Oklahoma Regulatory Program

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 936

[SPATS No. OK-019-FOR]

Oklahoma Regulatory Program

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

Interior.

ACTION: Proposed rule; public comment period and opportunity for public

hearing on proposed amendment.

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SUMMARY: OSM is announcing receipt of a proposed amendment to the

Oklahoma regulatory program (hereinafter, the ``Oklahoma program'')

under the Surface Mining Control and Reclamation Act of 1977 (SMCRA).

The proposed amendment consists of additions and revisions to

Oklahoma's regulations pertaining to repair or compensation for

material damage resulting from subsidence caused by underground coal

mining operations and to replacement of water supplies adversely

impacted by underground coal mining operations. The amendment is

intended to revise the Oklahoma program to be consistent with the

corresponding Federal regulations.

DATES: Written comments must be received by 4:00 p.m., c.d.t.,

September 3, 1996. If requested, a public hearing on the proposed

amendment will be held on August 27, 1996. Requests to present oral

testimony at the hearing must be received by 4:00 p.m., c.d.t. on

August 19, 1996.

ADDRESSES: Written comments should be mailed or hand delivered to Jack

R. Carson, Acting Director, Tulsa Field Office at the address listed

below.

Copies of the Oklahoma program, the proposed amendment, and all

written comments received in response to this document will be

available for public review at the addresses listed below during normal

business hours, Monday through Friday, excluding holidays. Each

requester may receive on free copy of the proposed amendment by

contacting OSM's Tulsa Field Office.

Jack R. Carson, Acting 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.

Oklahoma Department of Mines, 4040 N. Lincoln Blvd., Suite 107,

Oklahoma City, Oklahoma 73105, Telephone: (404) 521-3859.

FOR FURTHER INFORMATION CONTACT:

Jack R. Carson, Telephone (918) 581-6430.

SUPPLEMENTARY INFORMATION:

I. Background on the Oklahoma Program

On January 19, 1981, the Secretary of the Interior conditionally

approved the Oklahoma program. General background information on the

Oklahoma program, including the Secretary's findings, the disposition

of comments, and the conditions of approval of the Oklahoma program can

be found in the January 19, 1981, Federal Register (46 FR 4902).

Subsequent actions concerning Oklahoma's program and program amendments

can be found at 30 CFR 936.15 and 936.16.

II. Proposed Amendment

By letter dated July 17, 1996, Oklahoma submitted a proposed

amendment to its program pursuant to SMCRA (Administrative Record No.

OK-975). Oklahoma submitted the proposed amendment in response to a May

20, 1996, letter that OSM sent to Oklahoma in accordance with 30 CFR

732.17(c). Oklahoma proposed to revise the Oklahoma Coal Rules and

Regulations at Oklahoma Administrative Code (OAC) 460:20-3-5,

definitions; OAC 460:20-31-7, hydrologic information; OAC 460:20-31-13,

subsidence control plan; OAC 460:20-45-8, hydrologic-balance

protection; and OAC 460:20-45-47, subsidence control. Specifically,

Oklahoma proposes the following additions and revisions to its

regulations.

1. OAC 460:20-3-5 Definitions

Oklahoma proposes to add definitions for the terms ``drinking,

domestic or residential water supply''; ``material damage''; ``non-

commercial building''; and ``replacement of water supply.''

2. OAC 460:20-31-7 Hydrologic Information

Oklahoma proposes to add a new provision at OAC 460:20-31-

7(e)(3)(D) that requires the PHC determination to include findings on

``whether the underground mining activities conducted after October 24,

1992 may result in contamination, diminution or interruption of a well

or spring in existence at the time the permit application is submitted

and used for domestic, drinking, or residential purposes within the

permit or adjacent areas.''

3. OAC 460:20-31-13 Subsidence Control Plan

Oklahoma proposes to remove the existing introductory paragraph and

to replace it with new subsections (a) and (b). Paragraphs (a) (1)

through (3) contain requirements for an application to include a map, a

narrative, and a pre-subsidence survey indicating the location, type,

and condition of structures and renewable resource lands that

subsidence may materially damage or diminish in value and of drinking,

domestic, and residential water supplies that subsidence may

contaminate, diminish, or interrupt.

Subsection (b) contains revised requirements for a subsidence

control plan. A new introductory paragraph provides that no further

information need be provided in the application if the survey conducted

under paragraph (a) shows that no structures; drinking,

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domestic, or residential water supplies; or renewable resource lands

exist or that no material damage or diminution in value or reasonably

foreseeable use of such structures or lands and no contamination,

diminution, or interruption of such water supplies would occur as a

result of mine subsidence. The Department must agree with the

conclusion of the survey. A subsidence control plan is required if the

survey identifies the existence of structures, renewable resource

lands, or water supplies; if subsidence could cause material damage or

diminution in value or foreseeable use, or contamination, diminution,

or interruption of protected water supplies; or if the Department

determines that such damage or diminution could occur.

The language in existing paragraph (7) was removed and new language

was added to require operators conducting operations that result in

planned and controlled subsidence to describe the subsidence control

measures they will use to minimize subsidence and subsidence-related

material damage to non-commercial buildings and occupied residential

dwellings and related structures; or to submit the written consent of

the owner of the structure or facility that minimization measures need

not be taken; or to demonstrate that the costs of minimizing damage to

these structures exceed the anticipated cost of repair and are not

needed to prevent a threat to health or safety.

Existing paragraph (8) was redesignated paragraph (b)(9) and new

paragraph (b)(8) requires a description of the measures to be taken to

replace adversely affected protected water supplies or to mitigate or

remedy any subsidence-related material damage to protected land and

structures.

4. OAC 460:20-45-8 Hydrologic-balance protection

Oklahoma proposes to add new subsection (j) that requires the

permittee to replace any drinking, domestic or residential water supply

that is contaminated, diminished or interrupted by underground mining

activities conducted after October 24, 1992.

5. OAC 460:20-45-47 Subsidence Control

Oklahoma proposes to revise subsection (a) by adding the title

``Operator measures to prevent or minimize damage''; by numbering the

existing provision (1); and by adding two new provisions. Paragraph

(a)(2) provides that if planned subsidence is used, the operator must

minimize material damage to the extent technologically and economically

feasible unless he has the written consent of the owners or the costs

would exceed the anticipated costs of repair. Paragraph (a)(3) provides

that the standard method of room-and-pillar mining is not prohibited.

Oklahoma proposes to revise subsection (b) by adding the title

``Operator compliance.''

Oklahoma proposes to revise subsection (c) by adding the title

``Repair of damage to surface lands''; by deleting the existing

language and adding new language in paragraph (2); and by adding new

paragraphs (3), (4), and (5). New paragraph (c)(2) requires the

operator to repair or compensate the owner for subsidence-related

material damage to non-commercial buildings or occupied residential

dwellings that existed at the time of mining.

New paragraph (c)(3) provides for repair or compensation for

subsidence-related material damage to structures or facilities not

protected by paragraph (c)(2).

New paragraph (c)(4)(A) provides that if damage to non-commercial

buildings or occupied residential dwellings and related structures

occurs as a result of earth movement within the area determined by

projecting a specified angle of draw from underground mine workings to

the surface, a rebuttable presumption exists that the permittee caused

the damage. The presumption will normally apply to a 30-degree angle of

draw. New paragraph (c)(4)(B) provides that the operator may request

that the presumption apply to a different site-specific angle of draw

based on a site-specific geotechnical analysis of the potential surface

impact of the mining operation that demonstrates that the proposed

angle of draw has a more reasonable basis than the one established in

the Oklahoma program. New paragraph (c)(4)(C) provides that no

rebuttable presumption will exist if the operator is denied access to

the land or property for the purpose of conducting a pre-subsidence

survey. New paragraph (c)(4)(D) provides for a rebuttal of presumption

under specified circumstances. New paragraph (c)(4)(E) provides that

all relevant and reasonably available information will be considered in

determining whether damage to protected structures was caused by

subsidence. New paragraph (c)(5) provides for an adjustment of bond

amount for subsidence-related material damage to protected land,

structures, or facilities and for contamination, diminution, or

interruption to a water supply. No additional bond is required if

repairs, compensation or replacement is completed within 90 days of the

occurrence of damage. Oklahoma may extend the 90-day time frame, not to

exceed one year, under specified circumstances.

III. Public Comment Procedures

In accordance with the provisions of 30 CFR 732.17(h), OSM is

seeking comments on whether the proposed amendment satisfies the

applicable program approval criteria of 30 CFR 732.15. If the amendment

is deemed adequate, it will become part of the Oklahoma program.

Written Comments

Written comments should be specific, pertain only to the issues

proposed in this rulemaking, and include explanations in support of the

cementer's recommendations. Comments received after the time indicated

under DATES or at locations other than the Tulsa Field Office will not

necessarily be considered in the final rulemaking or included in the

administrative record.

Public Hearing

Persons wishing to testify at the public hearing should contact the

person listed under FOR FURTHER INFORMATION CONTACT by 4:00 p.m.,

c.d.t. on August 19, 1996. The location and time of the hearing will be

arranged with those persons requesting the hearing. Any disabled

individual who has need for a special accommodation to attend a public

hearing should contact the individual listed under FOR FURTHER

INFORMATION CONTACT. If no one requests an opportunity to testify at

the public hearing, the hearing will not be held.

Filing of a written statement at the time of the hearing is

requested as it will greatly assist the transcriber. Submission of

written statements in advance of the hearing will allow OSM officials

to prepare adequate responses and appropriate questions.

The public hearing will continue on the specified date until all

persons scheduled to testify have been heard. Persons in the audience

who have not been scheduled to testify, and who wish to do so, will be

heard following those who have been scheduled. The hearing will end

after all persons scheduled to testify and persons present in the

audience who wish to testify have been heard.

Public Meeting

If only one person requests an opportunity to testify at a hearing,

a public meeting, rather than a public hearing, may be held. Persons

wishing to meet with OSM representatives to

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discuss the proposed amendment may request a meeting by contacting the

person listed under FOR FURTHER INFORMATION CONTACT. All such meetings

will be open to the public and, if possible, notices of meetings will

be posted at the locations listed under ADDRESSES. A written summary of

each meeting will be made a part of the administrative record.

IV. Procedural Determinations

Executive Order 12866

This rule is exempted from review by the Office of Management and

Budget (OMB) under Executive Order 12866 (Regulatory Planning and

Review).

Executive Order 12988

The Department of the Interior has conducted the reviews required

by section 3 of Executive Order 12988 (Civil Justice Reform) and has

determined that this rule meets the applicable standards of subsections

(a) and (b) of that section. However, these standards are not

applicable to the actual language of State regulatory programs and

program amendments since each such program is drafted and promulgated

by a specific State, not by OSM. Under sections 503 and 505 of SMCRA

(30 U.S.C. 1253 and 1255) and the Federal regulations at 30 CFR 730.11,

732.15, and 732.17(h)(10), decisions on proposed State regulatory

programs and program amendments submitted by the States must be based

solely on a determination of whether the submittal is consistent with

SMCRA and its implementing Federal regulations and whether the other

requirements of 30 CFR Parts 730, 731, and 732 have been met.

National Environmental Policy Act

No environmental impact statement is required for this rule since

section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency

decisions on proposed State regulatory program provisions do not

constitute major Federal actions within the meaning of section

102(2)(C) of the National Environmental Policy Act of 1969 (42 U.S.C.

4332(2)(C)).

Paperwork Reduction Act

This rule does not contain information collection requirements that

require approval by OMB under the Paperwork Reduction Act (44 U.S.C.

3507 et seq.).

Regulatory Flexibility Act

The Department of the Interior has determined that this rule will

not have a significant economic impact on a substantial number of small

entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).

The State submittal that is the subject of this rule is based upon

counterpart Federal regulations for which an economic analysis was

prepared and certification made that such regulations would not have a

significant economic effect upon a substantial number of small

entities. Accordingly, this rule will ensure that existing requirements

previously promulgated by OSM will be implemented by the State. In

making the determination as to whether this rule would have a

significant economic impact, the Department relied upon the data and

assumptions for the counterpart Federal regulations.

Unfunded Mandates

This rule will not impose a cost of $100 million or more in any

given year on any governmental entity or the private sector.

List of Subjects in 30 CFR Part 936

Intergovernmental relations, Surface mining, Underground mining.

Dated: July 25, 1996.

Deborah Watford,

Acting Regional Director, Mid-Continent Regional Coordinating Center.

[FR Doc. 96-19610 Filed 8-1-96; 8:45 am]

BILLING CODE 4310-05-M