[Federal Register Volume 62, Number 82 (Tuesday, April 29, 1997)]
[Rules and Regulations]
[Pages 23136-23138]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-10993]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 943

[SPATS No. TX-030-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 the Texas Coal Mining Regulations (TCMR) 
pertaining to the replacement of water supply where it has been 
adversely impacted by contamination, diminution, or interruption 
resulting from surface mining activities. The amendment is intended to 
revise the Texas program to be consistent with the corresponding 
Federal regulations.

EFFECTIVE DATE: April 29, 1997.

FOR FURTHER INFORMATION CONTACT: A. Dwight Thomas, 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 October 21, 1996 (Administrative Record No. TX-
629), Texas submitted a proposed amendment to its program pursuant to 
SMCRA. Texas submitted the proposed amendment in response to a July 8, 
1996, letter (Administrative Record No. TX-618) that OSM sent to Texas 
in accordance with 30 CFR 732.17(c).
    OSM announced receipt of the proposed amendment in the November 4, 
1996, Federal Register  (61 FR 56648), and in the same document opened 
the public comment period and provided an opportunity for a public 
hearing or meeting on the adequacy of the proposed amendment. The 
public comment period closed on December 4, 1996. Because no one 
requested a public hearing or meeting, none was held.
    During its review of the amendment, OSM identified a concern 
relating to the proposed definition of the term ``replacement of water 
supply'' at TCMR 701.008(77). Texas had proposed language at TCMR 
701.088(77)(a) that appeared to place a restriction on the option for a 
one-time payment of any operation and maintenance costs of a 
replacement water delivery system that were in excess of customary and 
reasonable delivery costs for the premining water supply. The proposed 
language would have required the permittee and the water supply owner 
to enter into an agreement prior to commencement of mining operations. 
The counterpart Federal definition at 30 CFR 701.5 contains no 
restriction as to when the permittee and the water supply owner may 
enter into an agreement for the one-time payment option. OSM notified 
Texas of this concern by letter dated January 8, 1997 (Administrative 
Record No. TX-629.08).
    By letter dated March 5, 1997 (Administrative Record No. TX-
619.11), Texas responded to OSM's concern by requesting that its 
amendment be revised at TCMR 701.008(77)(a) to exclude the proposed 
phrase ``at any time prior to commencement of mining operations.''

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.
    Revisions not specifically discussed below concern nonsubstantive 
wording changes, or revised cross-references and paragraph notations to 
reflect organizational changes resulting from this amendment.

1. TCMR 701.008(77) Definition of Replacement of Water Supply

    Texas' proposed definition of the term ``replacement of water 
supply'' requires that protected water supplies contaminated, 
diminished, or interrupted by coal mining operations be replaced. It 
provides for replacement of water supplies which are equivalent to the 
premining quantity and quality on both a temporary and permanent basis. 
Replacement includes provision of an equivalent water delivery system 
and compensation for operation and maintenance costs in excess of 
customary and reasonable delivery costs for the premining water supply. 
If agreed to by the water supply owner, a one-time payment based on the 
present worth of the increased annual operating and maintenance costs 
for a period of time agreed upon by the water supply owner and the 
permittee would fulfill the obligation to compensate the owner. The 
definition allows the water supply owner to waive replacement in 
circumstances where the water supply is not needed for the current or 
postmining land uses. If water replacement is waived, the permittee 
must demonstrate that a suitable alternative water source is available 
and could be developed if needed.
    The Director finds that Texas' proposed definition at TCMR 
701.008(77) is substantively identical to the corresponding Federal 
definition at 30 CFR 701.5. Therefore, Texas' proposed regulation is no 
less effective than the Federal regulation.

2. TCMR 779.130 Alternative Water Supply Information

    Texas proposed to revise its alternative water supply regulation by 
clarifying the existing requirements and adding the requirement that 
the application identify the suitability of the alternative water 
sources for existing premine uses and approved postmine land uses.
    The Director finds that the revised regulation at TCMR 779.130 has 
substantively identical regulatory requirements as the counterpart 
Federal regulation at 30 CFR 780.21(e). Therefore, it is no less 
effective than the Federal regulation.

3. TCMR 816.352 Water Rights and Replacement

    Texas proposed to replace the word ``affected'' with the words 
``adversely impacted'' to clarify that the specified water supply to be 
replaced must have been adversely impacted by contamination, 
diminution, or interruption proximately resulting from

[[Page 23137]]

the surface mining activities. Texas also added a new provision 
requiring the baseline hydrologic information required in 
Secs. 779.126, 779.130, and 780.146 of its regulations be used to 
determine the extent of the impact of mining upon ground water and 
surface water.
    The Director finds that the revised regulation at TCMR 816.352 is 
substantively identical to the counterpart Federal regulation at 30 CFR 
816.41(h). Therefore, it is no less effective than the Federal 
regulation.

IV. Summary and Disposition of Comments

    Following are summaries of all substantive written comments on the 
proposed amendment that were received by OSM, and OSM's responses to 
them.

Public Comments

    By letter dated November 22, 1996 (Administrative Record No. TX-
629.04), Texas Utilities Services, Inc. submitted comments in support 
of Texas' proposed amendment.

Federal Agency Comments

    Pursuant to 30 CFR 732.17(h)(11)(i), OSM solicited comments on the 
proposed amendment from various Federal agencies with an actual or 
potential interest in the Texas program (Administrative Record No. TX-
629.03).
    By letter dated November 22, 1996 (Administrative Record No. TX-
629.06), the U.S. Army Corps of Engineers commented that it 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 the EPA (Administrative Record No. TX-629.01). 
The 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. 
629.02). Neither the SHPO nor ACHP responded to OSM's request.

V. Director's Decision

    Based on the above findings, the Director approves the proposed 
amendment as submitted by Texas on October 21, 1996, and as revised on 
March 5, 1997.
    The Director approves the regulations as proposed by Texas with the 
provision that they be fully promulgated in identical form to the 
regulations submitted to and reviewed by OSM and the public.
    The Federal regulations at 30 CFR Part 943, codifying decisions 
concerning the Texas program, are being amended to implement this 
decision. This final rule is being made effective immediately to 
expedite the State program amendment process and to encourage States to 
bring their programs into conformity with the Federal standards without 
undue delay. Consistency of State and Federal standards is required by 
SMCRA.

VI. Procedural Determinations

Executive Order 12866

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

Executive Order 12988

    The Department of the Interior has conducted the reviews required 
by section 3 of Executive Order 12988 (Civil Justice Reform) and has 
determined that, to the extent allowed by law, this rule meets the 
applicable standards of subsections (a) and (b) of that section. 
However, these standards are not applicable to the actual language of 
State regulatory programs and program amendments since each such 
program is drafted and promulgated by a specific State, not by OSM. 
Under sections 503 and 505 of SMCRA (30 USC 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 USC 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 USC 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 USC 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 USC 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: April 8, 1997.
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:

[[Page 23138]]

PART 943--TEXAS

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

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

    2. Section 943.15 is amended in the table by adding a new entry in 
chronological order by ``Date of Final Publication'' to read as 
follows:


Sec. 943.15  Approval of Texas regulatory program amendments.

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                                                 Date of final                                                  
     Original amendment submission date           publication                   Citation/description            
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      *                   *                   *                   *                   *                   *     
                                                           *                                                    
October 21, 1996...........................        April 29, 1997            TCMR 701.008(77); 779.130; 816.352.
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[FR Doc. 97-10993 Filed 4-28-97; 8:45 am]
BILLING CODE 4310-05-M