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: Final rule; approval of amendment.

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SUMMARY: OSM is approving an amendment to the Oklahoma regulatory

program (Oklahoma program) under the Surface Mining Control and

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

additions of rules concerning burden of proof in civil penalty

proceedings, petitions for review of proposed individual civil penalty

assessments, 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 Applicant Violator System (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.

EFFECTIVE DATE: September 28, 1999.

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

Field Office, Office of Surface Mining, 5100 East Skelly Drive, Suite

470, Tulsa, Oklahoma 74135-6548. Telephone: (918) 581-6430. Internet:

[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 Oklahoma program at 30 CFR 936.15 and 936.16.

II. Submission of the Proposed Amendment

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

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

Oklahoma proposed to amend the Oklahoma Administrative Code (OAC).

Oklahoma sent the amendment in response to a letter dated January 6,

1997 (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.

We announced receipt of the amendment in the October 20, 1998,

Federal Register (63 FR 55979). 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 November 19, 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 OAC 460:2-8-8, elements, burden of proof; OAC 460:2-8-9, decision by

administrative hearing officer; OAC 460:2-8-10, petition for

discretionary review; OAC 460:20-15-11, verification of ownership and

control application information; OAC 460:20-15-12, review of ownership

or control violation information; OAC 460:20-15-13, procedures for

challenging ownership or control links in AVS; and OAC 460:20-15-14,

standards for challenging ownership or control links and the status of

violations. Further, we identified editorial concerns at OAC 460:2-8-

10(f); OAC 460:20-15-11(a)(2)(B); OAC 460:20-15-13(d)(1); OAC 460:20-

15-13(d)(2)(B); OAC 460:20-15-14(b)(1); OAC 460:20-15-14(d). We

notified Oklahoma of these concerns by faxes dated December 3, 1998 and

July 14, 1999 (Administrative Record Nos. OK-982.03 and OK-982.06,

respectively).

By letters dated June 23, 1999, and July 20, 1999 (Administrative

Record Nos. OK-982.05 and OK-982.07, respectively), Oklahoma sent us

revisions to its program amendment. Based upon Oklahoma's revisions to

its amendment, we reopened the public comment period in the August 10,

1999 Federal Register (64 FR 43327). The public comment period closed

on August 25, 1999.

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 below are about minor wording

changes, or revised cross-references and paragraph notations to reflect

organizational changes resulting from this amendment.

[[Page 52231]]

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

Corresponding Provisions of the Federal Regulations

The State rules 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 rules and the Federal

regulations are minor.

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Federal counterpart

Topic State rule regulation

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Burden of proof in civil OAC 460:2-7-6....... 43 CFR 4.1155.

penalty proceedings.

Petitions for review of OAC 460:2-8-1 43 CFR 4.1300

proposed individual civil through 10. through 4.1309.

penalty assessments.

Verification of ownership or OAC 460:20-15-11.... 30 CFR 773.22(a).

control application

information.

Review of ownership or OAC 460:20-15-12.... 30 CFR 773.23.

control and violation

information.

Procedures for challenging OAC 460:20-15-13.... 30 CFR 773.24.

ownership or control links

shown in AVS.

Standards for challenging OAC 460:20-15-14.... 30 CFR 773.25.

ownership or control links

and the status of

violations.

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Because the above State rules have the same meaning as the

corresponding Federal regulations, we find that they are no less

effective than the Federal regulations.

B. OAC 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.

Section 703 of SMCRA prohibits reprisals against ``whistleblower''

employees. This provision is further implemented by 30 CFR Part 865 by

requiring each employer conducting operations which are regulated under

SMCRA to provide a copy of 30 CFR Part 865 to all current and new

employees. However, States are not required to adopt a counterpart to

30 CFR Part 865. If a State does not adopt a counterpart, OSM is

responsible for administering the requirements of 30 CFR Part 865.

Oklahoma's removal of OAC 460:20-15-7(5) does not effect the Oklahoma

program. Therefore, we approve Oklahoma's removal of this provision.

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 No. OK-982.12).

By letter date October 30, 1998, the U.S. Army Corps of Engineers

responded to our request by stating that it found Oklahoma's amendment

satisfactory (Administrative No. OK-982.02).

Environmental Protection Agency (EPA)

Under 30 CFR 732.17(h)(11)(ii), we are required to get 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 on the amendment.

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

amendment from the EPA (Administrative Record No. OK-982.10). 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 request comments from

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

properties. On October 9, 1998, we requested comments on Oklahoma's

amendment (Administrative Record No. OK-982.11), but neither responded

to our request.

V. Director's Decision

Based on the above findings, we approve the amendment as sent to us

by Oklahoma on September 28, 1998, and as revised on June 23, 1999 and

July 20, 1999. We approve the rules that Oklahoma proposed with the

provision that they be published in identical form to the rules 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 Oklahoma

to bring its program 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 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

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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: September 15, 1999.

Charles E. Sandberg,

Acting 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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Original amendment submission Date of final

date publication Citation/description

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* * * *

* * *

September 28, 1998............ September 28, OAC 460:2-7-6; 2-8;

1999. 20-15-11 through 14.

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[FR Doc. 99-25188 Filed 9-27-99; 8:45 am]

BILLING CODE 4310-05-P