Oklahoma Regulatory Program

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 936

[SPATS No. OK-020-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.

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SUMMARY: OSM is announcing receipt of an amendment to the Oklahoma

regulatory program (Oklahoma program) under the Surface Mining Control

and Reclamation Act of 1977 (SMCRA). Oklahoma proposes revisions to and

additions of rules concerning burden of proof in civil penalty

proceedings, petitions for review of proposed individual civil penalty

assessment, permit conditions, verification of ownership or control

application information, review of ownership or control and violation

information, procedures for challenging ownership or control links

shown in AVS, and standards for challenging ownership or control links

and the status of violation. Oklahoma intends to revise its program to

be consistent with the corresponding Federal regulations.

This document gives the times and locations that the Oklahoma

program and the amendment to that program are available for your

inspection, the comment period during which you may submit written

comments on the amendment, and the procedures that will be followed for

the public hearing, if one is requested.

DATES: We will accept written comments until 4:00 p.m., c.s.t.,

November 19, 1998. If requested, we will hold a public hearing on the

amendment on November 16, 1998. We will accept requests to speak at the

hearing until 4:00 p.m., c.s.t. on November 4, 1998.

ADDRESSES: You should mail or hand deliver written comments and

requests to speak at the hearing to Michael C. Wolfrom, Director, Tulsa

Field Office, at the address listed below.

You may review copies of the Oklahoma program, the amendment, a

listing of any scheduled public hearings, and all written comments

received in response to this document at the addresses listed below

during normal business hours, Monday through Friday, excluding

holidays. You may receive one free copy of the amendment by contacting

OSM's Tulsa Field Office.

Michael C. Wolfrom, Director, Tulsa Field Office, Office of Surface

Mining, 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: (405) 521-3859.

FOR FURTHER INFORMATION CONTACT: Michael C. Wolfrom, Director, Tulsa

Field Office. Telephone: (918) 581-6430. Internet:

[email protected].

SUPPLEMENTARY INFORMATION:

I. Background on the Oklahoma Program

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

approved the Oklahoma program. You can find background information on

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

disposition of comments, and the conditions of approval in the January

19, 1981, Federal Register (46 FR 4902). You can find later actions

concerning the Oklahoma program at 30 CFR 936.15 and 936.16.

II. Description of the Proposed Amendment

By letter dated September 28, 1998 (Administrative Record No. OK-

982), Oklahoma sent us an amendment to its

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program under SMCRA. Oklahoma sent the amendment in response to our

letter dated January 6, 1994 (Administrative Record No. OK-977), that

we sent to Oklahoma under 30 CFR 732.17(c). The amendment also includes

changes made at Oklahoma's own initiative. Oklahoma proposes to amend

the Oklahoma Administrative Code. Below is a summary of the changes

proposed by Oklahoma. The full text of the program amendment is

available for your inspection at the locations listed above under

ADDRESSES.

1. 460:2-7-6, Burden of Proof in Civil Penalty Proceedings

Oklahoma proposes to remove the burden of persuasion as to the fact

of violation from the Department of Mines and place it on the

applicant.

2. 460:2-8, Petitions for Review of Proposed Individual Civil Penalty

Assessment

Oklahoma proposes to add a new Subchapter 8 to Chapter 2 of the

Oklahoma Administrative Code. Section 1 of Subchapter 8 states that

this Subchapter governs administrative review of proposed individual

civil penalty assessments under Chapter 20, against a director,

officer, or agent of a corporation. Section 2 clarifies that any

individual served with a notice of proposed individual civil penalty

assessment may file a petition for review, and provides an address

where the individual may file the petition. Section 3 provides that an

individual must file a petition within 30 days of notice. It also

states that the Department of Mines will not grant any extensions to

this time period. The Department considers failure to file as an

admission of liability. Section 4 requires that an individual filing a

petition provide a statement of the facts entitling him or her to

relief, a copy of the notice of proposed assessment, a copy of the

notice(s) of violation, order(s) or final decision(s) the individual

has been served with, and a statement whether the individual requests

or waives the opportunity for an evidentiary hearing. This section also

requires that copies of the petition be served to all affected persons.

Section 5 states that within 30 days of receipt of a petition, the

Department must file an answer or motion, or provide a statement that

it will not file an answer or motion, to the Hearing Officer. Section 6

reads as follows:

(a) An individual filing a petition may amend it once as a

matter of right before receipt by the individual of an answer,

motion, or statement of the Department made in accordance with

460:2-8-5 of this subchapter. Thereafter, a motion for leave to

amend the petition shall be filed with the Hearing Officer.

(b) The Department shall have 30 days from receipt of a petition

amended as a matter of right to file an answer, motion, or statement

in accordance with Section 460:2-8-5 of this Subchapter. If the

Hearing Officer grants a motion to amend a petition, the time for

the Department to file an answer, motion, or statements shall be set

forth in the order granting the motion to amend.

Section 7 requires the Hearing Officer to give notice of the time

and place of the hearing to all interested parties. It further requires

that the hearing be of record and governed by O.S. Title 75, the

Administrative Procedures Act. Section 8 reads as follows:

(a) The Department shall have the burden of going forward with

evidence to establish a prima facie case that:

(1) A corporate permittee either violated a condition of a

permit or failed or refused to comply with an order issued under 45

O. S. 1981, Section 724. et seq., or an order incorporated in the

final decision of the Director, (except an order incorporated in a

decision issued under sections 45 O. S. Subsection 769 (b) of the

Act or implementing regulations), unless the fact of violation or

failure or refusal to comply with an order has been upheld in a

final decision in a proceeding under Sections 2-7-1 through 2-7-9,

2-9-2 through 2-9-12, or Sections 2-11-1 through 2-11-8, and

Sections 2-19-1 or 2-39-2 of this Chapter, and the individual is one

against whom the doctrine of collateral estoppel may be applied to

prelude relitigation of fact issues;

(2) The individual, at the time of the violation, failure or

refusal, was a director, officer, or agent of the corporation; and

(3) The individual willfully and knowingly authorized, ordered,

or carried out the corporate permittee's violation or failure or

refusal to comply.

(b) The individual shall have the ultimate burden of persuasion

by a preponderance of the evidence as to the elements set forth in

(a) (1) of this section and as to whether he was a director or

officer of the corporation at the time of the violation or refusal.

(c) The Department shall have the ultimate burden of persuasion

by a preponderance of the evidence as to whether the individual was

an agent of the corporation, as to (a) (3) of this section, and as

to the amount of the individual civil penalty.

Section 9 requires that the Hearing Officer issue a written

decision on those elements required by Section 8 of this Subchapter. If

the Hearing Officer concludes that the individual is liable for an

individual civil penalty, he shall order the individual to pay the

penalty required under 460:20-63-6, as long as no affected party

petitions the Department Director to review the Officer's decision.

Finally, section 10 provides that any affected party may petition the

Department Director to review an order or decision by the Hearing

Officer. The petition must be filed on or before 30 days from the date

of receipt of the order or decision sought to be reviewed, and the time

for filing will not be extended. A petition must list the alleged

errors of the Hearing Officer and have a copy of the order or decision

sought to be reviewed attached to it. Any affected party may file with

the Director a response to the petition for review within 10 days of

receipt of a copy of such petition. The Director must grant or deny the

petition in whole or in part within 30 days of the filing of the

petition. If the petition for review is granted, the rules in 460:2-19-

4 through 460:2-19-7 apply. If the petition is denied, the decision of

the Hearing Officer is final subject to 460:2-1-3 and payment of a

penalty is due.

3. 460:20-15-7, Permit Conditions

Oklahoma proposes to remove paragraph 5 of this section which

prohibits the discharge or discrimination of any employee or authorized

representative of employees that files for or institutes any

proceedings under the Act, testifies at any proceeding or

investigation, or exercises any rights granted by the Act.

4. 460:20-15-11, Verification of Ownership or Control Application

Information

Oklahoma proposes to add a new section 11 to Subchapter 15 to read

as follows:

(a) Prior review. In accordance with Section 460:20-15-6(c)(1)

of this Subchapter, prior to the issuance of a permit, the

Department shall review the information in the application provided

pursuant to Section 460:20-23-2 of this Chapter to determine that

such information, including the identification of the operator and

all owners and controllers of the operator, is complete and

accurate. In making such determination, the Department shall compare

the information provided in the application with information from

other reasonable available sources, including:

(1) Manual data sources within Oklahoma including: (A) The

Department's inspection and enforcement records; and (B) The state

incorporating records or tax records, to the extent they contain

information concerning ownership or control links; and

(2) Automated data sources, including: (A) The Department's own

computer systems; and (B) The Applicant Violator System (AVS).

(b) Application inquiry. If it appears from the information

provided in the application pursuant to Section 460:20-23-3(c)

through (d) of this Chapter that none of the persons identified in

the application has had any previous mining experience, the

Department shall inquire of the applicant and investigate whether

any person other than those identified in the application will own

or

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control the operation (as either an operator or other owner or

controller).

(c) Review results. If, as a result of the review conducted

under paragraphs (a) and (b) of this section, the Department

identifies any potential omission, inaccuracy, or inconsistency in

the ownership or control information provided in the application, it

shall, prior to making a final determination with regard to the

application, contact the applicant and require that the matter be

resolved through submission of: (1) An amendment to the application

or (2) A satisfactory explanation which includes credible

information sufficient to demonstrate that no actual omission,

inaccuracy, or inconsistency exists. (3) The Department shall also

take action in accordance with the provisions of Subchapter 59 of

this Chapter where appropriate.

(d) Review completion. Upon completion of the review conducted

under this section, the Department shall promptly enter into or

update all ownership or control information on AVS.

4. 460:20-15-12, Review of Ownership or Control and Violation

Information.

Oklahoma proposes to add a new section 12 to Subchapter 15.

Paragraph (a) requires the Department to review all available

information concerning violation notices and ownership or control links

involving the application to determine whether the application can be

approved. The reviewed information with respect to ownership and

control links involving the applicant must include all information

obtained under Section 460:20-15-11 and 460:20-23-3. The reviewed

information with respect to violation notices must include all

information obtained under section 460:20-23-3, information obtained

from the OSM, and information obtained from the Department's records.

Paragraph (b) requires that the Department notify the applicant if it

finds any ownership or control links between the applicant and any

person cited in a violation notice and refer him or her to the

authority with jurisdiction over said violation. The Department can not

approve the application unless and until it determines that all

ownership or control links between the applicant and any person cited

in a violation notice are erroneous or have been rebutted, or that the

violation has been corrected, is in the process of being corrected, or

is the subject of a good faith appeal. Paragraph (c) of this section

requires the Department to enter into the AVS all relevant information

related to its decision or withdrawal of the application.

5. 460:20-15-13, Procedures for Challenging Ownership or Control Links

Shown in AVS

Oklahoma proposes to add a new section 13 in Subchapter 15.

Paragraph (a) provides that any applicant or other person shown in the

AVS in an ownership or control link to any person can challenge the

link under paragraphs (b) through (d) and Section 460:20-15-14, unless

they are bound by a prior administrative or judicial determination

concerning the link. Paragraph (a) also provides that any applicant or

other person shown in the AVS in an ownership or control link to any

person cited in a State violation notice can challenge the status of

the violation under paragraphs (b) through (d) and Section 460:20-15-

14, unless they are bound by a prior administrative or judicial

determination concerning the status of the violation. Paragraph (b)

provides that an ownership or control link or the status of a State

violation can be challenged by submitting a written explanation of the

basis for the challenge, along with any relevant evidentiary materials

and supporting documents to the Department. Paragraph (c) requires the

Department to review any submitted information and decide in writing

whether the ownership or control link is erroneous, has been rebutted,

and/or remains outstanding, has been corrected, is in the process of

being corrected, or is the subject of a good faith appeal. Paragraph

(d) requires the Department to update the AVS and notify the applicant

or other person and, if the application is pending, the reviewing

authority, if the Department determines that the ownership or control

link has been shown to be erroneous, rebutted and/or that the violation

covered by the notice has been corrected, is in the process of being

corrected, or is the subject of a good faith appeal. The Department

must serve a copy of the decision on the applicant or other person by

certified mail, or by any means consistent with the rules governing

service of a summons and complaint under Chapter 2, Rules of Practice

and Procedure. Service will be complete upon tender of the notice or of

the mail and will not be deemed incomplete because of a refusal to

accept. The applicant or other person may appeal a decision of the

Department to formal review to the Department's Legal Division for

hearing and appeal within 30 days of service of the decision in

accordance with Chapter 20, The Permanent Program Regulations Governing

the Coal Reclamation Act of 1979 and Chapter 2, Rules of Practice and

Procedure for the Coal Reclamation Act of 1979. The Department's

decision will remain in effect during the pendency of the appeal,

unless temporary relief is granted in accordance with Chapter 20,

Chapter 2, and the Oklahoma Statutes Title 45.

6. 460:20-15-14. Standards for Challenging Ownership or Control Links

and the Status of Violations

Oklahoma proposes to add a new section 14 to Subchapter 15 to read

as follows:

(a) Application. The provisions of this section shall apply

whenever a person has and exercises a right, under the provisions of

Sections 460:20-15-9, 460:20-15-10, 460:20-15-12, or 460:20-15-13 of

this Subchapter or under the provision of Subchapter 19 of this

Chapter, to challenge:

(1) An ownership or control link to any person; and/or

(2) The status of any violation covered by a notice.

(b) Responsibility. It is the responsibility of the Department

of Mines to undertake the following duties pursuant to ownership

and/or control relationships:

(1) Except as provided in paragraph (b) (3) of this Section, the

Department is responsible for: (A) The Department has the

responsibility for making decisions with respect to ownership or

control relationship of all pending applications. (B) Upon permit

issuance, the Department is responsible for making all decisions

with respect to the ownership or control relationships of that

permit. (C) The Department shall have the responsibility for making

decisions with respect to the ownership or control relationships of

all violations contained in notice of violations issued by the

Department. (D) The Department upon issuance of a notice of

violation shall have the responsibility for making decision

concerning the status of the violation covered by the notice of

violation. (i.e., whether the violation remains outstanding, has

been corrected, is in the process of being corrected, or is the

subject of a good faith appeal, within the meaning of Section

460:20-15-6 (b) (1) of this Subchapter.)

(2) The Office of Surface Mining shall have responsibility for

making decisions with respect to ownership of control relationships

of a federal notice of violation.

(c) Evidentiary standards. The Department shall conduct formal

and informal reviews in the following manner:

(1) In any formal or informal review of an ownership or control

link or of the status of a violation covered by a violation notice,

the Department shall make a prima facie determination or showing

that such link exists, existed during the relevant period, and/or

that the violation covered by such notice remains outstanding. Once

such a prima facie determination or showing has been made, the

person challenging such link or the status of the violation shall

have the burden of proving by a preponderance of the evidence, with

respect to any relevant time period the following: (A) That the

facts relied upon by the Department to establish

[[Page 55982]]

ownership or control under the definition of ``owned and

controlled'' or owns and controls in Section 460:20-15-2 of this

Subchapter do not or did not exist; or (B) That a person subject to

a presumption of ownership or control under the definition of

``owned or controlled'' or ``owns or controls'' in Section 460:20-

15-2 of this Subchapter, do not or did not exist; (C) That a person

subject to a presumption of ownership or control under the

definition of ``owned or controlled'' or ``owns or controls'' in

Section 460:20-15-2 of this Subchapter, does not or did not in fact

have the authority directly or indirectly to determine the manner in

which surface coal mining operations are or were conducted, or (D)

That the violation covered by the violation notice did not exist,

has been corrected, is in the process of being corrected, or is the

subject of a good faith appeal within the meaning of Section 460:20-

15-6 (b) (1) of this Subchapter; provided that the existence of the

violation at the time it was cited may not be challenged under

provisions of Section 460:20-15-13 of this Subchapter: (i) By a

permittee, unless such challenge is made by the permittee within the

context of Sections 460:20-15-9 through 460:20-15-10 of this

Subchapter; (ii) By any person who had a prior opportunity to

challenge the violation notice and who failed to do so in a timely

manner; or (iii) By any person who is bound by a prior

administrative or judicial determination concerning the existence of

the violation.

(2) In meeting the burden of proof set forth in paragraph (c)

(1) of this section, the person challenging the ownership or control

link or the status of the violation shall present probative,

reliable, and substantial evidence and any supporting explanatory

materials, which may include: (A) Before the Department: (i)

Affidavits setting forth specific facts concerning the scope of

responsibility of the various owners or controllers of an applicant,

permittee, or any other person cited in a violation notice; and the

nature and details of any transactions creating or severing an

ownership or control link; or specific facts concerning the status

of the violation; (ii) If certified, copies of corporate minutes,

stock ledgers, contracts, purchase and sale agreement, leases,

correspondence, or other relevant company records; (iii) If

certified, copies of documents filed with or issued by any State,

Municipal, or Federal governmental agency. (iv) An opinion of

counsel, when supported by: (I) evidentiary materials; (II) a

statement by counsel that he or she is qualified to render the

opinion; and (III) a statement that counsel has personally and

diligently investigated the facts of the matter; or, (IV) where

counsel has not investigated the facts, a statement that such

opinion is based upon information which has been supplied to counsel

and which is assumed to be true. (B) Before any administrative or

judicial tribunal reviewing the decision of the Department, any

evidence admissible under the rules of such tribunal.

(d) After departmental determination. Following any

determination by the Department or other state agency, or any

decision by an administrative or judicial tribunal reviewing such

determination, the Department shall review the information in AVS to

determine if it is consistent with the determination or decision, if

it is not, the Department shall promptly inform the Office of

Surface Mining and request that the AVS information be revised to

reflect the determination or decision.

III. Public Comment Procedures

Under the provisions of 30 CFR 732.17(h), we are requesting

comments on whether the proposed amendment satisfies the applicable

program approval criteria of 30 CFR 732.15. If we approve the

amendment, it will become part of the Oklahoma program.

Written Comments

Your written comments should be specific and pertain only to the

issues proposed in this rulemaking. You should explain the reason for

any recommended change. In the final rulemaking, we will not

necessarily consider or include in the Administrative Record any

comments received after the time indicated under DATES or at locations

other than the Tulsa Field Office.

Public Hearing

If you wish to speak at the public hearing, contact the person

listed under FOR FURTHER INFORMATION CONTACT by 4:00 p.m., c.s.t. on

November 4, 1998. We will arrange the location and time of the hearing

with those persons requesting the hearing. If you are disabled and need

special accommodation to attend a public hearing, contact the

individual listed under FOR FURTHER INFORMATION CONTACT. The hearing

will not be held if no one requests an opportunity to speak at the

public hearing.

You should file a written statement at the time you request the

hearing. This will allow us to prepare adequate responses and

appropriate questions. The public hearing will continue on the

specified date until all persons scheduled to speak have been heard. If

you are in the audience and have not been scheduled to speak and wish

to do so, you will be allowed to speak after those who have been

scheduled. We will end the hearing after all persons scheduled to speak

and persons present in the audience who wish to speak have been heard.

Public Meeting

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

public meeting, rather than a public hearing, may be held. If you wish

to meet with us to discuss the amendment, request a meeting by

contacting the person listed under FOR FURTHER INFORMATION CONTACT. All

such meetings are open to the public and, if possible, we will post

notices of meetings at the locations listed under ADDRESSES. We also

make a written summary of each meeting a part of the Administrative

Record.

IV. Procedural Determinations

Executive Order 12866

The Office of Management and Budget (OMB) exempts this rule from

review under Executive Order 12866 (Regulatory Planning and Review).

Executive Order 12988

The Department of the Interior has conducted the reviews required

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

determined that, to the extent allowed by law, this rule meets the

applicable standards of subsections (a) and (b) of that section.

However, these standards are not applicable to the actual language of

State regulatory programs and program amendments since each such

program is drafted and published by a specific State, not by OSM. Under

sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and 30 CFR

730.11, 732.15, and 732.17(h)(10), decisions on State regulatory

programs and program amendments 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

This rule does not require an environmental impact statement since

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

decisions on State regulatory program provisions do not constitute

major Federal actions within the meaning of section 102(2)(C) of the

National Environmental Policy Act (42 U.S.C. 4332(2)(C)).

Paperwork Reduction Act

This rule does not contain information collection requirements that

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

3507 et seq.).

Regulatory Flexibility Act

The Department of the Interior has determined that this rule will

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

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

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

corresponding Federal regulations for which an economic analysis was

prepared and certification made that

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such regulations would not have a significant economic effect upon a

substantial number of small entities. Therefore, this rule will ensure

that existing requirements previously published by OSM will be

implemented by the State. In making the determination as to whether

this rule would have a significant economic impact, the Department

relied upon the data and assumptions for the corresponding Federal

regulations.

Unfunded Mandates

OSM has determined and certifies under the Unfunded Mandates Reform

Act (2 U.S.C. 1502 et seq.) that this rule will not impose a cost of

$100 million or more in any given year on local, state, or tribal

governments or private entities.

List of Subjects in 30 CFR Part 936

Intergovernmental relations, Surface mining, Underground mining.

Dated: October 9, 1998.

Brent Wahlquist,

Regional Director, Mid-Continent Regional Coordinating Center.

[FR Doc. 98-28123 Filed 10-19-98; 8:45 am]

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