[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:
[email protected].
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]
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