Part 1.
RAILROAD COMMISSION OF TEXAS
Chapter 12.
COAL MINING REGULATIONS
The Railroad Commission of Texas proposes amendments to §12.3,
relating to Definitions; the repeal of §12.71, relating to Areas Where
Mining is Prohibited or Limited; new §12.71, relating to Areas Where
Surface Coal Mining Operations are Prohibited or Limited; the repeal of §12.72,
relating to Procedures; new §12.72, relating to Procedures for Compatibility
Findings, Public Road Closures and Relocations, Buffer Zones, and Valid Existing
Rights Determinations; the repeal of §12.73, relating to Responsibility;
new §12.73, relating to Commission Obligations at Time of Permit Application
Review; new §12.74, relating to Responsibility; and amendments to §12.77,
relating to Applicability and Restrictions on Exploration on Land Designated
as Unsuitable for Surface Coal Mining Operations; §12.111, relating to
General Requirements: Exploration That Will Remove More Than 250 Tons of Coal
or That Will Occur on Land Designated as Unsuitable for Surface Coal Mining
Operations; §12.112, relating to Applications: Approval or Disapproval
of Exploration of More Than 250 Tons of Coal or That Will Occur on Land Designated
as Unsuitable for Surface Coal Mining Operations; §12.113, relating to
Applications: Notice and Hearing for Exploration of More Than 250 Tons; §12.118,
relating to Relationship to Areas Designated Unsuitable for Mining; §12.151,
relating to Protection of Public Parks and Historic Places; §12.152,
relating to Relocation or Use of Public Roads; §12.158, relating to Relationship
to Areas Designated Unsuitable for Mining; §12.191, Relating to Protection
of Public Parks and Historic Places; §12.192, relating to Relocation
or Use of Public Roads; §12.207, relating to Public Notices of Filing
of Permit Applications; and §12.216, relating to Criteria for Permit
Approval or Denial.
The Commission proposes to repeal §12.71, relating to Areas Where
Mining is Prohibited, and replace it with new §12.71, relating to Areas
Where Surface Coal Mining Operations are Prohibited or Limited. The proposed
new §12.71 adds subsection (b) which is an exception for existing operations
to areas where surface coal mining operations are prohibited or limited.
The Commission proposes to repeal §12.72, relating to Procedures for
Permit Application, and replace it with §12.72, relating to Procedures
for Compatibility Findings, Public Road Closures and Relocations, Buffer Zones,
and Valid Existing Rights Determinations. Proposed new subsection (c) explains
which agency determines if there is a valid existing right and the process
for determining if a valid existing right exists.
The Commission proposes to repeal §12.73, relating to Responsibility,
and replace it with new §12.73, relating to Commission Obligations at
Time of Permit Application Review. Proposed new §12.73 establishes the
criteria to be used for rejection of any portion of an application containing
protected lands and establishes procedures for joint approval of mining operations
that will adversely affect publicly owned lands
The Commission proposes new §12.74, relating to Responsibility. This
new section is merely a renumbering of the current §12.73, relating to
Responsibility.
The Commission proposes amendments to §12.3 to remove the definition
of Surface coal mining operations, which exist on the date of enactment, and
to parallel the federal regulation 30 Code of Federal Regulations (CFR) §761.5.
The proposed change to the definition of "valid existing rights" is intended
to clarify the circumstances under which a valid existing right exists. As
stated in Texas Natural Resources Code §134.012(d), the Commission is
not authorized to adjudicate property title or property rights disputes. To
demonstrate that a valid existing right exists, except for usage or construction
of roads, a person must document that property rights existed on August 3,
1977, and must document compliance with one of the two standards listed in
paragraph (187)(B). The two standards are the good faith/permits standard
and the needed for and adjacent standard. Other definitions are renumbered
as applicable.
The Commission proposes to amend §12.77, relating to exploration on
land designated as unsuitable for Surface coal mining operations, by clarifying
that lands listed under §12.71(a), relating to areas where Surface coal
mining operations are prohibited or limited, are subject to designation as
unsuitable for surface coal mining.
The Commission proposes to amend §12.111 and §12.112, to specify
that the applicant shall demonstrate that the proposed exploration activities
are designed to minimize interference with the value for which the lands were
designated as unsuitable for Surface coal mining operations and document consultation
with the owner of the feature that causes the land to come under §12.71(a)
of this title.
The Commission proposes to amend §12.113, to add that notice also
be sent to commenters.
The Commission proposes to amend §12.118 to include areas within 100
feet of a public road.
The Commission proposes to amend §§12.151, 12.152, 12.158, 12.191,
12.192, 12.207, and 12.216, to conform rule citations to other proposed changes.
Melvin Hodgkiss, Director, Surface Mining and Reclamation Division, has
determined that, during each year of the first five years the proposed repeals,
amendments, and new sections are in effect, there will be no fiscal impacts
to state or local governments as a result of their adoption. The new requirements
applicable to the Commission will impose no new costs on the Commission. These
rule amendments are largely housekeeping measures that are anticipated to
have little practical effect in Texas, but which will keep the Texas program
in compliance with the requirements of the Office of Surface Mining Reclamation
and Enforcement, United States Department of Interior (OSM).
Mr. Hodgkiss has determined that, during each year of the first five years
the proposed repeals, amendments, and new sections are in effect, there will
be no discernable change in the cost of regulatory compliance to small businesses,
micro-businesses, or individuals. The proposed amendments to the rules regarding
valid existing rights could have the effect of clarifying and thus streamlining
the decision process. Cost savings resulting from these changes will vary
from operator to operator and cannot be reliably predicted.
Mr. Hodgkiss has also determined that the public benefit from adoption
of the proposed repeals, amendments, and new sections will be continued adherence
to environmental protection standards in a more cost-effective fashion.
The Commission has not requested a local employment impact statement pursuant
to Texas Government Code, §2002.022.
Comments on the proposed repeals, amendments and new sections should be
submitted to Rules Coordinator, Office of General Counsel, Railroad Commission
of Texas, P.O. Box 12967, Austin, Texas 78711-2967; online at http://www.rrc.state.tx.us/rules/commentform.html;
or by electronic mail to rulescoordinator@rrc.state.tx.us Comments will be
accepted for 30 days after publication in the
Texas
Register
. The Commission finds that a 30-day comment period is reasonable
because these rules are required to keep the Texas program in compliance with
the requirements of OSM. For further information, call Melvin Hodgkiss, Director,
Surface Mining and Reclamation Division, at (512) 463-6901. The status of
Commission rulemakings in progress is available at http://www.rrc.state.tx.us/rules/proposed.html.
Subchapter A. GENERAL
1.
GENERAL
16 TAC §12.3
The Commission proposes the amendments under Texas Natural
Resources Code, §134.013, which authorizes the Commission to promulgate
rules pertaining to surface coal mining operations.
Texas Natural Resources Code, §134.013, is affected by the proposed
amendments.
Issued in Austin, Texas, on March 11, 2003.
§12.3.Definitions.
The following words and terms, when used in this Chapter (relating
to Coal Mining Regulations), shall have the following meanings unless the
context clearly indicates otherwise:
(1) - (168)
(No change.)
[(169)
Surface coal mining operations which
exist on the date of enactment--All surface coal mining operations which were
being conducted on August 3, 1977.]
(169)
[
(170)
[
(171)
[
(172)
[
(173)
[
(174)
[
(A)
closely resemble the surface configuration of the land
prior to mining; or
(B)
blend into and complement the drainage pattern of the surrounding
terrain.
(175)
[
(A)
closely resemble the surface configuration of the land
prior to mining; or
(B)
blend into and complement the drainage pattern of the surrounding
terrain.
(176)
[
(177)
[
(178)
[
(179)
[
(180)
[
(181)
[
(182)
[
(183)
[
(A)
surface operations incident to underground extraction of
coal or in situ processing, such as construction, use, maintenance, and reclamation
of roads, above-ground repair areas, storage areas, processing areas, shipping
areas, areas upon which are sited support facilities including hoist and ventilating
ducts, areas utilized for the disposal and storage of waste, and areas on
which materials incident to underground mining operations are placed; and
(B)
underground operations such as underground construction,
operation, and reclamation of shafts, adits, underground support facilities,
in situ processing, and underground mining, hauling, storage, and blasting.
(184)
[
(185)
[
(186)
[
(187)
Valid existing rights--A set of circumstances
under which a person may, subject to Commission approval, conduct surface
coal mining operations on lands where §134.022 of the Act and §12.71(a)
of this title (relating to Areas Where Surface Coal Mining Operations are
Prohibited or Limited) would otherwise prohibit such operations. Possession
of valid existing rights only confers an exception from the prohibitions of §12.71(a)
of this title and §134.022 of the Act. A person seeking to exercise valid
existing rights must comply with all other pertinent requirements of the Act
and this chapter.
(A)
Property rights demonstration. Except as provided in subparagraph
(C) of this paragraph, a person claiming valid existing rights must demonstrate
that a legally binding conveyance, lease, deed, contract, or other document
vests that person, or a predecessor in interest, with the right to conduct
the type of surface coal mining operations intended. This right must exist
at the time that the land came under the protection of §12.71(a) of this
title or §134.022 of the Act. Applicable state statutory or case law
will govern interpretation of documents relied upon to establish property
rights. If no applicable state law exists, custom and generally accepted usage
at the time and place that the documents came into existence will govern their
interpretation.
(B)
Additional demonstrations. Except as provided in subparagraph
(C) of this paragraph, a person claiming valid existing rights must also demonstrate
compliance with one of the following standards:
(i)
Good faith/all permits standard. All permits and other
authorizations required to conduct surface coal mining operations have been
obtained, or a good faith effort to obtain all necessary permits and authorizations
has been made, before the land came under the protection of §12.71(a)
of this title or §134.022 of the Act. At a minimum, an application must
have been submitted for any permit required under Subchapter G of this chapter
(relating to Surface Coal Mining and Reclamation Operations, Permits, and
Coal Exploration Procedure Systems); or
(ii)
Needed for and adjacent standard. The land is needed for
and immediately adjacent to a surface coal mining operation for which all
permits and other authorizations required to conduct surface coal mining operations
have been obtained, or a good faith attempt to obtain all permits and authorizations
has been made, before the land came under the protection of §12.71(a)
of this title or §134.022 of the Act. To meet this standard, a person
must demonstrate that prohibiting expansion of the operation onto that land
would unfairly impact the viability of the operation as originally planned
before the land came under the protection of §12.71(a) of this title
or §134.022 of the Act. Except for operations in existence before August
3, 1977, or for which a good faith effort to obtain all necessary permits
have been made before August 3, 1977, this standard does not apply to lands
already under the protection of §12.71(a) of this title or §134.022
of the Act when the Commission approved the permit for the original operation
or when the good faith effort to obtain all necessary permits for the original
operation was made. In evaluating whether a person meets this standard, the
Commission may consider factors such as:
(I)
the extent to which coal supply contracts or other legal
and business commitments that predate the time that the land came under the
protection of §12.71(a) of this title or §134.022 of the Act depend
upon use of that land for surface coal mining operations;
(II)
the extent to which plans used to obtain financing for
the operation before the land came under the protection of §12.71(a)
of this title or §134.022 of the Act rely upon use of that land for surface
coal mining operations;
(III)
the extent to which investments in the operation before
the land came under the protection of §12.71(a) of this title or §134.022
of the Act rely upon use of that land for surface coal mining operations;
and
(IV)
whether the land lies within the area identified on the
life-of-mine map submitted under §12.136(3) of this title (relating to
Maps: General Requirements) or §12.182(3) of this title (relating to
Maps: General Requirements) before the land came under the protection of §12.71(a)
of this title.
(C)
Roads. A person who claims valid existing rights to use
or construct a road across the surface of lands protected by §12.71(a)
of this title or §134.022 of the Act must demonstrate that one or more
of the following circumstances exist if the road is included within the definition
of "surface coal mining operations" in this section:
(i)
the road existed when the land upon which it is located
came under the protection of §12.71(a) of this title or §134.022
of the Act, and the person has a legal right to use the road for surface coal
mining operations;
(ii)
a properly recorded right of way or easement for a road
in that location existed when the land came under the protection of §12.71(a)
of this title or §134.022 of the Act, and, under the document creating
the right of way or easement, and under subsequent conveyances, the person
has a legal right to use or construct a road across the right of way or easement
for surface coal mining operations;
(iii)
a valid permit for use or construction of a road in that
location for surface coal mining operations existed when the land came under
the protection of §12.71(a) of this title or §134.022 of the Act;
or
(iv)
valid existing rights exist under subparagraphs (A) and
(B) of this paragraph.
[(188)
Valid existing rights--Includes:]
[(A)
except for haul roads:]
[(i)
those property rights in existence on August 3, 1977,
that were created by a legally binding conveyance, lease, deed, contract or
other document which authorizes the applicant to produce coal by a surface
coal mining operation; and]
[(ii)
the person proposing to conduct surface coal mining operations
on such lands either:]
[(I)
has been validly issued, on or before August 3, 1977,
all state and federal permits necessary to conduct such operations on those
lands; or]
[(II)
can demonstrate to the Commission that the coal is both
needed for, and immediately adjacent to, an ongoing surface coal mining operation
for which all permits were obtained prior to August 3, 1977;]
[(B)
for haul roads, valid existing rights includes:]
[(i)
A recorded right-of-way, recorded easement, or a permit
for a coal haul road recorded as of August 3, 1977; or]
[(ii)
Any other road in existence as of August 3, 1977; and]
[(C)
interpretation of the terms of the document relied upon
to establish valid existing rights shall be based upon Texas case law concerning
the interpretation of documents conveying mining rights. When no Texas case
law exists, interpretation shall be based upon the usage and custom at the
time and place where the document came into existence and upon a showing by
the applicant that the parties to the document actually contemplated a right
to conduct the same underground or surface mining activities for which the
applicant claims a valid existing right.]
[(D)
valid existing rights does not include mere expectation
of a right to conduct surface coal mining operations or the right to conduct
underground coal mining. (Examples of rights which alone do not constitute
valid existing rights include, but are not limited to, coal exploration permits
or licenses, applications or bids for leases, or where a person has only applied
for a state or federal permit.)]
(188)
[
(189)
[
(190)
[
(191)
[
(192)
[
(A)
either intentionally, voluntarily, or consciously; and
(B)
with intentional disregard or plain indifference to legal
requirements in authorizing, ordering, or carrying out a corporate permittee's
action or omission that constituted a violation, failure, or refusal.
(193)
[
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed with the Office of
the Secretary of State on March 20, 2003.
TRD-200301845
Mary Ross McDonald
Deputy General Counsel
Railroad Commission of Texas
Earliest possible date of adoption: May 4, 2003
For further information, please call: (512) 475-1295
2.
AREAS DESIGNATED BY ACT OF CONGRESS
16 TAC §12.71, §12.72
(Editor's note: The text of the following sections proposed for
repeal will not be published. The sections may be examined in the offices
of the Railroad Commission of Texas or in the Texas Register office, Room
245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
The Commission proposes the repeals under Texas Natural
Resources Code, §134.013, which authorizes the Commission to promulgate
rules pertaining to surface coal mining operations.
Texas Natural Resources Code, §134.013, is affected by the proposed
repeals.
Issued in Austin, Texas, on March 11, 2003.
§12.71.Areas Where Mining is Prohibited or Limited.
§12.72.Procedures.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed
with the Office of the Secretary of State on March 20, 2003.
TRD-200301843
Mary Ross McDonald
Deputy General Counsel
Railroad Commission of Texas
Earliest possible date of adoption: May 4, 2003
For further information, please call: (512) 475-1295
16 TAC §12.71, §12.72
The Commission proposes the new sections under Texas Natural
Resources Code, §134.013, which authorizes the Commission to promulgate
rules pertaining to surface coal mining operations.
Texas Natural Resources Code, §134.013, is affected by the proposed
new sections.
Issued in Austin, Texas, on March 11, 2003.
§12.71.Areas Where Surface Coal Mining Operations are Prohibited or Limited.
(a)
Surface coal mining operations may not be conducted on
the following lands unless those lands either qualify for the exception for
existing operations under subsection (b) of this section or are subject to
valid existing rights, as determined under §12.72(c) of this title (relating
to Procedures for Compatibility Findings, Public Road Closures and Relocations,
Buffer Zones, and Valid Existing Rights Determinations):
(1)
Any lands within the boundaries of:
(A)
the National Park System;
(B)
the National Wildlife Refuge System;
(C)
the National System of Trails;
(D)
the National Wilderness Preservation System;
(E)
the Wild and Scenic Rivers System, including study rivers
designated under section 5(a) of the Wild and Scenic Rivers Act, 16 U.S.C.
1276(a), or study rivers or study river corridors established in any guidelines
issued under that Act; or
(F)
National Recreation Areas designated by Act of Congress.
(2)
Any federal lands within a national forest, except that
this prohibition must not apply if the Secretary finds that there are no significant
recreational, timber, economic, or other values that may be incompatible with
surface coal mining operations, and:
(A)
any surface operations and impacts will be incident to
an underground coal mine; or
(B)
with respect to lands that do not have significant forest
cover within national forests west of the 100th meridian, the Secretary of
Agriculture has determined that surface mining is in compliance with the Act,
the Multiple-Use Sustained Yield Act of 1960, 16 U.S.C. 528-531; the Federal
Coal Leasing Amendments Act of 1975, 30 U.S.C. 181 et seq.; and the National
Forest Management Act of 1976, 16 U.S.C. 1600 et seq.
(3)
Any lands where the operation would adversely affect any
publicly owned park or any place listed in the National Register of Historic
Places; however, this prohibition does not apply if, as provided in §12.73(d)
of this title (relating to Commission Obligations at Time of Permit Application
Review), the Commission and the federal, state or local agency with jurisdiction
over the park or place jointly approve the operation.
(4)
Within 100 feet, measured horizontally, of the outside
right-of-way line of any public road, except:
(A)
where a mine access or haul road joins a public road, or
(B)
when, as provided in §12.72(a) of this title, the
Commission (or the appropriate public road authority designated by the Commission)
allows the public road to be relocated or closed, or the area within the buffer
zone to be affected by the surface coal mining operation, after:
(i)
providing public notice and opportunity for a public hearing
in accordance with §12.72(a)(3) of this title; and
(ii)
finding in writing that the interests of the affected
public and landowners will be protected.
(5)
Within 300 feet, measured horizontally, of any occupied
dwelling; except when:
(A)
the owner of the dwelling has provided a written waiver
consenting to surface coal mining operations within the protected zone, as
provided in §12.72(b) of this title; or
(B)
the part of the operation to be located closer than 300
feet to the dwelling is an access or haul road that connects with an existing
public road on the side of the public road opposite the dwelling.
(6)
Within 300 feet, measured horizontally, of any public building,
school, church, community or institutional building, or public park.
(7)
Within 100 feet, measured horizontally, of a cemetery;
however, this prohibition does not apply if the cemetery is relocated in accordance
with all applicable laws and regulations.
(b)
Exception for existing operations. The prohibitions and
limitations of subsection (a) of this section do not apply to surface coal
mining operations for which a valid permit, issued under Subchapter G of this
chapter (relating to Surface Coal Mining and Reclamation Operations, Permits
and Coal Exploration Procedures Systems), exists when the land comes under
the protection of subsection (a) of this section; this exception applies only
to lands within the permit area as it exists when the land comes under the
protection of subsection (a) of this section.
§12.72.Procedures for Compatibility Findings, Public Road Closures and Relocations, Buffer Zones, and Valid Existing Rights Determinations.
(a)
Procedures for relocating or closing a public road or waiving
the prohibition on surface coal mining operations within the buffer zone of
a public road.
(1)
This section does not apply to:
(A)
lands for which a person has valid existing rights, as
determined under subsection (c) of this section;
(B)
lands within the scope of the exception for existing operations
in §12.71(b) of this title (relating to Areas Where Surface Coal Mining
Operations are Prohibited or Limited); and
(C)
access or haul roads that join a public road, as described
in §12.71(a)(4)(A) of this title (relating to Areas Where Surface Coal
Mining Operations are Prohibited or Limited).
(2)
All necessary approvals from the authority with jurisdiction
over the road must be obtained for the following:
(A)
relocation of a public road;
(B)
closure of a public road; or
(C)
surface coal mining operations proposed within 100 feet,
measured horizontally, of the outside right-of-way line of a public road.
(3)
Before approving an action proposed under paragraph (2)
of this subsection, the Commission or a public road authority that it designates
must determine that the interests of the public and affected landowners will
be protected. Before making this determination, the Commission or designated
authority must:
(A)
provide a public comment period and opportunity to request
a public hearing in the locality of the proposed operation;
(B)
if a public hearing is requested, publish appropriate advance
notice at least two weeks before the hearing in a newspaper of general circulation
in the affected locality; and
(C)
based upon information received from the public, make a
written finding as to whether the interests of the public and affected landowners
will be protected. If a hearing is held by the Commission or designated authority,
the Commission or designated authority must make a written finding within
30 days after the hearing. If no hearing is held, the Commission or designated
authority must make a written finding within 30 days after the end of the
public comment period.
(b)
Procedures for waiving the prohibition on surface coal
mining operations within the buffer zone of an occupied dwelling.
(1)
This section does not apply to:
(A)
lands for which a person has valid existing rights, as
determined under subsection (c) of this section;
(B)
lands within the scope of the exception for existing operations
in §12.71(b) of this title (relating to Areas Where Surface Coal Mining
Operations are Prohibited or Limited); and
(C)
access or haul roads that connect with an existing public
road on the side of the public road opposite the dwelling, as provided in §12.71(a)(5)(B)
of this title (relating to Areas Where Surface Coal Mining Operations are
Prohibited or Limited).
(2)
If surface coal mining operations are proposed to be conducted
within 300 feet, measured horizontally, of any occupied dwelling, the permit
application must include a written waiver by lease, deed, or other conveyance
from the owner of the dwelling. The waiver must clarify that the owner and
signatory have the legal right to deny mining and knowingly waived that right.
The waiver will act as consent to surface coal mining operations within a
closer distance of the dwelling as specified.
(3)
If a valid waiver from the owner of an occupied dwelling
to conduct operations within 300 feet of the dwelling was obtained before
August 3, 1977, a new waiver does not need to be provided.
(4)
If a valid waiver is obtained from the owner of an occupied
dwelling, that waiver will remain effective against subsequent purchasers
who have actual or constructive knowledge of the existing waiver at the time
of purchase. A subsequent purchaser will be deemed to have constructive knowledge
if the waiver has been properly filed in public property records pursuant
to state laws or if surface coal mining operations have entered the 300-foot
zone before the date of purchase.
(c)
Submission and processing of requests for valid existing
rights determinations.
(1)
Basic framework for valid existing rights determinations.
The following table identifies the agency responsible for making a valid existing
rights determination and the definition that it must use, based upon which
part of §12.71(a) of this title (relating to Areas Where Surface Coal
Mining Operations are Prohibited or Limited) applies and whether the request
includes federal lands.
(2)
Contents of requests for a valid existing rights determination.
A request for a valid existing rights determination for any land other than
federal land must be submitted to the Commission if the applicant intends
to conduct surface coal mining operations on the basis of valid existing rights
under §12.71(a) of this title or wishes to confirm the right to do so.
This request may be submitted before preparing and submitting an application
for a permit or boundary revision for the land.
(A)
Requirements for property rights demonstration. A property
rights demonstration must be provided under the definition of "valid existing
rights" in §12.3(187)(A) of this title (relating to Definitions) if the
request relies upon the good faith/all permits standard or the needed for
and adjacent standard in the definition of "valid existing rights" in §12.3(187)(B)
of this title. This demonstration must include the following items:
(i)
a legal description of the land to which the request pertains;
(ii)
complete documentation of the character and extent of
the applicant's current interests in the surface and mineral estates of the
land to which the request pertains;
(iii)
a complete chain of title for the surface and mineral
estates of the land to which the request pertains;
(iv)
a description of the nature and effect of each title instrument
that forms the basis for the request, including any provision pertaining to
the type or method of mining or mining-related surface disturbances and facilities;
(v)
a description of the type and extent of surface coal mining
operations that the applicant claims the right to conduct, including the method
of mining, any mining-related surface activities and facilities, and an explanation
of how those operations would be consistent with state property law;
(vi)
complete documentation of the nature and ownership, as
of the date that the land came under the protection of §12.71(a) of this
title (relating to Areas Where Surface Coal Mining Operations are Prohibited
or Limited) or §134.022 of the Act, of all property rights for the surface
and mineral estates of the land to which the request pertains;
(vii)
names and addresses of the current owners of the surface
and mineral estates of the land to which the request pertains;
(viii)
if the coal interests have been severed from other property
interests, documentation that the owners of other property interests in the
land to which the request pertains has been notified and provided reasonable
opportunity to comment on the validity of the applicant's property rights
claims; and
(ix)
any comments that are received by the applicant in response
to the notification provided under clause (viii) of this subparagraph.
(B)
Requirements for good faith/all permits standard. If the
applicant's request relies upon the good faith/all permits standard in the
definition of "valid existing rights" in §12.3(187)(B)(i) of this title,
the information required under that clause must be submitted. The following
information about permits, licenses, and authorizations for surface coal mining
operations on the land to which the request pertains must also be submitted:
(i)
approval and issuance dates and identification numbers
for any permits, licenses, and authorizations that the applicant or a predecessor
in interest obtained before the land came under the protection of §12.71(a)
of this title (relating to Areas Where Surface Coal Mining Operations are
Prohibited or Limited) or §134.022 of the Act;
(ii)
application dates and identification numbers for any permits,
licenses, and authorizations for which the applicant or a predecessor in interest
submitted an application before the land came under the protection of §12.71(a)
of this title or §134.022 of the Act; and
(iii)
an explanation of any other good faith effort that the
applicant or a predecessor in interest made to obtain the necessary permits,
licenses, and authorizations as of the date that the land came under the protection
of §12.71(a) of this title or §134.022 of the Act.
(C)
Requirements for needed for and adjacent standard. If the
applicant's request relies upon the needed for and adjacent standard in the
definition of "valid existing rights" in §12.3(187)(B)(i) of this title,
the information required under subparagraph (A) of this paragraph must be
submitted. In addition, the applicant must explain how and why the land is
needed for and immediately adjacent to the operation upon which the request
is based, including a demonstration that prohibiting expansion of the operation
onto that land would unfairly impact the viability of the operation as originally
planned before the land came under the protection of §12.71(a) of this
title or §134.022 of the Act.
(D)
Requirements for standards for mine roads. If the applicant's
request relies upon one of the standards for roads in the definition of "valid
existing rights" in §12.3(187)(c)(i) - (iii) of this title, the applicant
must submit satisfactory documentation that:
(i)
the road existed when the land upon which it is located
came under the protection of §12.71(a) of this title or §134.022
of the Act, and that the applicant has a legal right to use the road for surface
coal mining operations;
(ii)
a properly recorded right of way or easement for a road
in that location existed when the land came under the protection of §12.71(a)
of this title or §134.022 of the Act, and, under the document creating
the right of way or easement, and under any subsequent conveyances, the applicant
has a legal right to use or construct a road across that right of way or easement
to conduct surface coal mining operations; or
(iii)
a valid permit for use or construction of a road in that
location for surface coal mining operations existed when the land came under
the protection of §12.71(a) of this title or §134.022 of the Act.
(3)
Initial review of request regarding any land other than
federal land.
(A)
The Commission must conduct an initial review to determine
whether the applicant's request includes all applicable components of the
submission requirements of paragraph (2) of this subsection. This review pertains
only to the completeness of the request, not the legal or technical adequacy
of the materials submitted.
(B)
If the applicant's request does not include all applicable
components of the submission requirements of paragraph (2) of this subsection,
the Commission must notify the applicant and establish a reasonable time for
submission of the missing information.
(C)
When the applicant's request includes all applicable components
of the submission requirements of paragraph (2) of this subsection, the Commission
must implement the notice and comment requirements of paragraph (4) of this
subsection.
(D)
If the information requested by the Commission under subparagraph
(B) of this paragraph is not provided within the time specified or as subsequently
extended, the Commission must issue a determination that the applicant has
not demonstrated valid existing rights, as provided in paragraph (5)(D) of
this subsection.
(4)
Notice and comment requirements and procedures.
(A)
When the applicant's request satisfies the completeness
requirements of paragraph (3) of this subsection, the Commission must publish
a notice in a newspaper of general circulation in the county in which the
land is located. This notice must invite comment on the merits of the request.
Alternatively, the Commission may require that the applicant publish this
notice and provide the Commission with a copy of the published notice. Each
notice must include:
(i)
the location of the land to which the request pertains;
(ii)
a description of the type of surface coal mining operations
planned;
(iii)
a reference to and brief description of the applicable
standard(s) under the definition of "valid existing rights" in §12.3(187)
of this title; and
(I)
if the request relies upon the good faith/all permits standard
or the needed for and adjacent standard in the definition of "valid existing
rights" in §12.3(187)(B) of this title, the notice also must include
a description of the property rights claimed and the basis for that claim;
(II)
if the request relies upon the standard in the definition
of "valid existing rights" in §12.3(187)(C)(i) of this title, the notice
also must include a description of the basis for the claim that the road existed
when the land came under the protection of §12.71(a) of this title or §134.022
of the Act. In addition, the notice must include a description of the basis
for the claim that the applicant has a legal right to use that road for surface
coal mining operations;
(III)
if the request relies upon the standard in the definition
of "valid existing rights" in §12.3(187)(C)(ii) of this title, the notice
must also include a description of the basis for the claim that a properly
recorded right of way or easement for a road in that location existed when
the land came under the protection of §12.71(a) of this title or §134.022
of the Act. In addition, the notice must include a description of the basis
for the claim that, under the document creating the right-of-way or easement,
and under any subsequent conveyances, the applicant has a legal right to use
or construct a road across the right-of-way or easement to conduct surface
coal mining operations;
(iv)
if the applicant's request relies upon one or more of
the standards in the definition of "valid existing rights" in §12.3(187)(B),
(C)(i), and (C)(ii) of this title, a statement that the Commission will not
make a decision on the merits of the request if, by the close of the comment
period under this notice or the notice required by subparagraph (C) of this
paragraph, a person with a legal interest in the land initiates appropriate
legal action to resolve any differences concerning the validity or interpretation
of the deed, lease, easement, or other documents that form the basis of the
applicant's claim;
(v)
a description of the procedures that the Commission will
follow in processing the request;
(vi)
the closing date of the comment period, which must be
a minimum of 30 days after the publication date of the notice;
(vii)
a statement that interested persons may obtain a 30-day
extension of the comment period upon request; and
(viii)
the name and address of the Commission office where
a copy of the request is available for public inspection and to which comments
and requests for extension of the comment period should be sent.
(B)
The Commission must promptly provide a copy of the notice
required under subparagraph (A) of this paragraph to:
(i)
all reasonably locatable owners of surface and mineral
estates in the land included in the request; and
(ii)
the owner of the feature causing the land to come under
the protection of §12.71(a) of this title, and, when applicable, the
agency with primary jurisdiction over the feature with respect to the values
causing the land to come under the protection of §12.71(a) of this title.
For example, both the landowner and the State Historic Preservation Officer
must be notified if surface coal mining operations would adversely impact
any site listed on the National Register of Historic Places. As another example,
both the surface owner and the National Park Service must be notified if the
request includes non-federal lands within the authorized boundaries of a unit
of the National Park System.
(C)
The letter transmitting the notice required under subparagraph
(B) of this paragraph must provide a 30-day comment period, starting from
the date of service of the letter, and specify that another 30 days is available
upon request. At its discretion, the Commission may grant additional time
for good cause upon request. The Commission need not necessarily consider
comments received after the closing date of the comment period.
(5)
How a decision will be made.
(A)
Procedure. The Commission must review the materials submitted
under paragraph (2) of this subsection, comments received under paragraph
(4) of this subsection, and any other relevant, reasonably available information
to determine whether the record is sufficiently complete and adequate to support
a decision on the merits of the request. If not, the Commission must notify
the applicant in writing, explaining the inadequacy of the record and requesting
submittal, within a specified reasonable time, of any additional information
that the agency deems necessary to remedy the inadequacy.
(B)
Determination. Once the record is complete and adequate,
the Commission must determine whether the applicant has demonstrated valid
existing rights. The decision document must explain how the applicant has
or has not satisfied all applicable elements of the definition of "valid existing
rights" in §12.3(187) of this title. It must contain findings of fact
and conclusions, and it must specify the reasons for the conclusions.
(C)
Impact of property rights disagreements. This subparagraph
applies only when the request relies upon one or more of the standards in
the definition of "valid existing rights" in §12.3(187)(B), (C)(i) and
(C)(ii) of this title.
(i)
The Commission must issue a determination that the applicant
has not demonstrated valid existing rights if those property rights claims
are the subject of pending litigation in a court or administrative body with
jurisdiction over the property rights in question. The Commission will make
this determination without prejudice, meaning that an applicant may refile
the request once the property rights dispute is finally adjudicated. This
clause applies only to situations in which legal action has been initiated
as of the closing date of the comment period under paragraph (4)(A) or (C)
of this subsection.
(ii)
If the record indicates disagreement as to the accuracy
of property rights claims, but this disagreement is not the subject of pending
litigation in a court or administrative agency of competent jurisdiction,
the Commission must evaluate the merits of the information in the record and
determine whether the applicant has demonstrated that the requisite property
rights exist under the definition of "valid existing rights" in §12.3(187)(A),
(C)(i) or (C)(ii) of this title, as appropriate. The Commission must then
proceed with the decision process under subparagraph (B) of this paragraph.
(D)
Default determination. The Commission must issue a determination
that an applicant has not demonstrated valid existing rights if the information
that is requested under paragraph (3)(B) of this subsection or subparagraph
(A) of this paragraph has not been submitted within the time specified or
as subsequently extended. The Commission will make this determination without
prejudice, meaning that the applicant may refile a revised request at any
time.
(E)
Notice after decision. After making a determination, the
Commission must:
(i)
provide a copy of the determination, together with an explanation
of appeal rights and procedures, to the applicant, to the owner or owners
of the land to which the determination applies, to the owner of the feature
causing the land to come under the protection of §12.71(a) of this title,
and, when applicable, to the agency with primary jurisdiction over the feature
with respect to the values that caused the land to come under the protection
of §12.71(a) of this title; and
(ii)
publish notice of the determination in a newspaper of
general circulation in the county in which the land is located. Alternatively,
the Commission may require that the applicant publish this notice and provide
a copy of the published notice to the Commission.
(6)
Administrative and judicial review. A determination that
an applicant has or does not have valid existing rights is subject to administrative
and judicial review under §12.222 and §12.223 of this title (relating
to Administrative Review and Judicial Review).
(7)
Availability of records. The Commission must make a copy
of that request available to the public in the same manner as it must make
permit applications available to the public under §12.210 of this title
(relating to Public Availability of Information in Permit Applications On
File With the Commission). In addition, the Commission must make records associated
with that request, and any subsequent determination under paragraph (5) of
this subsection, available to the public in accordance with the requirements
and procedures of §12.672 of this title (relating to Availability of
Records).
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed
with the Office of the Secretary of State on March 20, 2003.
TRD-200301846
Mary Ross McDonald
Deputy General Counsel
Railroad Commission of Texas
Earliest possible date of adoption: May 4, 2003
For further information, please call: (512) 475-1295
16 TAC §12.73
(Editor's note: The text of the following section proposed for
repeal will not be published. The section may be examined in the offices of
the Railroad Commission of Texas or in the Texas Register office, Room 245,
James Earl Rudder Building, 1019 Brazos Street, Austin.)
The Commission proposes the repeal under Texas Natural
Resources Code, §134.013, which authorizes the Commission to promulgate
rules pertaining to surface coal mining operations.
Texas Natural Resources Code, §134.013, is affected by the proposed
repeal.
Issued in Austin, Texas, on March 11, 2003.
§12.73.Responsibility.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed
with the Office of the Secretary of State on March 20, 2003.
TRD-200301844
Mary Ross McDonald
Deputy General Counsel
Railroad Commission of Texas
Earliest possible date of adoption: May 4, 2003
For further information, please call: (512) 475-1295
16 TAC §12.73, §12.74
The Commission proposes the new sections under Texas Natural
Resources Code, §134.013, which authorizes the Commission to promulgate
rules pertaining to surface coal mining operations.
Texas Natural Resources Code, §134.013, is affected by the proposed
new sections.
Issued in Austin, Texas, on March 11, 2003.
§12.73.Commission Obligations at Time of Permit Application Review.
(a)
Obligation. Upon receipt of an administratively complete
application for a permit for a surface coal mining operation, or an administratively
complete application for revision of the boundaries of a surface coal mining
operation permit, the Commission must review the application to determine
whether the proposed surface coal mining operation would be located on any
lands protected under §12.71(a) of this title (relating to Areas Where
Surface Coal Mining Operations are Prohibited or Limited).
(b)
Criteria for Rejection. The Commission must reject any
portion of the application that would locate surface coal mining operations
on land protected under §12.71(a) of this title unless:
(1)
the site qualifies for the exception for existing operations
under §12.71(b) of this title;
(2)
a person has valid existing rights for the land, as determined
under §12.72(c) of this title (relating to Procedures For Compatibility
Findings, Public Road Closures and Relocations, Buffer Zones, And Valid Existing
Rights Determinations);
(3)
the applicant obtains a waiver or exception from the prohibitions
of §12.71(a) of this title in accordance with §12.72(a)-(b) of this
title; or
(4)
for lands protected by §12.71(a)(3) of this title,
both the Commission and the agency with jurisdiction over the park or place
jointly approve the proposed operation in accordance with subsection (d) of
this section.
(c)
Location verification. If the Commission has difficulty
determining whether an application includes land within an area specified
in §12.71(a)(1) of this title or within the specified distance from a
structure or feature listed in §12.71(a)(6) or (a)(7) of this title,
the Commission must request that the federal, state, or local governmental
agency with jurisdiction over the protected land, structure, or feature verify
the location.
(1)
The request for location verification must:
(A)
include relevant portions of the permit application;
(B)
provide the agency with 30 days after receipt to respond,
with a notice that another 30 days is available upon request; and
(C)
specify that the Commission will not necessarily consider
a response received after the comment period provided under subparagraph (B)
of this paragraph.
(2)
If the agency does not respond in a timely manner, the
Commission may make the necessary determination based on available information.
(d)
Procedures for joint approval of surface coal mining operations
that will adversely affect publicly owned parks or historic places.
(1)
If the Commission determines that the proposed surface
coal mining operation will adversely affect any publicly owned park or any
place included in the National Register of Historic Places, the Commission
must request that the federal, state, or local agency with jurisdiction over
the park or place either approve or object to the proposed operation. The
request must:
(A)
include a copy of applicable parts of the permit application;
(B)
provide the agency with 30 days after receipt to respond,
with a notice that another 30 days is available upon request; and
(C)
state that failure to interpose an objection within the
time specified under subparagraph (B) of this paragraph will constitute approval
of the proposed operation.
(2)
The Commission may not issue a permit for a proposed operation
subject to paragraph (1) of this subsection unless all affected agencies jointly
approve.
(3)
Paragraphs (1) and (2) of this subsection do not apply
to:
(A)
lands for which a person has valid existing rights, as
determined under §12.72(c) of this title; and
(B)
lands within the scope of the exception for existing operations
in §12.71(b) of this title.
§12.74.Responsibility.
The Commission must use the criteria in this Subchapter (relating to
Lands Unsuitable for Mining) for the evaluation of each petition for the designation
of areas as unsuitable for surface coal mining operations.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed
with the Office of the Secretary of State on March 20, 2003.
TRD-200301847
Mary Ross McDonald
Deputy General Counsel
Railroad Commission of Texas
Earliest possible date of adoption: May 4, 2003
For further information, please call: (512) 475-1295
16 TAC §12.77
The Commission proposes the amendments under Texas Natural
Resources Code, §134.013, which authorizes the Commission to promulgate
rules pertaining to surface coal mining operations.
Texas Natural Resources Code, §134.013, is affected by the proposed
amendments.
Issued in Austin, Texas, on March 11, 2003.
§12.77. Applicability and Restrictions on Exploration on Land Designated as Unsuitable for Surface Coal Mining Operations.
(a)
Applicability. Pursuant to
appropriate petitions, lands listed in §12.71(a) of this title (relating
to Areas Where Surface Coal Mining Operations are Prohibited or Limited) are
subject to designation as unsuitable for all or certain types of Surface coal
mining operations under this Division and Division 4 of Subchapter F (relating
to Lands Unsuitable for Mining).
(b)
Exploration Restrictions.
Designation
of any area as unsuitable for all or certain types of surface coal mining
operations pursuant to §§134.016-134.022 of the Act and regulations
of this subchapter (relating to Lands Unsuitable for Mining) does not prohibit
coal exploration operations in the area, if conducted in accordance with the
Act, this chapter (relating to Coal Mining Regulations), the approved state
program and other applicable requirements. Exploration operations on any lands
designated unsuitable for surface coal mining operations must be approved
by the Commission under §§12.109-12.115 of this title (relating
to General Requirements for Coal Exploration) to ensure that exploration does
not interfere with any value for which the area has been designated unsuitable
for surface coal mining.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed
with the Office of the Secretary of State on March 20, 2003.
TRD-200301848
Mary Ross McDonald
Deputy General Counsel
Railroad Commission of Texas
Earliest possible date of adoption: May 4, 2003
For further information, please call: (512) 475-1295
3.
GENERAL REQUIREMENTS FOR COAL EXPLORATION
16 TAC §§12.111 - 12.113
The Commission proposes the amendments under Texas Natural
Resources Code, §134.013, which authorizes the Commission to promulgate
rules pertaining to surface coal mining operations.
Texas Natural Resources Code, §134.013, is affected by the proposed
amendments.
Issued in Austin, Texas, on March 11, 2003.
§12.111.General Requirements: Exploration That Will Remove [
Any person who intends to conduct coal exploration outside a permit
area during which more than 250 tons of coal will be removed or which will
take place on lands designated as unsuitable for surface mining under Subchapter
F of this chapter (relating to Lands Unsuitable for Mining) shall, prior to
conducting the exploration, submit an application and obtain the written approval
of the Commission, in accordance with the following:
(1)
Contents of application for approval. Each application
for approval shall contain, at a minimum, the following information:
(A) - (E)
(No change.)
(F)
if the surface is owned by a person other than the applicant,
a description of the basis upon which the applicant claims the right to enter
that land for the purpose of conducting exploration and reclamation; [
(G)
a statement of why extraction of more than 250 tons of
coal is necessary for exploration
; and
[
(H)
for any lands listed in §12.71(a)
of this title (relating to Areas Where Surface Coal Mining Operations are
Prohibited or Limited), a demonstration that, to the extent technologically
and economically feasible, the proposed exploration activities have been designed
to minimize interference with the values for which those lands were designated
as unsuitable for Surface coal mining operations. The application must include
documentation of consultation with the owner of the feature causing the land
to come under the protection of §12.71(a) of this title, and, when applicable,
with the agency with primary jurisdiction over the feature with respect to
the values that caused the land to come under the protection of §12.71(a)
of this title.
(2)
(No change.)
§12.112.Applications: Approval or Disapproval of Exploration of More Than 250 Tons of Coal or That Will Occur on Land Designated as Unsuitable for Surface Coal Mining Operations .
(a)
(No change.)
(b)
The Commission shall approve a complete application filed
in accordance with §§12.109-12.111, this section, and §§12.113-12.115
of this title (relating to General Requirements for Coal Exploration), if
it finds, in writing, that the applicant has demonstrated that the exploration
and reclamation described in the application:
(1)
(No change.)
(2)
will not jeopardize the continued existence of an endangered
or threatened species listed pursuant to Section 4 of the Endangered Species
Act of 1973 (16 U.S.C. 1533) or result in the destruction or adverse modification
of critical habitat of those species; [
(3)
will not adversely affect any cultural resources or districts,
sites, buildings, structures, or objects listed or eligible for listing on
the National Register of Historic Places, unless the proposed exploration
has been approved by both the Commission and the agency with jurisdiction
over such matters
; and
(4)
with respect to exploration
activities on any lands protected under §12.71(a) of this title (relating
to Areas Where Surface Coal Mining Operations are Prohibited Or Limited),
minimize interference, to the extent technologically and economically feasible,
with the values for which those lands were designated as unsuitable for surface
coal mining operations. Before making this finding, the Commission must provide
reasonable opportunity to the owner of the feature causing the land to come
under the protection of §12.71(a) of this title, and, when applicable,
to the agency with primary jurisdiction over the feature with respect to the
values that caused the land to come under the protection of §12.71(a)
of this title, to comment on whether the finding is appropriate.
(c)
(No change.)
§12.113.Applications: Notice and Hearing for Exploration of More Than 250 Tons.
(a)
The Commission shall notify the applicant and the appropriate
local government officials,
and other commenters on the application,
in writing, of its decision to approve or disapprove the application.
If the application is disapproved, the notice to the applicant shall include
a statement of the reason[
(b)
(No change.)
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed
with the Office of the Secretary of State on March 20, 2003.
TRD-200301849
Mary Ross McDonald
Deputy General Counsel
Railroad Commission of Texas
Earliest possible date of adoption: May 4, 2003
For further information, please call: (512) 475-1295
16 TAC §12.118
The Commission proposes the amendments under Texas Natural
Resources Code, §134.013, which authorizes the Commission to promulgate
rules pertaining to surface coal mining operations.
Texas Natural Resources Code, §134.013, is affected by the proposed
amendments.
Issued in Austin, Texas, on March 11, 2003.
§12.118.Relationship to Areas Designated Unsuitable for Mining.
(a)
Each application shall contain [
(b)
(No change.)
(c)
If an applicant proposes to conduct surface mining activities
within
100 feet of a public road or within
300 feet of an occupied
dwelling, the application
must meet the requirements of §12.72(a)
or (b) of this title (relating to Procedures for Compatibility Findings, Public
Road Closures and Relocations, Buffer Zones, and Valid Existing Rights Determinations)
[
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed
with the Office of the Secretary of State on March 20, 2003.
TRD-200301850
Mary Ross McDonald
Deputy General Counsel
Railroad Commission of Texas
Earliest possible date of adoption: May 4, 2003
For further information, please call: (512) 475-1295
16 TAC §12.151, §12.152
The Commission proposes the amendments under Texas Natural
Resources Code, §134.013, which authorizes the Commission to promulgate
rules pertaining to surface coal mining operations.
Texas Natural Resources Code, §134.013, is affected by the proposed
amendments.
Issued in Austin, Texas, on March 11, 2003.
§12.151.Protection of Public Parks and Historic Places.
(a)
For any publicly owned parks or any places listed on the
National Register of Historic Places that may be adversely affected by the
proposed operations, each plan shall describe the measures to be used:
(1)
to prevent adverse impacts; or
(2)
if a person has valid existing rights
as determined under §12.72(c) of this title (relating to Procedures for
Compatibility Findings, Public Road Closures and Relocations, Buffer Zones,
and Valid Existing Rights Determinations), or if joint agency approval is
to be obtained under §12.73(d) of this title (relating to Commission
Obligations at Time of Permit Application Review), to minimize adverse impacts.
[(2)
if valid existing rights or joint agency
approval is to be obtained under §12.72(g) of this title (relating to
Procedures), to minimize adverse impacts.]
(b)
(No change.)
§12.152.Relocation or Use of Public Roads.
Each application shall describe, with appropriate maps and cross sections,
the measures to be used to ensure that the interests of the public and landowners
affected are protected if, under
§12.72(a) of this title (relating
to Procedures for Compatibility Findings, Public Road Closures and Relocations,
Buffer Zones, and Valid Existing Rights Determinations)
[
(1)
conducting the proposed surface mining activities within
100 feet of the right-of-way line of any public road, except where mine access
or haul roads join that right-of-way; or
(2)
relocating a public road.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed
with the Office of the Secretary of State on March 20, 2003.
TRD-200301851
Mary Ross McDonald
Deputy General Counsel
Railroad Commission of Texas
Earliest possible date of adoption: May 4, 2003
For further information, please call: (512) 475-1295
16 TAC §12.158
The Commission proposes the amendments under Texas Natural
Resources Code, §134.013, which authorizes the Commission to promulgate
rules pertaining to surface coal mining operations.
Texas Natural Resources Code, §134.013, is affected by the proposed
amendments.
Issued in Austin, Texas, on March 11, 2003.
§12.158.Relationship to Areas Designated Unsuitable for Mining.
(a)
Each application shall contain [
(b)
(No change.)
(c)
An application that proposes to conduct Surface coal
mining operations within 100 feet of a public road or within 300 feet of an
occupied dwelling must meet the requirements of §12.72(a) or (b) of this
title (relating to Procedures for Compatibility Findings, Public Road Closures
and Relocations, Buffer Zones, and Valid Existing Rights Determinations),
respectively.
[
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed
with the Office of the Secretary of State on March 20, 2003.
TRD-200301852
Mary Ross McDonald
Deputy General Counsel
Railroad Commission of Texas
Earliest possible date of adoption: May 4, 2003
For further information, please call: (512) 475-1295
16 TAC §12.191, §12.192
The Commission proposes the amendments under Texas Natural
Resources Code, §134.013, which authorizes the Commission to promulgate
rules pertaining to surface coal mining operations.
Texas Natural Resources Code, §134.013, is affected by the proposed
amendments.
Issued in Austin, Texas, on March 11, 2003.
§12.191.Protection of Public Parks and Historic Places.
(a)
For any publicly owned parks or any places listed on the
National Register of Historic Places that may be adversely affected by the
proposed operations, each plan shall describe the measures to be used:
(1)
to prevent adverse impacts; or
(2)
If a person has valid existing rights
as determined under §12.72(c) of this title (relating to Procedures for
Compatibility Findings, Public Road Closures and Relocations, Buffer Zones,
and Valid Existing Rights Determinations), or if joint agency approval is
to be obtained under §12.73(d) of this title (relating to Commission
Obligations at Time of Permit Application Review), to minimize adverse impacts.
[(2)
if valid existing rights or joint agency
approval is to be obtained under §12.72(g) of this title (relating to
Procedures), to minimize impacts.]
(b)
(No change.)
§12.192.Relocation or Use of Public Roads.
Each application shall describe, with appropriate maps and cross sections,
the measures to be used to ensure that the interests of the public and landowners
affected are protected if, under
§12.72(a) of this title (relating
to Procedures for Compatibility Findings, Public Road Closures and Relocations,
Buffer Zones, and Valid Existing Rights Determinations)
[
(1)
conducting the proposed surface mining activities within
100 feet of the right-of-way line of any public road, except where mine access
or haul roads join that right-of-way; or
(2)
relocating a public road.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed
with the Office of the Secretary of State on March 20, 2003.
TRD-200301853
Mary Ross McDonald
Deputy General Counsel
Railroad Commission of Texas
Earliest possible date of adoption: May 4, 2003
For further information, please call: (512) 475-1295
16 TAC §12.207, §12.216
The Commission proposes the amendments under Texas Natural
Resources Code, §134.013, which authorizes the Commission to promulgate
rules pertaining to surface coal mining operations.
Texas Natural Resources Code, §134.013, is affected by the proposed
amendments.
Issued in Austin, Texas, on March 11, 2003.
§12.207.Public Notices of Filing of Permit Applications.
(a)
An applicant for a permit shall place an advertisement
in a local newspaper of general circulation in the locality of the proposed
surface coal mining and reclamation operations at least once a week for four
consecutive weeks. The applicant shall place the advertisement in the newspaper
at the same time the complete permit application is filed with the Commission.
The advertisement shall contain, at a minimum, the following information:
(1) - (4)
(No change.)
(5)
if an applicant seeks a permit to mine within 100 feet
of the outside right-of-way of a public road or to relocate
or close
a public road,
except where public notice and hearing has previously
been provided for this particular part of the road in accordance with §12.72(a)
of this title (relating to Procedures for Compatibility Findings, Public Road
Closures and Relocations, Buffer Zones, and Valid Existing Rights Determinations),
a concise statement describing the public road, the particular part
to be relocated
or closed
, where the relocation
or closure
is to occur, and the duration of the relocation
or closure
.
(b)
(No change.)
(c)
The written notifications shall be sent to:
(1)
The following State and federal agencies:
(A)
Texas [
(B) - (I)
(No change.)
(2) - (5)
(No change.)
(d)
(No change.)
§12.216.Criteria for Permit Approval or Denial.
No permit or revision application shall be approved, unless the application
affirmatively demonstrates and the Commission finds, in writing, on the basis
of information set forth in the application or from information otherwise
available, which is documented in the approval and made available to the applicant,
that:
(1) - (3)
(No change.)
(4)
the proposed permit area is:
(A)
not included within an area designated unsuitable for surface
coal mining operations under
§§12.74-12.77 of this title (relating
to Criteria for Designating Areas as Unsuitable for Surface Coal Mining Operations)
and
§§12.78-12.85 of this title (relating to Process for Designating
Areas as Unsuitable for Surface Coal Mining Operations)
or within an
area subject to the prohibitions of §12.71(a) of this title (relating
to Areas Where Surface Coal Mining Operations are Prohibited or Limited)
;
or
(B)
not within an area under study for designation as unsuitable
for surface coal mining operations
or
in an administrative proceeding
begun under §§12.78-12.85 of this title (relating to Process for
Designating Areas as Unsuitable for Surface Coal Mining Operations), unless
the applicant demonstrates that, before January 4, 1977, he or she made substantial
legal and financial commitments in relation to the operation for which he
or she is applying for a permit; or
(C)
not on any lands subject to the prohibitions or limitations
of
§12.71(a)(1), (a)(6) or (a)(7) of this title
[
(D)
not within 100 feet of the outside right-of-way line of
any public road, except as provided for in
§12.72(a) of this title
(relating to Procedures for Compatibility Findings, Public Road Closures and
Relocations, Buffer Zones, and Valid Existing Rights Determinations)
[
(E)
not within 300 feet from any occupied dwelling, except
as provided for in
§12.71(a)(5) of this title
[
(5)
the proposed operations will not adversely affect any properties
listed on and eligible for listing on the National Register of Historic Places,
except as provided for in
§12.71(a)(3) of this title
[
(6) - (15)
(No change.)
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed
with the Office of the Secretary of State on March 20, 2003.
TRD-200301854
Mary Ross McDonald
Deputy General Counsel
Railroad Commission of Texas
Earliest possible date of adoption: May 4, 2003
For further information, please call: (512) 475-1295
Chapter 25.
SUBSTANTIVE RULES APPLICABLE TO ELECTRIC SERVICE PROVIDERS
Subchapter J. COSTS, RATES AND TARIFFS
2.
RECOVERY OF STRANDED COSTS
(170)
] Surface mining activities--Those
surface coal mining and reclamation operations incident to the extraction
of coal from the earth by removing the materials over a coal seam, before
recovering the coal, by auger coal mining, or by recovery of coal from a deposit
that is not in its original geologic location.
(171)
] Surface operations and
impacts incident to an underground coal mine--All activities involved in or
related to underground coal mining which are either conducted on the surface
of the land, produce changes in the land surface or disturb the surface, air
or water resources of the area, including all activities listed in §134.004(19)
of the Act and the definition of surface coal mining operations contained
in this section.
(172)
] Suspended solids or nonfilterable
residue--Expressed as milligrams per liter, organic or inorganic materials
carried or held in suspension in water which are retained by a standard glass
fiber filter in the procedure outlined by the U.S. Environmental Protection
Agency regulations for wastewater and analyses (40 CFR 136).
(173)
] Temporary diversion--A
diversion of a stream or overland flow which is used during coal exploration
or surface coal mining and reclamation operations and not approved by the
Commission to remain after reclamation as part of the approved postmining
land use.
(174)
] Temporary impoundment--An
impoundment used during surface coal mining and reclamation operations, but
not approved by the Commission to remain as part of the approved postmining
land use.
(175)
] Thick overburden--More
than sufficient spoil and other waste materials available from the entire
permit area to restore the disturbed area to its approximate original contour.
More than sufficient spoil and other waste materials occur where the overburden
thickness times the swell factor exceeds the combined thickness of the overburden
and coal bed prior to removing the coal, so that after backfilling and grading
the surface configuration of the reclaimed area would not:
(176)
] Thin overburden--Insufficient
spoil and other waste materials available from the entire permit area to restore
the disturbed area to its approximate original contour. Insufficient spoil
and other waste materials occur where the overburden thickness times the swell
factor, plus the thickness of other available waste materials, is less than
the combined thickness of the overburden and coal bed prior to removing the
coal, so that after backfilling and grading the surface configuration of the
reclaimed area would not:
(177)
] Ton--2,000 pounds avoirdupois
(0.90718 metric ton).
(178)
] Topsoil--The A and E soil-horizon
layers of the four master soil horizons.
(179)
] Toxic-forming materials--Earth
materials or wastes which, if acted upon by air, water, weathering, or microbiological
processes, are likely to produce chemical or physical conditions in soils
or water that are detrimental to biota or uses of water.
(180)
] Toxic mine drainage--Water
that is discharged from active or abandoned mines or other areas affected
by coal exploration or surface coal mining and reclamation operations, which
contains a substance that through chemical action or physical effects is likely
to kill, injure, or impair biota commonly present in the area that might be
exposed to it.
(181)
] Transfer, assignment, or
sale of rights--A change in ownership or other effective control over the
right to conduct surface coal mining operations under a permit issued by the
Commission.
(182)
] Unconsolidated streamlaid
deposits holding streams--With respect to alluvial valley floors, all flood
plains and terraces located in the lower portions of topographic valleys which
contain perennial or other streams with channels that are greater than 3 feet
in bankfull width and greater than 0.5 feet in bankfull depth.
(183)
] Underground development
waste--Waste rock mixtures of coal, shale, claystone, siltstone, sandstone,
limestone, or related materials that are excavated, moved, and disposed of
during development and preparation of areas incident to underground mining
activities.
(184)
] Underground mining activities--Includes:
(185)
] Undeveloped rangeland--For
purposes of alluvial valley floors, lands where the use is not specifically
controlled and managed.
(186)
] Unwarranted failure to
comply--The failure of the permittee to prevent the occurrence of any violation
of the permit or any requirement of the Act, due to the indifference, lack
of diligence, or lack of reasonable care, or the failure to abate any violation
of such permit or the Act, due to indifference, lack of diligence, or lack
of reasonable care.
(187)
] Upland areas--With respect
to alluvial valley floors, those geomorphic features located outside the floodplain
and terrace complex, such as isolated higher terraces, alluvial fans, pediment
surfaces, landslide deposits, and surfaces covered with residuum, mud flows
or debris flows, as well as highland areas underlain by bedrock and covered
by residual weathered material or debris deposited by sheetwash, rillwash,
or windblown material.
(189)
] Valley fill--A fill structure
consisting of any material other than coal waste and organic material that
is placed in a valley where side slopes of the existing valley measured at
the steepest point are greater than 20 degrees or the average slope of the
profile of the valley from the toe of the fill to the top of the fill is greater
than 10 degrees.
(190)
] Violation, failure, or
refusal--With respect to §§12.696 - 12.699 of this title, a violation
of or a failure or refusal to comply with any order of the Commission including,
but not limited to, a condition of a permit, notice of violation, failure-to-abate
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, except an order incorporated in a decision issued
under §134.175 of the Act.
(191)
] Violation notice--Any written
notification from a governmental entity of a violation of law, whether by
letter, memorandum, legal or administrative pleading, or other written communication.
(192)
] Water table--The upper
surface of a zone of saturation, where the body of ground water is not confined
by an overlying impermeable zone.
(193)
] Willfully--With respect
to §§12.696 - 12.699 of this title, that an individual acted:
(194)
] Willful violation--An act
or omission which violates the Act, state, or federal laws or regulations,
or any permit condition required by the Act or this chapter, committed by
a person who intends the result which actually occurs.
Subchapter F. LANDS UNSUITABLE FOR MINING
3.
CRITERIA FOR DESIGNATING AREAS AS UNSUITABLE FOR SURFACE COAL MINING OPERATIONS
Subchapter G. SURFACE COAL MINING AND RECLAMATION OPERATIONS, PERMITS, AND COAL EXPLORATION PROCEDURES SYSTEMS of ] More Than 250 Tons of Coal or That Will Occur on Land Designated as Unsuitable for Surface Coal Mining Operations .
and
]
.
]
and
]
,
] for disapproval. The Commission shall
provide public notice of approval or disapproval of each application[
,
] by publication in a newspaper of general circulation in the general
vicinity of the proposed operations.
4.
SURFACE MINING PERMIT APPLICATIONS--MINIMUM REQUIREMENTS FOR LEGAL, FINANCIAL, COMPLIANCE, AND RELATED INFORMATION, PART I
a statement of
]
available information on whether the proposed permit area is within an area
designated unsuitable for surface
coal
mining
and reclamation
or is within an area under study for designation in an administrative proceeding
[
activities
] under
§§12.74-12.77 of this
title (relating to Criteria for Designating Areas as Unsuitable for Surface
Coal Mining Operations) and
§§12.78-12.85 of this title (relating
to Process for Designating Areas as Unsuitable for Surface Coal Mining Operations)
[
or under study for designation in an administrative proceeding
].
shall contain the waiver of the owner of the dwelling as required
in §12.72(f) of this title (relating to Procedures)
].
6.
SURFACE MINING PERMIT APPLICATIONS--MINIMUM REQUIREMENTS FOR RECLAMATION AND OPERATION PLAN
§12.72(e)
of this title
], the applicant seeks to have the Commission approve:
7.
SURFACE MINING PERMIT APPLICATIONS--MINIMUM REQUIREMENTS FOR LEGAL, FINANCIAL, COMPLIANCE, AND RELATED INFORMATION, PART II
a statement of
]
available information on whether the proposed permit area is within an area
designated unsuitable for
surface coal mining and reclamation operations
or is within an area under study for designation in an administrative proceeding
[
underground mining activities
] under
§§12.74-12.77
of this title (relating to Criteria for Designating Areas as Unsuitable for
Surface Coal Mining Operations) and
§§12.78-12.85 of this
title (relating to Process for Designating Areas as Unsuitable for Surface
Coal Mining
Operations)
[
Operations or under study for designation
in an administrative proceeding
].
If an applicant proposes to conduct or locate surface
operations or facilities within 300 feet of an occupied dwelling, the application
shall include the waiver of the owner of the dwelling as required in §12.72
of this title (relating to Procedures).
]
9.
UNDERGROUND MINING PERMIT APPLICATIONS--MINIMUM REQUIREMENTS FOR RECLAMATION AND OPERATION PLAN
§12.72
of this title (relating to Procedures)
], the applicant seeks to have
the Commission approve:
11.
REVIEW, PUBLIC PARTICIPATION, AND APPROVAL OF PERMIT APPLICATIONS AND PERMIT TERMS AND CONDITIONS
Natural Resource Conservation
] Commission
on Environmental Quality
;
§12.71(1),
(6), or (7) of this title (relating to Areas Where Mining is Prohibited or
Limited)
]; or
§12.72(e) of this title (relating to Procedures)
]; or
§12.71(5)
of this title (relating to Areas Where Mining Is Prohibited or Limited) and §12.72(f)
of this title (relating to Procedures)
];
§12.71(3) of this title (relating to Areas Where Mining Is Prohibited
or Limited)
]. This finding may be supported in part by inclusion of
appropriate permit conditions, revisions in the operation plan, or a documented
decision by the Commission that no additional protection measures are required
under the National Historic Preservation Act;
Part 2.
PUBLIC UTILITY COMMISSION OF TEXAS