[Federal Register Volume 69, Number 22 (Tuesday, February 3, 2004)]
[Proposed Rules]
[Pages 5102-5105]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-2130]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 943

[TX-051-FOR]


Texas Regulatory Program

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

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

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SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement 
(OSM), are announcing receipt of a proposed amendment to the Texas 
regulatory program (Texas program) under the Surface Mining Control and 
Reclamation Act of 1977 (SMCRA or the Act). Texas proposes revisions to 
and additions of regulations regarding coal combustion by-products and 
coal combustion products. Texas intends to revise its program to 
clarify how the use and disposal of coal combustion by-products and 
coal combustion products are regulated at coal mine sites in Texas.
    This document gives the times and locations that the Texas program 
and proposed amendment to that program are available for your 
inspection, the comment period during which you may submit written 
comments on the amendment, and the procedures that we will follow for 
the public hearing, if one is requested.

DATES: We will accept written comments on this amendment until 4 p.m., 
c.s.t., March 4, 2004. If requested, we will hold a public hearing on 
the amendment on March 1, 2004. We will accept requests to speak at a 
hearing until 4 p.m., c.s.t. on February 18, 2004.

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

FOR FURTHER INFORMATION CONTACT: Michael C. Wolfrom, Director, Tulsa 
Field Office. Telephone: (918) 581-6430. Internet address: 
[email protected].

SUPPLEMENTARY INFORMATION: 
I. Background on the Texas Program
II. Description of the Proposed Amendment
III. Public Comment Procedures
IV. Procedural Determinations

I. Background on the Texas Program

    Section 503(a) of the Act permits a State to assume primacy for the 
regulation of surface coal mining and reclamation operations on non-
Federal and non-Indian lands within its borders by demonstrating that 
its program includes, among other things, ``a State law which provides 
for the regulation of surface coal mining and reclamation operations in 
accordance with the requirements of this Act * * *; and rules and 
regulations consistent with regulations issued by the Secretary 
pursuant to this Act.'' See 30 U.S.C. 1253(a)(1) and (7). On the basis 
of these criteria, the Secretary of the Interior conditionally approved 
the Texas program effective February 16, 1980. You can find background 
information on the Texas program, including the Secretary's findings, 
the disposition of comments, and the conditions of approval of the 
Texas program in the February 27, 1980, Federal Register (45 FR 12998). 
You can also find later actions concerning the Texas program and 
program amendments at 30 CFR 943.10, 943.15 and 943.16.

II. Description of the Proposed Amendment

    By letter dated December 9, 2003 (Administrative Record No. TX-
656), Texas sent us an amendment to its program under SMCRA (30 U.S.C. 
1201 et seq.). Texas sent the amendment at its own initiative. Below is 
a summary of the changes proposed by Texas. The full text of the 
program amendment is

[[Page 5103]]

available for you to read at the locations listed above under 
ADDRESSES.

A. 16 Texas Administrative Code (TAC) Section 12.3 Definitions

    Texas proposes to amend this section by adding new paragraphs (33) 
and (34) defining ``coal combustion by-products'' and ``coal combustion 
products,'' respectively. Texas also proposes to renumber existing 
paragraphs (33) through (193) as paragraphs (35) through (195).

B. 16 TAC Section 12.142 Operation Plan: Maps and Plans

    Texas proposes to add new paragraph (2)(L) to require that each 
permit application contain maps and plans of the proposed permit and 
adjacent areas which show the approximate location of any area in which 
coal combustion by-products will be disposed.

C. 16 TAC Section 12.145 Reclamation Plan: General Requirements For 
Surface Mining

    Texas proposes to add new paragraph (b)(10) to read as follows:

    (10) a description of any planned use of coal combustion 
products designed to achieve approximate original contour or any 
proposal to dispose of coal combustion by-products in a manner that 
achieves approximate original contour. When additional time to 
conduct rough backfilling and grading is requested to allow for the 
use of coal combustion products or the disposal of coal combustion 
by-products, the description shall include a planned time frame for 
those activities. The proposed time frame may include extensions of 
the time frames under Sec. 12.384(a) of this title (relating to 
Backfilling and Grading: General Requirements) to facilitate the 
cost-effective utilization of coal combustion products and by-
products considering generation rates, transportation issues, market 
conditions, and other relevant factors. Ancillary features (e.g., 
sediment control structures, roads, and other infrastructure) 
associated with the use of coal combustion products or coal 
combustion by-products shall be considered mining-related activities 
which the permittee may retain within the Commission's mining permit 
for the life of the reclamation project until final bond release.

D. 16 TAC Section 12.187 Reclamation Plan: General Requirements For 
Underground Mining

    Texas proposes to add new paragraph (b)(10) to read as follows:

    (10) a description of any planned use of coal combustion 
products designed to achieve approximate original contour or any 
proposal to dispose of coal combustion by-products in a manner that 
achieves approximate original contour. When additional time to 
conduct rough backfilling and grading is requested to allow for the 
use of coal combustion products or the disposal of coal combustion 
by-products, the description shall include a planned time frame for 
those activities. The proposed time frame may include extensions of 
the time frames under Sec. 12.551(a) of this title (relating to 
Backfilling and Grading: General Requirements) to facilitate the 
cost-effective utilization of coal combustion products and by-
products considering generation rates, transportation issues, market 
conditions, and other relevant factors. Ancillary features (e.g., 
sediment control structures, roads, and other infrastructure) 
associated with the use of coal combustion products or coal 
combustion by-products shall be considered mining-related activities 
which the permittee may retain within the Commission's mining permit 
for the life of the reclamation project until final bond release.

E. 16 TAC Section 12.197 Operation Plan: Maps and Plans

    Texas proposes to add new paragraph (2)(N) to require that each 
permit application contain maps and plans of the proposed permit and 
adjacent areas which show the approximate location of any area in which 
coal combustion by-products will be disposed.

F. 16 TAC Section 12.384 Backfilling and Grading: General Requirements

    Texas proposes to revise paragraphs (a)(1) through (a)(4) to 
reference proposed new section 12.145(b)(10).

G. 16 TAC Section 12.385 Backfilling and Grading: General Grading 
Requirements

    Texas proposes to add new paragraph (f) to read as follows:

    (f) In the case of a reclamation plan in which coal combustion 
products are designed to achieve approximate original contour or 
coal combustion by-products are proposed to be disposed of in a 
manner that achieves approximate original contour, the following 
information shall be submitted as applicable:
    (1) an affidavit from the generator certifying that any coal 
combustion products to be used are exempt from the definition of 
``solid waste'' under 30 TAC Sec. 335.1(131)(H) (relating to 
Definitions) or TCEQ letter-authorization as referenced in Table 1 
of Sec. 12.3(33) of this title (relating to Definitions);
    (2) an affidavit from the generator certifying that any coal 
combustion by-product disposal operations are in compliance with 30 
TAC Sec. 335.2-335.8 (relating to Permit Required; Technical 
Guidelines; General Prohibitions; Deed Recordation of Waste 
Disposal; Notification Requirements; Financial Assurance Required; 
and Closure and Remediation) and 30 TAC Chapter 335, Subchapter R 
(relating to Waste Classification);
    (3) documentation (e.g., a signed lease or an affidavit from the 
landowner) that the landowner has consented to the use of coal 
combustion products or the disposal of coal combustion by-products 
on the landowner's property;
    (4) chemical analyses of a representative sample of any coal 
combustion products planned to be used or any coal combustion by-
products proposed to be disposed; and
    (5) an estimated timeframe for the use of coal combustion 
products or the disposal of coal combustion by-products as part of 
the timetable submitted under Sec. 12.145(b)(1) of this title 
(relating to Reclamation Plan: General Requirements for Surface 
Mining).

H. 16 TAC Section 12.552 Backfilling and Grading: General Grading 
Requirements

    Texas proposes to add new paragraph (f) to read as follows:

    (f) In the case of a reclamation plan in which coal combustion 
products are designed to achieve approximate original contour or 
coal combustion by-products are proposed to be disposed of in a 
manner that achieves approximate original contour, the following 
information shall be submitted as applicable:
    (1) an affidavit from the generator certifying that any coal 
combustion products to be used are exempt from the definition of 
``solid waste'' under 30 TAC Sec. 335.1(131)(H) (relating to 
Definitions) or TCEQ letter-authorization as referenced in Table 1 
of Sec. 12.3(33) of this title (relating to Definitions);
    (2) an affidavit from the generator certifying that any coal 
combustion by-product disposal operations are in compliance with 30 
TAC Sec. 335.2 `` 335.8 (relating to Permit Required; Technical 
Guidelines; General Prohibitions; Deed Recordation of Waste 
Disposal; Notification Requirements; Financial Assurance Required; 
and Closure and Remediation) and 30 TAC Chapter 335, Subchapter R 
(relating to Waste Classification);
    (3) documentation (e.g., a signed lease or an affidavit from the 
landowner) that the landowner has consented to the use of coal 
combustion products or the disposal of coal combustion by-products 
on the landowner's property;
    (4) chemical analyses of a representative sample of any coal 
combustion products planned to be used or any coal combustion by-
products proposed to be disposed; and
    (5) an estimated timeframe for the use of coal combustion 
products or the disposal of coal combustion by-products as part of 
the timetable submitted under Sec. 12.187(b)(1) of this title 
(relating to Reclamation Plan: General Requirements for Underground 
Mining).

III. Public Comment Procedures

    Under the provisions of 30 CFR 732.17(h), we are seeking your 
comments on whether the amendment satisfies the applicable program 
approval criteria of 30 CFR 732.15. If we approve the amendment, it 
will become part of the State program.

Written Comments

    Send your written or electronic comments to OSM at the address 
given above. Your written comments should

[[Page 5104]]

be specific, pertain only to the issues proposed in this rulemaking, 
and include explanations in support of your recommendations. We will 
not consider or respond to your comments when developing the final rule 
if they are received after the close of the comment period (see DATES). 
We will make every attempt to log all comments into the administrative 
record, but comments delivered to an address other than the Tulsa Field 
Office may not be logged in.

Electronic Comments

    Please submit Internet comments as an ASCII or Word file avoiding 
the use of special characters and any form of encryption. Please also 
include ``Attn: TX-051-FOR'' and your name and return address in your 
Internet message. If you do not receive a confirmation that we have 
received your Internet message, contact the Tulsa Field Office at (918) 
581-6430.

Availability of Comments

    We will make comments, including names and addresses of 
respondents, available for public review during normal business hours. 
We will not consider anonymous comments. If individual respondents 
request confidentiality, we will honor their request to the extent 
allowable by law. Individual respondents who wish to withhold their 
name or address from public review, except for the city or town, must 
state this prominently at the beginning of their comments. We will make 
all submissions from organizations or businesses, and from individuals 
identifying themselves as representatives or officials of organizations 
or businesses, available for public review in their entirety.

Public Hearing

    If you wish to speak at the public hearing, contact the person 
listed under FOR FURTHER INFORMATION CONTACT by 4 p.m., c.s.t. on 
February 18, 2004. If you are disabled and need special accommodations 
to attend a public hearing, contact the person listed under FOR FURTHER 
INFORMATION CONTACT. We will arrange the location and time of the 
hearing with those persons requesting the hearing. If no one requests 
an opportunity to speak, we will not hold a hearing.
    To assist the transcriber and ensure an accurate record, we 
request, if possible, that each person who speaks at the public hearing 
provide us with a written copy of his or her comments. The public 
hearing will continue on the specified date until everyone scheduled to 
speak has been given an opportunity to be heard. If you are in the 
audience and have not been scheduled to speak and wish to do so, you 
will be allowed to speak after those who have been scheduled. We will 
end the hearing after everyone scheduled to speak and others present in 
the audience who wish to speak, have been heard.

Public Meeting

    If only one person requests an opportunity to speak, we may hold a 
public meeting rather than a public hearing. If you wish to meet with 
us to discuss the amendment, please request a meeting by contacting the 
person listed under FOR FURTHER INFORMATION CONTACT. All such meetings 
are open to the public and, if possible, we will post notices of 
meetings at the locations listed under ADDRESSES. We will make a 
written summary of each meeting a part of the administrative record.

IV. Procedural Determinations

Executive Order 12630--Takings

    The revisions made at the initiative of the State do not have 
Federal counterparts and have been reviewed and a determination made 
that they do not have takings implications. This determination is based 
on the fact that the provisions have no substantive effect on the 
regulated industry.

Executive Order 12866--Regulatory Planning and Review

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

Executive Order 12988--Civil Justice Reform

    The Department of the Interior has conducted the reviews required 
by section 3 of Executive Order 12988 and has determined that 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 because 
each program is drafted and promulgated by a specific State, not by 
OSM. Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and 
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.

Executive Order 13132--Federalism

    This rule does not have Federalism implications. SMCRA delineates 
the roles of the Federal and State governments with regard to the 
regulation of surface coal mining and reclamation operations. One of 
the purposes of SMCRA is to ``establish a nationwide program to protect 
society and the environment from the adverse effects of surface coal 
mining operations.'' Section 503(a)(1) of SMCRA requires that State 
laws regulating surface coal mining and reclamation operations be ``in 
accordance with'' the requirements of SMCRA, and section 503(a)(7) 
requires that State programs contain rules and regulations ``consistent 
with'' regulations issued by the Secretary pursuant to SMCRA.

Executive Order 13175--Consultation and Coordination With Indian Tribal 
Governments

    In accordance with Executive Order 13175, we have evaluated the 
potential effects of this rule on Federally-recognized Indian tribes 
and have determined that the rule does not have substantial direct 
effects on one or more Indian tribes, on the relationship between the 
Federal Government and Indian tribes, or on the distribution of power 
and responsibilities between the Federal Government and Indian tribes. 
This determination is based on the fact that the Texas program does not 
regulate coal exploration and surface coal mining and reclamation 
operations on Indian lands. Therefore, the Texas program has no effect 
on Federally-recognized Indian tribes.

Executive Order 13211--Regulations That Significantly Affect The 
Supply, Distribution, or Use of Energy

    On May 18, 2001, the President issued Executive Order 13211 which 
requires agencies to prepare a Statement of Energy Effects for a rule 
that is (1) considered significant under Executive Order 12866, and (2) 
likely to have a significant adverse effect on the supply, 
distribution, or use of energy. Because this rule is exempt from review 
under Executive Order 12866 and is not expected to have a significant 
adverse effect on the supply, distribution, or use of energy, a 
Statement of Energy Effects is not required.

National Environmental Policy Act

    This rule does not require an environmental impact statement 
because section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that 
agency decisions on proposed State regulatory program provisions do not 
constitute

[[Page 5105]]

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 certifies that the provisions in 
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.). This determination is based upon the fact that the 
provisions are not expected to have a substantive effect on the 
regulated industry.

Small Business Regulatory Enforcement Fairness Act

    This rule is not a major rule under 5 U.S.C. 804(2), the Small 
Business Regulatory Enforcement Fairness Act. This rule: (a) Does not 
have an annual effect on the economy of $100 million; (b) Will not 
cause a major increase in costs or prices for consumers, individual 
industries, Federal, State, or local government agencies, or geographic 
regions; and (c) Does not have significant adverse effects on 
competition, employment, investment, productivity, innovation, or the 
ability of U.S.-based enterprises to compete with foreign-based 
enterprises. This determination is based upon the fact that the State 
provisions are not expected to have a substantive effect on the 
regulated industry.

Unfunded Mandates

    This rule will not impose an unfunded mandate on State, local, or 
tribal governments or the private sector of $100 million or more in any 
given year. This determination is based upon the fact that the State 
provisions are not expected to have a substantive effect on the 
regulated industry.

List of Subjects in 30 CFR Part 943

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: December 30, 2003.
Charles E. Sandberg,
Regional Director, Mid-Continent Regional Coordinating Center.
[FR Doc. 04-2130 Filed 2-2-04; 8:45 am]
BILLING CODE 4310-05-U