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: Final rule; approval of amendment.

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SUMMARY: OSM is approving an amendment to the Oklahoma regulatory

program (from now on referred to as the ``Oklahoma program'') under the

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

amendment consists of revisions to and additions of regulations

pertaining to definitions; reclamation plan: siltation structures,

impoundments, banks, dams, and embankments; permit variances from

approximate original contour restoration requirements; small operator

assistance; bond release applications; hydrologic balance: siltation

structures; impoundments; disposal of excess spoil: preexisting

benches; coal mine waste: general requirements; state inspections and

monitoring; and request for hearing. Oklahoma intended that the

amendment revise its program to be consistent with the corresponding

Federal regulations.

EFFECTIVE DATE: January 22, 1999.

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 74135-6548,

Telephone: (918) 581-6430, E-mail [email protected].

SUPPLEMENTARY INFORMATION:

I. Background on the Oklahoma Program

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 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 conditions of approval and program amendments at 30 CFR

936.15 and 936.16.

II. Submission of the Proposed Amendment

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

981), Oklahoma sent us an amendment to its program under SMCRA.

Oklahoma sent the amendment in response to a June 17, 1997, letter

(Administrative Record No. OK-979) that we sent to Oklahoma under 30

CFR 732.17(c). We announced receipt of the amendment in the January 6,

1998, Federal Register (63 FR 454). In the same document, we opened the

public comment period and provided an opportunity for a public hearing

or meeting on the adequacy of the amendment. The public comment period

closed on February 5, 1998. Because no one requested a public hearing

or meeting, we did not hold one.

During our review of the amendment, we identified concerns relating

to definitions (OAC 460:20-3-5); permitting requirements (OAC 460:20-

27-14 and 460:-20-31-9); small operator assistance (OAC 460:20-35-1, -

6, -7, and -8); hydrologic balance: siltation structures--definitions

(OAC 460:20-43-12); impoundments (OAC 460:20-43-14 and 460:20-45-14);

coal mine waste: general requirements (OAC 460:20-43-29 and 460:20-45-

29); backfilling and grading: thin overburden (OAC 460:20-43-39);

disposal of excess spoil: preexisting benches (OAC 460:20-45-27); and

state inspections and monitoring (OAC 460:20-57-2). We notified

Oklahoma of these concerns by faxes dated June 5 and 30, and October

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

981.11, respectively). By letters dated June 22, August 10, September

24, and November 5, 1998 (Administrative Record Nos. OK-981.06, OK-

981.09, OK-981.10, and OK-981.12, respectively), Oklahoma sent us

additional explanatory information and revisions to its program

amendment.

Based upon Oklahoma's additional explanatory information and

revisions to its amendment, we reopened the public comment period in

the November 25, 1998, Federal Register (63 FR 65149). The public

comment period closed on December 10, 1998.

III. Director's Findings

Following, under SMCRA and the Federal regulations at 30 CFR 732.15

and 732.17, are our findings concerning the amendment. Any revisions

that we do not discuss are about minor wording changes, or revised

cross-references and paragraph notations to reflect organizational

changes resulting from this amendment.

A. Revisions to Oklahoma's Regulations That Have the Same Meaning as

the Corresponding Provisions of the Federal Regulations

The State regulations listed in the table below contain language

that is the same as or similar to the corresponding sections of the

Federal regulations. Differences between the State regulations and the

Federal regulations are minor.

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Federal counterpart

Topic State regulation--Oklahoma regulation--30 Code of

administrative code (OAC) Federal Regulation (CFR)

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Definitions: ``Other treatment facilities,'' 460:20-3-5................... 701.5.

``Previously mined area,'' and ``Siltation

structure.''

Reclamation plan: siltation structures, 460:20-27-14(a), (a)(2), 780.25(a), (a)(2), (a)(3),

impoundments, banks, dams, and embankments. (a)(3), and (f). and (f).

(Surface mining activities).

Reclamation plan: siltation structures, 460:20-31-9(a), (a)(2), 784.16(a), (a)(2), (a)(3),

impoundments, banks, dams, and embankments. (a)(3), and (f). and (f).

(Underground mining activities).

Permits incorporating variances from approximate 460:20-33-6(a)............... 785.16(a).

original contour restoration requirements.

Program services and data requirements............ 460:20-35-6(a), (b)(1), and 795.9(a), (b)(1), and (b)(4)--

(b)(3)--(b)(5). (b)(6).

Applicant liability............................... 460:20-35-7(a)............... 795.12(a).

Assistance funding................................ 460:20-35-8.................. 795.11.

Requirement to release performance bonds.......... 460:20-37-15(a)(3)........... 800.40(a)(3).

Hydrologic balance: siltation structures. (Surface 460:20-43-12(a)--(a)(2)...... 816.46(a)--(a)(2).

mining activities).

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Impoundments: general requirements. (Surface 460:20-43-14(a)(1)--(a)(3), 816.49(a)(1)--(a)(3), (a)(5),

mining activities). (a)(5), (a)(6), and (a)(9)-- (a)(6), and (a)(9)--(a)(12).

(a)(12).

Impoundments: temporary impoundments. (Surface 460:20-43-14(c)(2)(A) and (B) 816.49(c)(2)(i) and (ii).

mining activities).

Disposal of excess spoil: preexisting benches. 460:20-43-27(c).............. 816.74(c).

(Surface mining activities).

Coal mine waste: general requirements. (Surface 460:20-43-29(a).............. 816.81(a).

mining activities).

Hydrologic balance: siltation structures. 460:20-45-12(a)--(a)(2)...... 817.46(a)--(a)(2).

(Underground mining activities).

Impoundments: general requirements. (Underground 460:20-45-14(a)(1)--(a)(3), 817.49(a)(1)--(a)(3), (a)(5)--

mining activities). (a)(5)--(a)(6), (a)(9)-- (a)(6), (a)(9)--(a)(12).

(a)(12).

Impoundments: temporary impoundments. (Underground 460:20-45-14(c)(2)(A)--(B)... 817.49(c)(2)(i)--(ii).

mining activities).

Disposal of excess spoil: preexisting benches. 460:20-45-27(c).............. 817.74(c).

(Underground mining activities).

Coal mine waste: general requirements. 460:20-45-29(a).............. 817.81(a).

(Underground mining activities).

State inspections and monitoring.................. 460:20-57-2(g)(4)(A) and (h). 840.11(g)(4)(i) and (h).

Request for hearing............................... 460:20-61-11(a).............. 845.19(a) .

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Because the above State regulations have the same meaning as the

corresponding Federal regulations, we find that they are no less

effective than the Federal regulations.

B. Revisions to Oklahoma's Regulations That Are Not the Same as the

Corresponding Provisions of the Federal Regulations

1. OAC 460:20-27-14. Reclamation Plan: Siltation Structures,

Impoundments, Banks, Dams, and Embankments. (Surface Mining Activities)

a. Oklahoma revised paragraph (b) to require siltation structures

to be designed in compliance with the requirements of Section 460:20-

43-12. Also, impoundments or earthen structures which permanently

remain on the permit area have to be designed to comply with the

requirements of Section 460:20-43-14. We are approving this revision

because it is not inconsistent with or less effective than the

corresponding Federal regulations at 30 CFR 780.25(b).

b. Oklahoma revised paragraph (c)(3) to allow its Department of

Mines to establish, through the State program approval process,

engineering design standards for impoundments:

1. That do not meet the size or other criteria of 30 CFR 77.216(a),

or

2. That do not meet the Class B or C criteria for dams in TR-60,

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

3. That are located where failure would not be expected to cause

loss of life or serious property damage.

The design standards would 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). We are approving this revision because

it is not inconsistent with or less effective than the corresponding

Federal regulations at 30 CFR 780.25(c)(3).

2. OAC 460:20-31-9. Reclamation Plan: Siltation Structures,

Impoundments, Banks, Dams, and Embankments. (Underground Mining

Activities)

a. Oklahoma revised paragraph (b) to require siltation structures

to be designed in compliance with the requirements of Section 460:20-

45-12. Also, impoundments or earthen structures which permanently

remain on the permit area have to be designed to comply with the

requirements of Section 460:20-45-24. We are approving this revision

because it is not inconsistent with or less effective than the

corresponding Federal regulations at 30 CFR 784.16(b).

b. Oklahoma revised paragraph (c)(2) to allow its Department of

Mines to establish, through the State program approval process,

engineering design standards for impoundments:

1. That do not meet the size or other criteria of 30 CFR 77.216(a),

or

2. That do not meet the Class B or C criteria for dams in TR-60,

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

3. That are located where failure would not be expected to cause

loss of life or serious property damage.

The design standards would 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). We are approving this revision because

it is not inconsistent with or less effective than the corresponding

Federal regulations at 30 CFR 784.16(c)(3).

3. OAC 460:20-35-6. Program Services and Data Requirements

Oklahoma revised paragraph (b)(6) to read as follows:

The development of cross-section maps and plans required under

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

regulation.

We are approving this revision because it is not inconsistent with

or less effective than the corresponding Federal regulation at 30 CFR

795.9(b)(3).

4. OAC 460:20-43-12. Hydrologic Balance: Siltation Structures. (Surface

Mining Activities) and OAC 460:20-45-12. Hydrologic Balance: Siltation

Structures. (Underground Mining Activities)

Oklahoma proposed to delete paragraphs (a)(3) which provide the

definition for ``other treatment facilities.'' We are approving these

deletions because Oklahoma revised and moved this definition to Section

460:20-3-5. Definitions.

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

Oklahoma revised paragraphs (a)(4)(A) and (B) to read as follows:

(A) An impoundment meeting the Class B or C criteria for dams in

TR-60, or the size or other criteria of 30 CFR 77.216(a) or located

where failure would be expected to cause loss of life or serious

property damage shall have a minimum static safety factor of 1.5 for

a normal pool with steady state seepage saturation conditions, and a

seismic safety factor of at least 1.2.

(B) Impoundments not included in Section (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

[[Page 3422]]

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).

We are approving this revision because it is not inconsistent with

or less effective than the corresponding Federal regulations at 30 CFR

816.49(a)(4) (i) and (ii).

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

Oklahoma revised paragraphs (a)(4) (A) and (B) to read as follows:

(A) An impoundment meeting the Class B or C criteria for dams in

TR-60, or the size or other criteria of 30 CFR 77.216(a) or located

where failure would be expected to cause loss of life or serious

property damage shall have a minimum static safety factor of 1.5 for

a normal pool with steady state seepage saturation conditions, and a

seismic safety factor of at least 1.2.

(B) Impoundments not included in Section (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).

We are approving this revision because it is not inconsistent with

or less effective than the corresponding Federal regulations at 30 CFR

817.49(a)(4) (i) and (ii).

IV. Summary and Disposition of Comments

Public Comments

We requested public comments on the amendment, but did not receive

any.

Federal Agency Comments

Under 30 CFR 732.17(h)(11)(i), we requested comments on the

amendment from various Federal agencies with an actual or potential

interest in the Oklahoma program (Administrative Record Nos. OK-981.03

and OK-981.16). In letters dated January 27, and December 14, 1998, the

U.S. Army Corps of Engineers responded that they found the changes to

the Oklahoma program satisfactory (Administrative Record Nos. OK-981.05

and OK-981.19).

Environmental Protection Agency (EPA)

Under 30 CFR 732.17(h)(11)(ii), we are required to get a written

agreement from the EPA for those provisions of the program amendment

that relate to air or water quality standards promulgated under the

authority of the Clean Water Act (33 U.S.C. 1251 et seq.) or the Clean

Air Act (42 U.S.C. 7401 et seq.). None of the revisions that Oklahoma

proposed to make in this amendment pertain to air or water quality

standards. Therefore, we did not ask the EPA to agree to the amendment.

Under 30 CFR 732.17(h)(11)(i), we requested comments on the

amendment from the EPA (Administrative Record Nos. OK-981.01 and OK-

981.14). The EPA did not respond to our request.

State Historical Preservation Officer (SHPO) and the Advisory Council

on Historic Preservation (ACHP)

Under 30 CFR 732.17(h)(4), we are required to get comments from the

SHPO and ACHP on amendments that may have an effect on historic

properties. On December 30, 1997, and November 16, 1998, we requested

comments on Oklahoma's amendment (Administrative Record Nos. OK-981.02

and OK-981.15, respectively), but neither responded to our request.

V. Director's Decision

Based on the above findings, we approve the amendment as submitted

by Oklahoma on December 18, 1997, and as revised on June 22, August 10,

September 24, and November 5, 1998. We approve the regulations that

Oklahoma proposed with the provision that they be published in

identical form to the regulations sent to and reviewed by OSM and the

public. To implement this decision, we are amending the Federal

regulations at 30 CFR Part 936, which codify decisions concerning the

Oklahoma program. We are making this final rule effective immediately

to expedite the State program amendment process and to encourage the

State to bring its programs into conformity with the Federal standards.

SMCRA requires consistency of State and Federal standards.

VI. 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.

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Dated: January 8, 1999.

Brent Wahlquist,

Regional Director, Mid-Continent Regional Coordinating Center.

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 936.15 is amended in the table by adding a new entry in

chronological order by ``Date of final publication'' to read as

follows:

Sec. 936.15 Approval of Oklahoma regulatory program amendments.

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Date of final

Original amendment submission date publication Citation/description

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December 18, 1997.................... January 22, 1999....... 460:20-3-5; 20-27-14(a), (a)(2), (a)(3), (b),

(c)(3), (f); 20-31-9(a), (a)(2), (a)(3), (b),

(c)(2), (f); 20-33-6(a); 20-35-6(a), (b)(1),

and (b)(3) through (b)(6); 20-35-7(a); 20-35-8;

20-37-15(a)(3); 20-43-12(a) through (a)(3); 20-

43-14(a)(1) through (a)(3), (a)(4)(A) and (B),

(a)(5), (a)(6), and (a)(9) through (a)(12),

(c)(2)(A) and (B); 20-43-27(c); 20-43-29(a); 20-

45-12(a) through (a)(3); 20-45-14(a)(1) through

(a)(3), (a)(4)(A) and (B), (a)(5), (a)(6), and

(a)(9) through (a)(12), (c)(2)(A) and (B); 20-

45-27(c); 20-45-29(a); 20-57-2(g)(4)(A) and

(h); and 20-61-11(a).

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[FR Doc. 99-1443 Filed 1-21-99; 8:45 am]

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