Oklahoma Regulatory Program

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 936

[SPATS No. OK-024-FOR]

Oklahoma Regulatory Program

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

Interior.

ACTION: Proposed rule; reopening and extension of public comment period

on proposed amendment.

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SUMMARY: OSM is announcing receipt of revisions to and other

explanatory information about a previously proposed amendment to the

Oklahoma regulatory program (Oklahoma program) under the Surface Mining

Control and Reclamation Act of 1977 (SMCRA). The revisions and

explanatory information concern definitions, permitting requirements,

small operator assistance program, performance standards, inspection

and enforcement procedures, and corrections of reference citations and

typographical errors. Oklahoma intends to revise its program to be

consistent with the corresponding Federal regulations.

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

December 10, 1998.

ADDRESSES: You should mail or hand deliver written comments to Michael

C. Wolfrom, Director, Tulsa Field Office at the address listed below.

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

the Oklahoma program at 30 CFR 936.15 and 936.16.

II. Discussion of the Proposed Amendment

By letter dated December 18, 1997 (Administrative Record No. OK-

981), Oklahoma sent us an amendment to its

[[Page 65150]]

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

letter dated June 17, 1997 (Administrative Record No. OK-979), that we

sent to Oklahoma under 30 CFR 732.17(c). We announced receipt of the

proposed amendment in the January 6, 1998, Federal Register (63 FR 454)

and invited public comment on its adequacy. The public comment period

ended February 5, 1998.

During our review of the amendment, we identified concerns relating

to definitions, permitting requirements, small operator assistance

program, performance standards, inspection and enforcement procedures,

and corrections of reference citations and typographical errors. We

notified Oklahoma of the concerns by facsimiles dated June 5 and 30,

and October 21, 1998 (Administrative Record Nos. OK-981.13, OK-981.08,

and OK-981.11). On June 22, August 10, September 24, and November 5,

1998, Oklahoma sent us a revised amendment or additional explanatory

information (Administrative Record Nos. OK-981.06, OK-981.09, OK-

981.10, and OK-981.12, respectively).

Oklahoma proposes to correct any incorrect reference citations and

any typographical errors throughout the proposed amendment. Also,

Oklahoma submitted additional revisions or other explanatory

information for the following provisions of the amendment:

1. OAC 460:20-3-5. Definitions

Oklahoma proposes to revise the definitions for ``other treatment

facilities'' and ``previously mined areas.''

2. OAC 460:20-27-14. Reclamation plan: siltation structures,

impoundments, banks, dams, and embankments (Surface Mining Activities)

a. Oklahoma proposes to revise paragraph (a)(3) so that structures

that do not meet the size or other criteria of 30 CFR 77.216(a) or the

Class B or C criteria for dams in the U.S. Department of Agriculture

Soil Conservation Service Technical Release No. 60 (210-VI-TR60, Oct.

1985), ``Earth Dams and Reservoirs,'' Technical Release No. 60 (TR-60)

are not subject to the regulations in paragraphs (a)(3)(A)-(3)(D).

b. Oklahoma proposes to revise paragraph (c)(3) regarding permanent

and temporary impoundments to read as follows:

(3) For an impoundment not meeting the size or other criteria of

30 CFR 77.216(a) or the Class B or C criteria for dams in TR-60,

(210-VI-TR60, Oct. 1985), ``Earth Dams and Reservoirs,'' or located

where failure would not be expected to cause loss of life or serious

property damage, the Department may establish through the State

program approval process engineering design standards that ensure

stability comparable to a 1.3 minimum static safety factor in lieu

of engineering tests to establish compliance with the minimum static

safety factor of 1.3 specified in Section 460:20-43-14(a)(3)(B) of

this Chapter.

c. Oklahoma proposes to revise paragraph (f) regarding stability

analysis so that it also applies to structures meeting the Class B or C

criteria for dams in TR-60 or other criteria of 30 CFR 77.216(a).

3. OAC 460:20-31-9. Reclamation plan: siltation structures,

impoundments, banks, dams, and embankments (Underground Mining

Activities)

a. Oklahoma proposes to revise paragraph (a)(3) so that structures

that do not meet the size or other criteria of 30 CFR 77.216(a) or the

Class B or C criteria for dams in the U.S. Department of Agriculture

Soil Conservation Service Technical Release No. 60 (210-VI-TR60, Oct.

1985), ``Earth Dams and Reservoirs'' Technical Release No. 60 (TR-60)

are not subject to the regulations in paragraphs (a)(3)(A) through

(3)(D).

b. Oklahoma proposes to revise paragraph (c)(2) to read as follows:

(2) For an impoundment not meeting the size or other criteria of

30 CFR 77.216(a) or the Class B or C criteria for dams in TR-60,

(210-VI-TR60, Oct. 1985) ``Earth Dams and Reservoirs'' TR60, or

located where failure would not be expected to cause loss of life or

serious property damage, the Department may establish through the

State program approval process engineering design standards that

ensure stability comparable to a 1.3 minimum static safety factor in

lieu of engineering tests to establish compliance with the minimum

static safety factor of 1.3 specified in Section 460:20-45-

14(a)(3)(B) of this Chapter.

c. Oklahoma proposes to revise paragraph (f) Stability analysis to

read as follows:

(f) Stability analysis. If the structure meets Class B or C

criteria for dams in TR-60 or the size or other criteria of 30 CFR

77.216(a) then each plan under Subsections (b), (c), and (e) of this

Section shall include a stability analysis of each structure. The

stability analysis shall include, but not limited to, strength

parameters, pore pressures, and long-term seepage conditions. The

plan shall also contain a description of each engineering design

assumption and calculation with a discussion of each alternative

considered in selecting the specific design parameters and

construction methods.

4. OAC 460:20-31-16. Operation plan: Maps and plans (Underground Mining

Activities)

Oklahoma proposes to redesignate paragraphs (a) through (c) as

paragraphs (1) through (3) and to redesignate paragraphs (b)(1) through

(b)(13) as paragraphs (2)(A) through (2)(M).

5. OAC 460:20-35-6. Program services and data requirements

Oklahoma proposes to revise paragraphs (b)(3) through (b)(6) to

read as follows:

(3) The collection of archaeological and historical information

required by Section 460:20-25-5(b), 460:20-29-5(2), 460:20-27-17 and

460:20-31-10 and any other archaeological and historical information

required by the Department, and the preparation of plans

necessitated thereby; and (4) The collection of site-specific

resource information and production of protection and enhancement

plans for fish and wildlife habitats and other environmental values

and plans required by the Department under Section 460:20-27-9,

460:20-31-14, and any other applicable regulations; and (5) Pre-

blast surveys if required under Section 460:20-43-19; and (6) The

development of cross-section maps and plans required under Section

460:20-25-11, 460:20-29-11, and any other applicable regulation.

6. OAC 460:20-35-7. Applicant liability

In paragraph (a), Oklahoma proposes to remove the word

``laboratory'' so that applicants are responsible, under certain

conditions, for reimbursing the Department for any services rendered

under Subchapter 460:20-35 and not just for those pertaining to

laboratory services.

7. OAC 460:20-35-8. Assistance funding

Oklahoma proposes to add this new section to read as follows:

(a) Use of funds. Funds specifically authorized for this program

shall be used to provide the services specified in 460:20-35-6 of

this Subchapter and shall not be used to cover administrative

expenses.

(b) Allocation of funds. The program administrator shall

establish a formula for allocating funds to provide services for

eligible small operators if available funds are less than those

required to provide the services pursuant to this Subchapter.

8. OAC 460:20-43-12. Hydrologic balance: siltation structures (Surface

Mining Activities)

Oklahoma proposes to combine paragraph (a)(1) with paragraph (a)

and to redesignate existing paragraphs (a)(2)(A) and (a)(2)(B) as new

paragraphs (a)(1) and (a)(2).

[[Page 65151]]

9. OAC 460:20-43-14. Impoundments (Surface Mining Activities)

a. Oklahoma proposes to add new paragraph (a)(1) to specify that

impoundments meeting the Class B or C criteria for dams in the U.S.

Department of Agriculture, Soil Conservation Service Technical Release

No. 60 (210-VI-TR60, Oct. 1985) must comply with the ``Minimum

Emergency Spillway Hydrologic Criteria'' table in TR-60 and the

requirements of section 460:20-43-14.

b. Oklahoma proposes to redesignate existing paragraphs (a)(1)

through (a)(12) as new paragraphs (a)(2) through (a)(13).

c. Oklahoma proposes to revise new paragraph (a)(2) to read as

follows:

(2) Impoundments meeting the criteria of 30 CFR 77.216(a) shall

comply with the requirements of 30 CFR Section 77.216 and this

section. The plan required to be submitted to the District Manager

of MSHA under 30 CFR Section 77.216 shall also be submitted to the

Department as part of the permit application.

d. Oklahoma proposes to revise new paragraph (a)(4)(A) to include

impoundments meeting the Class B or C criteria for dams in TR-60.

e. Oklahoma proposes to revise new paragraph (a)(4)(B) to read as

follows:

(B) Impoundments not included in Subsection (a)(4)(A) of this

Section, except for a coal mine waste impounding structure, or

located where failure would not be expected to cause loss of life or

serious property damage shall have a minimum static safety factor of

1.3 for a normal pool with steady state seepage saturation

conditions or meet the requirements of Section 460:20-27-14(c)(3).

f. The State proposes to revise new paragraph (a)(5) to require

impoundments that meet the Class B or C criteria for dams in TR-60 to

comply with the freeboard hydrograph criteria in the ``Minimum

Emergency Spillway Hydrologic Criteria'' table in TR-60.

g. Oklahoma proposes to revise new paragraph (a)(6)(A) to require

impoundments that meet the Class B or C criteria for dams in TR-60 or

the size or other criteria of 30 CFR 77.216(a) to be stable under all

conditions of construction and operation. The impoundments must also be

designed based on accurate and adequate information on the foundation

conditions. In addition, the State requires sufficient foundation

investigations and laboratory testing of foundation materials in order

to determine the design requirements for foundation stability.

h. Oklahoma proposes to revise new paragraph (a)(9)(B)(i)-(iii) to

read as follows:

(i) For an impoundment meeting the Class B or C criteria for

dams in TR-60, the emergency spillway hydrograph criteria in the

``Minimum Emergency Spillway Hydrologic Criteria'' table in TR-60,

or greater event as specified by the Department.

(ii) For an impoundment meeting or exceeding the size or other

criteria of 30 CFR 77.216(a), a 100-year 6-hour event, or greater

event as specified by the Department.

(iii) For an impoundment not meeting the requirements of

Subsection (a)(9)(B)(i) or (ii) if this Section, a 25-year 6-hour

event, or greater event as specified by the Department.

i. Oklahoma proposes to revise new paragraph (a)(11)(D) to allow

qualified registered professional land surveyors to inspect any

temporary or permanent impoundment that does not meet the SCS Class B

or C criteria for dams in TR-60 or the size or other criteria of 30 CFR

77.216(a).

j. Oklahoma proposes to revise new paragraph (a)(12) to require

impoundments meeting the SCS Class B or C criteria for dams in TR-60 or

other criteria of 30 CFR 77.216 to be examined in accordance with 30

CFR 77.216-3.

k. Oklahoma proposes to revise paragraph (c)(2)(A) and (B) to read

as follows:

(A) In the case of an impoundment meeting the SCS Class B or C

criteria for dams in TR-60, or other size or other criteria of

Section 77.216(a) of 30 CFR , it is designed to control the

precipitation of the probable maximum precipitation of a 6-hour

event, or greater event as specified by the Department, or

(B) In the case of an impoundment not included in Subsection

(c)(2)(A) of this Section it shall be designed to control the

precipitation of a 100-year 6-hour event, or greater event as

specified by the Department.

10. OAC 460:20-43-29. Coal mine waste: general requirements (Surface

Mining Activities)

Oklahoma proposes to revise paragraph (a) to include that coal mine

waste be hauled or conveyed and placed for final placement in a

controlled manner.

11. OAC 460:20-43-39. Backfilling and grading: thin overburden (Surface

Mining Activities)

Oklahoma proposes to revise paragraph (a) to read as follows:

(a) Definition. Thin overburden means 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 the coal bed prior to removing the coal, so

that after backfilling and grading the surface configuration of the

reclaimed area would not:

12. OAC 460:20-45-12. Hydrologic balance: siltation structures

(Underground Mining Activities)

Oklahoma proposes to combine paragraph (a)(1) with paragraph (a)

and to redesignate existing paragraphs (a)(1)(A) and (a)(1)(B) as new

paragraphs (a)(1) and (a)(2).

13. OAC 460:20-45-14. Impoundments (Underground Mining Activities)

a. Oklahoma proposes to add new paragraph (a)(1) to specify that

impoundments meeting the Class B or C criteria for dams in the U.S.

Department of Agriculture, Soil Conservation Service Technical Release

No. 60 (210-VI-TR60, Oct. 1985) must comply with the ``Minimum

Emergency Spillway Hydrologic Criteria'' table in TR-60 and the

requirements of section 460:20-45-14.

b. Oklahoma proposes to redesignate existing paragraphs (a)(1)

through (a)(12) as new paragraphs (a)(2) through (a)(13).

c. Oklahoma proposes to revise new paragraph (a)(2) to read as

follows:

(2) Impoundments meeting the criteria of 30 CFR 77.216(a) shall

comply with the requirements of 30 CFR Section 77.216 and this

section. The plan required to be submitted to the District Manager

of MSHA under 30 CFR Section 77.216 shall also be submitted to the

Department as part of the permit application.

d. Oklahoma proposes to revise new paragraph (a)(4)(A) to include

impoundments meeting the Class B or C criteria for dams in TR-60.

e. Oklahoma proposes to revise paragraph (a)(4)(B) to read as

follows:

(B) Impoundments not included in Subsection (a)(4)(A) of this

Section, except for a coal mine waste impounding structure, or

located where failure would not be expected to cause loss of life or

serious property damage shall have a minimum static safety factor of

1.3 for a normal pool with steady state seepage saturation

conditions or meet the requirements of Section 460:20-31-9(c)(2).

f. The State proposes to revise new paragraph (a)(5) to require

impoundments that meet the Class B or C criteria for dams in TR-60 to

comply with the freeboard hydrograph criteria in the ``Minimum

Emergency Spillway Hydrologic Criteria'' table in TR-60.

g. Oklahoma proposes to revise new paragraph (a)(6)(A) to require

impoundments that meet the Class B or C criteria for dams in TR-60 or

the size or other criteria of 30 CFR 77.216(a) to be stable under all

conditions of construction and operation. These impoundments must also

be designed based on accurate and adequate information on the

foundation

[[Page 65152]]

conditions. In addition, the State requires sufficient foundation

investigations and laboratory testing of foundation materials in order

to determine the design requirements for foundation stability.

h. Oklahoma proposes to revise new paragraph (a)(9)(B)(i)-(iii) to

read as follows:

(i) For an impoundment meeting the Class B or C criteria for

dams in TR-60, the emergency spillway hydrograph criteria in the

``Minimum Emergency Spillway Hydrologic Criteria'' table in TR-60,

or greater event as specified by the Department.

(ii) For an impoundment meeting or exceeding the size or other

criteria of 30 CFR 77.216(a), a 100-year 6-hour event, or greater

event as specified by the Department.

(iii) For an impoundment not included in Subsections

(a)(9)(B)(i) or (ii), a 25-year 6-hour event, or greater event as

specified by the Department.

i. Oklahoma proposes to revise new paragraph (a)(11)(D) to allow

qualified registered professional land surveyors to inspect any

temporary or permanent impoundment that does not meet the SCS Class B

or C criteria for dams in TR-60 or the size or other criteria of 30 CFR

77.216(a).

j. Oklahoma proposes to revise new paragraph (a)(12) to require

impoundments meeting the SCS Class B or C criteria for dams in TR-60 or

other criteria of 30 CFR 77.216 to be examined in accordance with 30

CFR 77.216-3.

k. Oklahoma proposes to revise paragraph (c)(2)(A) and (B) to read

as follows:

(A) In the case of an impoundment meeting the SCS Class B or C

criteria for dams in TR-60, or the size or other criteria of Section

77.216(a) of 30 CFR , it shall be designed to control the

precipitation of the probable maximum precipitation of a 6-hour

event, or greater event as specified by the Department, or

(B) In the case of an impoundment not included in Subsection

(c)(2)(A) of this Section it shall be designed to control the

precipitation of a 100-year 6-hour event, or greater event as

specified by the Department.

14. OAC 460:20-45-27. Disposal of excess spoil: preexisting benches

(Underground Mining Activities)

Oklahoma proposes to revise paragraph (c) to include that fills be

designed and constructed using current, prudent engineering practices.

15. OAC 460:20-45-29. Coal mine waste: general requirements

(Underground Mining Activities)

Oklahoma proposes to revise paragraph (a) to include that coal mine

waste be hauled or conveyed and placed for final placement in a

controlled manner.

16. OAC 460:20-57-2. State inspections and monitoring

Oklahoma proposes to revise paragraph (h)(1)(C) to read as follows:

(C) Whether, and to what extent, there exist on the site

impoundments, earthen structures or other conditions that pose, or

may reasonably be expected to ripen into, imminent dangers to the

health or safety of the public or significant environmental harms to

land, air, or water resources;

III. Public Comment Procedures

We are reopening the comment period on the proposed Oklahoma

program amendment to provide the public an opportunity to reconsider

whether the proposed amendment is adequate in light of the additional

materials submitted. Under the provisions of 30 CFR 732.17(h), we are

seeking 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 must be specific and pertain only to the

issues proposed in this rulemaking. You must explain the reason for any

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

consider or include in the Administrative Record comments received

after the time indicated under DATES or at locations other than the

Tulsa Field Office.

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 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: November 18, 1998.

Charles E. Sandberg,

Acting Regional Director, Mid-Continent Regional Coordinating Center.

[FR Doc. 98-31414 Filed 11-24-98; 8:45 am]

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