Federal Register / Vol. 62, No. 58 / Wednesday, March 26, 1997 / Rules and Regulations 14311

Original amendment submission date Date of final publication Citation/Description

* * * * * * *

March 19, 1996 ......................................... March 26, 1997 ......................................... Revisions to the Ohio Abandoned Mine Land Reclamation Plan to provide for the reclamation of areas causing acid mine drainage AMD and to revise the project

selection process.

[FR Doc. 97–7536 Filed 3–25–97; 8:45 am]

BILLING CODE 4310–05–M

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.

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 governmentfinanced 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
14312 Federal Register / Vol. 62, No. 58 / Wednesday, March 26, 1997 / Rules and Regulations

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)];
Federal Register / Vol. 62, No. 58 / Wednesday, March 26, 1997 / Rules and Regulations 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,
14314 Federal Register / Vol. 62, No. 58 / Wednesday, March 26, 1997 / Rules and Regulations

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.
Federal Register / Vol. 62, No. 58 / Wednesday, March 26, 1997 / Rules and Regulations 14315

6. TCMR 707.022, Exemption for Coal

Extraction Incident to GovernmentFinanced 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
14316 Federal Register / Vol. 62, No. 58 / Wednesday, March 26, 1997 / Rules and Regulations

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 AssessorCollector 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
Federal Register / Vol. 62, No. 58 / Wednesday, March 26, 1997 / Rules and Regulations 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
14318 Federal Register / Vol. 62, No. 58 / Wednesday, March 26, 1997 / Rules and Regulations

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 crossreferences 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 selfinsurance in lieu of a certificate for a

public liability insurance policy. The

regulations require that to be selfinsured, 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 selfbonding under Section 309(j)(2),

consider such applicant to meet the selfinsurance 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
Federal Register / Vol. 62, No. 58 / Wednesday, March 26, 1997 / Rules and Regulations 14319

Mining and Reclamation Act, TEX.

NAT. RES. CODE §§ 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 selfinsured * * *.’’ 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 § 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 oilcollection 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
14320 Federal Register / Vol. 62, No. 58 / Wednesday, March 26, 1997 / Rules and Regulations

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-toabate 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
Federal Register / Vol. 62, No. 58 / Wednesday, March 26, 1997 / Rules and Regulations 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
14322 Federal Register / Vol. 62, No. 58 / Wednesday, March 26, 1997 / Rules and Regulations

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
Federal Register / Vol. 62, No. 58 / Wednesday, March 26, 1997 / Rules and Regulations 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 mineponds, 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
14324 Federal Register / Vol. 62, No. 58 / Wednesday, March 26, 1997 / Rules and Regulations

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.
Federal Register / Vol. 62, No. 58 / Wednesday, March 26, 1997 / Rules and Regulations 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:

§ 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).
14326 Federal Register / Vol. 62, No. 58 / Wednesday, March 26, 1997 / Rules and Regulations

§ 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

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 52

[TN–165–01–9633a; FRL–5709–8]

Approval and Promulgation of Air

Quality Implementation Plans,

Tennessee; Approval of Revisions to

Knox County Regulations for

Violations and General Requirements

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Direct final rule.

SUMMARY: EPA is approving revisions to

the permit requirements, definitions,

and administrative requirements for the

Knoxville/Knox County portion of the

Tennessee State Implementation Plan

(SIP). On March 4, 1996, the State

submitted revisions to the Knoxville/

Knox County portion of the Tennessee

SIP on behalf of Knoxville/Knox

County. These were revisions to the

enforcement authority requirements in

the Knoxville/Knox County portion of

the SIP. At this time, EPA is acting on

the SIP revisions submitted on March 4,

1996 and is approving all of the

submitted revisions.

DATES: This final rule is effective May

27, 1997 unless adverse or critical

comments are received by April 25,

1997. If the effective date is delayed,

timely notice will be published in the

Federal Register.

ADDRESSES: Written comments on this

action should be addressed to Karen C.

Borel, at the Environmental Protection

Agency, Region 4 Air Planning Branch,

100 Alabama Street, SW, Atlanta,

Georgia 30303. Copies of documents

relative to this action are available for

public inspection during normal

business hours at the following

locations. The interested persons

wanting to examine these documents

should make an appointment with the

appropriate office at least 24 hours

before the visiting day. Reference file

TN165–01–9633. The Region 4 office

may have additional background

documents not available at the other

locations.

Air and Radiation Docket and

Information Center (Air Docket 6102),

U.S. Environmental Protection Agency,

401 M Street, SW, Washington, DC

20460.

Environmental Protection Agency,

Region 4 Air Planning Branch, 100

Alabama Street, SW, Atlanta, Georgia

30303. [contact Karen Borel, 404/562–

9029].

Tennessee Department of

Environment and Conservation,

Division of Air Pollution Control, 9th

Floor L & C Annex, 401 Church Street,

Nashville, Tennessee 37243–1531. Knox

County Department of Air Pollution

Control, City-County Building, Suite

339, 400 West Main Street, Knoxville,

Tennessee, 37902.

FOR FURTHER INFORMATION CONTACT:

Karen C. Borel at (404) 562–9029.

SUPPLEMENTARY INFORMATION: The State

of Tennessee submitted revisions to the

Knoxville/Knox County portion of the

Tennessee SIP to EPA on March 4, 1996.

EPA found this submittal to be complete

on April 17, 1996. These revisions to the

Knox County portion of the SIP

establish consistent regulatory authority

between the title V Permit Program for

major sources and the SIP for minor

sources.

A. SIP Revisions

The Knoxville/Knox County Air

Pollution Control Board officially

adopted the proposed amendments to

the Knox County Air Pollution Control

Regulations affecting Sections 30.1.D,

30.1.F, and 30.1.G, Violations. These

regulatory revisions to their Section 30

make changes which are required to

establish consistent regulatory authority

between the SIP (minor sources) and

title V (major sources). These revisions

are the remainder of their plan to bring

the SIP into accordance with title I

requirements and to support their title

V program. EPA is approving the

following revisions to Section 30,

Violations/General.

Section 30.1.D

The following statement is added to

this section:

These penalties shall be recoverable in a

maximum amount of $25,000 per day per

violation as provided by State Law.

Section 30.1.F

The following statement is added to

the end of this section:

Such actions may be taken by the Director

without the necessity of a prior revocation of

any permit.’’

Section 30.1.G

The following statement is added to

the end of this section:

The Director has the authority to restrain

or enjoin immediately and effectively any

person, by order or by suit in court, from

engaging in any activity in violation of a

permit or the Knox County Air Pollution

Control Regulations that is presenting an

imminent and substantial endangerment to

the public health or welfare, or the

environment.

Final Action

EPA is fully approving the submitted

revisions to the Knoxville/Knox County

portion of the Tennessee State

Implementation Plan (SIP).

The Agency has reviewed this request

for revision of the Federally-approved

State implementation plan for

conformance with the provisions of the

1990 amendments enacted on November

15, 1990.

The EPA is publishing this action

without prior proposal because the

Agency views this as a noncontroversial

action and anticipates no adverse

comments. However, in a separate

document in this Federal Register

publication, the EPA is proposing to

approve the SIP revision should adverse

or critical comments be filed. This

action will be effective on May 27, 1997

unless, by April 25, 1997 adverse or

critical comments are received.

If the EPA receives such comments,

this action will be withdrawn before the

effective date by publishing a

subsequent document that will

withdraw the final action. All public

comments received will then be

addressed in a subsequent final rule

based on the proposed rule. The EPA

will not institute a second comment

period on this action. Any parties

interested in commenting on this action

should do so at this time. If no such

comments are received, the public is

advised that this action will be effective

on May 27, 1997.

Nothing in this action should be

construed as permitting or allowing or

establishing a precedent for any future

request for revision to any state

implementation plan. Each request for

revision to any state implementation

plan shall be considered separately in

light of specific technical, economic,

and environmental factors and in

relation to relevant statutory and

regulatory requirements.

Administrative Requirements

A. Executive Order 12866

This action has been classified as a

Table 3 action for signature by the

Regional Administrator under the

procedures published in the Federal

Register on January 19, 1989 (54 FR

2214–2225), as revised by a July 10,

1995, memorandum from Mary Nichols,

Assistant Administrator for Air and

Radiation. The Office of Management