ``[a]t the completion 
of Phase II'' to the beginning of the provision; removed the provision 
that the Commission may release up to 25 percent of the original bond 
amount and added the provision that the Commission may release an 
additional amount of bond; changed its reference to Secs. 12.330 
through 12.403 of this title to Sec. 134.092(a)(10) of the Act and 
Subchapter K of this Chapter relating to its requirements for suspended 
solids; added a reference to Secs. 12.620-12.625 relating to the prime 
farmland survey; added a reference to Subchapter K of this Chapter 
relating to its requirements for retention of a permanent impoundment.
    At Sec. 12.31(a)(3), Texas added the phrase ``[a]t the completion 
of Phase III, after'' to the beginning of the provision and deleted the 
word ``[w]hen'' and changed its reference to Secs. 134.091 through 
134.109 of the Act of Sec. 12.395 or Sec. 12.560 of this title.
    Texas revised Sec. 12.313(b) by requiring that the Commission 
notify the permittee, the surety, and any person with an interest in 
collateral if the Commission disapproves the application for release of 
the bond.
    At Sec. 12.313(d), Texas added the option that a public hearing may 
be held at the State capital at its first reference to a public hearing 
regarding release of the bond and removed duplicative language at the 
end of the provision regarding holding of a public hearing.

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

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

    Where thin overburden occurs within the permit area, the 
permittee, at a minimum,

[[Page 67600]]

shall: (1) Use all spoil and other waste materials available form 
the entire permit area to attain the lowest practicable grade, but 
not more than the angle of repose; and (2) Meet the requirements of 
Sec. 12.385 of this title (relating to Backfilling and Grading: 
General Requirements).

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

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

    Where thick overburden occurs within the permit area, the 
permittee at a minimum shall: (1) Restore the approximate original 
contour and then use the remaining spoil and other waste materials 
to attain the lowest practicable grade, but not more than the angle 
of repose; (2) Meet the requirements of Sec. 12.385 of the title 
(relating to Backfilling and Grading: General Requirement); and (3) 
Dispose of any excess spoil in accordance with Secs. 12.363-12.366 
of this title (relating to Disposal of Excess Spoil: General 
Requirements, to Disposal of Excess Spoil: Valley Fills, to Disposal 
of Excess Spoil: Head-of-Hollow Fills, and to Disposal of Excess 
Spoil: Durable Rock Fills).

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

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

    Disposal areas containing coal mine waste resulting from 
underground mines that is not technologically and economically 
feasible to store in underground mines or on non-prime farmland. The 
operator shall minimize the area of prime farmland used for such 
purposes; or

III. Public Comment Procedures

    In accordance with the provisions of 30 CFR 732.17(h), OSM is 
seeking comments on whether the proposed amendment satisfies the 
applicable program approval criteria of 30 CFR 732.15. If the amendment 
is deemed adequate, it will become part of the Texas program.

Written Comments

    Written comments should be specific, pertain only to the issues 
proposed in this rulemaking, and include explanations in support of the 
commenter's recommendations. Comments received after the time indicated 
under DATES or at locations other than the Tulsa Field Office will not 
necessarily be considered in the final rulemaking or included in the 
Administrative Record.

Public Hearing

    Persons wishing to speak at the public hearing should contact the 
person listed under FOR FURTHER INFORMATION CONTACT by 4:00 p.m., 
c.s.t. on January 13, 1998. The location and time of the hearing will 
be arranged with those persons requesting the hearing. Any disabled 
individual who has need for a special accommodation to attend a public 
hearing should contact the individual listed under FOR FURTHER 
INFORMATION CONTACT. If no one requests an opportunity to speak at the 
public hearing, the hearing will not be held.
    Filing of a written statement at the time of the hearing is 
requested as it will greatly assist the transcriber. Submission of 
written statements in advance of the hearing will allow OSM officials 
to prepare adequate responses and appropriate questions.
    The public hearing will continue on the specified date until all 
persons scheduled to speak have been heard. Persons in the audience who 
have not been scheduled to speak, and who wish to do so, will be heard 
following those who have been scheduled. The hearing will end after all 
persons scheduled to speak and persons present in the audience who wish 
to speak have been heard.

Public Meeting

    If only one person requests an opportunity to speak at a hearing, a 
public meeting, rather than a public hearing, may be held. Persons 
wishing to meet with OSM representatives to discuss the proposed 
amendment may request a meeting by contacting the person listed under 
FOR FURTHER INFORMATION CONTACT. All such meetings will be open to the 
public and, if possible, notices of meetings will be posted at the 
locations listed under ADDRESSES. A written summary of each meeting 
will be made a part of the Administrative Record.

IV. Procedural Determinations

Executive Order 12866

    This rule is exempted from review by the Office of Management and 
Budget (OMB) under Executive Order 12866 (Regulatory Planning and 
Review).

Executive Order 12988

    The Department of the Interior has conducted the reviews required 
by section 3 of Executive Order 12988 (Civil Justice Reform) and has 
determined that, to the extent allowed by law, this rule meets the 
applicable standards of subsections (a) and (b) of that section. 
However, these standards are not applicable to the actual language of 
State regulatory programs and program amendments since each such 
program is drafted and promulgated by a specific State, not by OSM. 
Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and 30 
CFR 730.11, 732.15, and 732.17(h)(10), decisions on proposed State 
regulatory programs and program amendments submitted by the States must 
be based solely on a determination of whether the submittal is 
consistent with SMCRA and its implementing Federal regulations and 
whether the other requirements of 30 CFR parts 730, 731, and 732 have 
been met.

National Environmental Policy Act

    No environmental impact statement is required for this rule since 
section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency 
decisions on proposed State regulatory program provisions do not 
constitute major Federal actions within the meaning of section 
102(2)(C) of the National Environmental Policy Act (42 U.S.C. 
4332(2)(C)).

Paperwork Reduction Act

    This rule does not contain information collection requirements that 
require approval by OMB under the Paperwork Reduction Act (44 U.S.C. 
3507 et seq.).

Regulatory Flexibility Act

    The Department of the Interior has determined that this rule will 
not have a significant economic impact on a substantial number of small 
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). 
The State submittal which is the subject of this rule is based upon 
counterpart Federal regulations for which an economic analysis was 
prepared and certification made that such regulations would not have a 
significant economic effect upon a substantial number of small 
entities. Accordingly, this rule will ensure that existing requirements 
previously promulgated by OSM will be implemented by the State. In 
making the determination as to whether this rule would have a 
significant economic impact, the Department relied upon the data and 
assumptions for the counterpart Federal regulations.

Unfunded Mandates

    OSM has determined and certifies pursuant to the Unfunded Mandates 
Reform Act (2 U.S.C. 1502 et seq.) that this rule will not impose a 
cost of $100 million or more in any given year on local, state, or 
tribal governments or private entities.

List of Subjects in 30 CFR Part 943

    Intergovernmental relations, Surface mining, Underground mining.


[[Page 67601]]


    Dated: December 17, 1997.
Brent Wahlquist,
Regional Director, Mid-Continent Regional Coordinating Center.
[FR Doc. 97-33660 Filed 12-24-97; 8:45 am]
BILLING CODE 4310-05-M