[Federal Register Volume 61, Number 246 (Friday, December 20, 1996)]
[Rules and Regulations]
[Pages 67216-67218]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-32320]



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DEPARTMENT OF THE INTERIOR
30 CFR Part 943

[SPATS No. TX-031-FOR]


Texas Regulatory Program

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

ACTION: Final rule; approval of amendment.

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SUMMARY: OSM is approving a proposed amendment to the Texas regulatory 
program (hereinafter referred to as the ``Texas program'') under the 
Surface Mining Control and Reclamation Act of 1977 (SMCRA). Texas 
proposed revisions to its regulations pertaining to backfilling and 
grading performance standards for area strip mining operations. The 
amendment is intended to revise the Texas program to clarify time and 
distance standards for rough backfilling and grading.

EFFECTIVE DATE: December 20, 1996.

FOR FURTHER INFORMATION CONTACT:
Jack R. Carson, 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 July 11, 1996 (Administrative Record No. TX-617), 
Texas submitted a proposed amendment to its program pursuant to SMCRA. 
Texas submitted the proposed amendment at its own initiative. Texas 
proposed to revise Texas Coal Mining Regulations (TCMR) 816.384, 
general requirements for backfilling and grading, by providing rough 
backfilling and grading time and/or distance standards for two types of 
area strip mining operations, cyclic excavation and continuous 
excavation.
    OSM announced receipt of the proposed amendment in the July 24, 
1996, Federal Register (61 FR 38420), 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 closed on August 23, 1996.
    On September 12, 1996, OSM called Texas and requested a 
clarification of the terms ``cyclic excavation'' and ``continuous 
excavation.'' On September 13, 1996 (Administrative Record No. TX-
617.09), Texas responded that its interpretations of these terms are 
described and discussed in the 1973 and 1992 editions of the ``SME 
Mining Engineering Handbook,'' Society of Mining Engineers of the 
American Institute of Mining, Metallurgical, and Petroleum Engineers, 
Inc.

III. Director's Findings

    Set forth below, pursuant to SMCRA and the Federal regulations at 
30 CFR 732.15 and 732.17, are the Director's findings concerning the 
proposed amendment.

TCMR 816.384 (a)(3) and (a)(4) Backfilling and Grading Time and/or 
Distance Standards for Cyclic Excavation and Continuous Excavation Area 
Strip Mining Operations

    TCMR 816.384(a)(3) Texas revised TCMR 816.384(a)(3) by limiting its 
provisions to the ``cyclic excavation'' method of area strip mining and 
by adding a distance variance provision. According to the ``SME Mining 
Engineering Handbook,'' swing-type excavating units such as power 
shovels, draglines, clamshells, and backhoes are considered to be 
cyclical excavators. The cycle functions of these excavators include 
loading, raising, swinging, dumping, lowering, and positioning. In 
Texas, draglines are used for most cyclic excavation coal mining 
operations.
    Texas' proposed revision allows it to grant additional distance for 
completion of rough backfilling and grading for cyclic excavation area 
strip mining operations if the permittee can demonstrate that such 
additional distance is necessary. The existing provision allows the 
State to grant additional time for completion of rough backfilling and 
grading, but it must be completed within a specified distance 
limitation off our spoil ridges with no exceptions. The proposed 
revision will allow Texas to extend the distance limit of four spoil 
ridges, as well as the time limit of 180 days, upon approval of a 
detailed analysis submitted by the permittee in the permit application 
reclamation plan under TCMR 780.145(b)(3).
    In the August 6, 1996, Texas Register (21 TexReg 7309), Texas 
explained that ``[d]ue to the nature of surface coal mining operations 
active in Texas, the commission believes that more flexibility in 
meeting backfilling and grading distance requirements should be 
available to surface mine operators. Factors that may bear on the need 
for a distance extension, in addition to or in the absence of a time 
extension, include: The amount of overburden, the length of the pit, 
the number of coal seams, the weather, the type of equipment used, and 
the need for lignite.''
    TCMR 816.384(a)(4) Texas also proposed a new provision concerning 
rough backfilling and grading standards for ``continuous excavation'' 
area strip mining operations at TCMR 816.384(a)(4). According to the 
``SME Mining Engineering Handbook,'' a continuous excavator digs and 
discharges material simultaneously. The two most common continuous 
excavators used in coal mining are the bucket chain excavator and the 
bucket wheel excavator. In Texas, bucket wheel excavators are used for 
most continuous excavation coal mining operations.
    Rough backfilling and grading for continuous excavation operations 
must be completed in accordance with the time schedule approved in the 
permit application reclamation plan under TCMR 780.145(b)(3). The time 
schedule is based on a detailed written analysis by the permittee and 
any additional information required by Texas.
    Federal requirements and decision The Federal time and distance 
standards for specific types of mining, including area mining, at 30 
CFR 816.101 were suspended effective August 31, 1992 (57 FR 33875, July 
31, 1992). Therefore, OSM must evaluate State time and distance 
requirements against the general contemporaneous reclamation 
requirements of section 515(b)(16) of SMCRA and 30 CFR 816.100. Section 
515(b)(16) of SMCRA requires that surface coal mining and reclamation 
operations be conducted so as to insure that all reclamation efforts 
proceed as contemporaneously as practicable with the surface coal 
mining operations. The Federal regulation at 30 CFR 816.100 similarly 
provides that backfilling and grading on all land that is disturbed by 
surface mining activities occur as contemporaneously as practicable 
with mining operations.
    The effect of the suspension of 30 CFR 816.101 is that regulatory 
authorities may adopt backfilling and grading time and distance 
standards for various types

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of mining operations that are specific to the coal mining conditions in 
their states, as long as the standards result in contemporaneously 
mining and reclamation as required by section 515(b)(16) of SMCRA and 
30 CFR 816.100. It is noted that Texas' regulation at TCMR 816.383 
requires that backfilling and grading of all land disturbed by surface 
mining activities occur as contemporaneously as practicable with mining 
operations.
    Since permittees are required to submit a detailed analysis in 
support of the time and/or distance standards included in their permit 
application reclamation plans, Texas' proposed distance variance 
provision at TCMR 816.384(a)(3) for cyclic excavation area strip mining 
operations and its proposed time schedule provision at TCMR 
816.384(a)(4) for continuous excavation area strip mining operations 
appear to be reasonable and provide additional specificity to Texas' 
general contemporaneous reclamation requirements at TCMR 816.383. 
Therefore, based upon the above discussions, the Director finds the 
proposed revisions at TCMR 816.384 (a)(3) and (a)(4) are not 
inconsistent with the Federal requirements for contemporaneous 
reclamation for surface mining activities at section 515(b)(16) of 
SMCRA and 30 CFR 816.100.

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. Because no one 
requested an opportunity to speak at a public hearing, no hearing was 
held.
    Comments supporting the proposed amendment were received from the 
Aluminum Company of America and Texas Utilities Services, Inc. 
(Administrative Record Nos. TX-617.08 and TX-617.06, respectively). 
Both commenters supported the Railroad Commission of Texas in its 
effort to clarify that both time and distance variances may be approved 
when the permittee demonstrates that additional time and/or distance is 
necessary for reclamation.

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. On August 9, 1996 
(Administrative Record No. TX-617.07), the U.S. Army Corps of Engineers 
responded that its review found the changes to be satisfactory.

Environmental Protection Agency (EPA)

    Pursuant to 30 CFR 732.17(h)(11)(ii), OSM is required to obtain the 
written concurrence of the EPA with respect to those provisions of the 
proposed program amendment that relate to air or water quality 
standards promulgated under the authority of the Clean Water Act (33 
U.S.C. 1251 et seq.) or the Clean Air Act (42 U.S.C. 7401 et seq.).
    None of the revisions that Texas proposed to make in this amendment 
pertain to air or water quality standards. Therefore, OSM did not 
request EPA's concurrence.
    Pursuant to 732.17(h)(11)(i), OSM solicited comments on the 
proposed amendment from EPA (Administrative Record No. TX-617.02). EPA 
did not respond to OSM's request.

State Historical Preservation Officer (SHPO) and the Advisory Council 
on Historic Preservation (ACHP)

    Pursuant to 30 CFR 732.17(h)(4), OSM is required to solicit 
comments on proposed amendments which may have an effect on historic 
properties from the SHPO and ACHP. OSM solicited comments on the 
proposed amendment from the SHPO and ACHP (Administrative Record No. 
TX-617.03). Neither SHPO nor ACHP responded to OSM's request.

V. Director's Decision

    Based on the above findings, the Director approves the proposed 
amendment as submitted by Texas on July 11, 1996.
    The Director approves TCMR 816.384(a)(3), concerning rough 
backfilling and grading time and distance standards for cyclic 
excavation area strip mining operations, and TCMR 816.384(a)(4) 
concerning rough backfilling and grading time standards for continuous 
excavation area strip mining operations.
    The Director approves the regulations as proposed by Texas with the 
provision that they be fully promulgated in identical form to the rules 
submitted to and reviewed by OSM and the public.
    The Federal regulations at 30 CFR Part 943, codifying decisions 
concerning the Texas program, are being amended to implement this 
decision. This final rule is being made effective immediately to 
expedite the State program amendment process and to encourage States to 
bring their programs into conformity with the Federal standards without 
undue delay. Consistency of State and Federal standards is required by 
SMCRA.

VI. Procedural Determinations

Executive Order 12866

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

Executive Order 12988

    The Department of the Interior has conducted the reviews required 
by section 3 of Executive Order 12988 (Civil Justice Reform) and has 
determined that, to the extent allowed by law, this rule meets the 
applicable standards of subsections (a) and (b) of that section. 
However, these standards are not applicable to the actual language of 
State regulatory programs and program amendments since each such 
program is drafted and promulgated by a specific State, not by OSM. 
Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and 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

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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: December 2, 1996.
Brent Wahlquist,
Regional Director, Mid-Continent Regional Coordinating Center.

    For the reasons set out in the preamble, 30 CFR part 943 is amended 
as set forth below:

PART 943--TEXAS

    1. The authority citation for part 943 continues to read as 
follows:

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

    2. Section 943.15 is amended by adding paragraph (o) to read as 
follows:


Sec. 943.15  Approval of regulatory program amendments.

* * * * *
    (o) Revisions to and/or the addition of Texas' regulations at TCMR 
816.384(a)(3) and TCMR 816.384(a)(4), as submitted to OSM on July 11, 
1996, are approved effective December 20, 1996.

[FR Doc. 96-32320 Filed 12-19-96; 8:45 am]
BILLING CODE 4310-05-M