[Federal Register Volume 66, Number 90 (Wednesday, May 9, 2001)]
[Rules and Regulations]
[Pages 23605-23608]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-11634]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 936

[SPATS No. OK-025-FOR]


Oklahoma Regulatory Program

AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.

ACTION: Final rule, approval of amendment.

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SUMMARY: The Office of Surface Mining Reclamation and Enforcement (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 it rules concerning permit 
revisions. Oklahoma intends to revise its program to be consistent with 
the corresponding Federal regulations.

EFFECTIVE DATE: May 9, 2001.

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: 
<a href="/cdn-cgi/l/email-protection#076a70686b6175686a4768746a756229606871"><span class="__cf_email__" data-cfemail="94f9e3fbf8f2e6fbf9d4fbe7f9e6f1baf3fbe2">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background on the Oklahoma Program
II. Submission of the 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

[[Page 23606]]

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 Amendment

    By letter dated January 25, 2001 (Administrative Record No. OK-
990), the Oklahoma Department of Mines (Department) sent us an 
amendment to the Oklahoma program under SMCRA and the Federal 
regulations at 30 CFR 732.17(b). Oklahoma sent the amendment at its own 
initiative. Oklahoma is amending its rules at OAC 460:20-17-3 
concerning permit revisions by providing guidelines for determining 
when a permit revision is major/significant or minor and by specifying 
a time period for approval or disapproval of a permit revision 
application.
    We announced receipt of the amendment in the February 15, 2001, 
Federal Register (66 FR 10403). 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 March 19, 2001. Because no one requested a public hearing or 
meeting, we did not hold one.

III. Director's Findings

    Following, under SMCRA and the Federal regulations at 30 CFR 732.15 
and 732.17, are the Director's findings concerning the amendment to the 
Oklahoma program.
    The Federal regulations at 30 CFR 774.13(b)(1) and (2) require 
regulatory authorities to establish--
    (1) A time period within which the regulatory authority will 
approve or disapprove an application for a permit revision; and
    (2) Guidelines establishing the scale or extent of revisions for 
which all the permit application information requirements and 
procedures of Subchapter G, including notice, public participation, and 
notice of decision requirements of 30 CFR 773.13, 773.19(b)(1) and (3), 
and 778.21 apply. All permit application information requirements and 
procedures must apply at a minimum to significant permit revisions.
    As shown below, we found that Oklahoma's guidelines meet the 
requirements of the Federal regulations at 30 CFR 774.13(b)(1) and (2). 
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.
    A. OAC 460:20-17-3(a) General. At Section 460:20-17-3(a) Oklahoma 
is adding the following provision:

    (a) Any revision application to the approved mining or 
reclamation plan will be subject to review and approval by the 
Department. During the revision review, the revision will be 
classified as either: (1) Major or Significant; or (2) Minor.

    The Federal regulation at 30 CFR 774.13(b)(2) requires the 
regulatory authority to establish guidelines for the scale or extent of 
revisions for which all the permit application requirements will apply. 
It allows flexibility to the regulatory authority to establish both 
significant and insignificant permit revision guidelines suitable to 
the operation of the State program. We find that Oklahoma's rule at OAC 
460:20-17-3(a) meets the requirements of this Federal regulation, and 
we are approving it.
    B. OAC 460:20-17-3(b) Application requirements and procedures. 
Oklahoma is removing the existing provisions in Section 460:20-17-3(b), 
and adding the following new provisions:

    (b) Application requirements and procedures. A permittee is 
required to submit any permit revision applications to the Chief of 
Technical Services for review. The Technical Service review shall 
determine:
    (1) Whether the permittee has provided all technical and public 
notice requirement information the Department deems necessary to 
adequately evaluate and find that the revision meets the 
requirements of the statutes and of this Chapter; and
    (2) Whether the revision application contains any deficiencies. 
The Department is required to send written notification to the 
permittee of any deficiencies along with a response date deadline 
for answering the deficiencies noted. Any deadline extension 
requests shall be in writing and are subject to the approval of the 
Chief of Technical Services. Failure of the permittee to file 
written responses within the required time frames, will result in 
the denial of the revision application.

    The Federal regulation at 30 CFR 774.13(b)(2) requires the 
regulatory authority to establish guidelines for the scale or extent of 
revisions for which all the permit application requirements will apply. 
The Federal regulations provide flexibility to the regulatory authority 
to establish guidelines suitable to the operation of the State program. 
We find that Oklahoma's rule at OAC 460:20-17-3(b) meets the 
requirement of the Federal regulation, and we are approving it.
    C. OAC 460:20-17-3(c) Significant revisions. Oklahoma is moving the 
existing provision in Section 460:20-17-3(c) to new Section 460:20-17-
3(f), and is adding the following provision to Section OAC 460:20-17-
3(c):

    (c) A significant revision to the mining or reclamation plan 
will be subject to the permit application information requirements 
and procedures of this Subchapter, including notice, public 
participation, and notice of decision requirements of Sections 
460:20-15-5, 460:20-15-8(b)(1) and (3), and 460:20-23-9 prior to 
approval by the Department and implementation by the permittee.

    The Federal regulation at 30 CFR 774.13(b)(2) requires all permit 
application information requirements and procedures of Subchapter G, 
including notice, public participation, and notice of decision 
requirements of 30 CFR 773.13, 773.19(b)(1) and (3), and 778.21 to 
apply at a minimum to significant permit revisions. We find that 
Oklahoma's rule at OAC 460:20-17-3(c) contains the same requirements 
for significant permit revisions, and therefore, is no less effective 
than the Federal regulation.
    D. OAC 460:20-17-3(d) Departmental consideration. Oklahoma is 
moving the existing provision in Section 460:20-17-3(d) to new Section 
460:20-17-3(g), and is adding the following new provisions to Section 
OAC 460:20-17-3(d):

    (d) Departmental consideration. The Department will consider any 
proposed revision to be significant if its implementation could 
reasonably be expected, in the opinion of the Director, to result in 
any adverse impact to persons, property, or the environment outside 
the permit area. Revisions with impacts confined to the permit area 
will be evaluated on a case by case basis to determine if 
significant. While consideration will be given to the size, 
location, type and extent of impact in classifying a revision, the 
following will typically be considered significant:
    (1) Incidental boundary changes;
    (2) Hydrology plan changes which could have adverse impacts 
outside the permit acres, such as:
    (A) The addition or relocation of permanent impoundments;
    (B) The addition, deletion, or relocation of stream diversions; 
and
    (C) The addition or deletion of acid mine drainage treatment 
facilities;
    (3) The addition of a coal wash plant;
    (4) The addition of or changes to a non coal waste storage plan;
    (5) Construction or relocation of county roads;
    (6) Addition of blasting plans;
    (7) Postmining land use changes to residential, industrial or 
commercial (except for changes involving oil and gas wells and

[[Page 23607]]

private roads), recreation, or developed water resources as 
discussed 460:20-27-14(a)(2);
    (8) Changes impacting historical or cultural areas, high value 
wildlife habitat, and parks and public places;
    (9) Permanent changes which could have a limiting or adverse 
effect on the long term future of the land; and
    (10) Other changes deemed significant by the Director which 
affect the landowner and or the public.

    The Federal regulation at 30 CFR 774.13(b)(2) requires the 
regulatory authority to establish guidelines for the scale or extent of 
revisions for which all the permit application requirements will apply. 
The Federal regulations provide flexibility to the regulatory authority 
to establish permit revision guidelines suitable to the operation of 
the State program. We find that Oklahoma's rule at OAC 460:20-17-3(d) 
meets the requirement of this Federal regulation, and we are approving 
it.
    E. OAC 460:20-17-3(e) Minor revisions. Oklahoma is adding the 
following new provisions at OAC 460:20-17-3(e):

    (e) Minor revisions. The following revisions are typically 
considered minor revisions:
    (1) Changes to pond designs;
    (2) Addition or deletion of dewatering pipes on ponds;
    (3) Addition, deletion or changes to office facilities, 
explosive storage areas, temporary haul roads, and coal pads;
    (4) Changes to surface and groundwater monitoring plans;
    (5) Vegetation changes;
    (6) Change of operator without a change of permittee; and
    (7) Conversion to incremental bonding or change to bond 
increments, pursuant to the requirements of Subchapter 37 of this 
Chapter.

    The Federal regulation at 30 CFR 774.13(b)(2) requires the 
regulatory authority to establish guidelines for the scale or extent of 
revisions for which all the permit application requirements will apply. 
It allows flexibility to the regulatory authority to establish both 
significant and insignificant permit revision guidelines suitable to 
the operation of the State program. We find that Oklahoma's rule at OAC 
460:20-17-3(e) meets the requirements of this Federal regulation, and 
we are approving it.
    F. OAC 460:20-17-3(h) Application decisions. Oklahoma is adding the 
following new provision at Section 460:20-17-3(h):

    (h) The Department will make a decision of approval or denial of 
a revision application within six months of receipt of the 
application unless the application, or some aspect of the 
application, is under technical, administrative or judicial review.

    The Federal regulation at 30 CFR 774.13(b)(1) requires a regulatory 
authority to establish a time period within which he or she will 
approve or disapprove an application for a permit revision. The Federal 
regulation provides flexibility to the regulatory authority in 
establishing time periods suitable to operation of the State program. 
We find that Oklahoma's rule at OAC 460:20-17-3(h) meets the 
requirements of the Federal regulation, and we are approving it.

IV. Summary and Disposition of Comments

Federal Agency Comments

    On February 5, 2001, under section 503(b) of SMCRA and 30 CFR 
732.17(h)(11)(i) of the Federal regulations, we requested comments from 
various Federal agencies with an actual or potential interest in the 
Oklahoma amendment (Administrative Record No. OK-990.01). The U. S. 
Army Corps of Engineers responded on March 2, 2001 (Administrative 
Record No. OK-990.02), that the proposed amendment was satisfactory to 
the agency.

Environmental Protection Agency (EPA)

    Under 30 CFR 732.17(h)(11)(ii), we are required to obtain the 
written concurrence of the EPA for those provisions of the program 
amendment that relate to air or water quality standards issued 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 for its 
concurrence.
    Under 30 CFR 732.17(h)(11)(i), we requested comments on the 
amendment from the EPA (Administrative Record No. OK-990.01). 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 February 5, 2001, we requested comments on Oklahoma's 
amendment (Administrative Record No. OK-990.01), but neither responded 
to our request.

Public Comments

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

V. Director's Decision

    Based on the above findings, we approve the amendment as sent to us 
by Oklahoma on January 25, 2001.
    We approve the rules that Oklahoma proposed with the provision that 
they be promulgated 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--Regulatory Planning and Review

    This rule is exempted from review by the Office of Management and 
Budget (OMB) under Executive Order 12866.

Executive Order 12630--Takings

    This rule does not have takings implications. This determination is 
based on the analysis performed for the counterpart Federal regulation.

Executive Order 13132--Federalism

    This rule does not have federalism implications. SMCRA delineates 
the roles of the Federal and State governments with regard to the 
regulation of surface coal mining and reclamation operations. One of 
the purposes of SMCRA is to ``establish a nationwide program to protect 
society and the environment from the adverse effects of surface coal 
mining operations.'' Section 503(a)(1) of SMCRA requires that State 
laws regulating surface coal mining and reclamation operations be ``in 
accordance with'' the requirements of SMCRA, and section 503(a)(7) 
requires that State programs contain rules and regulations ``consistent 
with'' regulations issued by the Secretary under SMCRA.

Executive Order 12988--Civil Justice Reform

    The Department of the Interior has conducted the reviews required 
by section 3 of Executive Order 12988 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

[[Page 23608]]

programs and program amendments since each program is drafted and 
promulgated 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 proposed State regulatory programs and 
program amendments submitted by the States 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

    Section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides a decision on 
a proposed State regulatory program provision does not constitute major 
Federal action within the meaning of section 102(2)(C) of the National 
Environmental Policy Act (42 U.S.C. 4332(2)(C)). A determination has 
been made that such decisions are categorically excluded from the NEPA 
process (516 DM 8.4.A).

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 
counterpart 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 promulgated 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 counterpart Federal regulations.

Small Business Regulatory Enforcement Fairness Act

    This rule is not a major rule under 5 U.S.C. 804(2), the Small 
Business Regulatory Enforcement Fairness Act. This rule:
    a. Does not have an annual effect on the economy of $100 million.
    b. Will not cause a major increase in costs or prices for 
consumers, individual industries, federal, state, or local government 
agencies, or geographic regions.
    c. Does not have significant adverse effects on competition, 
employment, investment, productivity, innovation, or the ability of 
U.S. based enterprises to compete with foreign-based enterprises.
    This determination is based upon the fact that the State submittal 
which is the subject of this rule is based upon counterpart Federal 
regulations for which an analysis was prepared and a determination made 
that the Federal regulation was not considered a major rule.

Unfunded Mandates

    This rule will not impose a cost of $100 million or more in any 
given year on any governmental entity or the private sector.

List of Subjects in 30 CFR Part 936

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: April 25, 2001.
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            Date of final  publication             Citation/description
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                             *        *        *        *        *        *        *
January 25, 2001.........................  May 9, 2001.............................  OCA 460:20-17-3.
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[FR Doc. 01-11634 Filed 5-8-01; 8:45 am]
BILLING CODE 4310-05-P


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