Oklahoma Abandoned Mine Land Reclamation Plan

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 936

[SPATS No. OK-023-FOR]

Oklahoma Abandoned Mine Land Reclamation Plan

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

Interior.

ACTION: Final rule; approval of amendment.

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SUMMARY: OSM is approving a proposed amendment to the Oklahoma

abandoned mine land reclamation plan (hereinafter referred to as the

``Oklahoma plan'') under the Surface Mining Control and Reclamation Act

of 1977 (SMCRA). The amendment is intended to revise the Oklahoma plan

to allow the State to assume responsibility for administering an

emergency response reclamation program in Oklahoma on behalf of OSM.

EFFECTIVE DATE: February 18, 1998.

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

Field Office, Office of Surface Mining Reclamation and Enforcement,

5100 East Skelly Drive, Suite 470, Tulsa, Oklahoma 74135-6547,

Telephone: (918) 581-6430.

SUPPLEMENTARY INFORMATION:

I. Background on the Oklahoma Plan

II. Submission of the Proposed Amendment

III. Director's Findings

IV. Summary and Disposition of Comments

V. Director's Decision

VI. Procedural Determinations

I. Background on the Oklahoma Plan

On January 21, 1982, the Secretary of the Interior approved the

Oklahoma plan. Background information on the Oklahoma plan, including

the Secretary's findings, the disposition of comments, and the approval

of the plan can be found in the January 21, 1982, Federal Register (46

FR 2989). Subsequent actions concerning the Oklahoma plan and

amendments to the plan can be found at 30 CFR 936.25.

II. Submission of the Proposed Amendment

Section 410 of SMCRA authorizes the Secretary to use funds under

the abandoned mine land reclamation (AMLR) program to abate or control

emergency situations in which adverse effects of past coal mining pose

an immediate danger to the public health, safety, or general welfare.

On September 29, 1982, (47 FR 42729) OSM invited States to amend their

AMLR plans for the purpose of undertaking emergency reclamation

programs on behalf of OSM. States would have to demonstrate that they

have the statutory authority to undertake emergencies, the technical

capability to design and supervise the emergency work, and the

administrative mechanisms to quickly respond to emergencies either

directly or through contracts.

Under the provisions of 30 CFR 884.15, any State may submit

proposed amendments to its approved AMLR plan. If the proposed

amendments change the scope or major policies followed by the State in

the conduct of its AMLR program, OSM must follow the procedures set out

in 30 CFR 884.14 in reviewing and approving or disapproving the

proposed amendments.

The proposed assumption of the AMLR emergency program on behalf of

OSM is a major addition to the Oklahoma AMLR plan. Therefore, to assume

the emergency program, Oklahoma must either revise the Oklahoma plan to

include conducting the AMLR emergency program, or demonstrate that its

plan currently includes provisions for assuming and conducting the

emergency program.

By letter dated November 3, 1997 (Administrative Record No. OAML-

77), Oklahoma submitted a proposed amendment to its plan pursuant to

SMCRA. Oklahoma submitted the proposed amendment on its own initiative.

The amendment was intended to demonstrate Oklahoma's capability to

effectively perform the AMLR emergency program on behalf of OSM. A

brief description of the amendment is presented below.

A. The proposed amendment would allow Oklahoma to assume the

administration of the AMLR emergency program in Oklahoma on behalf of

OSM. In its formal submittal, Oklahoma stated that in 1982, as part of

its approved State Abandoned Mine Land Program, the Oklahoma

Conservation Commission (OCC) incorporated the necessary language to

assume responsibility of the AMLR emergency program at a later date.

The following information, taken from the approved Oklahoma plan, was

included in Oklahoma's formal submission to OSM to verify that the

authority already exists for the OCC to assume AMLR emergency program

responsibilities:

1. A letter from the Governor that designates the OCC as the agency

responsible for the Abandoned Mine Land Reclamation Program in

Oklahoma.

2. A legal opinion from the Attorney General that the OCC has the

power to

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administer the Abandoned Mine Land Reclamation Program in Oklahoma.

3. A copy of the Oklahoma Abandoned Mine Reclamation Act (45 O.S.,

sections 740.1 through 740.7).

Section 740.7(A) authorizes OCC to spend monies from the State

Abandoned Mine Reclamation Fund for emergency restoration, reclamation,

abatement, control or prevention of adverse effects of coal mining

practices on eligible land if it finds that an emergency exists

constituting a danger to the public health, safety or general welfare

and no other person or agency will act expeditiously to restore,

reclaim, abate, control or prevent the adverse effects of coal mining

practices. Section 740.7(B) authorizes the OCC to enter on any land

where an emergency exists and any other necessary access land to

restore, reclaim, abate, control or prevent the adverse effects of coal

mining practices and do all things necessary or expedient to protect

the public health, safety or general welfare.

4. A copy of the Oklahoma Abandoned Mine Land Reclamation Program

(Oklahoma Administrative Code (OAC) 155:15-1-1 through 155:15-1-16).

Oklahoma's regulations at OAC 155:15-1-8(e) provide procedures for

emergency studies or reclamation.

5. A copy of section 884.13(c)(6) of the Oklahoma plan concerning

entry for emergency study and reclamation.

6. A copy of section 884.13(e) of the Oklahoma plan concerning

public participation in Oklahoma's AMLR program.

B. After assuming the emergency program, Oklahoma would conduct

investigations of potential emergency sites, and following OSM

concurrence that emergency situations exist, perform remedial

reclamation.

OSM announced receipt of the proposed amendment in the December 15,

1997, Federal Register (62 FR 65632), and in the same document opened

the public comment period and provided an opportunity for a public

hearing on the adequacy of the proposed amendment. The public comment

period closed on January 14, 1998.

During its review of the amendment, OSM identified concerns

relating to emergency contracting procedures, statutory authority and

administrative procedures. OSM notified Oklahoma of these concerns by

telefax dated December 19, 1997 (Administrative Record No. OAML-77.06).

By letter dated December 19, 1997 (Administrative Record No. OAML-

77.05), Oklahoma responded to OSM's concerns by submitting additional

explanatory information regarding its proposed plan amendment. Because

the additional information merely clarified certain provisions of

Oklahoma's approved reclamation plan and program, OSM did not reopen

the public comment period.

III. Director's Findings

Set forth below, pursuant to SMCRA and the Federal regulations at

30 CFR 884.14 and 884.15, are the Director's findings concerning the

proposed amendment.

OSM's guidelines, published in the September 29, 1982, Federal

Register (47 FR 42729), outline three requirements for state assumption

of the AMLR emergency program. To be granted emergency authority by

OSM, the State agency must demonstrate that it has the (1) Statutory

authority to undertake emergencies, (2) technical capability to design

and supervise the emergency work, and (3) administrative mechanisms to

respond quickly to emergencies either directly or through contractors.

A. Statutory Authority

The OCC has had statutory authority to administer an emergency

response program since approval of the original reclamation plan. In a

letter dated September 25, 1978 (Administrative Record No. OAML-77),

the Governor of Oklahoma designated the Oklahoma Conservation

Commission (OCC) as the agency responsible for the Abandoned Mine Land

Reclamation Program under Title IV, Pub. L. 95-87. Title IV of Pub. L.

95-87 covers both the regular AML program and the emergency reclamation

program. The Oklahoma Attorney General issued an official opinion (78-

267) on November 16, 1978 (Administrative Record No. OAML-77), which

states that the ``OCC and the Conservation Districts have the power to

administer the state program aspects of Title IV of the Federal Surface

Mining Control and Reclamation Act of 1977.'' A subsequent official

opinion by the Oklahoma Attorney General (81-211) issued on August 13,

1981 (Administrative Record No. OAML-77.05), states that (1) ``The OCC

has express statutory authority to administer an abandoned mine land

reclamation program within the contemplation of Title IV of the Surface

Mining Control and Reclamation Act of 1977, Pub. L. 95-87,'' and (2)

``The Conservation Districts are not authorized to administer the state

program aspects of SMCRA pertaining to abandoned mine reclamation.''

B. Technical Capability

The OCC has demonstrated through past performance that it has the

technical capability to implement an AMLR emergency program. Oklahoma

asserted in its November 3, 1997, submission of the formal amendment

that, ``For the last 4 years, the OCC AML Program has concentrated on

the elimination of underground mine openings and subsidence problems

(non emergency) in LeFlore County. With this work in LeFlore County and

the close working relationship with OSM on past AML emergencies, the

OCC AML staff believes it is time to assume responsibility for the AML

Emergency Program.''

Oklahoma has conducted an AMLR Program since 1982. Technical

capabilities utilized for emergency reclamation projects are the same

as those used for normal, high priority reclamation projects; usually,

only the project schedule is different. OSM annual oversight reports

for evaluation years 1991 to 1996 indicate that Oklahoma successfully

implements the high priority AMLR program. The oversight reports

indicate that closure of mine portals and shafts, and treament of

subsidenace areas have been part of the high priority AMLIR program

since at least 1991. As of the end of evaluation year 1996, OCC had

closed 89 vertical openings and 140 open mine portals, and stabilized

8.1 acres of mine subsidence. These are the same types of abandoned

mine land features that are likely to be encountered in the AMLR

emergency program.

C. Administrative Mechanisms

On December 19, 1997, OSM requested by telephone and followed up by

telefax, a description of the emergency response contracting procedures

available to the OCC to respond to contract needs. OCC replied to OSM

by letter dated December 19, 1997, outlining the emergency response

contracting procedures. In summary, the OCC Executive Director has the

authority to issue contracts for emergency work in amounts up to

$25,000, the same day as an emergency problem is identified. Contracts

larger than $25,000 may be issued after an emergency Board Meeting of

the OCC Commissioners. OSM finds that the $25,000 limit is similar to

the small purchase threshold for Federal agencies and will allow the

OCC adequate flexibility to address emergency conditions. Other

administrative processes required to implement the emergency program

are the same as

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those already in place for the Oklahoma AML Program.

OSM's review of Oklahoma's AMLR plan, Oklahoma's emergency response

contracting procedures, and OSM's annual oversight reports for 1991

through 1996, found that OCC has developed and refined the in-house

investigation, design and project administration abilities necessary to

administer an AML program and an emergency response program.

In accordance with section 405 of SMCRA, the Director finds that

Oklahoma has submitted an amendment to its AMLR plan and has

determined, pursuant to 30 CFR 884.15, that:

1. The public has been given adequate notice and opportunity to

comment, and the record does not reflect major unresolved

controversies.

2. Views of other Federal agencies have been solicited and

considered.

3. The State has the legal authority, policies and administrative

structure necessary to implement the amendment.

4. The proposed plan amendment meets all requirements of the OSM

AMLR program provisions.

5. The State has an approved Surface Mining Regulatory Program.

6. The amendment is in compliance with all applicable State and

Federal laws and regulations.

Therefore, the Director finds that the proposed Oklahoma plan

amendment allowing the State to assume responsibility for an emergency

response reclamation program on behalf of OSM is in compliance with

SMCRA and meets the requirements of the Federal regulations.

IV. Summary and Disposition of Comments

Public Comments

OSM solicited public comments and provided an opportunity for a

public hearing on the proposed amendment. No public comments were

received, and because no one requested an opportunity to speak at a

public hearing, no hearing was held.

Federal Agency Comments

Pursuant to 884.14(a)(2) and 884.15(a), the Director solicited

comments on the proposed amendment from various other Federal agencies

with an actual or potential interest in the Oklahoma plan. The U.S.

Army Corps of Engineers responded by letter dated December 24, 1997

(Administrative Record No. OAML-77.07), stating it had no comments. No

other comments were received.

V. Director's Decision

Based on the above findings, the Director is approving Oklahoma's

request to assume the AMLR emergency program as submitted by Oklahoma

on November 3, 1997.

The Federal Regulations at 30 CFR Part 936, codifying decisions

concerning the Oklahoma plan, are being amended to implement this

decision. The final rule is being made effective February 18, 1998.

Effect of Director's Decision

Section 503 of SMCRA provides that a State may not exercise

jurisdiction under SMCRA unless the State program is approved by the

Secretary. Similarly, 30 CFR 884.15(a) requires that any alteration of

an approved State program be submitted to OSM for review as a program

amendment. Thus, any changes to the State program are not enforceable

until approved by OSM. In the oversight of the Oklahoma program, the

Director will recognize only the statutes, regulations and other

materials approved by OSM, together with any consistent implementing

policies, directives and other materials, and will require the

enforcement by Oklahoma of only such provisions.

VI. Procedural Determinations

Executive Order 12866

This proposed 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, 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 and Tribal abandoned mine land reclamation plans and revisions

thereof since each such plan is drafted and promulgated by a specific

State or Tribe, not by OSM. Decisions on proposed abandoned mine land

reclamation plans and revisions thereof submitted by a State or Tribe

are based on a determination of whether the submittal meets the

requirements of Title IV of SMCRA (30 U.S.C. 1231-1243) and 30 CFR Part

884.

National Environmental Policy Act

No environmental impact statement is required for this rule since

agency decisions on proposed State and Tribal abandoned mine land

reclamation plans and revisions thereof are categorically excluded from

compliance with the National Environmental Policy Act (42 U.S.C. 4332)

by the Manual of the Department of the Interior (516 DM 6, appendix 8,

paragraph 8.4B(29)).

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 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. Accordingly, this rule will ensure that existing requirements

previously promulgated by OSM will be implemented.

In making the determination as to whether this rule would have a

significant economic impact, the Department relied upon the data and

assumptions in the analyses for the corresponding Federal regulations.

Unfunded Mandates

OSM has determined and certifies pursuant to 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: February 10, 1998.

Kathy Karpan,

Director, Office of Surface Mining.

For the reasons set out in the preamble, 30 CFR Part 936 is amended

as set forth below:

PART 936--OKLAHOMA

1. The authority citation for Part 936 continues to read as

follows:

Authority: 30 U.S.C. 1201 et seq.

2. Section 936.25 is amended in the table by adding a new entry in

chronological order by ``Date of Final Publication'' to read as

follows:

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Sec. 936.25 Approval of Oklahoma abandoned mine land reclamation plan

amendments.

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Original amendment submission date Date of final publication Citation/description

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November 3, 1997..................... February 18, 1998............ Emergency response reclamation program.

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[FR Doc. 98-3915 Filed 2-17-98; 8:45 am]

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